North Canberra Community Council v ACT Planning and Land Authority & Anor (Administrative Review)
[2014] ACAT 47
•28 July 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NORTH CANBERRA COMMUNITY COUNCIL v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2014] ACAT 47
AT 13/69
Catchwords: ADMINISTRATIVE REVIEW – review of decision to remove concessional status of lease – Ministerial consideration of whether it is in public interest to consider application – Minister does not decide that it is in the public interest to remove concessional status –– decision to approve deconcessionalisation a matter for ACT PLA – valuation has little bearing on decision – value of surveys of club members and residents – assessment of social cultural and economic impact – deficiencies in assessment – Minister’s decision not reviewable by tribunal – no power to review antecedent decision – proposal consistent with relevant codes and entity advice – consideration of section 120 matters – no reason to refuse deconcessionalisation
Legislation:Planning and Development Act 2007
ss 7(1)(f), 50, 119, 120, 131B, 139(2)(l), 139(2)(g), 148, 260A, 261, 263, 276, 407
Land (Planning and Environment) Act 2005 (Repealed) s 159A
Planning and Development Act 2007 (Repealed) s 261
Planning and Development (Environmental Impact Statements) Amendment Act 2010 (Repealed)
Subordinate
Legislation:Planning and Development (Consideration of Public Interest) Decision 2013 (No.5) NI 2013-313
Territory Plan NI 2008-27, parts 4.1, 4.2 & 10.1
Planning and Development Regulation 2008, r 26
ACT Public Service Code of Ethics (2010), ACT Chief Minister’s Department,
Public Sector Management (ACT Public Service Code of Conduct) 2013 NI 2013-588
Cases:North Canberra Community Council v ACT Planning and Land Authority [2014] ACAT 1
Canberra District Rugby League Football Club v ACT Planning & Land Authority [2010] ACAT 3
Taglietti & Ors v ACT Heritage Council [2011] ACAT 14
Foster and Civil aviation Safety Authority [1997] AATA 369
ACT Planning and Land Authority v Temple [2014 ACT SC 32
ACT Rural Landholder & Ors v ACT Planning and Land Authority [2014] ACAT 22
Texts/Papers: Supplementary Explanatory Statement, Planning and Development Bill 2006, 21 August 2007
Social Impact Guidelines (February 2011) ACT Planning and Land Authority
Standing Committee on Planning, Environment and Territory and Municipal Services. Report No 2 (September 2013)
Braddon Neighbourhood Plan
ACT Community Facility Needs Assessment
Canberra Seniors Centre Newsletter
Tribunal: Dr D. McMichael – Senior Member (Presiding)
Mr G. Trickett – Senior Member
Date of Orders: 28 July 2014
Date of Reasons for Decision: 28 July 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 13/69
BETWEEN:
NORTH CANBERRA
COMMUNITY COUNCIL
Applicant
AND:
ACT PLANNING AND
LAND AUTHORITY
Respondent
AND:
CANBERRA DISTRICT RUGBY LEAGUE FOOTBALL CLUB LTD
Party Joined
TRIBUNAL: Dr D. McMichael – Senior Member (Presiding)
Mr G. Trickett – Senior MemberDATE:28 July 2014
ORDER
- The decision under review is confirmed.
………………………………..
Ms L. Crebbin – General President
For and on behalf of
Dr D. McMichael – Senior Member
For the Tribunal
REASONS FOR DECISION
Introduction
1.The North Canberra Community Council Inc (“the NCCC” or “the applicant”) has sought review of a decision of the ACT Planning and Land Authority (“the authority” or “the respondent”) to vary the lease of Block 5 Section 30 Braddon (“the subject land”) to remove its concessional status (”deconcessionalise”) in response to Development Application (the “DA”) 201323500. Variation of a lease is included within the definition of “development” - see section 7(1) (f) of the Planning and Development Act 2007 (“the Planning Act”)
2.The decision was made on 24 July 2013 by Ms Maggie Chapman, Senior Manager, Lease Administration, of the respondent and was subject to conditions, including that the lessee should pay a payout amount that would be determined under section 263 of the Planning Act and would surrender the existing lease and accept a new Crown lease which would be noted as a Market Value lease. Prior to making its decision, the authority referred the proposal to the Minister as required by section 261 of the Planning Act. The Minister decided that it was in the public interest for the authority to consider the application and his decision was published in Notifiable Instrument NI 2013-313.
3.The NCCC is an incorporated community council established on 18 September 2001. It is one of a number of not-for-profit community councils that have been established to serve the interests of citizens within certain localities in the ACT and is supported financially by the ACT Chief Minister and Treasury Directorate and the respondent. In interlocutory proceedings, the tribunal determined that the applicant was an “eligible entity” under Item 1, Column 4, Schedule 1 of the Planning Act and was entitled to seek review of the decision. [1]
[1] North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Limited (Administrative Review) [2014] ACAT 1
4.The Canberra District Rugby League Football Club Ltd, the lessee of the subject land, was joined as a party to the proceedings. (“The CDRLFC” or “the party joined”).The CDRLFC is the majority shareholder in the Canberra Raiders though they are separate companies with different boards of directors.
5.The subject land has an area of 8,206m2 and is a roughly triangular block fronting Donaldson Street to the south-east, Torrens Street to the west and Cooyong Street to the south. It is directly opposite the Canberra CBD.
Background
6.The subject land was originally part of Block 1 Section 30 and was developed in the 1920s as a cricket oval known as Northbourne Oval. In 1979, Block 1 was leased to the ACT Rugby League Inc. In the 1980s an arrangement was made to transfer the lease of the land to the ACT Leagues Club Ltd but the transfer became the subject of litigation. The details are set out in a decision of the tribunal concerning the concessional status of the lease. [2] A club-house and car park were developed in the southern corner of the block, known as the Braddon Club
[2] Canberra District Rugby League Football Club Limited & ACT Planning and Land Authority (Administrative Review) [2010] ACAT 3 at [5] – [13]
7.Block 1 was subdivided into Blocks 5 and 6 and in September 1998, Block 5 containing the club-house and car park, was leased for 99 years to the ACT Leagues Club Ltd, while block 6 containing the Northbourne Oval was leased to the CDRLFC. In 2006, the lease of Block 5 was transferred to the CDRLFC. In June 2013, the CDRLFC closed the Braddon Club “for financial reasons” and its poker machines were transferred to the Raiders Gungahlin club site.
8.The Purpose Clause in the lease of Block 5 requires the land to be used
only for the purposes of a Club with ancillary auditorium and office uses; PROVIDED THAT the gross floor area shall not exceed 1900 square metres and that within that total the maximum gross floor area for the purposes of offices shall not exceed 450 square metres.
In addition, the lessee was required to provide and maintain an approved hardstanding carparking area.
9.In the earlier tribunal proceedings referred to above, it was confirmed that the lease of the subject land was a Concessional lease. The CDRLFC has plans to redevelop Block 5 as a mixed use development comprising residential apartments, commercial and retail space, shops and restaurants, with basement and surface car parking and landscaping of the areas adjacent to Northbourne Oval. In order for it to do so, the concessional status of the lease would have to be removed and the purpose clause varied to allow the development proposed. Proposals to vary the lease purpose clause and to undertake the proposed development are the subject of a separate Development Application DA201222949 which is currently under assessment.
