RUTLEDGE & ACT PLANNING AND LAND AUTHORITY (Administrative Review)
[2012] ACAT 8
•3 February 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RUTLEDGE & ACT PLANNING AND LAND AUTHORITY
(Administrative Review) [2012] ACAT 8
AT 11/85
Catchwords: ADMINISTRATIVE REVIEW –application for a controlled activity order - development approval under the Land (Planning and Environment) Act 1991 (“old Act” or “Land Act”) – development approval, which “includes” a lease variation – consolidation of lease and commencement of development - whether the development commenced before the expiry of the approval – whether payment of the change of use charge (CUC) commences lease variation – extension of time for completion of development
List of legislation: Land (Planning and Environment) Act 1991, ss. 187, 187A, 222, 233, 250, 251 and 252
Planning and Development Act 2007, ss. 276, 277 & 278 and Division 9.6.3
List of cases: Hughes & Ors v Australian Capital Territory Planning & Land Authority & Ors [2004] ACTSC 132 (17 December 2004)
Tribunal: Mr B. Hatch, Senior Member
Dr D. McMichael, Member
Date of Orders: 3 February 2012
Date of Reasons for Decision: 3 February 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL& ADMINISTRATIVE TRIBUNAL )
AT 11/85
BETWEEN:
GREG RUTLEDGE
Applicant
AND:
ACT PLANNING AND LAND
AUTHORITY
Respondent
Tribunal: Mr B. Hatch, Presiding Member
Dr D. McMichael, Member
DATE: 3 February 2012
ORDER
1.The decision under review is confirmed.
………………………………..
Mr B. Hatch, Senior Member
For and on behalf of the Tribunal
REASONS FOR DECISION
Mr B. Hatch, Senior Member (Presiding)
This is a review of a decision of the respondent to not issue a Controlled Activity Order with respect to Block 25 Section 7 Chifley, formerly Blocks 7 and 24 Section 7 Chifley (the land).
THE ISSUES
A development application (DA) was made in respect of the land in 2008. That DA was then the subject of proceedings in the ACT Administrative Appeals Tribunal (AAT). Mr Rutledge was a party to those proceedings. The proceedings were resolved by agreement between Mr Rutledge, ACT Planning and Land Authority (“the respondent” or “the Authority”) and the developer and no hearing or reasons for decision by the AAT were required.
An order giving effect to the terms of the agreement reached between the parties was made by the AAT on 17 October 2008. This became the date on which the DA was effectively approved. The parties agree, and the Tribunal accepts, that section 251(1) (c) of the Land (Planning and Environment) Act 1991 (the old Act) applied to the development and that as no period for the beginning of the development was specifically mentioned, the development was required to commence within 2 years of the date of approval.
Under the old Act, section 222 defined development. The respondent pointed out that the definition is artificial in some respects. The definition is
"development" means activity in relation to land that consists of 1 or more of the following activities:
(a) the erection, alteration or demolition of a building or structure on or under the land;
(b) the carrying out of earthworks or other construction work on or under the land;
(c) the carrying out of work that would affect the landscape of the land except if the land—
(i) is leased for residential purposes only; and
(ii) is not registered, or nominated for provisional registration, under the Heritage Act 2004 ;
(d) a use of the land for a business—
(i) that is a home business within the meaning of the plan; and
(ii) that is not expressly authorised by a current lease;
(e) a use of the land for an activity—
(i) that is prescribed for section 175 (3) (a); and
(ii) that is not expressly authorised by a current lease;
(f) if the land is unleased territory land—a use of the land that is not authorised by a current licence or permit granted for the land under an Act;
(g) the erection, fixing or displaying of a sign or advertising material on the land, or on a structure or building on the land, otherwise than in accordance with a right to do so expressly given by a current licence granted under this Act, a current lease or a current permit under the Roads and Public Places Act 1937 ;
(h) a variation of a lease of the land;
(i) an activity declared by another Act to be a development activity for this part;
Clearly some of the activities in the definition are “development”, such as earthworks or erection of a building. Some activities are not clearly development in the usual sense of the word, such as placing an advertising board on the land. A mere variation to a lease would rarely be seen by normal usage of the word, as a development.
THE FACTS
The decision of the AAT occurred on 17 October 2008. Once the developer had that approval, he appears to have set about trying to obtain a different approval. The developer was entitled to do that. But at the same time the 2 year time limit was running.
Ms Susan Messer gave evidence on behalf of the respondent. Her evidence was admitted in the form of a statement and not challenged. That evidence is that the first step taken in this type of process is for any change of use charge (CUC) to be paid. In this matter, the variation to the lease required that a change of use charge be paid. That was done on 26 August 2010, within the 2 year period. There is then a survey undertaken by the developer which is cleared by the Surveyor-General, assuming (as was the case here) that there is no problem with the survey.
Documents are then prepared to surrender the old leases, and when executed the lessee submits those documents to the Revenue Office for assessment as to whether any duty is payable. The developer then lodges the original Certificates of Title at the Office of Regulatory Services (ORS).
The final step is when the developer attends at ORS to surrender the original leases, register the “X-Plan” which becomes the Deposited Plan, and register the consolidated lease.
