Preiss & Ors and Act Planning & Land Authority
[2008] ACTAAT 25
•8 October 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:PREISS & ORS AND ACT PLANNING & LAND AUTHORITY & ORS [2008] ACTAAT 25 (8 OCTOBER 2008)
AT08/25-29
Catchwords: Land and planning – review of decision approving variation of lease to permit two unit development on land located in precincts listed on Heritage Register – effect of restrictions in applicable Territory Plan on unit title subdivision – effect of provisions of current Territory Plan permitting unit title subdivision – relevance of validity of technical amendment of Territory Plan.
Heritage Act 2004
Land (Planning and Environment) Act 1991 (repealed), ss 8, 159, 229, 230
Planning and Development Act 2007, ss 87, 89, 443
Unit Titles Act 2001
Canberra Tradesman’s Union Club Inc. & Anor v Commissioner for Land and Planning & Ors [1998] ACTSC 55 (23 June 1998)
Re Adams and The Tax Agents’ Board (1976) 12 ALR 239
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Tribunal:Mr M H Peedom, President
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Date:8 October 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/25-29
LAND AND PLANNING DIVISION )
RE: BRENDAN & LYDIA
PREISS
Applicant in AT08/25RE: ANNE FORREST
Applicant in AT08/26RE: RIC WELLS
Applicant in AT08/27RE: NOEL & WENDY
EGAN
Applicant in AT08/28
RE: EDWARD & MORNA
VELLACOTT
Applicant in AT08/29
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: CB RICHARD ELLIS
(V) PTY LTD
Party Joined in AT08/26 & AT08/27
AND: JAMES & ODETTE
INGRAM
Party Joined in AT08/26AND: JANET & RUPERT
SUMMERSON
PETER SHARP
Parties Joined in AT08/27
DECISION
Tribunal : Mr M H Peedom, President
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
Date : 8 October 2008
Decision : The decisions under review are affirmed.
………………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT08/25-29
LAND AND PLANNING DIVISION )
RE: BRENDAN & LYDIA
PREISS
Applicant in AT08/25RE: ANNE FORREST
Applicant in AT08/26RE: RIC WELLS
Applicant in AT08/27RE: NOEL & WENDY
EGAN
Applicant in AT08/28
RE: EDWARD & MORNA
VELLACOTT
Applicant in AT08/29
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: CB RICHARD ELLIS
(V) PTY LTD
Party Joined in AT08/26 & AT08/27
AND: JAMES & ODETTE
INGRAM
Party Joined in AT08/26AND: JANET & RUPERT
SUMMERSON
PETER SHARP
Parties Joined in AT08/27
REASONS FOR DECISION
8 October 2008 Mr M H Peedom, President
Dr E McKenzie, Senior Member
Dr D McMichael, Senior Member
The decisions under review
These matters involve decisions made by the respondent approving development applications pursuant to section 230 of the Land (Planning and Environment) Act 1991 (repealed) (“the Land Act”).
2. In the applications for review made by Mr B and Ms L Preiss (AT07/25); Ms A Forrest (AT08/26); Mr N and Ms W Egan (AT08/28) and Mr E and Ms M Vellacott (AT08/29) the decision, dated 22 January 2008, related to a residential property at 6 Stokes Street, Griffith (“the Griffith property”). In the application for review made by Mr R Wells (AT08/27) the decision, also dated 22 January 2008, related to a residential property at 3 Young Street, Barton (“the Barton property”). The decision in respect of each property was to approve a variation of the purpose clause of the Crown lease pursuant to which the properties were held.
3. The issues to be resolved by the Tribunal are common to both properties and on 25 June 2008, with the agreement of the parties, the Tribunal directed that all of the applications for review of the decisions be heard together.
Background
4. At the time application was made for approval of the development applications for both the Griffith property and the Barton property there was erected on each property two self-contained residential dwellings. The Crown lease of each property contained a covenant by the lessee to use the property “for residential purposes only”. In each case the development application sought approval to vary that provision by substituting the following purpose clause:
To use the said land for the purpose of:
(i) a single dwelling; or
(ii) multi-unit housing RESTRICTED to a maximum of two (2) dwellings.
5. The application for review of decision in each matter was lodged with the Tribunal prior to the repeal of the Land Act on 31 March 2008. Although the decisions under review were made after that date the Land Act and the Territory Plan under it (“the old Territory Plan”) continue to apply for the purpose of deciding the applications (see section 443(2) Planning and Development Act 2007).