10.The only matter before this Tribunal is the decision to remove the concessional status of the lease.
The Hearing
11.The matter was heard on 22 and 23 April 2014. After hearing the views of the parties, the Tribunal decided that an inspection of the subject land was unnecessary. The applicant was represented by five of its members, Mr Leon Arundell, Mr Greg Hoy, Ms Marianne Albury-Colless, Mr Geoff Davidson and Mr Mike Hettinger. They were not legally represented, but Mr Arundell and Ms Albury-Colless in particular, ably presented their case. The respondent was represented by Mr G. McCarthy of Counsel. The party joined was represented on the first day by Mr D. Martin and on the second day by Mr N. Tebbey both of Snedden Hall and Gallop Lawyers.
12.The Tribunal had before it the documents provided by the respondent relevant to the decision under review (“the T documents”) together with Statements of Facts and Contentions submitted by the parties and witness statements and other documents tendered in evidence during the hearing.
13.The applicant called no witnesses, relying instead on submissions by Mr Arundell and Ms Albury-Colless and on the cross examination of witnesses of the respondent and the party joined. Evidence for the respondent was given by Ms Susan Messer, Manager, Development Application (DA) Leasing of the authority who, as assessment officer, had prepared the decision documentation for the decision under review. Evidence for the party joined was given by Mr Robert Purdon, a full-time Director of Purdon Associates Pty Ltd (“Purdon Associates”) an urban planning consultancy established in Canberra in 1986. Mr Purdon was the principal author of the Social Impact Assessment (the “SIA”) that accompanied the DA.
Applicable Law
14.Removal of the concessional status of a Lease (“deconcessionalisation”) is governed by Division 9.4.2 of the Planning Act. Of particular significance in this case is section 261 which mandates that an application for deconcessionalisation must be referred to the Minister to determine whether it is in the public interest for the authority to consider the application. The other sections of this Division are about the conditions attaching to any approval, including the working out of the payout amount. While the quantum of the payout amount was the subject of submissions by the applicant at the hearing, it was not before the Tribunal for review as it has not yet been worked out.
15.Section 260A of the Planning Act provides that the concessional status of a lease may only be removed by a variation of the lease. Variation of a Crown lease is included in the definition of “development” in section 7(1)(f) of the Planning Act and is subject to the provisions of that Act relating to Development Approval, set out in Chapter 7. Section 131B applies to a development proposal that is a variation of a lease (other than a lease in a designated area, which this lease is not) and subsection 131B(2) states that such a development proposal must be dealt with under the provisions of the Planning Act applying to the merit track Of particular relevance in this case is Division 7.2.3 which sets out the rules for dealing with proposals that must be assessed in the merit track and in particular, section 120 which requires a decision maker dealing with a merit track application to consider a range of matters when deciding that application.
16.A relevant matter of law is the zoning of the subject land under the Territory Plan. In the pre-2008 version of the Territory Plan (“the Plan”) the whole of the former Block 1 was zoned as Restricted Access Recreation. However, in the 2008 version of the Plan, Block 5 was included in a CZ3 Zone which covered much of the adjacent area of Braddon to the west as far as the eastern side of Mort Street. CZ3 is a Services Zone and its Development Table permits a wide range of uses, including residential, commercial accommodation, non-retail commercial and carpark as well as club, outdoor recreation facility and parkland among many others.
The Issues
17.The applicants object to the removal of the concessional status of the lease over Block 5 mainly on the grounds that there is already an insufficiency of community facilities in the Braddon area and that alternative uses for the subject land should have been considered that would be compatible with retaining its concessional status. They considered that the SIA prepared by Purdon Associates did not adequately address the impacts that would arise if the land was no longer used for a club or for some alternative community use such as a park or children’s playground. The applicants were also concerned that the change of zoning had not been subject to adequate public consultation.
18.The respondent’s position was that the Minister had decided that removal of the concessional status was in the public interest and was not subject to review. However, removal of the concessional status did not change the purpose clause of the lease which remained limited to use as a club with associated parking facilities. Any change to the purpose clause would require a further DA as would any redevelopment proposal, both of which would have to be consistent with the Territory Plan and in particular with the zoning provisions applying to the subject land.
Operation of section 261
19.It is convenient to deal first with the respondent’s view about the operation of section 261 of the Planning Act. Concessional leases have been a feature of Canberra’s land leasing system since the very beginning of the city. Following self government, they were not initially recognised as a separate category of lease in the Land (Planning and Environment) Act 1991, but by amendment of that Act in 2005 [3] they were defined in section 159A as:
concessional lease—
(a)means a lease granted for a consideration less than the full market value of the lease, or for no consideration, if neither of the following payments has been made to the Territory:
(i)an amount in relation to the grant of the lease that is equal to the lease’s market value at the time of payment or, if the amount is paid in parts, at the time of the last payment;
(ii)an amount to reduce the rent payable under the lease to a nominal rent under section 186 (Variation of lease to pay out rent)…
[3] Land (Planning and Environment) Amendment Act 2005 (Repealed)
However, no special provisions were made at that time for the removal of the concessional status of leases.
20.The passage of the Planning Act in 2007 saw the introduction of Part 9.4 of the Act devoted to concessional leases which has since been amended on a number of occasions. Division 9.4.2 is headed “Varying concessional leases to remove concessional status”. It includes section 260A which provides that the concessional status of a lease can only be removed by variation of the lease and section 261, which is headed “No decision on application unless considered in public interest”. Subsection 261(1) reads:
(1) the planning and land authority, or the Minister, must not decide a development application to which this part applies under section162 (Deciding development applications) unless the Minister decides whether it is in the public interest to consider the application.
21.Subsection 261(2) sets out a number of matters that the Minister must consider but these have changed over time and it is instructive to consider their evolution. In the first version [4] of the Planning Act, there were four such matters as follows:
(a) whether the Territory wishes to continue to monitor the use and operation of the lease by requiring consent before the lease is dealt with;
(b) whether approving the application would cause any disadvantage to the community;
(c) whether the application to vary the lease to make it a market value lease is, or is likely to be, part of a larger development and, if so, what that development will involve;
(d) whether the Territory should buy back, or otherwise acquire, the lease.
[4] Planning and Development Act 2007 (Repealed) (A2007-24) (27 September 2007)
Additionally, such a proposal was assessable under the impact track pursuant to Schedule 4, Part 4.3 Item 11 and an Environmental Impact Statement (“EIS”) was required to be prepared.
22.A Supplementary Explanatory Statement [5] that accompanied the Bill containing these provisions stated that the new clause 253 (section 261 in the Act as passed) “makes a new provision that the authority or the Minister must not decide a development application to vary a lease to remove its concessional status unless the Minister decides whether it is in the public interest to do so” but then goes on to say that new sub clause (2) “sets out what the Minister must consider in deciding whether it is in the public interest to consider the application” (emphasis added).
