Scentre Management Limited v ACT Planning and Land Authority
[2021] ACTSC 171
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Scentre Management Limited v ACT Planning and Land Authority |
Citation: | [2021] ACTSC 171 |
Hearing Dates: | 21–23 June 2021 |
DecisionDate: | 5 August 2021 |
Before: | Crowe AJ |
Decision: | See [290] |
Catchwords: | ADMINISTRATIVE LAW – Judicial review – review of decision under the Planning and Development Act 2007 (ACT) – where plaintiff is Crown lessee of land in commercial core zone not the subject of the decision – whether plaintiff has standing – whether decision-maker provided adequate reasons – whether decision beyond jurisdiction due to uncertainty – whether failure to take into account relevant considerations – whether decision inconsistent with advice given by an entity to which the application was referred – whether decision vitiated by apprehended bias |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 12 Territory Plan 2008 (ACT) |
Cases Cited: | Allan v Transurban City Link Ltd [2001] HCA 58; 208 CLR 167 Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 |
Texts Cited: | Australian Law Reform Commission, Beyond the Door-keeper: Standing to Sue for Public Remedies (Report No 78, 1996) Explanatory Statement, Planning and Development Bill 2006 (ACT) |
Parties: | Scentre Management Limited ( First Plaintiff) RE1 Limited (Second Plaintiff) ACT Planning and Land Authority ( First Defendant) Elton Consulting Group Pty Ltd (Second Defendant) Elanor Funds Management Ltd (Third Defendant) |
Representation: | Counsel P Walker SC with J Bird ( Plaintiffs) T Howard SC with M Hassall ( First Defendant) J Redwood SC with P Bindon (Third Defendant) |
| Solicitors Moulis Legal ( Plaintiffs) ACT Government Solicitor ( First Defendant) MinterEllison (Third Defendant) | |
File Number(s): | SC 444 of 2020 |
CROWE AJ:
Background
The plaintiffs are the Crown lessees of the large shopping centre at Belconnen known as Westfield Belconnen. I will refer to them hereafter as Scentre. The first defendant (the Authority) is the entity established under s 10 of the Planning and Development Act 2007 (ACT) (the PDA). Its functions include the planning and regulation of the development of land in the Territory and also deciding applications for approval to undertake development. The second defendant (Elton) is a company which carries on the business of assisting developers to obtain approval of development applications under the PDA. Elton took no part in the proceedings. The third defendant (Elanor) is the Crown lessee of land at Block 2, Section 198, Belconnen. The Belconnen Produce Market has operated at that site for many years. Elanor proposes to redevelop the site to, in broad terms, upgrade and modernise the market.
On 3 February 2020 Elton, on behalf of Elanor, lodged a development application for 2/198 Belconnen with the Authority. I now pick up the joint statement of facts in this matter (which is Ex “1D2”):
The Development Application proposed the demolition of the existing produce markets on the Site, the construction of a new, larger, single-storey produce market with basement carparking, and the removal of assigning and subletting clause contained in the Crown lease relating to the Site. The Development Application specified that the Site was zoned “CZ3 Services Zone”, but stated that the “CZ2 Business Zone” was also applicable to the site. The Development Application was lodged in the merit track.
Following the lodgement, the Authority gave notice of the application to a number of ACT government entities for consideration. This included Icon Water, Transport Canberra and City Services. That elicited the following response from Icon Water:
On 24 February 2020, Icon Water provided a response indicating that it did not support the proposed development as the design depicted in the application did not comply with Icon Water’s “water and sewerage network access and asset protection requirements”. A “reasons” statement contained in the Icon Water response stated in part:
a.“Design Acceptance for External Services or off site works must be in principle approved by Icon Water Hudraulic [sic] Assets. … Please complete attached Icon Water Design Form Pack, Hydraulic services plans and email to [email protected]. Icon Water will then identify whether your development falls into the capital contribution code scheme, and will write you a letter to confirm.”
At that stage Transport Canberra and City Services also provided non-supportive responses.
In the meantime, the Authority had commenced the process of public notification. That was described as follows in “1D2”:
Between 17 February 2020 and 6 March 2020, the Development Application was subject to “major public notification”. This included the erection of a sign at the Site summarising the nature of the proposed development, notification by letter to owners of adjoining premises, notification by letter to entities registered on the Crown Lease for the site, the placement of an electronic copy of the Development Application on the first defendant’s website and a physical copy of the Development Application being made available for public inspection at the first defendant’s Customer Service Centre in Dickson. Representations were invited from any person who was concerned the application might impact them in any way.
Five written representations were received during the public notification period, including a representation on behalf of the plaintiffs.
During March 2020 various ACT government entities responded to the Authority indicating that they either supported the application, were not affected by it, supported it subject to conditions or, in the case of Transport Canberra and City Services, that they did not support the application and needed further information.
Between 3 February and 20 April 2020, the Authority carried out an assessment of the application as recorded in what is referred to as a contemporaneous “Assessment Package”.
On 20 April 2020 the Authority made the decision under s 162 of the PDA to approve the application subject to certain conditions. The notice of decision set out the reasons for the approval decision and the conditions imposed. A copy was provided to Scentre.
On 20 May 2020 Scentre filed an Originating Application in this Court seeking judicial review of the approval decision.
During the pendency of those proceedings Transport Canberra and City Services (TCCS) provided further advice to the Authority indicating that it now supported the development application subject to compliance with certain conditions, including the provision of further information.
On 3 August 2020 McWilliam AsJ made consent orders in the proceedings commenced by Scentre. Those orders set aside the 20 April 2020 decision and referred the matter back to the Authority for further consideration according to law. The following day, the ACT Government Solicitor (on behalf of the Authority) wrote to Elton and Elanor advising that the Authority had incorrectly assessed the development application on the basis that the land was zoned CZ2. The ACT Government Solicitor noted that it was appropriate for the approval decision to be set aside on that basis.
On 15 September 2020, Elton (on behalf of Elanor) lodged a request for the Authority to amend the development application under s 144 of the PDA. Between that date and 15 October 2020 that request was publicly notified. The only written representation received in response to that notification was that from Scentre.
Between 1 July 2020 and 13 November 2020, the Authority carried out an assessment of the amended development application. The steps taken in that assessment were recorded in the contemporaneous “S144C Assessment Package”.
On 13 November 2020 the Authority decided, under s 162 of the PDA, to approve the amended development application subject to conditions. The notice of decision bearing that date set out the reasons for that decision and the conditions.
On 16 November 2020 Scentre was provided with a copy of the notice of decision, and on 14 December 2020 Scentre commenced these proceedings.
On 5 March 2021 the Authority filed an affidavit of Christopher Byron Gell (the delegate who made the 13 November 2020 decision) which attaches a supplementary “Statement of Reasons” for making that decision.
The Proceedings
At the commencement of the hearing Scentre applied to amend its Originating Application. There was no opposition to that application. I granted leave to amend. The Amended Originating Application claims relief in the following terms:
1.An order quashing or setting aside the Decision, with effect from the date of the Decision
2.An order referring the matter to the ACT Planning and Land Authority for further consideration according to law.
3.That upon remission to the ACT Planning Authority the decision be made by a person other than the delegate that made the Decision.
4.That in the event that the Court makes orders 1 and 2 the First Defendant be directed that in the absence of a decision by it to waive public notification under subsection 146(3) of the Planning and Development Act 2007 the First Defendant must publicly notify the whole of the amended development application and not merely the amendments to the development application.