6. Both the Griffith property and the Barton property are listed on the Heritage Register. Notice was given to the Heritage Council of the development applications as required by section 229(4) of the Land Act. In its advice to the respondent, the Heritage Council said that there were no perceived heritage issues with the development applications and that a detailed assessment was not required.
7. On 17 December 2007 application was made under the Unit Titles Act 2001 on behalf of the lessee of each property for approval for unit title for two units on each property.
The old Territory Plan
8. Clause 3.6 of the old Territory Plan specified a number of objectives and controls in relation to residential development and redevelopment in suburban areas. Relevantly to these proceedings it stated:
b)Subdivision ……..of blocks (including Unit Title subdivision) may be approved subject to the following:
……..
(ii)The subdivision of a lease of a standard block to provide for more than one dwelling (including subdivision under the Unit Titles Act 2001) may only be approved where the land is not registered on the Heritage Register and all of the dwellings were lawfully constructed, approved or had been the subject of a formally commenced High Quality Sustainable Design process (ACT Planning and Land Management; June 2001) before 17 June 2003 and for which a development application had been lodged by 1 September 2003.
9. Clause 3.7(b) specified the following control:
A subdivision of a lease under the Unit Titles Act 2001 may only be approved where the lease expressly provides for the number of units or dwellings provided for in the proposed subdivision.
The word “subdivision” was defined under section 159 of the Land Act as follows:
subdivision means the surrender of 1 lease, or the surrender of more than 1 lease, held by the same lessee, and the grant of new leases to that lessee for the purpose of subdividing the parcel or parcels of land comprised in the surrendered lease or leases, but does not include the subdivision of land under the Unit Titles Act 2001.
Submissions and conclusions
10. On behalf of the respondent and the party joined (CB Richard Ellis (V) Pty Ltd) (“the agent of the lessee”), Mr Mossop, of counsel, and Mr Flint, a legal practitioner, respectively, acknowledged that the objective of the development applications was to remove the impediment created by clause 3.7(b) of the old Territory Plan to subdivision of each lease under the Unit Titles Act. They also accepted that clause 3.6(b)(ii) of the old Territory Plan would prevent approval from being given to a unit title subdivision of either property because of their registration on the Heritage Register. Section 8 of the Land Act, which prevents approval being given to the doing of an act that is inconsistent with the old Territory Plan, makes it clear that those concessions were correctly made. They both submitted, however, that these impediments to subdivision had no relevance to the development applications because they only applied for a variation of the purpose clause of each Crown lease and did not seek approval to a subdivision of land.
11. The applicants submitted that, because it was the intention of the lessee of both properties to apply for unit titling of them (such applications having already been made) and as it was the clear intention of the old Territory Plan to prohibit unit titling in areas subject to listing on the Heritage Register, the Tribunal should refuse approval of the development applications.
12. A document lodged with the Tribunal by the applicants and other parties joined who also opposed approval of the development applications contained an analysis of changes to the old Territory Plan as they applied to the subdivision of residential leases and the policy for those changes as contained in explanatory material provided to and by the planning authority at the time. It appears from that material that, initially, the subdivision of residential leases following a dual occupancy development was not permitted in order to assist in maintaining the character of residential areas, to encourage the provision of rental accommodation, to avoid difficulties with the provision of services and utilities to small awkward blocks and to prevent later development being impeded by premature block amalgamation. More recently, restrictions on unit titling were maintained in areas other than those close to local, group and town centres because of the disproportionate pressure imposed on older areas containing larger-size blocks and which were subject to leases which did not require the payment of a betterment charge as a condition of approval of multi-unit development.
13. It is unnecessary for the purpose of these proceedings to undertake any detailed analysis of the policy that underlay the provisions of the old Territory Plan as they affect the issue of subdivision in residential areas, having regard to the concessions correctly made that unit title subdivision is, in the circumstances of this case, not permitted by its provisions.
14. On behalf of the agent of the lessee of both properties, Mr Flint submitted that approval of the development applications would not be inconsistent with the old Territory Plan because they did not seek approval to subdivision. They merely sought approval to a variation of the Crown lease and the fact that the old Territory Plan precluded approval being given to subdivision of the properties did not prevent the Tribunal from approving the development applications to vary the lease purpose clauses. He relied upon the decision of the Supreme Court in Canberra Tradesman’s Union Club Inc. & Anor v Commissioner for Land and Planning & Ors [1998] ACTSC 55 (23 June 1998) in support of his submission.