[5] Government Amendments to the Planning and Development Bill 2006 - Supplementary Explanatory Statement Circulated by the authority of Andrew Barr MLA Minister for Planning (21 August 2007).
23.However, amendments were made to these provisions in 2010 [6] which moved assessment of a proposal to deconcessionalise a lease from the impact track to the merit track while the need for an EIS was replaced by an assessment of the social, cultural and economic impacts of the proposal that was required to be prepared in connection with the application. Some changes (in bold below) were also made to the matters that the Minister must consider, which then (and now) read:
(a) whether the Territory wishes to continue to monitor the use and operation of the lease by requiring consent before the lease is dealt with;
(b) whether approving the application would cause any disadvantage to the community taking into account potential uses of the leased land that are consistent with the territory plan, whether or not those uses are authorised by the lease;
(c) whether the application to vary the lease to make it a market value lease is, or is likely to be, part of a larger development and, if so, what that development will involve;
(d) whether the Territory should buy back, or otherwise acquire, the lease;
(e) whether the Territory wishes to encourage the continued use of the land for an authorised use under the lease by retaining the concessional status of the lease.
[6] Planning and Development (Environmental Impact Statements) Amendment Act 2010 (Repealed)(A2010-56)
Whatever the Minister decides, the decision is required to be published as a Notifiable Instrument to that effect and is not subject to review.
24.It seems clear to the Tribunal that the evolution of these provisions demonstrates that successive governments considered that concessional leases were valued by the community and that they should not be varied to remove their concessional status without careful consideration, including consideration of any possible or proposed alternative uses of the land. The main purpose of section 261 is to give the Minister an opportunity to consider whether there are good reasons not to allow the authority to even consider an application to deconcessionalise a lease.
25.The wording of the Act as passed does not indicate that the Minister may decide that it is in the public interest to remove the concessional status of the lease. At most, it can be said that subsection 261 (2) (b) requires the Minister to decide that there is no obvious disadvantage to the community if the application is approved.
26.In the Tribunal’s opinion and contrary to the submissions of Mr McCarthy, in agreeing to allow the authority to consider the proposal, the Minister is making no judgement that it is in the public interest to allow the deconcessionalisation, only that there is no compelling public interest in stopping it. It then becomes a matter for the authority to decide, having regard inter alia to the provisions of section 120. We will now turn to consideration of the applicant’s submissions and the respondent’s submissions in reply.
Applicant’s submissions and Respondent’s submission in response
27.The applicant’s submissions rested on a number of points which may be summarised as:
(a)The adequacy of the valuation of the land provided by the party joined as part of its DA;
(b)The adequacy of surveys conducted by the party joined and by the applicant regarding options for use of the subject land;
(c)The adequacy of the social, cultural and economic impact assessment made by Purdon Associates for the party joined (the SIA) as required by section 139(2)(l) of the Planning Act;
(d)The apparent absence of any recent “community facilities needs assessment” as recommended by the Standing Committee on Planning, Environment and Territory and Municipal Services in its 2013 report no 2 on the Cooyong Street urban renewal area;
(e)Whether the Minister had been properly informed when making his decision under section 261; and
(f)Whether the failure of the authority to correct its advice to the Minister constituted a breach of the ACT Public Service Code of Conduct and the Code of Ethics.
28.As a result of these perceived deficiencies, the applicants proposed that the matter be referred back to the authority for reconsideration. We consider these matters and the submissions made about them by the respondent in reply seriatim below.
Issue 1 - The adequacy of the valuation of the land provided by the party joined as part of its DA
29.Because under section 276 of the Planning Act, variation of a lease to remove its concessional status is a ”chargeable variation”, section 139(2)(g) of the Planning Act requires that an application for such a variation must be accompanied by a valuation by an accredited valuer that works out the amounts represented by V1 and V2 in section 277. Further, guidelines [7] issued by the authority for the preparation of the SIA required under section 139(2)(l) for an application to deconcessionalise a lease include, under the heading “5. Reasons for deconcessionalisation” a requirement for
a valuation certificate that shows:
- a development application that proposes changing or adding a use - the change of use value
- the value of improvements
- the payout figure.
[7] ACT Planning and Land Authority, Social impact assessment guidelines (February 2011)
30.A valuation report was prepared on 12 December 2012 by Mr Robert Rixon, a Certified Practising Valuer of Colliers International Consultancy and Valuation Pty Ltd, which showed the Current Market Value, the Market Value at date of grant, and the Concessional Lease payout amount. Purdon Associates lodged the DA on behalf of the party joined on 27 March 2013 and attached to it was a one page summary of Mr Rixon’s findings, including his estimates of (current) Market Value ($620,000), Original Value ($570,000) and Concessional Payout Amount ($315,000). The full Valuation Report, which was available to the Tribunal, showed that “Original Value” was Mr Rixon’s estimate of the value at the date of grant of the lease to the CDRLFC on 30 September 1998.
31.The authority’s brief to the Minister on18 June 2013 pursuant to section 261, stated that this certificate had been received, but observed that “If approved, the Notice of Decision will be referred to the contract valuer for assessment of the current market value of the lease” and that “the amount which will be paid by the lessee will be calculated in accordance with the formula in the Act”.
32.Mr Arundell objected to Mr Rixon’s valuation on three grounds – first, that as Mr Paul Powderly, the State Chief Executive of Colliers was a member of the Board of the Canberra Raiders, he submitted that there was a conflict of interest in an employee of Colliers carrying out the valuation; second, that the valuation document contained some errors (including the misidentification of the zone which applied to the subject land) which made the valuation report unreliable; and third, that it was not prepared in accordance with the Australian and New Zealand Valuation and Property Standards 6th edition (Exhibit 3) as claimed. He also questioned whether the market value arrived at truly reflected the value of the land, particularly in relation to the income generated by paid parking. To that extent, he submitted, the Minister may not have been fully informed when making his decision under section 261. He contended that if the Minister had been provided with a more accurate figure of the value of the subject land he may have considered that it was worth the Territory buying it back.
33.In response, Mr McCarthy submitted that any errors in relation to the zoning that Mr Rixon may have made did not invalidate his valuation. He said that it was clear from the whole report that Mr Rixon was well aware that the subject land was in a CZ3 Zone. In any case, he drew attention to Ms Messer’s evidence that while Mr Rixon’s valuation had met the requirements of section 139(2)(g) of the Planning Act, it was not the valuation on which the authority would rely in deciding a payout figure, should the decision be to deconcessionalise the lease. Instead, they would seek an independent valuation by the contract valuer, the Australian Valuation Office (“AVO”) and work out the payout figure from that, according to the formula in section 263 of the Planning Act. He observed that any such decision would be reviewable by the tribunal.
34.Mr McCarthy further submitted that because the valuation in question was a matter considered by the Minister under section 261, it was not reviewable by this Tribunal. Being a decision made under an enactment it would only be reviewable under the Administrative Decisions (Judicial Review) Act 1989 (ACT).