10. Mr Rutledge also produced a statement that was admitted into evidence and not challenged. His evidence is that the developer in early 2010 had been refused approval to build 17 units on the property. The developer appealed that decision to ACAT and on 9 June 2010, the learned Appeal President held that the decision be confirmed because the proposal was not consistent with the Territory Plan. That left the developer with the original approval still in place, that is, the approval that Mr Rutledge had agreed to on 17 October 2008.
11. In April 2011, Mr Rutledge saw preliminary works beginning on the land. Mr Rutledge spoke to Mr David Hill, the principal of the building company engaged to undertake the development. Mr Rutledge said he understood that the development approval had lapsed due to the effluxion of time. On 27 June 2011 Mr Rutledge lodged an application for a controlled activity order.
12. That application was refused and Mr Rutledge appealed the refusal to this tribunal.
CONSIDERATION
13. The respondent argues that when the CUC is paid, the variation to the lease which begins the development for the purpose of section 222 of the old Act occurs. The Applicant has the view that paying the CUC does not alter the land, and does not therefore begin development. The same argument arises from getting to the final step in the lease variation. In many such cases nothing will have been done to alter the land, but the development has begun for the purposes of s 222 of the old Act.
14. The parties relied on many authorities. Many of these are NSW authorities which are not relevant to this matter. The old Act has a very specific provision that a variation to a lease amounts to development. That provision does not appear to be replicated in any of the authorities referred to by the parties. In addition, the old Act, and the new Act, give little discretion to the decision maker. This Tribunal is now the decision maker. In Hughes & Ors v Australian Capital Territory Planning & Land Authority & Ors [2004] ACTSC 132 (17 December 2004) Crispin J noted that:
Any judicial discretion must be exercised in the context of the facts and circumstances that have been established in the case in question and guided by relevant principles. It may sometimes be helpful to consider the manner in which other judges have exercised similar discretion. However, suggested trends in the exercise of discretion may offer little, if any, guidance unless they have emerged from similar types of cases. Some of the cases decided under the Commonwealth ADJR Act, such as those relating to deportation, the grant or refusal of television licences or a third runway at an airport, may obviously give rise to discretionary considerations quite different from those that arise in the present case and comments suggesting particular approaches to the grant of relief in such contexts should not be uncritically accepted in quite different contexts. The range of decisions that may be challenged under the ADJR Act is very broad and, as the present case demonstrates, the Court may be required to consider such trivial issues as the proximity of a swimming pool pump to a fence and whether a planning body should have given due consideration to the noise that may have been generated by such a pump. Hence, it may be appropriate to adopt a more liberal approach to discretionary considerations than that suggested in some cases dealing with quite different issues.
15. Unfortunately, the decision maker in this matter is not able to exercise a discretion. The issue seems to come down to whether there was a valid development approval at all. The respondent says that there is, and the Applicant says that paying the CUC is not sufficient to constitute a variation to the lease.
16. The respondent relies heavily on section 250 of the old Act which states:
Subject to division 5.3, if an approval to undertake a development takes effect under section 249 and the development consists of or includes a variation of a lease, the planning and land authority must vary the lease in accordance with the terms of the approval.
17. The respondent argues that paying the CUC is the step at which point it must vary the lease in accordance with the terms of the approval. The Tribunal does not accept that argument. The statement of Ms Messer shows that there are a number of steps in the process. That evidence does not however suggest that any of the steps must be taken in any order. By way of example, the developer could have all the surveys done first. Perhaps the developer could argue that he will take all necessary steps, but not pay the CUC until the end. When this was raised by the Tribunal with counsel for the respondent there did not seem to be any answer.
18. Clearly the respondent would be reluctant to embark on the necessary steps to vary the lease when the CUC had not been paid as the first step. But it does not follow that the CUC must be paid at the outset.
19. Section 250 is also problematic. It is difficult to understand the purpose of the section. Where a development is approved and it includes a lease variation, it would seem that it must follow that the Authority must vary the lease in accordance with the terms of the approval. To not do so would inevitably lead to the developer taking action through the courts to force the Authority to vary the lease. And section 250 could not mean that the Authority would vary the lease if the developer did not want that done. For example, a developer with that approval may seek a fresh approval in order to undertake some other development (as the developer did in the subject matter) or economic reasons may lead the developer to abandon the approved development.
20. A developer may pay the CUC and then change its mind. Section 250 could not mean that the Authority must continue with the variation if the developer abandons its plans and asks for its money back.
21. Where the decision maker does have discretion in this matter is as to whether to issue the controlled activity order. The difficulty in this matter is that there is either a valid development approval or there is not. If there is a valid approval and the development is being built within the terms of the approval (and there is no evidence that this development is not being built within the terms of the 17 October 2008 approval), then there can be no point in issuing such an order.
22. If there is no valid approval then such an order may be appropriate.
23. I find that section 222 of the old Act requires more than a payment of the CUC for there to be a variation of the lease. The steps set out by Ms Messer show that a number of matters need to be gone through. I do not find for the purposes of section 222 that the variation must necessarily be finalised, that is, with the new lease being registered. That may fall to a later tribunal to consider.