15. In that case Casino Canberra Ltd (“the Casino”) had made application for the variation of its lease. The lease permitted the land to be used for a casino and related purposes. Legislation which applied to the Casino prevented the installation or use of gaming machines in its premises but permitted a club to operate class ‘C’ gaming machines. The Casino applied to vary the purpose clause of the lease to permit the land to also be used as a club. The Court observed that the lease variation would merely enable the operation of a club in part of the premises presently occupied by the Casino. The Casino itself could not lawfully operate poker machines without amendments to both the Casino Control Act and the Gaming Machine Act. If those Acts were to be amended to permit the Casino to operate poker machines the proposed lease variation would be irrelevant to that issue. If any part of the premises were to be used for the purposes of a club it would be necessary for part of the premises that was not presently designated as the Casino to be sub-leased to a new or existing club. The Court noted that it was the intention of the Casino to apply to change the area designated for the casino so that a club might lawfully operate poker machines in some area of the building not so designated.
16. The Court rejected a submission that, because poker machines could not lawfully operate within the area designated for the Casino the proposed lease variation would facilitate an illegal purpose and should not therefore be approved. In doing so Crispin J said:
36. Whilst it is no doubt relevant for a planning body to consider whether a lease variation has been sought in order to facilitate an illegal activity that does not mean that an application for such a variation cannot be approved if it is within the contemplation of the applicant that an activity might ultimately be conducted on the relevant property and that course is not presently permissible. Where the contemplated activity is illegal only because of statutory restrictions on its conduct in particular places or other provisions of a planning nature, it is open to the Commissioner to take into account the possibility that the government might accede to representations that those restrictions be removed. In the present case, the lease variation effectively removed one such impediment and there is no reason to suppose that any applications or representations which the applicant might make in relation to other legal impediments would be doomed to failure. As Mr Rayment submitted, a person facing a number of legal impediments to a proposed course of action must start somewhere.
37. There is no reason to suppose that poker machines will be used illegally on the demised land. If the Minister is not willing to change the designation under the Casino Control Act or if the relevant licences are refused then no club will be able to operate poker machines in any part of the existing building. On the other hand, there is no reason to suppose that the Minister may not be amenable to some proposal to change the designation. Nor is there any reason to suppose that any club which seeks to utilise the premises would not be a reputable body able to demonstrate adequate grounds for the issue of the relevant licences. Indeed, it is conceivable that the relevant portion of the premises might be leased to one of the clubs which are members of the second appellant. If those impediments were overcome then poker machines might lawfully be used upon the premises.
17. We accept that this decision supports the submission made on behalf of the lessee that, by itself, the fact that the old Territory Plan does not permit the subdivision of either property does not preclude approval from being given to a step being taken towards that end if that step is not inconsistent with the old Territory Plan.
18. We note further, that in the present case the matter has progressed beyond the stage of there being a mere anticipation on the part of the lessee of legislative change or administrative action necessary to permit what would otherwise be unlawful, as was the case in Canberra Tradesman’s Union Club. The old Territory Plan was replaced by a new Territory Plan on 31 March 2008. The impediment to approval of a subdivision of the lease created by clause 3.6(b)(ii) of the old Territory Plan has been removed. Approval of unit title subdivision would now have to be consistent with the rules set out in the Residential Zones – Multi-Unit Housing Development Code in the Territory Plan 2008 (“the Code”) (see Part A(1) – RZ1 – Suburban Zone Development Table).
19. Element 1 rule 1 of the Residential Zones Controls of the Code provides, relevantly:
Subdivision of a lease of a standard block ………to provide for more than one dwelling may only be permitted where:
a) For land registered on the Heritage Register – all dwellings were lawfully constructed, approved or had been the subject of a development application for the construction of the dwellings that had been lodged by 1 September 2002 and subsequently approved;
………..
Note 2: Subdivision or consolidation of land subject to the Heritage Act 2004 may only be permitted where not specifically prohibited by a guideline, order or agreement made under that Act.
20. Rule R28(b) of Part B – General Development Controls of the Code provides:
Subdivision of a lease under the Unit Titles Act 2001 may only be permitted where the lease expressly provides for the number of units or dwellings provided for in the proposed subdivision.
21. Both the Griffith and Barton properties are standard blocks. Both were lawfully constructed to completion, according to evidence presented to the Tribunal by the respondent, prior to 1 September 2002. Under the current Territory Plan there is no longer an impediment to unit title subdivision of them due to them being listed on the Heritage Register. There would, in that event, be greater utility in giving approval to the development applications than was the case in the Canberra Tradesman’s Union Inc. case. It would be an unreasonable exercise of the Tribunal’s discretion to refuse approval to the development applications and thereby require the lessee to make a fresh application under the current Territory Plan for approval of the lease variation sought so as to satisfy R28(b) of the Code.