Consideration by Tribunal of Issue 1
35.The Tribunal finds the whole question of the valuation provided by the applicant for de-concessionalisation puzzling. While such a valuation is required to be provided by section 139(2)(g) and by the authority’s guidelines for the preparation of SIAs, no attention seems to be paid to it, nor could anyone say with authority what purpose it served.
36.Ms Messer’s evidence was that the authority gave little weight to the valuation submitted with the application and only needed to be satisfied that it had been supplied in accordance with section 139(2)(g). She said that it played no part until the application was approved and even then was not relied upon because the authority would seek its own valuation. Ms Messer was unable to give any clear explanation of the purpose of advising the Minister of that valuation, other than to agree that it gave some indication of the likely value of the lease and the potential payout amount.
37.Ms Messer observed that if the Territory decided to acquire (buy back) the lease, it would need to be done under the Land Acquisition Act 1994 for a public purpose, and the Territory would have to pay for future development potential as well as any current market value. She also stated that the Territory had no intention of buying back this lease. When asked who would make such a decision, Ms Messer advised that it would be a political decision, but she noted that the subject land had been rezoned as CZ3 following public consultation in 2008 and she presumed that this was a considered decision by the Government at that time.
38.Having regard to these submissions and Ms Messer’s evidence, the Tribunal concludes that the valuation prepared by Mr Rixon has little bearing on the decision under review and rejects the applicant’s submission that any errors in it may have misled the Minister.
Issue 2 - The adequacy of surveys conducted by the party joined and by the applicant regarding options for use of the subject land
39.From 20 December 2013 until 19 January 2014 the applicants conducted a printed and on-line survey, about which they said some 5,500 people were informed. The survey sought views on five options for use of the subject land, including the redevelopment proposed by the party joined. After distribution of preferences, the survey indicated that a substantial majority of North Canberra residents and a small majority of Braddon residents who responded preferred “recreation” to “residential/commercial” as the future use.
40.At or about the same time, the party joined conducted a survey of the Raiders membership database to ascertain support for their redevelopment proposals and (unsurprisingly) almost all respondents supported their proposals. The applicants contended that the Raiders survey was based on incorrect information about the amount that the CDRLFC would have to pay for deconcessionalising the lease.
41.The applicants submitted that as the Raiders survey did not provide the recipients with sufficient information and received only 208 responses from its 3000 members, that survey should be given little weight. They rely on the decision of this tribunal in Taglietti & Ors & ACT Heritage Council[8] in which a petition about the heritage value of the Flynn Primary School was given little weight by that tribunal because it did not give sufficient information to those being asked to sign it. By contrast, they contended, their survey was less targeted than the Raiders, more widespread and a more representative sampling of the North Canberra Community and therefore it had more statistical validity.
[8] Taglietti and Ors & ACT Heritage Council (Administrative Review) [2011] ACAT 14
42.Mr McCarthy submitted that the Tribunal should have very little regard to either survey. He observed that both were taken from very small samples and the options put by the applicant were not sensible or realistic, especially as the Braddon Club had already been closed for six months. Furthermore, the surveys ultimately addressed a question of public interest – i.e. “What’s your view about what we should do with the land” - and that is a matter that the Act has reserved for the Minister to decide.
Consideration by Tribunal of Issue 2
43.The Tribunal agrees that the survey conducted by the applicants was better designed to elicit an informed response than that of the Raiders and better analysed, but we note that only 165 responses were received, which is a small proportion of the 5,500 persons to whom the survey was said to have been distributed.
44.We adopt a similar view to that of the tribunal in Taglietti, viz that we do not rely on either of the surveys except to the extent that they broadly convey the views of Raiders supporters on the one hand and some of the residents of the area on the other.
Issue 3 - The adequacy of the social, cultural and economic impact assessment made by Purdon Associates for the party joined (“the SIA”) as required by section 139(2)(l) of the Planning Act
45.Section 139(2) (l) of the Planning Act requires that an application to deconcessionalise a lease is accompanied by an assessment of the social, cultural and economic impacts of the proposed variation (generally abbreviated to Social Impact Assessment (“SIA”)) and any other matter prescribed by regulation. Mr McCarthy advised that no other matters had been so prescribed.
46.In February 2011 the authority issued its SIA guidelines [9] which set out in some detail the requirements for such an assessment. Mr McCarthy said that the guidelines, while not having statutory force, were nevertheless intended to assist in considering some of the issues that arise under section 261(2). He drew attention to the note at the end of section 261(2)((e) which states that the Minister must consider the material required under section 139(2)(l) and that the Minister’s attention had been drawn to this when the authority briefed him about the matter in relation to section 261(2).
[9] ACT Planning and Land Authority, see fn 7
47.Mr Purdon claimed to be the principal author of the SIA prepared for the party joined. The first version of it appears at T151 - T181. It is dated December 2011 on the title page, but December 2012 on the penultimate page. Section 9.0 of that version stated that “At this stage the Club has not advised Club members because of procedural matters, nor have other stakeholders been formally advised”. Its Conclusions however included the statement that “Relevant stakeholder groups have been contacted in respect of this proposal and will be further advised by public notification processes”.
48.Ms Messer’s evidence was that an earlier DA for this lease variation was withdrawn, but she thought that by that time the public consultation had been completed. Be that as it may, on 11 April 2013 the DA under review was lodged by Purdon Associates, accompanied by a revised version of the SIA which gave details of the public consultations that had by then occurred including an analysis of 27 issues raised in 16 submissions about the proposal. However, the Conclusions of the March 2013 SIA were identical to those of the December 2011 or 2012 version.
49.Ms Albury-Colless made submissions about the SIA on behalf of the applicants. She considered that it did not sufficiently take into account the likely population increase in North Canberra (relying on ACT Government forecasts) and the fact that it would be a relatively young cohort (median age 31) comprising children, adolescents, young adults to middle aged; a population that is active, requires recreational space, preferably situated locally. In addition, there would be a significant increase in the number of people working in the City. She considered these compelling reasons to protect areas that are ideally suited to be reserved as recreational space such as the subject land.
50.She also drew attention to the SIA Guidelines which read:
The SIA must demonstrate that the proposal is in the public interest…and must demonstrate
·how the proposal will benefit the community
·what benefits may no longer be available to the community and how this will be mitigated;
·how the lessee will benefit
51.Ms Albury-Colless submitted that the SIA did not actually demonstrate that the proposal was in the public interest, and could not do so without better analysis of the costs and benefits, both to the community and the lessee. She observed that an accurate valuation figure was important in assessing any public benefit that may accrue. She also considered that the SIA had not sufficiently considered the benefits that would no longer be available to the community and questioned Mr Purdon’s assessment that the proposed development would enhance social values and would have no adverse impacts on adjacent land (T178).
52.Another matter of concern to the applicants was that the SIA did not sufficiently address the impact of the proposal on social cohesion as required by the Guidelines. Although the topic was addressed by Mr Purdon, he had simply asserted that the deconcessionalisation would have no impact and that future development would add to social cohesion as a result of the mixed use development. He had also suggested that other licensed club facilities within short distances of the Braddon Club would facilitate continued social cohesion amongst Braddon Club members (T174). Ms Albury-Colless considered that this was taking a very narrow view and that there was no evidence of any consultation with other community groups, including the Aboriginal and multi-cultural communities.
