North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Limited (Administrative Review)
[2014] ACAT 1
•10 January 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NORTH CANBERRA COMMUNITY COUNCIL v ACT PLANNING AND LAND AUTHORITY & CANBERRA DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED (Administrative Review) [2014] ACAT 1
AT 69 of 2013
Catchwords: ADMINISTRATIVE REVIEW – planning and development –
concessional lease – application to de-concessionalise lease – whether
North Canberra Community Council (the Council) has standing to apply
for review of decision to de-concessional lease – whether the Council is likely to suffer material detriment in relation to land because of decision: whether decision relates to a matter included in the Council’s objects or purposes – interpretation of the objects or purposes of entity – interpretation of the words “relate to”: need to look at the terms of decision and their ramifications – relationship must be real and genuine – whether the Council has special interest in the proceedings beyond that of an ordinary citizen
Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 11, 22Q
Administrative Decisions Judicial Review Act 1989, ss 3B (repealed), 5
Administrative Appeals Tribunal Act 1989 (ACT) (repealed), s 25
Administrative Appeals Tribunal Act 1975 (Cth), s 27
Planning and Development Act 2007, ss 7, 138AE, 139, 156, 162, 234, 235A, 235B, 260A, 261, 265, 266, 408, 419 and Schedule 1
Subordinate
Legislation: Planning and Development Regulation 2008, s 20A
Planning and Development (Consideration of Public Interest)
Decision 2013 (No. 5) – Notifiable Instrument NI2013-313
Territory Plan 2008Community and Recreation Facilities Location Guidelines General Code, s 3.2
Cases: Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable
Development and Ors [2013] ACTCA 51Kingston Manuka Holdings Pty Ltd and Commissioner for Land and
Planning [1998] ACTAAT 232North Coast Environmental Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74
Re Gay Solidarity Group v Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289
ReIsland Voice and Great Barrier Reef Marine Park Authority v Magnetic Keys Ltd [1990] AATA 41
ReMarine World Victoria Limited v Minister of Arts, Heritage and the Environment [1986] AATA 203
Trustees of the Roman Catholic Church for the Diocese of Canberra & Goulburn and ACT Heritage Council [2012] ACAT 81
Texts/Papers: Explanatory Statement for the Planning and Development Bill 2006
Legislative Assembly for the ACT: Hansard (23 August 2007)
Encyclopaedic Australian Legal Dictionary (LexisNexis)
Oxford English Dictionary
Webpage: align="left">Tribunal: Professor P. Spender - Presidential Member
Date of Orders: 10 January 2014
Date of Reasons for Decision: 10 January 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 69 of 2013
BETWEEN:
NORTH CANBERRA COMMUNITY COUNCIL
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
CANBERRA DISTRICT RUGBY LEAGUE
FOOTBALL CLUB LIMITED
Party Joined
TRIBUNAL: Professor P. Spender - Presidential Member
DATE:10 January 2014
ORDER
The Tribunal Orders that:
The respondent’s application for interim orders filed on 28 October 2013 is dismissed.
2. The application for review is to be listed for further directions at a time and date to be advised by the Tribunal.
..................………………………………..
Professor P. Spender - Presidential Member
REASONS FOR DECISION
The following reasons for decision explain why the Tribunal has concluded that the applicant has standing to bring the application for review filed on 22 August 2013.
Essentially, the Tribunal has concluded that the applicant has suffered material detriment pursuant to section 419(1)(b) of the Planning and Development Act 2007 (the Planning Act), and therefore satisfies the “eligible entity” requirements in Item 4, Column 4, Schedule 1 of the Planning Act in order to bring proceedings in the tribunal.
In the reasons below, a reference to “ACAT” or “tribunal”, refers to the ACT Civil and Administrative Tribunal generally, whereas “Tribunal” refers to the current member.
BACKGROUND
On 24 July 2013, a delegate of the respondent (ACT Planning and Land Authority or ACTPLA) approved a development application to remove the concessional status of the Crown Lease over Block 5 Section 30 Braddon (the Site), subject to conditions (the Decision). The Decision was made pursuant to section 162 of the Planning Act. The Site comprises an area of 8206m², fronting Donaldson and Torrens Streets in Braddon on the boundary of Canberra City. A licensed club facility (known as the Braddon Club) with surface parking previously operated on the Site.[1] To the north, the Site adjoins a rugby league oval with grandstand facilities, known as Braddon Oval.
[1] T321
By an application to the tribunal dated 22 August 2013 the applicant (North Canberra Community Council or NCCC) sought review of the Decision. The current lessee of the Site is the Canberra District Rugby League Football Club Ltd. The lessee made an application to be joined as a party to the proceedings and an order joining the lessee was made on 5 September 2013. The lessee will be referred to hereafter as “the party joined”.