5.The defendants pay the plaintiffs’ costs of the proceeding.
6.Any other such orders as the Court considers appropriate.
There were six substantive grounds pleaded in the Amended Originating Application, each supported by particulars. They were:
1.Pursuant to section 5(1)(b) of the of the [sic] Administrative Decision (Judicial Review) Act 1989 (“the ADJR Act”), procedures that were required by law to be observed in relation to the making of the Decision were not observed, the first defendant did not have jurisdiction to approve the development application, the Decision to approve the development was not authorised by the enactment under which it was purported to be made, and/or the Decision to approve the development application involved an error of law pursuant to section 5(1)(f) of the ADJR Act.
Particulars
…
(i)The First Defendant failed to comply with its obligations under section 146 of the PD Act to publicly notify the amended development application.
2.Pursuant to section 5(1)(d) and (f) of the ADJR Act the Decision was not authorised to be made by virtue of section 119 of the PD Act and that decision involved an error of law.
Particulars
(a)The first defendant was required by section 119(2) of the PD Act to not give approval to the development application if it would be inconsistent with any advice given by an entity to which the application was referred under section 148 of the PD Act unless the first defendant made the findings required by paragraphs 119(2)(a) and (b) of the PD Act.
(b)The development application was referred to Icon Water and TCCS, inter alia, under Division 7.3.3 of the PD Act. Icon Water provided advice on 24 February 2020 that the development application was not supported and that certain water and network sewerage protection issues must be addressed prior to any approval being given. TCCS provided advice on 21 July 2020 which also required certain approval being given
(c)The first defendant did not make findings of the kind required by sections 119(2)(a) and (b) and the PD Act but approved the development application
(d)The first defendant’s approval of the development application contrary to the advice of Icon Water and TCCS was contrary to section 119(2) of the PD Act.
3.Pursuant to section 5(1)(e) of the ADJR Act in conjunction with paragraph 5(2)(h) of the ADJR Act, the making of the Decision was an improper exercise of the power given by section 162 of the PD Act.
Particulars
(a)The making of the decision imposed conditions which are so vague and uncertain that the decision constituted an improper exercise of power because it involved an exercise of power in such a way that the result of the exercise of the power is uncertain.
4.Pursuant to section 5(1)(e) of the ADJR Act, the Decision was an improper exercise of power in that the first defendant failed to take into account a relevant consideration or relevant considerations.
Particulars
(a)In assessing the development application the first defendant was required to consider, under section 120 of the PD Act:
(i)the objectives of the zone in which the development is proposed to take place (section 120(a) of the PD Act);
…
(iii)each representation received in relation to the development application (section 120(d) of the PD Act);
(iv)the advice of an entity provided under section 149 of the PD Act (section 120(f) of the PD Act); and
(v)the probable impact of the proposed development
(b)The first defendant failed or failed to consider adequately the matters referred to in Particular 4(a) above.
5.Pursuant to s 5(1)(a) of the ADJR Act, that a breach of the rules of natural justice happened in relation to the making of the decision.
Particulars
(aa)The decision is vitiated by apprehended bias.
(a)The Delegate decided a similar application numbered DA201936486 on 20 April 2020 (the “first approval”).
(b)The first approval was the subject to an application for review by the plaintiffs in SC 182 of 2020 (the “first application”).
(c)The grounds for the first application included that the Delegate had failed to make necessary finding to be satisfied the development application he was considering was consistent with the Territory Plan.
(d)The first application was resolved by consent.
(e)The Delegate has failed to make findings on material questions of fact from which he could conclude that the development is consistent with the codes in the Territory Plan, instead only listed as his reasons:
(i)the application “was found to meet the relevant rules an [sic] criteria of the Territory Plan and section 120 of the PD Act”; and
(ii)“the use of produce market has been associated with this site for a considerable time and it is considered that the proposed development will benefit the existing tenants and the broader community.”
(f)On the basis of the above, an objective bystander might consider that the Delegate might not have brought an open mind to the decision whether the development application ought to be approved, approved on condition or refused in accordance with section 162 of the PD Act.
6.Pursuant to section 5(1)(b) of the ADJR Act, procedures that were required by law to be observed in relation to the making of the decision were not observed and/or the Decision of the first defendant was affected by error of law and jurisdictional error in that the first defendant failed to make any or any adequate findings of fact as required by law to permit the Decision to be made and failed to provide reasons.
Particulars
(a)In approving the development application, the first defendant was required to give written notice to the plaintiffs, being persons who made a representation about the development application under section 156 of the PD Act, in accordance with section 170(1) of the PD Act.
(b)Under section 170(3) of the PD Act, a notice in relation to an approval must set out the reasons for the approval.
(c)The notice given to the plaintiffs does not set out the reasons for the approval
(d)There are no findings on any material question of fact in the first defendant’s notice of decision.
On 16 June 2021 Elanor filed an application in proceeding seeking the dismissal of the proceedings on the basis that Scentre lacked standing under the provisions of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (AD(JR) Act (ACT)).
The application in proceeding was heard as part of the substantive hearing on 21–23 June 2021. The active parties in relation to the issue of standing, and in the substantive hearing, were Scentre and Elanor. The Authority adopted the approach of making submissions which it saw as necessary to ensure that the Court was aware of the correct factual and legal framework in which the dispute arose. This approach was said to reflect the approach commended in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
The Evidence
A number of documents were tendered by the parties and marked as Exhibits. They were:
(a)Ex “P1”—The Originating Application in SC 182 of 2020 which resulted in the consent orders of 3 August 2020.
(b)Ex “P2”—Google Map screen shot of the Belconnen Town Centre area.
(c)Ex “1D1”—Bundle of documents on which the 13 November 2020 decision was made (consisting of 1,018 pages)
(d)Ex “1D2”—Statement of Agreed Facts
The parties also read a number of affidavits. They were:
(a)Affidavit of Mr D Moulis of 14 December 2020—paragraphs 1–10.
(b)Affidavit of Mr A Achterstraat of 17 June 2021.
(c)Affidavit of Mr C Gell of 5 March 2020 (the affidavit annexed a statement of reasons of 52 paragraphs said to supplement those given in the notice of the 13 November 2020 decision. Initially paragraph 33 was not read, however that paragraph was the subject of cross examination and ultimately was admitted into the evidence).
(d)Affidavit of Mr G Shaw of 15 June 2021.
Mr Gell gave some short evidence in chief. He was then cross-examined by Mr Walker SC (who appeared with Mr J Bird for Scentre).
In his evidence in chief Mr Gell identified the document at pp 330–344 of Ex “1D1” as the record of the six stage system of assessment of the development application which was carried out between 17 February and 20 April 2020 which he had described in paragraphs 4–6 of the statement annexed to his affidavit (I will hereafter refer to the pages in Ex “1D1” simply by page number).
Mr Gell also identified the document at pp 102 to 107 as the amended development application of 18 September 2020 which he referred to at paragraph 13 of his statement. He was taken to pp 103–4 where the handwritten list of amendments appears to commence with number three. He explained that this was an error on the part of the person completing the form—that person had followed on from the examples numbered one and two, rather than commencing with a number one.
Mr Howard SC (who appeared with Mr M Hassall for the Authority) took Mr Gell to a number of plans commencing at p 302. Mr Gell described the sections on those plans outlined in red “clouds” as the parts of the drawings which had changed since the April approval. Mr Gell considered that the amendments depicted by the plans were minor.
