ORR & O'SULLIVAN AND ACT PLANNING & LAND AUTHORITY
[2008] ACTAAT 7
•4 April 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:ORR & O’SULLIVAN AND ACT PLANNING & LAND AUTHORITY [2008] ACTAAT 7 (4 APRIL 2008)
AT08/1
Catchwords: Land and planning – appeal dismissed – lack of jurisdiction – development application on unleased Territory land exempt from notification under the Land (Planning and Environment) Regulations
Administrative Appeals Tribunal Act 1989, s 43A
Land (Planning and Environment) Act 1991, s 121
Land (Planning and Environment) Regulation 1992, s 41, sch 4, item 16
Tribunal:Mr B Hatch, Senior Member
Date:4 April 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/1
LAND AND PLANNING DIVISION )
RE: PETER ORR & JANE
O’SULLIVAN
Applicants
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr B Hatch, Senior Member
Date : 4 April 2008
Decision :The application for review of decision is dismissed for
want of jurisdiction.
……………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/1
LAND AND PLANNING DIVISION )
RE: PETER ORR & JANE
O’SULLIVAN
Applicants
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
REASONS FOR DECISION
4 April 2008 Mr B Hatch, Senior Member
The respondent in this matter has applied to have the application for review dismissed for want of jurisdiction. This application is made pursuant to section 43A of the Administrative Appeals Tribunal Act 1989 (“the AAT Act”) which is in the following terms:
43A Power of tribunal if proceeding frivolous or vexatious
(1)If an application is made to the tribunal for the review of a decision, the tribunal may, at any stage of the proceeding, if satisfied that the application is frivolous or vexatious—
(a) dismiss the application; and
(b)if the tribunal considers it appropriate—on the application of a party to the proceeding, direct that the person who made the application shall not, without leave of the tribunal, make a subsequent application to the tribunal of any kind specified in the direction.
(2)A direction given under subsection (1) (b) has effect despite any other provision of this Act or a provision of any other Act.
(3)The tribunal may revoke or vary a direction given under subsection (1) (b).
2. A reference in legislation such as the AAT to a matter being frivolous or vexatious in the circumstances of this case simply means a reference to the fact that the respondent in this case argues that the Tribunal simply does not have jurisdiction in order to hear and determine this matter.
3. The background of this matter is that on 14 December 2007 the respondent received a development application in respect of Block 4 Section 31 Pialligo. The purpose of the development application was to allow the expansion of the roadway known as Pialligo Avenue so that it could be duplicated. Part of the duplication includes an underpass and an overpass. All of this work is taking place adjacent to the Canberra International Airport. The purpose of this is apparently to improve access to the airport and create better traffic flow along Pialligo Avenue past the airport.
4. It is not in dispute between the parties that Block 4 Section 31 Pialligo is unleased Territory land. That unleased Territory land is next to the land owned by the applicants.
5. The respondent formed a view that the development application was exempt from notification under the provisions of section 41 and item 16 of schedule 4 of the Land (Planning and Environment) Regulation 1992 (“the Regulations”). The respondent did, however, give notice of a preliminary assessment in relation to the proposed development. Submissions were received from the applicants. On 10 December 2007 the respondent determined to approve the development application subject to certain conditions. At that stage, the respondent did not consider that the applicants had filed objections to the development application and, as a result, did not notify the applicants of the decision. Notwithstanding that, on 3 January 2008, the applicants filed their application for review.
6. While it may have been open to the respondent to argue that this application fails simply on the basis that a proper objection had not been lodged to the development application, that point is not taken within these proceedings. The Tribunal considers that the respondent has behaved responsibly in taking that stance.
7. The substantive issue to be determined by the Tribunal is whether the applicants have any right to pursue an application for review.
8. This application must be dismissed for want of jurisdiction simply based on section 41 and item 16 of schedule 4 of the Regulations. Section 41 of the Regulations is in the following terms:
41 Notification exemptions—Act, s 229 (1) and (6)
(1)A development listed in schedule 4 is exempt from the application of the Act, section 229 (1) and (6).
(2)A development listed in schedule 5 is exempt from the application of the Act, section 229 (1) (b) and 229 (6).
Item 16 of schedule 4 is in the following terms:
16Construction, alteration, removal or demolition of a floodway, sewerage or drainage works, a public road, a car park or utilities work on unleased territory land or on land subject to a lease granted for purposes that include subdivision and development if—
(a)no direction that an assessment be made of the relevant proposal has been given under the Act, section 121 (1); or
(b)if an assessment has been submitted to the Environment Minister—any conditions recommended by the Minister under the Act, section 131 (3) (d) have been complied with.
9. The development application specifically relates to a public road being built on unleased Territory land. The parties, as I have said above, accept that it is unleased Territory land. The evidence of Mr Tony Gill, Director of Roads ACT, on behalf of the respondent, that the road will be a public road also was not challenged.
10. The submissions made by the applicants were cogent and in other circumstances may have been worthy of consideration by a review tribunal. The Assembly however has determined that certain development applications cannot be reviewed in this Tribunal and this is one of such matters.
11. For completeness, it is noted that no direction that an assessment be made of the relevant proposal pursuant to section 121(1) of the Land Act. The evidence of Mr Ray Brown which was unchallenged is that consideration had been given to a preliminary assessment pursuant to section 121 and, as a result of the evaluation of that preliminary assessment, it was decided that no further assessment was required pursuant to section 121(1) of the Act.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/1
APPLICANTS: PETER ORR & JANE O’SULLIVAN
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: N/A
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: MR D MOSSOP
PARTIES JOINED:
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTIES JOINED:
OTHER: APPLICANTS: SELVES
RESPONDENT:
PARTIES JOINED:
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
DATE/S OF HEARING: 29 FEBRUARY 2008 PLACE: CANBERRA
DATE OF DECISION: 4 APRIL 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0