The Site was originally part of a larger grant made in 1979 to the Australian Capital Territory Rugby League Incorporated. A lease of the Site was granted on 30 September 1998.[2] Rent for the Site was expressed to be 5c per annum if and when demanded.[3] In 2010, the party joined made an application to the respondent for a determination regarding the concessional status of the lease of the Site under section 256 of the Planning Act. On 25 January 2011, the tribunal confirmed the decision of the respondent that the lease of the Site is concessional. [4]
[2] T363
[3] T365
[4] Canberra District Rugby League Football Club Limited v ACT Planning and Land Authority [2010] ACAT 3
In a process that began in December 2012, the party joined sought to vary the lease to remove its concessional status. This involved making a development application for a lease variation, including a proposal to de-concessionalise the lease (the lease DA), in relation to the Site.[5] The lease variation would affect a removal of the concessional status to allow the party joined to redevelop the Site as described in the design and siting development application (the design and siting DA)[6] lodged concurrently with the lease variation DA.[7] The design and siting DA showed a proposed re-development comprising a mixed use development of the Site which includes residential apartments, commercial and retail space, shops and restaurants, basement and surface parking and landscaping, including a refurbishment of the verge areas adjacent to Braddon Oval.[8]
[5] DA No. 201323500 (T012)
[6] DA No. 201222949 (T102-T115)
[7] DA No. 201222951 (T355)
[8] T159
The application to vary the lease was approved on conditions on 24 July 2013.[9] The conditions were that the lessee pay the payout amount as determined under section 263 of the Planning Act, the existing lease be surrendered and re-granted and the new lease be registered.
[9] T012
The Decision changes the lease over the Site from a concessional lease (as defined in section 235A of the Planning Act) to a market value lease (as defined in sections 234 and 235B of the Planning Act). The effect of the Decision is that the lease will no longer be governed under the Part 9.4 of the Planning Act which regulates concessional leases and, in particular, will no longer subject to the restrictions on dealings with the concessional lease under sections 265-266 of the Planning Act.
10. Certain requirements are required to be followed under the Planning Act before a lease can be de-concessionalised, including a requirement that it is in the public interest to consider the development application to de-concessionalise the Crown lease. These provisions are set out and discussed below.
11. The Tribunal documents establish that a brief was sent to the Minister on 18 June 2013 with a recommendation that it was in the public interest for the development application seeking to remove the concessional status of the lease be considered and for the respondent to assess and determine that development application.[10] This was approved by the Minister for the Environment and Sustainable Development on 8 July 2013.[11] The consideration of the public interest is set out in Notifiable Instrument NI2013-313 entitled Planning and Development (Consideration of Public Interest) Decision 2013 (No. 5) (the Notifiable Instrument).[12] A social impact assessment dated March 2013 had been filed with the original development application[13] and the Notifiable Instrument stated that the Minister had considered the social impact assessment as required under section 139(2)(l) of the Planning Act.[14]
[10] T060
[11] T066
[12] T076
[13] T318
[14] T079
12. The lease variation DA was also accompanied by a document entitled “Pre DA Lodgement Community Consultation Written Advice” and this document contained the following pro forma information:[15]
[15] T354
I hereby certify that the following community consultation was undertaken prior to the lodgement of the development application: ...
□ MEETING WITH COMMUNITY COUNCIL
Date & Time ________________
Location_________________
13. As stated above, by an application to the tribunal dated 22 August 2013, the NCCC sought review of the Decision. The NCCC is an incorporated community council established on 18 September 2001.[16] It is one of a number of not-for-profit community councils that have been formed to serve the interests of citizens within certain localities in the ACT. There are community councils for the Belconnen, Gungahlin, North Canberra, Inner South Canberra, Tuggeranong, Weston Creek and Woden Valley districts. The North Canberra area is described on the web page of the NCCC as follows:
North Canberra, also known as the Inner North, is a district of Canberra, ... comprising 15 suburbs (excluding Duntroon) with 19,115 dwellings housing 42,113 people of the 324,034 people in the Australian Capital Territory … (2006 Census).
North Canberra is located to the north and east of Canberra’s City, to the north of Lake Burley Griffin and west of Mount Majura and south of Mount Ainslie, and is bounded to the north by the Barton Highway and Federal Highway.[17]
[16] Constitution of the NCCC filed 8 November 2013
[17] The Constitution of the NCCC states that its objects are as follows:
3. Objects
The aim of the Council is to protect, promote and enhance the economic, cultural, social and environmental well being of the North Canberra resident community by pursuing the following objectives:(a) Fostering a community identity and providing a local forum for voicing issues of concern to the community;
(b) Promoting the interests of the North Canberra resident community and:(i) Ensuring that legislators and officials are fully informed of resident community needs and expectations; and
(ii) Ensuring that party politics do not impede or override community wishes;(c) Identifying, fostering and assisting residents’ community groups and establishing and maintaining a close liaison amongst them;
(d) Identifying other community groups and establishing liaisons with them in mutual interests and the interests of the resident community.