In relation to the amended development application Mr Gell said that once it was publicly notified any member of the public could, on request, access the original development application.
At paragraph 15 of the statement Mr Gell said that he was responsible for the amended development application (which he referred to as the s 144C application), and that he made the 13 November 2020 decision. He said that he had used the original assessment template (which was that commencing at p 330). He identified the document commencing at p 37 as the template he used for the decision on the amended application. At paragraph 22 of his statement Mr Gell had noted that the black and red comments appearing in the document had been “populated” by the initial assessing officer, and that those in green had been added by him in the course of his assessment of the amended application.
Mr Howard SC directed Mr Gell to an entry in green on p 39 which referred to “TCCS” advice being added to the “NOD”. Mr Gell explained that this referred to information from Transport Canberra and City Services having been added to the notice of decision. This was identified to be at p 5 of the Exhibit numbered 1.6. under the words “The development shall comply with the following conditions to the satisfaction of TCCS.”
Mr Gell was also taken to a paragraph on p 8 “1D1” referring to the TCCS advice provided on 21 July 2020. He identified the advice at pp 319–20.
Mr Gell also identified the document commencing at p 55 as the Scentre representations referred to in the template for the s 144C application at p 43. The comments in red were his responses to the points made in the representation.
In relation to paragraph 24 of his statement Mr Gell said that he comments appearing in blue represented his thought processes in his consideration of s 120 PDA in the lead up to making the 13 November 2020 decision. He gave similar answers in relation to paragraphs 25, 26 and 34 in relation to the matters referred to in those paragraphs.
Mr Gell was asked some non-leading questions by Mr Redwood SC (who appeared with Ms Bindon for Elton). Mr Gell was taken to the demolition plan at p 942 (incorrectly referred to as 742 in the transcript). He identified the dark hatched areas as those to be demolished. He was then taken to p 66 (which was part of the original development application). Under the sub-heading “Gross floor area calculation” there appeared four boxes to be completed by the person making the application. They were as follows:
A. Gross Floor Area (existing) (m2) 2,309
B. Gross Floor Area to be demolished (m2) [Blank]
C. Gross Floor Area to be added (m2) 4,110
D. Total Gross Floor Area of development (m2) 6,420
At paragraph 24(b) of his statement Mr Gell had said that the redeveloped produce market would involve only a “comparatively small increase” in the Gross floor area (GFA). He was asked to explain the basis for that opinion. Mr Gell responded that his consideration of the GFA had occurred after the assessment of the application and was based on his calculations rather than what appeared in the application document itself. He said that it took into account the total GFA permitted under the Crown lease was 6,420 m2 and that Building C was to be used after demolition of the existing market building until the new Building was completed, and then Building C was to be demolished.
Mr Gell also explained that he saw the fact that the produce market had been operating at the site for 47 years as a relevant factor in assessing the retain function of Belconnen. He also said that, contrary to the representation of Scentre, he did not consider that the new produce market would have the attributes of a major supermarket. The new market did not have the layout of a supermarket, or the required storage and loading areas.
Mr Redwood SC referred Mr Gell to the letter from ACT Government Solicitor to Elton and Elanor dated 4 August 2020 appearing at pp 317–8. Mr Gell said that he had been informed verbally of the contents of the letter, as noted by him at paragraph 11 of his statement. He believed that he had received a copy of the letter after the decision (I took him to be referring to the 13 November 2020 decision). Mr Gell did not recall having seen Ex “P1” (the Originating Application in SC 182 of 2020) before.
Under cross-examination by Mr Gell advised that he occupied the position of Director of Merit Assessment with the Authority, and that he had held that position for about five years. He was responsible for about eight staff. He usually managed stages 5 and 6 of the assessment process. Stage 5 involved double checking stages 1–4 and addressing some other matters. Stage 5 for the 13 November 2020 decision was recorded in the template document at p 53.
Mr Gell said that in relation to the decision-making process for that decision he had personally completed each of stages 1 to 6. However, in the assessment leading to the 20 April 2020 decision he had only been involved personally in stage 6, which was the making of the decision.
Mr Walker SC tested Mr Gell as to whether the reasons in his statement at paragraph 24 actually represented his reasons for the 13 November 2020. Mr Gell maintained that they were. When asked as to why he had not recorded them before that decision he said that he and his staff were under time pressure to determine a large volume of applications. There had been criticism in the media of the time taken and so the process had been streamlined by use of the assessment template. Comments are only recorded when something does not align with a relevant rule.
In relation to the s 120 assessment Mr Gell was referred to p 52. His attention was drawn to his name in the “Assessment officer” box and the date of 26 February 2020. Mr Gell said that the date was an error. The original assessment had been carried out by Mr Dashuan Wang on 13 February 2020 (see p 342). Mr Gell said that he had gone over the process himself and, after some vacillation on the point, accorded virtually no weight to Mr Wang’s assessment. Mr Gell said that he had considered the CZ3 zone objectives, and that he concluded that the proposed development was consistent with those objectives.
Mr Gell said that he had considered the stage 5 issues at about the same time that he had completed the stage 4 assessment (the date of the former was recorded at p 53 as 26 October 2020). It seems likely that the date on p 52 should also have been 26 October 2020.
Mr Walker SC questioned Mr Gell at some length as to whether he had considered whether although the approval might be given to develop a produce market the buildings constructed pursuant to that approval might be used for other purposes under the Crown lease (which commences at p 1009). Mr Gell noted that under the purposes clause while the primary purpose was for use as a produce market the lease permitted other uses such as a restaurant, health facility, delicatessen and natural health food store. Mr Walker SC pointed out that the lease required that only 804 m2 of the total of 6,420 m2 be used for a produce market, and that the Crown lease allowed the land to be used for a wide range of shops (subject to certain restrictions).
In response to the question as to how many square metres were used by the existing produce market Mr Gell estimated that to be about 3,400 m2 consisting of 2970 m2 for the existing market building and 500 m2 of Building C.
Mr Walker SC put to Mr Gell that he had not addressed in the reasons for the 13 November 2020 decision Scentre’s representation that the development application if approved would allow Elanor to turn the site into a retail hub containing a chain of shops which would no longer be a produce market. Mr Gell responded that he did not have time to address every minute detail in his reasons. He said that he did not see the application as comprehending anything more than a produce market.
When pressed on his assessment of objective (b) of zone CZ3 (objective (b)) in the Territory Plan 2008 (ACT) (Territory Plan) – which required a development in that zone to support, and not undermine, the function of the CZ1 core zone – Mr Gell said that he saw the redevelopment of the market as drawing custom into the Belconnen town centre area from further afield. He saw that as potentially increasing the custom of the supermarket and other shops in the Westfield centre.
As to the expected tenancy configuration of the revamped area Mr Gell said that he did know that the existing tenancies of the produce market were to be relocated into the new building. Outside that he had no sought additional information.
Mr Walker SC asked Mr Gell about the carparking proposed for the redevelopment. He suggested that there would be, as a result of the redevelopment, a significantly greater number of car spaces than the number required under the relevant code. Mr Gell said that it was his understanding that the number of car spaces to be provided was close to what had been required by the code, however he was unable to point to the documents explaining how he came to that conclusion. He pointed to the fact that that the TCCS had provided an endorsement to the traffic report on 1 September 2020 which indicated that TCCS had no concerns about excessive carparking spaces.