22. In the course of their submission, the applicants drew attention to the fact that the current Territory Plan, when it first became effective on 31 March 2008, contained a provision which did not permit unit title subdivision of residential land that was listed on the Heritage Register. That provision was amended by Technical Variation No. 2008-02 pursuant to section 89 of the Planning and Development Act 2007. Section 89 authorises the making of a technical amendment to the Territory Plan. That part of the definition of a “technical amendment” in section 87 of the Planning and Development Act that was relied upon for variation V2008-02 requires that the variation is either:
(a) an error variation (that is, it would not adversely affect anyone’s rights if approved and only has the object of correction of a formal error in the Territory Plan)
or
(b) (i) would only change a code; and
(ii) is consistent with the policy purpose and policy framework of the code; and
(iii) is not an error variation
23. The applicants submitted that it was not the function of a technical amendment to reverse the policy inherent in the Territory Plan before its amendment. The amendment, they contended, was not authorised by section 89 and was invalid. In response to that submission Mr Mossop drew the attention of the Tribunal to the decision of the Commonwealth Administrative Appeals Tribunal in Re Adams and The Tax Agents’ Board (1976) 12 ALR 239. In that case the President, Brennan J held that relief could not be obtained from the Tribunal upon the ground that the statute pursuant to which the decision under review had been made was ultra vires the Parliament. He said that an opinion formed by an administrative body on such a question did not produce any effect in point of law. The power to determine such issues was that of a court. He said:
When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority upon it, the will of the legislature expressly conferring that authority would, at least for a time, be overridden. Moreover, that will would be overridden without judicial consideration. A consequence of such gravity throws doubt upon the proposition that an administrative body ought to consider the constitutional validity of a statute affecting its power.
24. He went on to say:
As at present advised, it appears to me that, when a decision-maker acts in conformity with his statutory authority, a person whose interests are affected by his act may not obtain relief from this Tribunal upon the ground that the statute is ultra vires the Parliament. This Tribunal has no powers of review which it might exercise to give effect to such a ground. It has no judicial power. The relief must be sought, if at all, from a court in which the judicial power of the Commonwealth is vested.
25. In Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 the Commonwealth Administrative Appeals Tribunal rejected a submission that the Tribunal should find that a statutory instrument pursuant to which a pilot’s licence had been cancelled was invalid as not made in accordance with the legislation pursuant to which the instrument was made. The Tribunal noted that Adams case was distinguishable from the matter before it because it involved an issue of constitutional validity. It, nevertheless, considered that there were close parallels between the circumstances considered in Adams case and the issue of validity of the statutory instrument raised in the case before the Tribunal. It concluded that the Tribunal did not have the power to entertain arguments as to the validity of subordinate legislation.
26. Consistently with those decisions we conclude that we are not empowered to determine the validity of the technical variation of the current Territory Plan.
27. Under section 8 of the Land Act, as we have observed above, the Tribunal is unable to make a decision that would be inconsistent with the Territory Plan. Evidence was given on behalf of the lessee by Mr R Johnston, a qualified and experienced town planner. Mr Johnston had analysed the various provisions of the old Territory Plan which applied to the development applications and provided his opinion that the development applications were consistent with them. We note also that there is no provision in the Heritage Register with which approval of the development applications would be inconsistent. Nor was there identified any provision of a guideline, order or agreement under the Heritage Act 2004 that would specifically prohibit variation of the leases as proposed by the development applications.
28. We therefore conclude that the correct and preferable decision for the Tribunal to make is to affirm the decisions under review.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT08/25-29
APPLICANTS: BRENDAN & LYDIA PREISS; ANNE FORREST; RIC WELLS; NOEL & WENDY EGAN; EDWARD & MORNA VELLACOTT
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: CB RICHARD ELLIS (V) PTY LTD; JAMES & ODETTE INGRAM; JANET & RUPERT SUMMERSON; PETER SHARP
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: MR D MOSSOP
PARTIES JOINED: MR M FLINT (FOR CB RICHARD ELLIS (V) PTY LTD)
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTIES JOINED: BRADLEY ALLEN LAWYERS
OTHER: APPLICANTS: MR B PREISS & MS A
FORREST
RESPONDENT:
PARTIES JOINED: MR B PREISS & MS A FORREST;
MR J INGRAM
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DR E MCKENZIE, SENIOR MEMBER
DR D MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 25 SEPTEMBER 2008 PLACE:CANBERRA
DATE OF DECISION: 8 OCTOBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
1
1
0