(e) Contributing to the physical and social planning of North Canberra and Canberra as a whole;
(f) Valuing and fostering the diversity of the North Canberra community;
(g) Ensuring that the interests of all residents’ groups in North Canberra are properly represented; and
(h) Informing the community about issues concerning North Canberra.15. The proceedings in the tribunal were commenced after a motion was carried at the NCCC meeting held on 21 August 2013. The minutes of this meeting state as follows:
Motion carried for NCCC to put in an application in response to the proposal by the Canberra Raiders to de-concessionalise the lease of Block 5 Section 30 i.e. the Braddon Club and car park.[18]
[18] Filed 20 December 2013
16. At the directions hearings held on 11 September 2013 and 11 October 2013, the respondent challenged the standing of the applicant to bring the application for review of the decision in the tribunal. On 28 October 2013, the respondent filed an application seeking orders that the application be dismissed for want of standing. Following the filing of facts and contentions and submissions by the respondent and the applicant, an interlocutory hearing was held on 27 November 2013. Further submissions were filed after the hearing, on 4 and 11 December 2013.
17. The preliminary issue is whether the NCCC has standing to bring an application for review of the Decision. In order to have standing, the NCCC will need to establish that it complies with the requirements of sections 408 and 419 together with Item 4, Column 4, Schedule 1 of the Planning Act. These provisions are explained below.
THE LEGAL FRAMEWORK
18. When a development application has been lodged, section 162 of the Planning Act states that the respondent must approve, refuse or approve the development application subject to a condition.
19. “Development” is defined in section 7 of the Planning Act to include:
...
(1) (f) varying a lease relating to the land (other than a variation thatreduces the rent payable to a nominal rent);
...
20. The discussion of this provision in the Explanatory Statement for the Planning and Development Bill expressly referred to concessional leases.[19]
Clause 7 defines development as more than just a construction activity or a building. It is also … varying a lease, including concessional leases
[19] Explanatory Statement for the Planning and Development Bill 2006, page 13
21. The meaning of the term “concessional lease” is set out in section 235A of the Planning Act
235A Meaning of concessional lease—Act
(1) In this Act:
concessional lease—
(a) means a lease—
(i) granted for a consideration less than the full market value
of the lease, whether paid as a lump sum or payable as
rent, or for no consideration; …
22. The concessional status of a lease may only be removed by a variation of the lease[20] and the respondent or the Minister must not decide a development application which involves the removal of the concessional status of a lease unless Minister decides that it is in the public interest to consider the application. The Minister must consider a number of factors in deciding whether it is in the public interest to consider the relevant development application. The requirements are set out in section 261 of the Planning Act as follows:
[20] Section 260A Planning and Development Act 2007
261 No decision on application unless consideration in public
interest
(1) The planning and land authority, or Minister, must not decide a
development application to which this part applies under section 162
(Deciding development applications) unless the Minister decides
whether it is in the public interest to consider the application.
(2) In deciding whether it is in the public interest to consider the
development application, the Minister must consider the following:
(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.
Note The Minister must consider the material required under s 139(2)(l).
23. The Planning Act imposes restrictions upon dealings with a concessional lease without the written consent of the planning and land authority.[21] The consent of the planning and land authority may only be given in specified circumstances.[22]
[21] Section 265 Planning and Development Act 2007
[22] Section 266 Planning and Development Act 2007
24. Section 139(2)(l) of the Planning Act requires that the application to de-concessionalise the lease to be accompanied by an assessment of:
(i) the social, cultural and economic impacts of the proposed
variation; and
(ii) any other matter prescribed by regulation ... .
25. Pursuant to section 408 of the Planning Act, an eligible entity for a reviewable decision may apply to the ACAT for review of the decision. Schedule 1 sets out the requirements for eligible entity status for each of the reviewable decisions. In this case, Item 4 states that relevant reviewable decision is a decision under section 162 to approve a development application in the merit track whether subject to a condition or otherwise, if the application was required to be publicly notified. The requirements for eligible entity status are that:
(a) the entity made a representation under s 156 about the development proposal …; and
(b) the approval of the development application may cause the entity to suffer material detriment
26. There is no dispute that the applicant made a representation about the development proposal. The issue for determination in the present proceedings is whether the development application may cause the applicant to suffer material detriment.
27. The meaning of “material detriment” is set out in section 419 of the Planning Act. The relevant portion states as follows:
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.28. Both the applicant and the respondent agreed that previous cases decided under section 27(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provide useful guidance to the Tribunal in deciding whether the applicant had standing under section 419(1)(b) of the Planning Act. This provision states as follows:
27 Persons who may apply to Tribunal
(1) Where this Act or any other enactment ... provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons ... whose interests are affected by the decision. ...
(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.
29. The Administrative Appeals Tribunal Act 1989 (ACT) (repealed) (the ACT AAT Act) was the predecessor to the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Section 25(2) of the ACT AAT Act, was, in relevant respects, identical to section 27(2) of the AAT Act. Although this provision is reproduced in section 22Q(2) of the ACAT Act, in this case section 419(1)(b) of the Planning Act applies because section 11 of the ACAT Act states that a right under an authorising law to make an application to the tribunal is subject to any condition stated in the authorising law, therefore the condition stated in section 419(1)(b) of the Planning Act would override section 22Q of the ACAT Act.