Mr Walker SC took Mr Gell to the objections made by Scentre about excessive parking (at p 59). Mr Gell agreed that he had not recorded a response to that objection. Mr Walker SC put to Mr Gell that he had not considered the possibility that the provision of double (or more) the required car spaces might suggest that Elanor might be planning to drop the produce market use and boost the other uses to create a larger and more attractive retail centre. Mr Gell agreed that he had not considered that possibility. However, he said that he considered that the uses permitted under the Crown lease would not be in direct competition with the CZ1 zone. He agreed that that conclusion was not the same as a conclusion that such uses might not permit the undermining of the CZ1 zone, although he thought that they might support that zone.
Mr Gell was referred to an artist’s “mock-up” pictures of the proposed new building at pp 962-966. It was put to him that these suggested something significantly greater than a produce market was planned. Mr Gell did not agree. He saw them as consistent with the building of a large format produce market.
Mr Walker SC asked Mr Gell to explain his understanding of the stages of the proposed development. Mr Gell said that stage 1 was the development of a bulky goods building and another building on block 16 section 32 Belconnen (which is land to the south of the current market site). It was intended that uses of Building C on 2/198 Belconnen would be relocated into the buildings on 16/32.
Stage 2 involved the demolition of the existing produce market building. The tenants of that building would be moved into Building C pending the construction of the new produce market building.
Stage 3 was to be the future development of Building C, although Mr Gell was not aware of what was proposed in that regard. All of these stages are to be carried out by Elanor.
Mr Walker SC asked Mr Gell whether, if a developer proposed developing 5,600 m2 of diverse outlets and 800 m2 of produce market on the land covered by the Crown lease, that might raise concerns about CZ3 zone objective (b). Mr Gell responded, by reference to the uses allowed under the lease, that he did not consider that such a proposal would undermine the functions of the CZ1 or CZ2 areas.
Mr Walker SC asked Mr Gell about the process of plans being stamped to indicate the approval of a development application. Mr Gell said that the usual process was that a notice of decision would be issued subject to certain conditions. Once those conditions were met the Authority would stamp the plans to indicate that they were covered by the development approval. However, it was also the case that on some occasions the plans would be stamped at the time of the notice of approval. In such cases, there may be imposed a condition of the development approval that building work was not to commence before a certain condition had been met.
Mr Gell was then referred to an email from TCCS dated 21 July 2020 at pp 319–323. His attention was drawn to p 325 where the following appeared: “Additional Comments/Advice (as advice to EPSDD only and not be included in the Notice of Decision) 1. Please ask the applicant to address conditions 11 to 13 and 15 before releasing the stamped approved plans”. (EPSDD here refers to the Environment Planning and Sustainable Development Directorate of which the Authority is part).
Mr Gell agreed that a stamped copy of the plans had been released, although conditions 11 to 13 and 15 had not yet been complied with.
Mr Walker SC returned to the car-parking issue. Mr Gell said that he had not been in a position to answer the questions about that, but that he had had a chance over night to review the traffic report. He referred to p 162 and explained that table 7.1 specified the number of spaces required. The number required for stage 2 was 259. Table 7.2 on p 163 provided the spaces to be provided by the stage 2 development as 219 (consisting of 190 under the new produce market building, and 29 on Market Lane). That provided a deficiency of 40 spaces. However, that was met by the existing carparking in surrounding streets and carparks.
Mr Gell pointed out that he had referred to the new development as providing 256 car spaces in paragraph 27 of his statement. That figure included the spaces on Market Lane and Ibbott Lanes, which he had counted manually. He went on to note that contrary to the proposition that Elanor was proposing excessive onsite parking having regard to what was required that parking would in fact be somewhat under the required figure of 259.
In relation to paragraph 33(a) of his statement, which contained existing and proposed gross floor area figures, Mr Gell agreed that he had in that paragraph elaborated his thinking at the time of the 13 November 2020 decision, although that elaboration had occurred after the decision. The figures in that paragraph were wrong.
Mr Gell said that at the time of the decision he was aware that the lease placed a limit of 6,000 m2 on the GFA. He understood that the proposed development did not involve an increase beyond that limit.
In relation to Building C, which had a GFA of 1,110 m2 he excluded that from his calculation because it was to be demolished at some time in the future. Once the new building was constructed and the GFA limit was reached no use could be made of Building C until it was demolished. Mr Walker SC put to Mr Gell that he was incorrect. If the building existed after the limit was reached by the construction of the new building that would amount to a breach of the lease purposes clause. Mr Gell did not agree. He did concede that if Building C remained in place at the time when the new produce market building was completed that would result in a figure exceeding 6,420 m2.
Mr Gell was asked about the access which a member of the public would have had to the original plans provided as part of the substantive development application after the public notification of the amended application. He confirmed that it was unlikely that a member of the public could have accessed those plans over the internet. Such a person would have had to contact the Authority and arrange to come in and look at the plans. However, Mr Gell considered that a person accessing the amended plans would have been able to understand what was intended by the original plans.
Mr Walker SC asked Mr Gell about the notice of decision at p 24. Under the heading “Reasons for the Decision” the following appeared:
The application was approved because it was found to meet the relevant rules and criteria of the Territory Plan and section 120 of the Planning Development Act 2007.
Conditions have been imposed to ensure that the Crown lease is varied to permit the development and registered at Access Canberra. Further information is provided to demonstrate compliance with the Transport Canberra and City Services requirements for traffic and waste management, Bicycle Parking Gender Code and Access and Mobility General Code. Modifications to improve pedestrian movement within the basement and from carparking to the Market Hall address, provide improve amenity for uses, retain the existing artwork, and address potential noise impacts. A Statement of Acceptance from Icon Water is to be obtained in relation to water and sewer networks.
The following evidence formed part of the assessment of this application:
Development Application: 201936486
Territory Plan Zones: Commercial CZ2: Business Zone
Development Codes: Commercial Zones Development Code
Precinct Code: Belconnen Precinct Map and Code
Crown Lease: Volume 1926 and Folio 47
Legislative requirements: Sections 119 and 120 of the Planning Development Act 2007
Entity Advice: EPA, Evo Energy Electricity, Jemena Gas, Icon Water, TCCS, and Tree Protection, (addressed in Part C of this Decision)
It was put to Mr Gell that the statement of reasons contained no finding of material facts. Mr Gell was not able to take the matter further. He said that it was simply not feasible to provide detailed reasons addressing how each rule of the Territory Plan was met and responding to the issues raised by representations. Such a process would delay development applications unnecessarily and impose an unreasonable impost on the government and the community. Mr Gell was of the opinion that his reasons set out at p 24 met the requirements of ss 170 and 171 of the Legislation Act 2001 (ACT) (LA).
In relation to the proceedings SC 182 of 2020 Mr Gell said that he had not given instructions in relation to the consent orders of 3 August 2020, nor had he been consulted about the making of those orders. He did say that in the course of providing evidence for use in the proceedings he had realised that both the assessment template and the notice of decision had incorrectly referenced the zoning as CZ2 Business Zone. He was not aware that the Originating Application in that matter made an assertion that the reasons given for the 20 April 2020 decision were deficient.