53.Mr Arundell also expressed concern that the version of the SIA that had been sent to the Minister as Attachment 12 (T151) to the authority’s briefing in relation to section 261 was apparently the earlier version that did not contain details of any public consultation. He submitted that the Minister might have reached a different conclusion had he been provided with the second version submitted with the DA. He also suggested that the copy of the SIA submitted by the authority to the Social Infrastructure Panning Unit, Strategic City Planning and Design (“the SIPU”) on 12 April 2013 for comment may have been the earlier version. Because of these deficiencies, he submitted that the matter should be resubmitted to the Minister, or failing that, to the authority so that they could make a decision based on the correct information.
54.Ms Messer’s evidence was that, like the valuation statement, she had not herself assessed the SIA as she had no expertise in that area but had instead referred it to the SIPU for advice. She had only checked the application to ensure that the required documentation was attached. The SIPU had examined and briefly summarised the document and had concluded that they supported the proposed variation to remove the concessional status for Block 5 Section 30 Braddon (T182-T184).
55.Mr McCarthy submitted that although the first version of the SIA did not include information about public consultations, the second version did and that was provided to the Minister and on his reading of the advice from the SIPU, to them as well. In any case, the SIA essentially covered public interest issues which had been put to the Minister and he had made a decision about them, including in his reasons that he had considered the SIA. Consequently, the matter was not reviewable by the Tribunal.
Consideration by Tribunal of Issue 3
56.It is clear from section 3 of the Evaluation part of its advice that the SIPU were considering the second version of the SIA which included the community consultation results. It is also clear that the public consultation report was attached to the brief sent to the Minister as Attachment 8 (see T62).
57.Nevertheless, the Tribunal agrees with the applicants that the SIA does not adequately address the likely socio-cultural impacts if the subject land is deconcessionalised and the proposed development proceeds. In our opinion, little or no attention was paid to the submissions received during the public consultation process, even though the substantial majority were against the proposed redevelopment of the site (T347 – T351). Most were dismissed out of hand and no changes were made to Mr Purdon’s earlier Conclusions and Recommendations.
58.Nor are we persuaded that the SIPU’s evaluation of the SIA was adequate, having regard to the SIA guidelines. The evaluation appears to just paraphrase the material submitted by Mr Purdon. The guidelines make it clear that the SIA is “intended to demonstrate that it is in the public interest to deconcessionalise the lease” and that “it should explore the positives and negatives of all options to deliver the proposed outcomes…The SIA should explore the various ways that this will impact on the community”. It seems to this Tribunal that the authority has an obligation to give serious consideration to the substance of the SIA, given that it is a specific requirement of a deconcessionalisation application and that the Minister is required to consider it.
59.Despite our misgivings about its adequacy, we are not persuaded that these deficiencies in the SIA and the assessment of it would have misled the Minister in arriving at his decision under section 261(2) as he was provided with copies of the main written objections to the proposal as Attachment 15 to the authority’s briefing note and was assured that “the issues raised by the representations will be taken into consideration during the details assessment of the DA, if the Minister decides it is in the public interest to consider the application”.
Issue 4 - The apparent absence of any recent “community facilities needs assessment” as recommended by the Standing Committee on Planning, Environment and Territory and Municipal Services [10]
[10] Standing Committee on Planning, Environment and Territory and Municipal Services. Report No 2 (September 2013)
60.In September 2013 the ACT Legislative Assembly’s Standing Committee on Planning, Environment and Territory and Municipal Services released its Report No 2 on the Cooyong Street Urban Planning Area, which embraces the Allawah, Bega and Currong (ABC) Flats which are proposed for redevelopment. The Cooyong Street Urban Planning Area is immediately adjacent to the subject block on the other side of Donaldson Street.
61.Although the Report was not unanimous, opposition members dissenting, the Government members recommended that the Community Services Directorate conduct a Community Facilities Needs Assessment in response to evidence that the community facilities are insufficient for the area and level of population in the northern suburbs of Canberra. It noted submissions from the applicants in this case that affordable community facility space for small and mid-sized groups was very limited and that it was important that the proposal include provision of community facility space which would be available and affordable for smaller individual service providers.
62.The applicants drew attention to the fact that even though, in the Government’s Response to the report, such a Needs Assessment was said to be “Attachment E to the Planning Report – Community Facilities Assessment June 2010” it did not appear to be publicly available. Mr Purdon had asserted in his SIA that “this assessment has been done and the Club site is not required for community facilities, especially given the proposed rezoning of the ABC flats” but they questioned whether it had in fact been done. Ms Albury-Colless said that they could find no evidence of a report of a needs assessment other than that of the 2003 Braddon Neighbourhood Plan[11].
[11] ACT Planning and Land Authority, Braddon Neighbourhood Plan – A sustainable future for Braddon (2003) < at 9 June 2014
63.A Google search by the Tribunal found no recent report, but did locate a Draft Final Report of an ACT Community Facility Needs Assessment (Central Canberra, Belconnen & Gungahlin) prepared in May 2003 by Cupitt and Associates [12] which set out in detail the then current community facilities in north Canberra and made recommendations about addressing future needs, specifically for the different areas including Central Canberra.
[12] Leigh Cupitt and Associates, ACT Community Facility Needs Assessment (Central Canberra, Belconnen, & Gungahlin) (May 2003) < at 9 June 2014
64.Mr Purdon’s evidence was that he had been the principal author of a 2012 planning report for the ABC Flats in which they had identified issues related to population growth in North Canberra and the demand for additional community services and facilities. The report had identified a substantial amount of potential future community facility space which would be spread along Cooyong Street, which they considered to be an adequate response to the provision of additional community facility space in the city centre. He said that the proposals went well beyond the demand associated with the ABC flats and had been accepted by the government which had recently gazetted the Variation to the Territory Plan incorporating them.
65.Mr Purdon considered that there was a variety of open spaces in reasonable proximity to residential development in the city centre. He mentioned the lake foreshore, Mt Ainslie and the Ainslie School as areas of open space, and said that he considered that part of the open space experience was being able to walk the streets in safety. He saw no reason why the subject land should not be redeveloped for the proposed purposes at the same time as other ongoing studies about community and other needs proceed. He did not believe that this site was so strategically important from a community facilities point of view that development as proposed would detract from any of that.
66.Mr McCarthy noted that Mr Purdon, when giving evidence, had not been questioned about his assertion that a needs assessment had been done, but even if it had not, these are matters that go to the issues that the Minister had to consider under section 261(2) (b) and he had decided that approving the application for deconcessionalisatioon would not cause any disadvantage to the community. In his submission, the Minister’s decision effectively removed any requirement for a needs assessment in relation to the subject land.
Consideration by Tribunal of Issue 4
67.Cupitt and Associates 2003 Community Facility Needs Assessment expressed a general concern about the availability of sites for community use and observed that
It is important that the range of existing older structures, once they are surplus to their original use, be assessed as to their appropriateness for community organisation accommodation at community rental rates (non-profit organisations) or for small community profit organisations (at commercial rental rates). The latter might include small innovative independent schools, childcare and community arts.