30. However, in its submissions dated 4 December 2013, the respondent argued that the relevant words in section 419(1)(b) of the Planning Act appear in identical terms in section 22Q(2) of the ACAT Act and section 27(2) of the AAT Act and are used in the same way and for the same purpose in those sections, therefore it follows that these words in each of these three legislative provisions should be read and understood in a consistent manner. The Tribunal concurs with these submissions.
ISSUE FOR DETERMINATION
31. The primary issue for consideration is whether the applicant has standing to continue with the application for review of the Decision because it has suffered a material detriment under section 419 of the Planning Act and is therefore an eligible entity under Item 4, Column 4, Schedule 1 and consequently may apply to ACAT under section 408 of the Planning Act. The applicant will have suffered material detriment if the Decision relates to a matter included in its objects or purposes due to the operation of section 419(1)(b) of the Planning Act.
THE PARTIES’ SUBMISSIONS
The Applicant’s Submissions
32. The applicant relied upon the entirety of clause 3 of its Constitution noting its responsibility in that provision “to protect, promote and enhance the … social and environmental well being of the North Canberra resident community ...”. The applicant argued that this includes the well-being of current and future residents near the Site. The applicant’s objects involve the use of land for community and social purposes that benefit the community. These interests include the current and potential uses of the Site for beneficial community purposes. Previously the Site’s uses have included sport, recreation and a licensed club and it has other potential uses including residential, commercial or community uses.
33. By way of example, the applicant pointed to access to playgrounds when considering the potential uses of the Site. The Community and Recreation Facilities Location Guidelines General Code states in section 3.2 that “ACT City Operations aims for residential areas to be within 400 metres of local parks with playground facilities”.[23] The only playground within 400 metres of the Site is the fully concreted Civic Skate Park. There is another playground that is a further 400 metres away at Glebe Park. However, playgrounds at Corroboree Park and Hackett Gardens are more than a kilometre away.
[23] Section 3.2 Community and Recreation Facilities Location Guidelines General Code, Territory Plan
34. The applicant argued that the purpose of concessional leases is to ensure that certain community and/or recreational facilities are provided for the community and submitted that while the lease is concessional the lessee, or anyone else with an interest in the lease, must not deal with the lease without the written consent of the Planning and Land Authority. The applicant contended that the decision to de‑concessionalise the lease removes a level of protection relied upon by the community, namely, the ability of government to ensure that community and social facilities are provided for the benefit of the community. Further, while the lease remains concessional there is a reasonable prospect that the party joined will either transfer the lease to an entity that intends to continue to use it for its current purposes as a social club, or surrender the lease in return for compensation. Surrendering the lease would enable the government to use the land for park, club, recreation or community purposes. Therefore, the applicant argued that removal of the concessional status would affect the “social and environmental well-being of the North Canberra resident community” and “the interests of the North Canberra resident community” as well as the “physical and social planning of North Canberra”, that is, matters that are included in its objects and purposes.
35. The applicant also contended that, as a peak representative body for North Canberra, it would have the opportunity to provide a voice for the residents of North Canberra regarding the physical and social planning of the Site and to obtain the greatest benefit from the use of this significant block.
36. In addition to the arguments regarding section 419(1)(b) of the Planning Act, the applicant claimed that it has a special interest in the proceedings beyond that of an ordinary citizen. The applicant asserted that the special interest is evidenced by a Deed of Grant with the ACT Chief Minister and Treasury Directorate that requires the applicant to communicate to the ACT Government the views, expectations and concerns of community members. The present Deed of Grant operates from 1 July 2013 and the funded activities are as follows:
1. communicate to the ACT government the views, expectations and concerns of community members;
2. encourage the community to participate in community Council activities; and
3. hold community meetings …[24]
[24] Deed of Grant between the Australian Capital Territory and the North Canberra Community Council dated 9 April 2013, filed 8 November 2013
37. Although the Deed of Grant does not require the applicant to lodge an application to ACAT, the applicant contended that it needs to adopt a holistic view when assessing its obligations under the Deed. Further evidence of the special interest was said to be the requirement under the Planning Act that lessees who wish to remove the concessional status of a lease must consult with the community, including the community councils,[25] and the fact that the relevant application form has a box that can be checked if there has been consultation with a Community Council.
[25] Section 138AE Planning and Development Act 2007; and
Section 20A Planning And Development Regulation 2008
38. In rebuttal of the respondent’s arguments that the NCCC application is premature, the applicant argued that there is a logical connection between the party joined’s development applications; one to remove the concessional status and the other to undertake a physical development, and therefore it is not premature.