Mr Walker SC asked some questions about the main access roads for both the Belconnen Markets and the Belconnen Mall (that is, the Westfield centre). He suggested that Lathlain Street and Benjamin Way are the principal streets for access to both sites. Mr Gell did not agree, although he did consider that they were the two main ways to access the market.
In re-examination by Mr Howard SC Mr Gell clarified that the reason he had not considered that the approval would lead to a breach of the floor area limit in the lease was because of his expectation that as the new market building was completed the tenants who had been using Building C would move out of that building and it would then be demolished. In response to a question from the Bench Mr Gell said that if the developer had continued to use Building C after completion of the market building he would expect the compliance team of Access Canberra to take steps to enforce compliance with the lease.
I also asked Mr Gell if he saw the plans at p 162 as providing a reasonable reflection of the architectural and other plans which were the subject of the development application. He said that he did. I also asked him what steps the Authority could take if the developer was to substantially depart from the plans in the actual building work. Mr Gell considered that such an outcome was unlikely. Generally, development approval for internal alterations were not required, however changes necessary to use the building as, for example, a supermarket, would require other changes which probably would require a further development application.
In response to that further evidence I gave leave for further examination by Mr Howard SC and further cross-examination by Mr Walker SC. Mr Howard SC asked Mr Gell whether the Authority would take action if the developer made changes to the building to indicate that it would no longer be used for a produce market, but for some other purpose. Mr Gell said that the Authority would take action if that occurred, primarily to enforce the Crown lease. Under cross-examination Mr Gell agreed that so long as the Crown lessee made no change to the building itself or engaged in earthworks it could change the use of the building as it wished, so long as that use was consistent with the lease, and there would be nothing the Authority could do about it. Mr Gell also said that he had no working notes in relation to the floor area issue.
Issues for Determination
Standing
Submissions of Scentre
Scentre submits that its standing must be assessed having regard to the provisions of s 4A of the AD(JR) Act (ACT). That section relevantly provides:
4AWho may make an application under this Act
(1)An eligible person may make an application under this Act, subject to subsections (2) and (3).
(2)If the application relates to a category A decision, or conduct engaged in for the purpose of making the decision, the person may make the application only if—
(a)`the person’s interests are, or would be, adversely affected by the decision, failure to make the decision, or conduct engaged in for the purpose of making the decision; or
…
(3)If the application relates to a category B decision, or conduct engaged in for the purpose of making the decision, the person may make the application unless—
(a)an enactment does not allow the person to make the application; or
(b)each of the following apply:
(i)the interests of the eligible person are not adversely affected by the decision or conduct;
(ii)the application fails to raise a significant issue of public importance.
(4)The Supreme Court may at any time, on application by a party, refuse to hear the application or dismiss the application if satisfied that the applicant is not an eligible person.
(5)In this section:
category A decision means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under—
(a)the Heritage Act 2004; or
(b)the Planning and Development Act 2007, other than a decision under that Act mentioned in schedule 1.
category B decision means a decision to which this Act applies, other than a category A decision.
Item 15 of schedule 1 sets outs a number of decisions under provisions of the PDA in respect of which a challenge under the AD(JR) Act (ACT) is excluded. A decision under s 165 of the PDA is not specified in the schedule. For completeness I should also note that there is a definition of “eligible person” in the Dictionary to the AD(JR) Act (ACT). It is:
eligible person, for an application under this Act, means—
...
(b)a corporation, if the subject matter of the application relates to a matter that happens after the corporation was incorporated or came into existence; …
There is no suggestion that Scentre is not an eligible person under this definition.
Scentre relies upon the decision in Argos and Ors v Corbell and Ors [2014] HCA 50; 254 CLR 394 (Argos) to support its standing to challenge the 13 November 2020 decision. Mr Walker SC made it clear that Scentre was not relying on an alleged economic effect on Scentre’s business, which was the basis on which the second and third appellant supermarket owners succeeded in that case. However, Scentre did rely on statements made in Argos to support the proposition that the question of standing must be examined in the light of the legislative scheme under which the decision is made. Scentre referred to the following passages from Argos to support this approach:
[66]The ADJR Act provides for judicial review of decisions made under many different enactments. It should go without saying that regard must be had to the subject matter, scope and purpose of the ADJR Act in construing the words of s 3B(1)(a): "a person whose interests are adversely affected by the decision". But content cannot be given to that expression, in its application to a particular decision, without regard to the subject matter, scope and purpose of the Act under which the decision was made and the proper construction of that Act. Only then can the relationship between the impugned decision and the interests said to be affected adversely be properly identified.
[67]Often, perhaps very often, the connection between decision, interests and asserted effect will be obvious and evidently relevant. But that may not always be so, and in such a case it will be necessary to identify both the interest of the applicant relied on, and whether it is adversely affected by the decision, having regard to the proper construction and application of the Act under which the impugned decision was made.
[68]Reference is not made to the Act under which the decision is made for the purpose of giving some different meaning to the words of s 3B(1)(a) of the ADJR Act. Rather, reference to the Act under which the decision is made will elucidate whether there is, in the circumstances of the decision in question, a relevant and sufficient connection between the decision, the applicant's interests and the asserted effect on those interests to show that the applicant is a "person aggrieved" by the decision.
(Citation omitted)
Scentre also relies on the comment by Gageler J (who, in dissent on that point, would have found that the first appellant landlord also had standing) at [86], where his Honour said:
The Full Court in United States Tobacco correctly emphasised that "the necessary interest need not be legal, proprietary, financial or other tangible interest" and need not "be peculiar to the particular person". The Full Court also correctly emphasised the requirement "that the applicant demonstrate genuine affection of an interest which attaches to him". That demonstration of genuine affection may be by reference to the legal or practical operation of the decision, and may be informed but cannot be exhausted by a consideration of the subject matter, scope and purposes of the enactment under which the decision was made.
(Citation omitted)
The reference to United States Tobacco in the above extract was a reference to United States Tobacco Company v Minister for Consumer Affairs (1998) 20 FCR 520.
Scentre also relied on comments in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247 (Bateman’s Bay). Mr Walker SC pointed out that the case concerned standing under the general law, not the AD(JR) Act (ACT) (or equivalent). However it was submitted that the comments made in the judgments are informative for the analysis to be performed here.
Mr Walker SC referred to the extract in paragraph [45] of the joint judgment of Gaudron, Gummow and Kirby JJ quoting the formulation of “a special interest in the subject matter of the action”. In the next paragraph of Bateman’s Bay their Honours said:
[46]In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), reference was made to the requirement that the plaintiff have "a special interest in the subject matter of the action". Their Honours stated that the rule is flexible and continued that "the nature and subject matter of the litigation will dictate what amounts to a special interest". This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject‑matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. That would be the consequence of the adoption of the approach taken by the primary judge in this litigation. It will be recalled that, in Onus v Alcoa of Australia Ltd, Brennan J warned that to deny standing may be to "deny to an important category of modern public statutory duties an effective procedure for curial enforcement".
(Citations omitted)
Mr Walker relied particularly on the comments set out below:
[48]Upon the true construction of its subject, scope and purpose, a particular statute may establish a regulatory scheme which gives an exhaustive measure of judicial review at the instance of competitors or other third parties. An example is the special but limited provision by the legislation considered in Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Limited for judicial review of successful applications for registration. However, the circumstance that the plaintiff conducts commercial activities in competition with those which it seeks to restrain is not necessarily insufficient to provide it with a sufficient interest in the subject‑matter of the action.