In relation to the Central Canberra District it stated that
As space in the Civic area is at a premium, it is important that appropriate sites for community facilities are assured and remain flexible to changing requirements. Priority should be given to retaining those uses that meet local and metropolitan needs for community welfare, information services, arts and recreation activities
68.It is not clear to the Tribunal that any notice has ever been taken of the findings of the Cupitt report. Certainly, there is no indication in the documentation before us that consideration was given to whether the Braddon Club site should be made available to some other community group. Ms Albury-Colless stated that “at this very instant, we know that the Seniors Club (sic = The Canberra Seniors Centre) needs a new home” and Mr Arundell observed that the income of the Braddon Club from paid parking in the year ending October 2013 was $274,128 which would enable the Seniors Centre to pay off the lease if they were able to buy it from the CDRLFC. However, no evidence was adduced from the Canberra Seniors Centre as to whether they had any interest in acquiring the lease of the subject land (although the Centre’s June 2014 Newsletter confirms that they need new premises and are considering sites in Lyneham and Dickson). [13]
[13] Canberra Seniors Centre Newsletter (June 2014)< at 11 June 2014
69.Mr Arundell also contended that the nearest neighbourhood park was about 350 metres from the Braddon Club while the only playground within 400 metres was the Civic skate park which was fully concreted and across a dangerous road. He suggested that a park would fit comfortably in about a quarter of a hectare, which is about one third of the site, and a playground could be put in the corner of that. A large part of the site could still be redeveloped and the people who lived on the site would then have very good access to a park and a playground.
70.While this latter suggestion may have merit, the lease purpose clause would need to be varied to allow a mixed development along the lines Mr Arundell has suggested. It would be a matter to be considered when the purpose clause of the lease was sought to be varied to allow such a mixed development and that could only happen if the lease was deconcessionalised
71.The advice given to the Minister by the authority when seeking the Minister’s agreement to be allowed to consider the application was that a decision to deconcessionalise the lease would not in itself affect the lease purpose clause and would not impact on the use of the land for the current purpose. However, the advice made it clear that the authority considered that continued use of the land for the existing authorised use under the lease would not be in accordance with the Territory’s previous decisions to re-zone the subject block as CZ3 in the Territory Plan or with the Braddon Precinct Code, both of which support the Territory’s intentions for possible redevelopment of the site. The Tribunal notes that the Braddon Precinct Code contains a specific provision (Rule 20) governing the redevelopment of the subject block including a Building Envelope Diagram.
72.No consideration appears to have been given by the authority to any other course of action, other than to assert that “It is not anticipated that the Territory would require the site for a public purpose”.
73.The Tribunal concludes that there has been inadequate assessment of the need for community facilities for Central Canberra in recent years, especially when the anticipated increase in inner city population is taken into account. However, it is clear that the authority does not consider that the subject land needs to be retained as a concessional lease and that both the Territory Plan and the Braddon Precinct Code anticipate some form of redevelopment which requires removal of its concessional status.
74.The recently notified Reid Precinct Map and Code [14] confirms Mr Purdon’s evidence that the Government has accepted his proposals for a substantial area of community space in the re-development of the ABC Flats. Mandatory Rule 10 (b) of that Code specifies that a minimum GFA of 5,800m2 in total across the Cooyong Street urban renewal area of both the Braddon and Reid precinct codes is to be provided for community use while Rule 9 requires that this be at the ground floor level. We note that the area to be provided is some 2,406m2 less than the subject land and even though the subject land is not in any true sense presently available to the community (other than to those who pay for parking there), the net result will be a not insubstantial loss of community use land if the whole of the subject land is developed.
[14] Territory Plan NI 2008-27, Part 10.1
Issue 5 - Whether the Minister had been properly informed when making his decision under section 261
75.The applicants submitted that the authority’s briefing of the Minister when seeking his agreement to their consideration of the DA to remove the concessional status of the lease was deficient to the extent of being misleading. In addition to their concerns about the adequacy of the SIA, they were particularly concerned about the inclusion in the brief of the market valuation of $620,000 made by Mr Rixon that had accompanied the DA, which they considered to be based on incorrect information. They submitted that a correct valuation may have resulted in a lower cost to the Territory of acquiring the lease, which may have lead the Minister to consider buying it back and that once the lease was deconcessionalised and its purpose clause varied, the value of the lease would increase significantly and any chance of it being bought back by the Territory would be lost forever.
76.The applicants also considered that the authority’s advice to the Minister did not adequately reflect public opinion as to the desirable use of the subject land, nor did it present him with possible alternative uses of the site. For these reasons, they submitted the matter should be referred back to the Minister.
77.Mr McCarthy submitted that the Tribunal had no power to do so, as it would effectively be reviewing the Minister’s decision. It was not possible to know what information the Minister considered in arriving at his decision under section 261(2) save for that which was provided in the authority’s briefing. The Minister’s decision, which is recorded in Notifiable Instrument NI 2013-313, made it clear that he had considered all the matters that he was required to consider under that section, including the SIA, and had decided that there was no public interest in preventing the authority from considering the application.
Consideration by Tribunal of Issue 5
78.We have looked carefully at the authority’s advice to the Minister under section 261 but do not consider that it was in any way misleading, although in the Tribunal’s opinion it may have been more helpful to the Minister if it had contained a fuller exposition of some of the issues. We have set out above our view that the Minister did have available to him details of the public consultations undertaken by Purdon Associates which would have given him an indication of the opinions of those who responded as to the future use of the subject land. It is true that the authority did not provide the Minister with any options as to alternative uses but he would have been able to glean those from the representations attached to the brief.
79.The authority’s advice regarding the value of the land was in no way misleading. It made clear that the valuation of $620,000 was “indicative” of market value, not a payout amount, and that should the application DA be approved, an independent market valuation would be obtained from the contract valuer (the AVO) and that the payout amount would be calculated according to the formula in the Act. It would be wrong to suggest that the Minister was not aware of the fact that the payout figure would be different from the market value and that somehow his judgement about purchasing the lease was affected by the inclusion of the amount of the earlier valuation.
Issue 6 - Whether the failure of the authority to correct its advice to the Minister constituted a breach of the ACT Public Service Code of Conduct and the Code of Ethics.
80.Mr Arundell submitted that the officers of the authority were bound by the ACT Public Service Code of Ethics [15] and Code of Conduct [16] and that the Tribunal, standing in the shoes of the decision maker, should also be bound by them. He contended that the authority had given incomplete or inaccurate advice to the Minister and that, when this came to their attention, the Code required them to “take all reasonable steps to check that the information upon which decisions or actions are made is factually correct and that all relevant data are considered.”
[15] ACT Public Service Code of Ethics (2010) Chief Minister’s Department
[16] Public Sector Management (ACT Public Service) Code of Conduct (December 2013) Commissioner for Public Administration (NI 20133 - 588
81.The matters which Mr Arundell submitted were factually incorrect in the authority’s advice to the Minister were the valuation, the social impact assessment information and a list of possible alternative uses for the site. In his submission, the matter should be referred back to the Minister for reconsideration or alternatively referred back to the authority to make a decision based on the correct information.