The Respondent’s Submissions
39. The respondent relied upon previous case law to submit that whether a decision that an entity wishes to challenge “relates to a matter included in the entity’s objects or purposes” is a question of fact to which “careful attention” must be paid.[26]
40. Mr McCarthy, on behalf of the respondent, stated in the hearing that it was necessary for the applicant to establish that it has “a direct, deliberate, purposeful interest that is referable back to a close reading of the objects or purposes”.[27]
[27] Transcript 27 November 2013 at page 16.20-22
41. The respondent argued that the objects of the NCCC under its Constitution would, on the NCCC’s construction, provide an interest that is indistinguishable from the interests of the public at large.[28]
[28] Respondent's Submissions dated 28 October 2013 at [12]
42. Although the respondent placed weight upon the heading of section 419 of the Planning Act, i.e. “material detriment”, in its written submissions filed prior to the hearing, this point was not elaborated in the hearing. The respondent was given an opportunity to make further submissions on the point but did not do so in the submissions filed on 4 December 2013.
43. The respondent argued that the effect of the Decision was insignificant and, in particular, that it did not concern an issue relating to the physical or social planning of North Canberra. The respondent argued that the NCCC’s application was premature because the de-concessionalisation did not alter the lease purpose clause and does not approve any physical changes to the Site. The only difference is that the lease changes from a concessional to a market value lease. It is only when the design and siting DA is approved that any physical or social planning changes will occur. The approval of the subsequent development application would require a further reviewable decision. The applicant may seek to exercise rights of appeal to ACAT at that stage.
44. This point was elaborated in the respondent’s submissions filed on 4 December 2013 as follows:
14. The effect of the change (ie the decision) is that the lease and dealings in the lease will no longer be governed under Part 9.4, Concessional leases, of the P&D Act, and in particular no longer subject to the restrictions on dealings with the concessional leases under ss 265-266. However, the operational provisions of the lease are unchanged. ...
15. If the lessee (whether that be the existing lessee or a transferee lessee) wished to change the lease purpose clause or to demolish an existing building (noting that is a kind of "development" per s 7(1)(a) of the P&D Act) or to build a new building or structure, and approval was refused or was given on conditions or otherwise, it would need planning approval under s 162 of the P&D Act to do so.
16. In these circumstances, a future decision to approve a change of the lease purpose clause or to demolish an existing building or to build a new building would be reviewable by the Tribunal and the NCCC might have standing to seek review of it, depending on the decision, but the decision currently under review has no effect on the physical or social planning of North Canberra, that being the “object” in the NCCC’s constitution upon which it relies for standing.[29]
CONSIDERATION
The Legislative Provisions
[29] Respondent's Submissions dated 4 December 2013 at [14] – [16]
45. As discussed above, section 419(1)(b) of the Planning Act effectively reproduces section 27(2) of the AAT Act. The Administrative Appeals Tribunal (the AAT) in Re Island Voice and Greater Barrier Marine Park Authority and Magnetic Keys Limited[30] (Island Voice) referred to section 27(2) of the AAT Act as a “deeming provision”.[31] This means that an organisation or association is taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association. This obviates the need to independently establish any “special interest” on the general law test.[32]
[30] [1990] AATA 41
[31] [1990] AATA 41 at [37]
[32] See the discussion in Trustees of the Roman Catholic Church for the Diocese of Canberra & Goulburn and ACT Heritage Council [2012] ACAT 81
46. The only relevant difference between section 419(1)(b) of the Planning Act and section 27(2) of the AAT Act is the heading, “material detriment”. As stated above, the respondent did not press the submission that the heading imported additional requirements to those set out in section 27(2) and accepted the proposition that Island Voice case applied in this particular circumstance and, therefore, section 419(1)(b) may also be regarded as a deeming provision, because an entity is defined as suffering material detriment if the decision relates to a matter included in the entity’s objects or purposes.
47.
The respondent also argued in submissions filed before the hearing that
section 419(1) had a conjunctive operation between subsections 419(1)(a) and 419(1)(b). This submission was abandoned at the hearing, properly so in the Tribunal’s opinion, because the Explanatory Statement for the Planning and Development Bill 2006 clearly states that the two limbs of section 419(1) are intended to operate disjunctively.[33] Therefore, the question of standing is to be decided entirely by the question of whether the decision relates to a matter included in the NCCC’s objects and purposes.
[33] Revised Explanatory Statement, Planning and Development Bill 2006 (as presented 21 August 2007), pages 72 and 74 (discussion of clause 411)
48. The relevant case law demonstrates that the courts have interpreted this provision as having a wide operation. This is discussed in more detail below.
49. This wide interpretation was contemplated by ACT Legislative Assembly when the Planning Act was passed in 2007. In the Legislative Assembly Mr Seselja stated on 23 August 2007 as follows:
... the definition of “material detriment” as it relates to organisations essentially allows any organisation to gain a standing through its terms of reference or its articles of association, which is a matter of concern. Essentially, groups would be set up specifically to have a standing in development applications and development appeals.