…
[50]The answer given for a long period has been the public interest in the observance by such statutory authorities, particularly those with recourse to public revenues, of the limitations upon their activities which the legislature has imposed. Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence in modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject‑matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation.
(Citations omitted)
Reliance was also placed on the comments of McHugh J at [101] and [103].
In its written submissions Scentre referred to Allan v Transurban City Link Ltd [2001] HCA 58; 208 CLR 167 at [17] and Maguire v Parks Victoria [2020] VSCA 172; 245 LGERA 141 (Maguire) at [77]–[78] to support the approach taken by the majority in Argos.
Scentre also argued that it was relevant that a person’s interests had to be taken into account by the decision-maker; see per Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 (Alphapharm) at 260, page markers A-C.
In the context of the above Scentre pointed to the zoning relationship between its land and 2/198 Belconnen. The Scentre land was in the CZ1 Core Zone. Elanor’s land was in CZ3 Service Zone. Zone objective (b) for the latter required that commercial development in CZ3 “supports but does not undermine the functions of” CZ1. Scentre refers to the requirement under s 51 of the PDA that the Territory Plan set out, among other things, the objectives of each zone. Section 53(1) then provides that the objectives for a zone set out the policy outcomes to be achieved by applying the applicable development table and code to the zone.
The Commercial Zones Development Code (the CZDC) contains a number of relevant controls. Thus, rule 12 (which is a mandatory requirement) prohibits internal shopping arcades or malls in CZ3. Rule 37A (also mandatory) limits the maximum gross floor area of a supermarket or shop selling food in CZ3 to 200 m2.
Scentre submits that the statutory context makes it clear that in functional terms CZ1 is at the “top of the commercial hierarchy.” While s 120(a) of the PDA gives the Authority a discretion, it must, at the least, consider the zone objectives in deciding whether or not approve a development application.
Having regard to those matters Scentre submits that given that it owns over 92 per cent of the land within zone CZ1, the PDA and the Territory Plan give it the interest necessary for standing. It is said that the effect of the legislative scheme is to give the owners of CZ1 land status and advantages for planning purposes, and that a threat to that status and those advantages is a relevant affect to such owners’ interest.
It is submitted that there is no need for a coincidence of interest with the public purpose to be achieved by the statute. However, in this case there is such a coincidence. It is in the public interest as well as that of Scentre that the function of the CZ1 zone is protected.
Scentre accepts that its interest must be “special”. It says that the zone hierarchy for which it contends establishes that it has an interest different from other members of the public. Its interest is thus “special”.
In relation to the concept of “adversely affected” Scentre argues that the fact that the development approval does nothing to ensure that the redevelopment of the market “supports and does not undermine” the function of the CZ1 zone. It is said that the approval decision leaves it open for Elanor to change the “retail shape and forms” of the market and the tenancies within it. Reference is made to the alleged increased in GFA of 280 per cent and the wide range of shops permitted under the Crown lease. I also understood Scentre to rely on the proposition that carparking far in excess of that required for a produce market was planned.
Mr Walker SC also relied on the evidence of some reservations about traffic on Lathlain Street and Benjamin Way on the part of TCCS in relation to standing. This arose from the assertion that those roads are provide significant means of access to Scentre’s shopping complex.
Scentre also points to the fact that under s 156(1) of the PDA it had an unlimited right to make representations about Elanor’s application. It is suggested that that fact, although not conclusive, tends to favour a liberal construction of the standing provisions.
Submissions of Elanor
Mr Redwood SC for Elanor says that the Court should find against Scentre on this issue on three bases. First, it is said that Scentre has failed to demonstrate that it meets the statutory test under s 4A of the AD(JR) Act (ACT). Second, it does not have a sufficient interest. And third, that Scentre has failed to lead any evidence to support the proposition that the redevelopment of the produce market would be likely to adversely affect such interest that it may have.
As to the statutory test Mr Redwood SC referred to the words “are, or would be” and “adversely” in s 4A(2)(a). These words require proof of an adverse affect beyond one which is merely possible or potential. It was also necessary to treat the cases dealing with standing under the general law with some caution. Mr Redwood SC referred to the decision of the Victorian Court of Appeal in Maguire at [73] in support of that submission.
It was also important to note that the text of s 4A differs from the text of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The standing test under the Commonwealth Act is inclusive, whereas the words “only if” in s 4A create an exhaustive test. It was also notable that the test under sub-s 4A(2) with respect to decisions under the PDA suggested that the legislature had singled out planning decisions of the kind in question here for a more restrictive test of standing.
Having regard to the particular statutory test for standing here the decisions in Alphapharm and the Bateman’s Bay cases were of little assistance to Scentre.
In relation to the interest claimed by Scentre Mr Redwood SC submitted that it did not withstand scrutiny. Contrary to the hierarchy asserted by Scentre under the planning law objective (b) for CZ3 merely emphasised the need for commercial developments in that zone to be harmonious with the functioning of the CZ1 zone. There was a stark contrast between the very clear hierarchy of centres specified in the National Capital Plan 1990 at [3.1.1] and the language used in the Territory legislation. Moreover, the reference to Zones and Zone Objectives in the Governance section of the Territory Plan (at 1.1) says nothing to suggest a hierarchy as alleged. Mr Redwood SC also referred to the CZDC where there was a specific mention of Code hierarchy (p 2 of the CZDC). Again, however, there is no mention of a zone hierarchy.
Mr Redwood SC also pointed out that objective (b) required the decision-maker to consider the function of the CZ1 zone not the interests of any specific landowner within that zone.
Having regard to the correct characterisation of the relevant planning laws it was submitted that Scentre did not have an interest beyond that of any other member of the community.
If, contrary to that submission, the Court should find that Scentre did have a relevant interest, Elanor argued that Scentre had failed to demonstrate that that interest is, or would be, adversely affected by the approval decision. Indeed, Mr Redwood SC suggested that properly understood Scentre’s claim of an adverse impact was nothing more than speculation. The claim of a 280 per cent increase in the GFA was fanciful. It was based on the contents of the development application (see [33] above) which was clearly wrong. Elanor handed up a written submission referring to the evidence about the GFA. That submission explained that there was no clear evidence as to the total existing GFA of the buildings on 2/198 Belconnen. However, the strong inference available from documents in “1D1” was that there would be no significant increase at all, and indeed, that the new produce market building may even be slightly smaller than the existing structure.
Mr Redwood SC also referred to the car-parking issue. Once Mr Gell clarified his evidence about that it became clear that, again, there was to be no substantial increase in carparking spaces such as to raise a suspicion that something more than a produce market was planned.
It was also submitted that regard should be had to the relative size of the site in question and the site occupied by Scentre. The evidence of Mr Achterstraat was that Scentre occupied over 117,000 m2 of the CZ1 zone. Given that the maximum area of 2/198 Belconnen which could be used was a little over 6,420 m2 the sheer discrepancy in size suggested that the possibility of any undermining of the function of CZ1 was very small.
The evidence suggested that what was planned was, contrary to the submissions of Scentre, consistent with the existing retail mix. The plans and drawings were consistent with a produce market, rather than a shopping arcade or the like. There was simply no evidence that Elanor planned to alter the proposed new market building in the way suggested by Scentre.