24. In this matter only one step had been taken being the payment of the CUC. Section 250 does not then require that the lease be varied. There may be many reasons it does not proceed any further. At some stage, the process may become irreversible. As I have said I make no definitive finding on that. Where however the developer is still in a position to abandon the process, it may be that the variation has not taken place.
CONCLUSION
25. In my view, paying the CUC does not constitute a variation to the lease. As no other relevant step was taken, the development did not commence as required by the old Act before 17 Ocober 2010. This leads to the inevitable conclusion that after 2 years, on 17 October 2010, the development approval lapsed.
26. I must now consider whether to issue a controlled activity order in the terms either requested by the Applicant or in any other terms allowed by the new Act. The strongest consideration in this matter is whether such an order would achieve anything at this time. At the date of the hearing on 15 December 2011 photographs were tendered dated 12 December 2011. Those photographs show the development at quite an advanced stage. The walls and roofs are in place as are many of the windows. Despite the Christmas and summer slow down it is reasonable to expect that the work is now further advanced.
27. Issuing such an order now would achieve little. I will not issue an order that can have no practical effect. The decision to not issue a controlled activity order is therefore confirmed. That may be of little comfort to the developer because, based on the analysis set out above, it is my view that the development has proceeded without approval. The developer will need to consider what avenues are open to him to gain the necessary certification. Senior Member McMichael has a different view about the interpretation of the relevant provisions and the effect of the payment of the CUC charge by the developer. It may be necessary for the issue to be resolved by the legislature or in some other venue to give certainty to the respondent and to other developers.
………………………………..
Mr B. Hatch, Senior Member
For and on behalf of the Tribunal
Dr D. McMichael, Senior Member
I have read the decision and reasons of Presiding Member Hatch and agree with his decision to confirm the decision under review. I disagree however with the reasons he gives for his decision.
I consider that the correct interpretation of the relevant provisions of the Land (Planning and Environment) Act 1991 (“the Land Act”) lead to the conclusion that payment of the Change of Use Charge (“CUC”) determined by the respondent required the Authority to execute the consolidation of two leases and that as a consequence, a stage in the approved development had commenced within time. My reasons are as follows.
Development is defined in section 222 of the Land Act to include a variation of a lease of the land, while section 233(1)(b) provides that variation of a lease includes a consolidation. Section 251 provides that an approval to undertake development ends if the development or any stage of it is not begun within the period specified in the approval, but that section specifically does not apply to an approval which consists only of a variation of a lease. In this case, the development approved did not consist “only of a lease variation” but included a lease variation, i.e. consolidation of two leases. Section 250 makes it clear that if a development application includes a lease variation the Authority must vary the lease in accordance with the approval, but that is subject to the provisions in section 187.
Section 187A(1) of the Land Act provides that the Authority must not execute a consolidation of a lease until the Change of Use Charge (“CUC”) has been paid, and section 187A(5) reinforces this by providing that a consolidation has no effect unless the CUC has been paid. However, in my opinion, once the CUC has been paid, section 250 obliges the Authority to execute the consolidation and only the failure of the applicant for consolidation to proceed with one of the necessary steps can halt the process. Consequently, I conclude that payment of the CUC is a condition precedent to lease consolidation and represents the necessary first step in undertaking the development, including the lease consolidation, approved by the Authority.
In this case, the CUC was paid on 26 August 2010, that is within 24 months of the approval date (17 October 2008) and from that point onwards, I am of the view that the lease variation was inevitable and in fact proceeded to its conclusion. However, this raises the question of whether or not an approval to extend the time for completion of the development could lawfully be given under section 252 of the Land Act.
Section 252 provides for the Authority to agree, on request, to an extension of time for completion of an approved development. However, section 251 provides that an approval to undertake a development ends if the development or any stage of the development is not begun within the period specified in the approval. Section 251(1)(c) provides that in this case, as no period was specified, the development or any stage of the development needed to have begun within 24 months of the date the approval took effect, that is within 2 years of 17 October 2008. There is no provision for extension of the commencement date. Consequently, the approval would have ended on 17 October 2010 if development had not commenced by that date.
The Authority took the view that payment of the CUC constituted commencement of a stage of the development, that is, lease consolidation, and therefore the development approval had not ended. On 31 August 2008 it agreed to an extension of the completion date to 21 October 2011. I agree with the Authority’s view. The lease variation is, in my opinion, a stage of the approved development that was commenced prior to 17 October 2010 and hence the extension of time for completion was validly given.
Consequently at no time did the development approval end and the applicant’s request for a Controlled Activity Order is properly to be rejected.
………………………………..
Dr D. McMichael, Senior Member
For and on behalf of the Tribunal
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 11/85
APPLICANT: Greg Rutledge
RESPONDENT: ACT Planning and Land Authority
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT: Meyer Vandenberg Solicitors
RESPONDENT: ACT Government Solicitors
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Mr B. HATCH, SENIOR MEMBER
DR D. MCMICHAEL, SENIOR MEMBER
DATE/S OF HEARING: 15 DECEMBER 2011
PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
1
0