82.Mr McCarthy reiterated that this was not an issue into which the Tribunal should venture because it was not relevant to the Tribunal’s role in considering the decision under review but rather related to the decision of the Minister under section 261, which was not reviewable.
Consideration by Tribunal of Issue 6
83.There is no substance in the applicant’s submission. The Tribunal, in its decision making, is not bound by the ACT Public Service Code of Ethics or the Code of Conduct, even if they were applicable to the respondent in this case. Out task is to review the authority’s decision to approve the removal of the concessional status of the lease in the light of the evidence presented to us and that evidence includes any additional facts that may have come to light to during the intervening period (such as the evidence derived from the applicant’s and the party joined’s surveys).
84.We have no mandate to refer the matter back to the Minister since that would constitute a review by the Tribunal of his decision. A decision by the Minister under section 261(2) is not a reviewable decision. Section 407 of the Planning Act defines a “reviewable decision’ as one that is mentioned in Schedule 1 Column 2 of that Act made by a decision maker. Decisions taken under section 261 are not mentioned in Schedule 1 Column 2, nor is the Minister identified in section 407 as a “decision maker”.
85.The case law is quite clear that a merits review tribunal has no power to review an antecedent decision. Mr McCarthy drew attention to two cases in particular, the first of which was Re Foster and Civil Aviation Safety Authority[17] where Deputy President Mc Donald held that “where the tribunal is granted power to review particular decisions it cannot review a decision that indirectly affects, or is somehow related to, a reviewable decision”. The second case was ACT Planning and Land Authority v Temple, [18] in which Acting Justice Nield found that the tribunal had erred by not confining its decision and orders to the matter under review (the decision of the authority not to make a controlled activity order in relation to a building) but had also addressed perceived deficiencies in the original Development Application.
[17] Re Foster and Civil Aviation Safety Authority [1997] AATA 369 at [16]
[18] ACT Planning and Land Authority v Temple [2014] ACTSC 32
86.Mr Tebbey made some general submissions on behalf of the party joined towards the end of the hearing. He endorsed Mr McCarthy’s submissions, adding only that the party joined had, in his submission, complied with all the legislative requirements set out in the Act. He defended Purdon Associates as being suitably qualified to prepare the SIA and observed that the applicant had the opportunity to engage in the public consultations both pre- and post- lodgement of the DA. It did so, and its submissions were considered at that time. There was no proof that any shortfalls in the SIA made it incompatible with the legislation or inadmissible and therefore something that the respondent should not have relied upon.
Review of Authority’s Decision
87.We now turn to the matters that the authority was required to consider when dealing with the DA seeking deconcessionalisation following receipt of the Minister’s decision that it was in the public interest to consider the application. Section 50 of the Planning Act provides that a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the Plan. Mr McCarthy pointed out that there is nothing in the Plan that addresses the question of whether a concessional lease status may be removed from a Crown lease. Hence a decision to deconcessionalise this lease would not be inconsistent with the Plan. We agree that this is so.
88.Section 260A (1) of the Planning Act provides that the concessional status of a lease can be removed only by a variation of the lease, while section 131B (2) provides that this lease variation is to be dealt with under the provisions that apply to the merit track. The provisions applying to proposals in the merit track are set out in Division 7.3.2 of the Planning Act, and the relevant sections in this case are sections 119 and 120.
89.Section 119 requires the decision maker to be satisfied that the proposal is consistent with the relevant code and any advice of the conservator of flora and fauna or any advice received from an entity to which the proposal was referred under Division 7.3.3 of the Planning Act.
90.The relevant codes for the subject land are the Commercial Zones Development Code, the CZ3 Services Zone Code and the Braddon Precinct Code[19]. The Commercial Zones Development Code makes no reference to deconcessionalisation, but contains a set of Rules and Criteria relating to a range of Elements, most of which are directed at built structures. However, Element 2 – Use - contains rule R2 which states that “A development proposal does not reduce the range of recreation facilities available” while criterion C2 states that “A proposal that reduces the range of community or recreation facilities available demonstrates through a social impact assessment that there is enough land or sufficient other facilities in the locality to meet anticipated demand”.
[19] Territory Plan (NI 2008-27), Part 4.1 (CZ3 Services Zone) Part 4.2 (Commercial Zones Development Code) and Part 10.1 (Suburb Precinct Maps & Codes)
91.Proposals in the merit track must comply with a Rule or its associated Criterion. In this case, the proposed deconessionalisation does not have any direct affect on the range of community or recreation facilities although the proposed redevelopment of the site seems likely to do. This Rule and Criterion will become relevant when the proposal to vary the lease purpose clause and to redevelop the site is being considered.
92.The Commercial Zones Development Code also contains Element 7 – Environment- and sub-element 7.4 – Heritage – contains rule R32 which is mandatory and for which there is no applicable criterion. R32 states that “This rule applies to places or objects registered or provisionally registered under section 41 of the Heritage Act 2004. The authority shall refer a development to the Heritage Council” and an accompanying note provides that “The authority will consider any advice from the Heritage Council before determining the application.”
93.The CZ3 Services Zone Code includes a set of Zone Objectives and a Development Table which specifies the level of assessment required for various development proposals, as well as a list of those developments which are prohibited. Nothing in the CZ3 Zone objectives or the Development Table is inconsistent with deconcessionalisation of this lease. Similarly, the Braddon Precinct Code, which specifies a range of matters relevant to the development of the precinct (which includes the subject land), contains nothing with which deconcessionalisation of the lease would be inconsistent.
94.Under Division 7.3.3, section 148 provides that certain development applications prescribed by regulation must be referred to entities prescribed by regulation. Regulation 26(1) of the Planning and Development Regulation 2008 prescribes a number of entities for impact track proposals, but for merit track proposals regulation 26(2) only prescribes the conservator of flora and fauna in certain circumstances and the custodian in relation to unleased or public land, neither of which apply to the subject land. However, regulation 26(3) provides that “If the territory plan requires a development application to be referred to an entity, the entity is prescribed”. Consequently the Heritage Council is a prescribed entity.
95.Ms Messer advised that the DA was referred to Heritage ACT for comment as an entity referral, because the subject land is on the heritage register as part of the Northbourne Oval listing. Northbourne Oval was entered on the Register in 2004, but the entry, which covers both blocks 5 and 6, section 30, Braddon, does not refer to the rezoning of block 5 as CZ3 Services Zone which occurred in 2008. The Register Entry identifies only the sports oval and the perimeter planting of mature Monterey pines as features intrinsic to the heritage significance of the place. The advice from the Heritage Council was that the proposed development (i.e. the deconcessionalisaton) was unlikely to detrimentally impact on the heritage values of the place, but observed that “Council has not endorsed the proposed redevelopment at this stage” and that “At such time as a development application is received for physical works, the Heritage Council will consider the likely impacts of the built development on the heritage values of the site” (T185).
96.The Tribunal concludes that there are no grounds for refusing the DA under section 119.
97.Section 120 requires a decision maker to consider a range of matters when deciding a DA in the merit track. We deal with each of them in turn in the following paragraphs.