Mr Redwood SC also suggested that there was, at the least, a good argument that the purposes clause of the Crown lease required Elanor to use the land for the primary purpose of a produce market. On that basis it would be contrary to the lease for Elanor to use the minimum possible area for the produce market (804 m2) and the balance for a mix of other shops. That fact reinforced the unlikelihood of the scenario suggested by Scentre.
Consideration
The starting point must be the provisions of s 4A of the AD(JR) Act (ACT). It is important to note that the decision of the High Court in Argos was made in relation to events which occurred before the insertion of s 4A into the Act. Prior to that amendment s 5 of the Act permitted a “person aggrieved by a decision” to make an application for judicial review. The section which governed the standing of the appellants in Argos was s 3B of the AD(JR) Act (ACT). That section provided that a reference to a person aggrieved by a decision “includes” a reference to “(a) a person whose interests are adversely affected by the decision”. There was no distinction between category A or B decisions in s 3B.
It is apparent that the replacement of s 3B with s 4A reflected an intention by the legislature to, as suggested by Elanor, restrict the standing of those wishing to challenge decisions under the PDA. I am conscious that in working out the meaning of s 4A I am obliged to prefer the interpretation which best achieves the purpose of that section, reading it in the context of the Act as a whole (see ss 139 and 140 of the LA). It is permissible for the Court to consider the contents of the amending bill and explanatory material leading to the passing of an amendment, and the presentation speeches (ss 141 and 142 of the LA). I am satisfied that it is appropriate having regard to the nature of the change in the AD(JR) Act (ACT), and the accessibility of that material, to consider it to assist in working out the meaning of s 4A.
The Administrative Decisions (Judicial Review) Amendment Bill 2013 (ACT) (the Bill) was presented by Mr Rattenbury MLA on 16 May 2013. Section 6 of the Bill introduced the proposed new s 4A which was in the following terms:
4AWho may make an application under this Act
(1)An eligible person may make an application under this Act.
(2)However, the person may not make an application if—
(a)the enactment to which the subject matter of the application relates states that the subject matter may not be challenged by the person; or
(b)all of the following apply:
(i)the interests of the eligible person are not adversely affected by the decision;
(ii)the subject matter of the application is a decision about an individual;
(iii)an order of review in relation to the decision may prejudicially affect the Individual;
(iv)the application fails to raise a significant issue of public importance.
(3)The Supreme Court may at any time, on application by a party, refuse to hear the application or dismiss the application if satisfied that the applicant is not an eligible person.
(4)In this section:
prejudicially affect, an individual, includes—
(a)adversely affect the rights of the individual; or
(b)impose a liability on the individual.
The Explanatory Statement for the Bill noted that the changes to made in relation to standing followed recommendations contained in the Australian Law Reform Commission, Beyond the Door-keeper: Standing to Sue for Public Remedies (Report No 78, 1996).
However, on 19 September 2013 a number of amendments to the Bill were proposed. These included the replacement of s 4A with the section which now appears in the AD(JR) Act (ACT). The Supplementary Explanatory Statement stated:
These amendments will maintain current rights of review under the Administrative Decisions (Judicial Review) Act 1989 for decisions under the Heritage Act 2004 and the Planning and Development Act 2007.
The notes appearing under “Government Amendment 1” then proceed as follows:
These amendments will maintain current rights of review under the Administrative Decisions (Judicial Review) Act 1989 for decisions under the Heritage Act 2004 and the Planning and Development Act 2007.
This amendment will change clause 6 of the Bill, to introduce a new section 4A. New section 4A provides for two categories of decision under the Administrative Decisions (Judicial Review) Act 1989: Category A and Category B decisions. The amendment specifies a different test for eligibility to bring proceedings for Category A and Category B decisions.
Category A decisions are those made under the Heritage Act 2004 or the Planning and Development Act 2007. In relation to a Category A decision, the current standard for when a person may make an application under the Act is preserved by including the requirements in new section 4A(2).
The plain meaning of the text of the new s 4A, when compared with s 3B as it stood before the amendment, is not entirely consistent with the statement that the “current standard” under which standing to challenge a planning decision was “preserved” by the new s 4A(2). However, it is true that the government amendment proposed to keep the concept “person whose interests are adversely affected” (which prior to the amendment was the definition of “a person aggrieved”). That is demonstrated when reference is made to the Hansard record of the speeches relating to the government amendment. In introducing the amendments to the Bill, the then Attorney-General Mr Simon Corbell said (Hansard, 19 September 2013, pp 3465–6):
The government will be supporting Mr Rattenbury's Administrative Decisions (Judicial Review) Amendment Bill, but proposes a number of targeted amendments to ensure that the right of review is not abused by the new, larger class of potential litigants this bill creates….
The government therefore supports relaxing the standing requirements for bringing proceedings under the Act, but has three main concerns about the AD(JR) Amendment Bill. Firstly, the open standing provisions in the presentation bill would apply to the Planning and Development Act 2007 and the Heritage Act 2004. AD(JR) applications could be brought to delay or defer planning and land processes in circumstances where it would be frivolous or vexatious or might unduly interfere with legitimate processes for no public benefit.
Secondly, the requirements that must be satisfied in order for a person to be excluded from applying for review of a decision or applying for reasons for a decision exclude very few people from applying for review, which has the tendency to open government to potential abuses of process as people who have no interest in a matter are able to seek review in relation to it.
(Emphasis added)
At p 3467 of the Hansard record, the Attorney-General continued:
…land planning and heritage matters need to be excluded from the operation of the bill. The government wants to avoid strategic lawsuits designed to frustrate the policies and objectives of the elected government of the day, or to obtain competitive advantage. The government's amendments take into consideration the strong opinions expressed by stakeholders that when it comes to land planning and heritage matters that the status quo should remain in relation to them.
The government proposes that the current "person aggrieved" test continue to apply to land planning and heritage matters as the existing review mechanisms are sufficient, well established and appropriately balanced. This is a well-settled area of the law and the introduction of unnecessary change does not, in the government’s view, serve any clear purpose.
Allowing the bill to apply to planning and development decisions could significantly weaken the ACT’s planning processes and adversely interfere with the orderly provision of important public infrastructure and private development to support the growth of the city.
(Emphasis added.)
The Supplementary Explanatory Statement does not address the replacement of “includes” in s 3B(1) with “only if” in s 4A(2). In that sense it seems to me that that memorandum was not completely accurate in its reference to the preservation of the existing “standard”.
The Bill, as amended by the Government, was passed on 19 September 2013 and commenced effect on 26 September 2013.
In my view, having regard to the plain text of s 4A, and the purpose stated by the Attorney-General in presenting the government amendment of the Bill, the purpose of s 4A(2) was to restrict the access to judicial review of planning decisions. It will be necessary to prefer the interpretation the section which best achieves that purpose. In that sense I accept the submission of Elanor that the words “only if” are exhaustive in effect. In order to establish standing an applicant must demonstrate that there is a likelihood that his/her/its interests are (that is, are presently) or will be (at some time in the future) adversely affected by the decision in question. It follows from this that it is insufficient for an applicant to establish only a possibility of some adverse effect on his/her/its interest (in the legal sense); as to which see per Hayne and Bell JJ in Argos at [62]–[63].
In that context I turn to the issue of the interest claimed by Scentre. In Argos, Hayne and Bell JJ said:
[61]…The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from ("beyond") its effect on the public at large.