That could apply to existing groups that have broad terms of reference such as Canberrans for better planning, Canberrans against development, or residents against multi-unit developments. The kinds of groups that could be set up would be mind boggling. It is of concern to me that these kinds of groups could be allowed to stifle and frustrate development for no legitimate purpose.[34]
[34] Legislative Assembly for the ACT: Week 7, Hansard (23 August 2007) at page 2036
50. Mr Seselja therefore proposed an amendment to the Planning Act. However, this amendment was defeated.[35] Speaking against the amendment, the Minister for Planning, Mr Barr, stated:
The government will not be supporting this amendment. Clause 411 [now section 419] allows community groups or organisations to make an appeal in the AAT [now ACAT] if a decision to grant a development approval is relevant to the objects or purposes of the organisation. In this, the provision is essentially a continuation of the existing law. The ability for such community groups to appeal has not proved to be problematic to date. [36]
[35] Legislative Assembly for the ACT: Week 7, Hansard (23 August 2007) at page 2037
[36] Legislative Assembly for the ACT: Week 7, Hansard (23 August 2007) at page 2045
51. The “existing law” that the Minister for Planning referred to in this extract was section 25 of the ACT AAT Act. As stated above, section 25(2) of the ACT AAT Act was identical in relevant terms to section 419(1)(b) of the Planning Act. President Curtis in Kingston Manuka Holdings Pty Ltd and Commissioner for Land and Planning[37] discussed section 25(2) of the ACT AAT Act when refusing an application by the Turner Residents Association to be joined as a party in proceedings concerning a development in Braddon.
[37] [1998] ACTAAT 232
52. The Tribunal accepts the respondent’s contention that the test for standing in section 419(1)(b) of the Planning Act is intended to at least reach the standard that is set by a combination of section 25(2) of the ACT AAT Act and section 27(2) of the AAT Act. This requires the Tribunal to be satisfied that the decision relates to a matter included in the entity’s objects or purposes.
The Relevant Case Law
53. In Re Control Investments Pty Ltd and Australian Broadcasting Tribunal[38] (Control), Davies J stated that an association seeking to be joined as a party may rely upon section 27(2) of the AAT Act to demonstrate that it interests are affected by the decision. Moreover, “[i]n order to determine what interests are affected by the decisions, it is necessary to look to both the terms of the decisions and at the ramifications”.[39] However, in applying this provision, his Honour warned that “it is necessary to keep in mind that the words ‘relates to’ are words of wide but not unlimited operation”.[40]
[38] (1980) 3 ALD 74
[39] (1980) 3 ALD 74 at page 76
[40] (1980) 3 ALD 74 at page 80
54. In Control, various applications were made by incorporated and unincorporated bodies to be made parties to a proceeding before the AAT in which the News Group was seeking review of a decision by the Australian Broadcasting Tribunal to refuse to approve certain share transactions in News Group media companies. Applications were made by, inter alia, the Australian Labor Party, an unincorporated association called “Justice in Broadcasting”, the Australian Journalists Association and by an association called Rupert Public Interest Movement Inc. Justice Davies allowed each of the bodies, other than Rupert Public Interest Movement Inc, to have standing on the basis of their objects and purposes. For example, the “Justice in Broadcasting” applicant for standing relied upon its aim of “obtaining effective public access to the process of broadcasting”.[41] Davies J considered that the decision under review related to that specific matter in the constitution of the Justice in Broadcasting association. However, the objects of Rupert Public Interest Movement Inc were concerned with the process of decision making, not with the result of the particular decision under review.[42] His Honour considered that the objects of Rupert Public Interest Movement Inc were concerned with education and research directed to achieving responsiveness to the public interest, whereas the decision under review was concerned with the shareholding interests and network arrangements of the News Group. The connection between the two was too tenuous to say that the decisions relate to a matter within the objects of the association. His Honour continued, “the relationship must be a real or genuine one. It is not sufficient that some points of correlation can be found”.[43]
[41] Control at page 83
[42] Control at page 86
[43] Control at page 87
55. The Control case was followed in two cases that were discussed by the parties in the present proceedings i.e. Island Voice[44] and Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (Marine World).[45] Island World was discussed above. In Marine World, Deputy President Thompson of the AAT took a flexible approach to the standing issue but made an order requiring that the parties joined be represented jointly with some or all of the other parties joined. The respondent in the present proceedings also relied upon the Gay Solidarity Group and Minister for Immigration and Ethnic Affairs[46] (Gay Solidarity) where Gallop J, sitting as a Presidential Member of the AAT, found that the applicant had not demonstrated as a matter of fact that the decision to deport a person who had been convicted of an offence punishable by imprisonment for one year or longer, namely, buggery, was within the objects or purposes of the applicant, a gay solidarity group. His Honour’s decision appeared to turn upon a finding that the Minister had not discriminated in any way against the deportee as a homosexual,[47] although the respondent in the present case argued that the relevant “matter” in Gay Solidarity was the commission of a criminal offence.[48]
Does the Decision relate to a matter included in NCCC’s objects or purposes?