Section 120 (a) - the objectives of the zone in which the development is proposed to take place.
98.The objectives of the CZ3 Services Zone are:
(a) Provide for a range of conveniently located services and lower rent commercial activities
(b) Ensure that commercial development supports but does not undermine the function of the CZ1 Core Zone and the CZ2 Business Zone
(c) Accommodate retail uses or entertainment facilities requiring larger sites
(d) Encourage a mix of land uses which contribute to an active and diverse character
(e) Maintain and enhance environmental amenity and encourage a standard of urban design consistent with the function of the Zone
(f) Undertake developments using best practice environmentally sustainable development principles
99.Removal of the concessional status of the lease would not be inconsistent with any of these objectives. However, future development of the subject land that might be proposed following any change to the lease purpose clause would need to be carefully considered against them.
Section 120(b) - the suitability of the land where the development is proposed to take place for a development of the kind proposed
100.In an earlier decision [20] the tribunal has observed that where the “development” under review is a lease variation, it is necessary to consider the physical development that is proposed for the subject land in order to determine the suitability of the land for it. The proposed development is described briefly in the SIA prepared by Purdon Associates at section 3.2. It comprises residential apartments, commercial and retail space, shops and restaurants, basement and surface parking and landscaping including refurbishment of the verge areas adjacent to the Braddon (sic) Oval.
[20] ACT Rural Landholders Association and Ors v ACT Planning and Land Authority (Administrative Review) [2014] ACAT 22 at [65]
101.The Tribunal is satisfied that there is nothing about the land which would make it unsuitable for such a development
Section 120(c) - each representation received by the authority in relation to the application that has not been withdrawn
102.In seeking the Minister’s approval under section 261 to consider the DA, the authority attached copies of representations that had been received in response to the public notification of the proposal (T186 –T233) and advised the Minister that the issues raised in the representations would be taken into consideration during the detailed assessment of the DA.
103.Part 3 of the decision under review, which is headed Public Notification and Entity Advice, contains a summary listing of the main issues raised in the representations and includes the following comments:
The majority of the issues raised in the representations are not directly related to the proposal to remove the concessional status of the lease. The comments generally relate to the redevelopment of the site…
Deconcessionalisation of the Crown lease does not permit any additional development rights or any new building works on the site. A further development application for a lease variation and building works has been submitted and is under assessment.
The site was rezoned to CZ3 – Services Zone in 2008. The Territory has indicated that a commercial redevelopment of the site could be a desirable planning outcome as evidenced by the variation to the Territory Plan.
104.The Tribunal generally endorses these comments, but as noted above, feels that consideration should be given to the applicant’s suggestion that a portion of the subject land should be retained as a small park and/or playground when the lease variation and redevelopment proposal is decided.
Section 120 (d) - if an entity gave advice on the application in accordance with section 149 the entity’s advice
105.Advice was sought from both the Heritage Council and the SIPU but only the former is a prescribed entity for merit track assessments under section 148. Nevertheless, neither entity raised any objection to the proposal Indeed, the SIPU strongly supported the proposed redevelopment as being “in line with the ACT Planning Strategy’s urban infill targets, the provisions of the Territory Plan Commercial CZ3 Services Zone and the Braddon Precinct Code” and observed that “the proposal to remove the concessional status of the lease will enable the redevelopment of the site consistent with the provisions of the Braddon Precinct Code as a mixed use development”.
106.The Tribunal concludes that the decision under review has taken into consideration the entity advice received.
Section 120 (e) – If the proposed development relates to land that is public land – the plan of management for the land
107.As the subject land is not public land, section 120 (e) does not apply.
Section 120 (f) – the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts
108.The Notice of the decision under review made no reference to any consideration of this subsection, nor did Ms Messer. Mr McCarthy submitted that the requirements of this subsection had effectively been addressed in the SIA and the Minister had considered that in his decision under subsection 261(2). The relevant part is subsection 261(2) (b) which requires consideration of “whether approving the application would cause any disadvantage to the community taking into account potential uses of the leased land that are consistent with the territory plan, whether or not those uses are authorized by the lease”.
109.In the Minister’s reasons for his decision (dated 8 July 2013) he simply repeated the advice he had been given by the authority, viz
Re s261(2)(b) of the Act: the sites will continue to be zoned CZ3 – Services which facilitates a broad range of residential and commercial uses. Deconcessionalisation of the Crown lease does not impact on the purpose clause of the lease or the use of the site.
The Lessee currently operates a licensed club from the site. The proposed deconcesssionalisation of the Crown lease in itself will not impact on the continued use of the site for this purpose. Deconcessionalisation does not alter the lease purpose clause and does not approve any physical changes to the site.
The proposed redevelopment of the site will not contain a licensed club premises. However, there are other such facilities in close proximity to the site which provide similar services to that of the existing Braddon Club. In addition, if approved, the proposed redevelopment will make provision for other forms of indoor entertainment.
(As it happens, the Braddon Club was closed by the CDRLFC about one month prior to the Minister giving the above reasons for decision.)
110.The Tribunal does not accept that the SIA is sufficient to satisfy the requirements of section 120(f) – for example it does not attempt to address probable environmental impacts - but agrees that the deconcessionalisation of the lease does not, in itself, have any particular social or environmental impact. Any such impacts will arise only if the lease purpose clause is varied and a redevelopment proposal subsequently approved.
Conclusions
111.In summary, the Tribunal, having considered the matters specified under sections 119 and 120, concludes that there are no reasons to refuse the deconcessionalisation of the Crown lease, but recognises that there may well be matters that will need to be considered when the application to vary the lease purpose clause is made, and again when a redevelopment proposal is being assessed.
112.The Tribunal considers that the process set out in the legislation for deconcessionalisation of a Crown lease may not be working as well as was intended. As we stated, the intention of the provisions in section 261 is clearly to ensure that concessional leases do not have their status removed without careful consideration at ministerial level. Under these circumstances, one would expect that from time to time applications for deconcessionalisation would be refused in the public interest.
113.However, an examination of the matters that have been considered under these provisions (all of which are reflected in the Notifiable Instruments required by section 261(4)) reveals that all thirteen of them have been approved for further consideration by the authority. Most have involved concessional leases to clubs of one kind or another and in no case has the authority suggested to the Minister that there would be any public interest grounds for refusing the application. This may well reflect the circumstances of each such application, but the authority seems to have adopted a formulaic approach, since all the Minister’s reasons are couched in roughly similar terms, based no doubt on drafts provided by the authority (as in the present case).
114.If the provisions of section 261 are to be taken seriously, one would expect each such matter to be carefully analysed, especially with regard to the matters to be considered under sections 261(2)(b) and 261(2)(e).
115.Be that as it may, in this case we are satisfied that the deconcessionalisation of this lease will not, in itself, disadvantage the community especially as the Braddon Club has been closed for about one year.
116.For the reasons set out above the decision under review is therefore confirmed.
………………………………..
Ms L. Crebbin – General President
For and on behalf of
Dr D. McMichael – Senior Member
For the Tribunal
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