[44] Island Voice at [42]
[45] (1986) 10 ALD 262, [1986] AATA 203
[46] (1983) 5 ALD 289
[47] Gay Solidarity at page 292
[48] Gay Solidarity at page 292
56. Generally speaking, a concession is an agreement by a state to grant a special privilege, usually political or economic, which is not offered to the general population.[49] When applied to land or territory, a concession is usually understood to be a grant or lease of a small area of land or of premises for some specified purpose.[50]
[49] Encyclopaedic Australian Legal Dictionary (LexisNexis) – definition of “concession agreement”
[50] Oxford English Dictionary definition of “concession”
57. The operation of concessional leases is described in the material on the respondent’s webpage as follows:
Concessional leases
Concessional leases are leases that have been granted for less than market value … They allow Government to help provide core community and social facilities that benefit the community. For example a concessional lease might be granted to a church or community organisation. Concessional leases have also been offered as part of business incentive packages to help the economic growth and development of the Territory. …
58. The Tribunal agrees with the respondent’s submission that deciding whether a decision relates to a matter included in the entity’s objects or purposes is a question of fact to which careful attention must be paid.Applying the test adopted by Davies J in Control[51], it is necessary to look at both the terms of the decision and at its ramifications,[52] noting that the words “relates to” are words of wide but not unlimited operation.[53] Further, it must be established that “the relationship is a real or genuine one. It is not sufficient that some points of correlation can be found.”[54] This approach was followed in Marine World [55] and Island Voice. [56] The Gay Solidarity case is distinguishable on its facts and therefore it is unnecessary for the Tribunal to follow it.
[51] (1980) 3 ALD 74
[52] (1980) 3 ALD 74 at page 76
[53] Control at 80
[54] Control at page 87
[55] Marine World at pages 265 – 267
[56] Island Voice at [42] and [45]
59. The respondent emphasised that the decision is not related to the objects or purposes of the NCCC’s constitution because it is not a matter that relates to the physical or social planning of North Canberra. It is argued that there is no changing of a lease purpose clause or a demolition of an existing building so as to constitute “development” in section 7(1)(a) of the Planning Act and that any subsequent activity by the party joined would need planning approval under section 162 of the Planning Act. However, this argument ignores the other elements of the definition of “development” in section 7 of the Planning Act, in particular section 7(1)(f) which, in combination with the Explanatory Statement for the Planning and Development Bill, makes it clear that it the concept of “development” is more than design or construction activity and includes the activity of varying a concessional lease. Therefore, even a barebones interpretation of the Decision would classify it as a decision about development which may link it to the “physical or social planning of North Canberra” object in clause 3(e) of the NCCC Constitution.
60. More importantly, the decision to approve the development was one that was made under a combination of sections 139(2)(l), 162 and 261 of the Planning Act. The latter provision is particularly important because it states that the Minister must not allow a decision regarding a development application which involves the removal of concessional status to be made without considering whether it is in the public interest. Section 261(2) sets out the public interest requirement and subsection 261(2)(c) is particularly salient in the present case because it obliges the Minister to consider whether the application to vary the lease is part of a larger development and, if so, what that development will involve. This means that the design and siting DA was a directly relevant consideration for the Minister to take into account when deciding whether to consider the application to de-concessionalise the lease. Further, section 139(2)(l) requires the Minister to consider the social, cultural and economic impacts of the proposed variations.
61. The respondent argued that the relevant decisions should be taken in two stages and the decision presently under review is just an amendment to the lease without significant tangible changes to the Site. Although the Tribunal accepts the general proposition that sometimes an application to the tribunal might be premature for standing purposes, this argument cannot be accepted in the present case because the decision to de-concessionalise operates at a higher level of generality than changes to purpose clauses or the construction of buildings. Moreover, due to the operation of section 261, the subsequent development application (which may eventually bring about the physical changes) is contemplated by the Decision itself. In that respect, the decision to de-concessionalise is a much broader decision than many decisions that are made under section 162 of the Planning Act.
62. Thirdly, in this case the body that is seeking standing was clearly contemplated by relevant legislative provisions and the decision under review. As submitted by the applicant, the NCCC’s role is contemplated by the pre-DA material that is required to be lodged by those seeking to de-concessionalise leases and by the public consultation requirements of the Planning Act [57] and the Planning and Development Regulation.[58] This is related to the general aim of the NCCC which is set out in the opening words of clause 3 of its Constitution “to protect, promote and enhance the economic, cultural, social and environmental well being of the North Canberra resident community.”
[57] Section 138AE Planning and Development Act 2007
[58] Section 20A Planning and Development Regulation 2008
63. Clearly concessional leases are part of a matter - the physical and social planning of North Canberra - which is included in NCCC’s objects and purposes at clause 3(e). Bringing proceedings in the tribunal is related to this objective and also relates to clause 3(a) of NCCC’s objects because the applicant is voicing issues of concern to the community. Further, the fact that the role of community councils is contemplated by the legislation (in the provisions discussed in the preceding paragraph) demonstrates that the relationship between the decision and the objects of NCCC is a real or genuine one and it is not merely a matter of finding points of correlation.[59] The prior activities of the body seeking standing were also taken into account in Island Voice[60] and Marine World[61] and are relevant here too.
[59] Control at page 87
[60] Island Voice at [41]
[61] Marine World at [21]
64. The Tribunal notes the argument made by the respondent that the width of the objects in the NCCC’s Constitution means that its interests would potentially be indistinguishable from the interests of the public at large, so the applicant would potentially have standing in relation to any development in Canberra. The Tribunal rejects this argument because the NCCC’s objects or purposes will clearly be read down to be geographically confined to North Canberra and, as stated by the respondent, the decision must be linked to an interest that may be discerned by a close reading of the objects and purposes. As discussed above, the particular decision in this case involves elements of the public interest that may not apply in other contexts.
Special Interest
65. The Tribunal has decided the application for interim orders by applying section 419 of the Planning Act therefore it is unnecessary to decide whether the “special interest” asserted by the applicant applies in this case. However, because both parties made arguments about the recent ACT Court of Appeal decision in Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development and Ors (Argos) [62] the Tribunal makes the following comments about that case.
[62] [2013] ACTCA 51
66. The ACT Court of Appeal in Argos considered the question of whether a decision “relates to” an entity’s objects or purposes in the context of judicial review of a decision. In that case, the Court of Appeal differentiated between the material detriment defined by section 419 of the Planning Act and the “special interest” that is necessary to grant standing under the former sections 3B and 5 of the Administrative Decisions Judicial Review Act 1989 (ACT),[63] stating:
It is unnecessary to determine this question however, since even if the Association does possess such theoretical right of appeal to ACAT, it does not follow that the existence of that right also constitutes a sufficient “special interest” to grant standing.[64]
[63] Argos at [24]
[64] Argos at [55]
67. It is noteworthy that the position of the present applicant is radically different to the applicant in Argos. In applying the relevant factors identified by Sackville J in North Coast Environmental Council Inc v Minister for Resources,[65] the ACT Court of Appeal found that “past activities, membership and position within a specific industry [e.g. that a body is a peak environmental organisation in its region or recognised as significant by governments] are proper and relevant considerations for a court to take into account when assessing whether a community organisation has a special interest in litigation”.[66] The court in Argos concluded that the association in that case comprised only five members and was incorporated the day prior to it making representations on the proposed development. There was no evidence of any activities or even a meeting undertaken by the association to discuss the development proposal.[67]
[65] [1994] FCA 1556; (1994) 55 FCR 492
[66] Argos at [58]
[67] Argos at [58]
68. The circumstances of the association in Argos are clearly distinguishable from the present applicant. The NCCC is a well-established community organisation that has been operating for over 12 years. It is recognised by the ACT government through funding in the form of an annual grant which requires it to undertake certain activities. The NCCC has a web page that provides general information about planning to members of the North Canberra community and specific information about its activities. It holds monthly meetings that are open to the public. Details of the meetings and previous minutes are publicly available on its web page. As stated above, the present proceedings were commenced after a motion was carried at the meeting of the NCCC on 21 August 2013.
69. Therefore the Tribunal notes, with respect, the distinction drawn by the ACT Court of Appeal between the nature of the “right” under section 419 of the Planning Act as regards applications to ACAT and the “special interest” that is necessary to grant standing under the former sections 3B and 5 of Administrative Decisions Judicial Review Act 1989. The Tribunal also observes that the content of special interest that could be asserted by the NCCC is clearly distinguishable from the applicants in Argos. However, because the Tribunal has concluded that the decision relates to a matter that is included in the entity’s objects or purposes under section 419(1)(b) of the Planning Act, it is not necessary to consider the additional arguments made by the applicant regarding its “special interest.”
CONCLUSION
70. The Tribunal is satisfied that the applicant has suffered “material detriment” pursuant to section 419(1)(b) of the Planning Act and, therefore, that the applicant has standing as an eligible entity in Item 4, Column 4 of Schedule 1 of the Planning Act to continue the proceedings in the tribunal.
71. The respondent’s application for interim orders is accordingly dismissed. The matter is to be listed for further directions at a date and time to be advised by the tribunal.
....................………………………………..
Professor P. Spender - Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
FILE NUMBER: | AT 13/69 |
PARTIES, APPLICANT: | North Canberra Community Council |
PARTIES, RESPONDENT: | ACT Planning and Land Authority |
PARTIES, PARTY JOINED | Canberra District Rugby League Football Club Limited |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | Mr G. McCarthy |
COUNSEL APPEARING, PARTY JOINED | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
SOLICITORS FOR PARTY JOINED | Snedden Hall & Gallop |
TRIBUNAL MEMBERS: | Professor P. Spender |
DATES OF HEARING: | 27 November 2013 |
PLACE OF HEARING: | Canberra |
Arts, Heritage and the Environment
[1986] AATA 203 [8], [11], [12], [16] and [19], Re Island Voice and
Great Barrier Reef Marine Park Authority v Magnetic Keys Ltd [1990] AATA 41
[2], [3], [20], [21], [37], [38] and [40]-[45]; Re Gay Solidarity Group v
Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289 at page 292.
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