(Citation omitted)
The replacement of s 3B with s 4A did not alter the meaning of “interests”. It is a concept of broad range, as the extract in paragraph [114] above shows. I accept that the majority in Argos (Hayne, Bell and Gageler JJ) expressly approved the proposition that it was necessary to consider the subject matter, scope and purpose of the legislation under which the decision challenged under the AD(JR) Act (ACT) was made, in determining whether an applicant is “… a person whose interests are (or would be) adversely affected by the decision.”
On that basis I accept, having regard to the scheme of the PDA and the Territory Plan, that Scentre has an interest by virtue of its occupation of nearly all of the CZ1 Core Zone in the maintenance of the function of that Zone as the central commercial and retail hub of the Belconnen Town Centre. In that context it does not seem to me to be to the point that objective (b) requires support, and not undermining, of “the CZ1 Core Zone”, as opposed to the owners of land within the zone.
It seems to me that it is not necessary to determine whether the zoning provisions imply a “hierarchy”. The plain meaning of objective (b) of the CZ3 Services Zone, in the overall legislative context, is as was submitted by Scentre sufficient to establish that it has an interest for the purposes of s 4A(2)(a).
That raises the question of whether Scentre has established that its interest is or will be adversely affected by the 13 November 2020 decision. I am comfortably satisfied that it has not.
The essence of Scentre’s argument is that approval decision leaves open the possibility that Elanor might construct and use a new market building in such a way as to either undermine, or at least, not support the functioning of CZ1. However, as Mr Redwood SC pointed out, Scentre led no evidence to support that argument. Rather, it depended upon the assertion that a lack of detailed prescription in the approval decision left it open to Elanor to undertake a development which did not support the functioning of the CZ1 zone. I do not accept that assertion. I can see nothing in the PDA or the Territory Plan which obliged the Authority in deciding the amended development application to impose prescriptive conditions which, for example, descended into the details of the retail mix and relative size of the produce market within the development. Indeed, s 120 of the PDA requires only that the decision-maker must “consider” the relevant zoning objectives. It is one thing to consider the objectives, it is an entirely different thing to impose the objectives by detailed conditions attached to the development approval.
Moreover, there was nothing in the voluminous material provided to the Authority for the development application (see “1D1”) that, so far as I could see, supported the suggestion that Elanor was planning to build and operate something other than an undertaking that was primarily, a produce market. Indeed, the “mock-up” drawings and the other plans in “1D1” appeared to be entirely consistent with a produce market, rather than a shopping mall or arcade, or the like.
Insofar as Scentre relied on the evidence elicited from the cross-examination of Mr Gell in relation to standing it failed to establish the actuality of an existing or future adverse affect. Mr Gell explained that he did not see the development application as comprehending anything more than a produce market (this was in the context of what was permitted under the Crown lease). I accept his evidence in that regard. As to the issue of the retail mix I note Mr Gell’s evidence that to his knowledge the existing tenants of the produce market were to be relocated into the new market. There was no challenge to that evidence. I see it as powerful evidence against the potential scenario contended for by Scentre. Furthermore, I accept Mr Gell’s evidence that he did consider objective (b) of zone CZ3 and that he believed that the redevelopment would support rather than undermine the functioning of CZ1 (see [45] above).
In relation to the issue of the GFA it must be said that the evidence was left in a surprisingly uncertain state, having regard to the important limitations set out in the Crown lease. Nevertheless, it seemed to me that one thing was certain. That is that the suggestion that it was to be increased by 280 per cent was incorrect. The basis for the error was explained in the submissions of Mr Redwood SC (see [98] above). I accept the submission of Elanor that the evidence, such as it was, suggested that there would be no substantial increase and that, indeed, it might actually decrease once stages 2 and 3 of the proposed redevelopment were completed.
So far as the suggestion of a substantial excess of car-parking over what was required by the relevant code it must be said that Mr Gell’s evidence when he was first asked about this was somewhat confusing (see the summary at [47] above). However, Mr Gell clarified the situation when questioned the following day, having had a chance to look at the relevant report overnight. I accept his evidence on this issue (see [57]–[58] above). In the light of that clarification, in my view, the complaint about an excess of car-parking was without foundation.
Mr Walker SC also relied on the possible interference with traffic access to CZ1 in relation to standing. However, his questions of Mr Gell did not elicit any helpful evidence on that issue (see [66] above). I could see no basis for a conclusion that the market redevelopment created a risk, let alone a likelihood, of some real interference with traffic access to the CZ1 zone.
Finally, in support of its claim of standing generally, Scentre relied on the fact that s 156(1) of the PDA gave an unlimited right to persons to make representations against a publicly notified development application. Scentre had exercised that right in relation to both the original application and the subsequent, amended application.
That right to make representations must be seen in context. It is important, in that regard, to note that a person who makes a representation is given standing under Chapter 13 of the PDA to apply to the ACT Civil & Administrative Tribunal (ACAT) for review of a decision under s 162 to approve a development under the merit track. However, such an application for review is excluded in the circumstances of this case under s 350 and schedule 3, part 3.2, of the Planning and Development Regulation 2008 (ACT) (the PDR). This is because the land in question is within the Belconnen Town Centre. In other words, the scheme for third party administrative review is extremely limited under the PDA, and not open at all in relation to the land in question in this case.
Contrary to the right to make representations under s 156 requiring a “liberal” construction of standing, it seems to me that the fairly severe restriction of the rights of a representor to a full merits review of a development approval under s 162 confirms the intent of the legislature that the contrary approach is adopted.
In the light of the above I conclude that any adverse affect alleged by Scentre is purely speculative. There is, in my view, insufficient evidence that the interests of Scentre are or will be adversely affected to meet the test for standing under s 4A(2)(a) of the AD(JR) Act (ACT). Scentre’s Originating Application must be dismissed on that basis. However, in case I am wrong in coming to that conclusion I will address the substantive issues raised by Scentre under s 5 of the AD(JR) Act (ACT). I will address them in the order in which they were addressed in the written submissions made on behalf of Scentre.
Failure to give reasons
Submissions of Scentre
Scentre relied on the terms of s 170 of the PDA. Relevantly that section provides:
170Notice of approval of application
(1)If a development application is approved under section 162(1)(a) or (b), the planning and land authority must give written notice—
(a)`to the applicant; and…
(b)to each person who made a representation under section 156 about the application…
(2)A notice to an applicant under subsection (1) (a) or another person under subsection (1) (d) must—
(a)set out the decision and the reasons for the approval; and
(b)if the approval is subject to conditions—set out the conditions…
Having regard to the stated obligation to give reasons Scentre then pointed to s 179 of the LA which states:
179 Content of statements of reasons for decisions
(1)This section applies if a law requires a tribunal or other entity making a decision to give written reasons for the decision, whether the term ‘reasons’, ‘grounds’ or any other term is used.
(2)The document giving the reasons must also set out the findings on material questions of fact and refer to the evidence or other material on which the findings were based.
(3)This section is a determinative provision.
Mr Walker SC made the point that s 179 was a determinative provision. Under s 6 of the LA it was necessary for either an express displacement of the obligation created by s179, or a manifest contrary intention displacing that obligation. Neither was present here. It followed that s 179(2) applied to the reasons which Mr Gell, as the decision-maker, was required to give in relation to the 13 November 2020 decision.
In my view each of r 34 and the rules in Part G do require a referral to an entity. Moreover, given the importance of ensuring the protection of the various utility networks in the Territory I have no hesitation in concluding that for the purposes of s 26(2) of the PDR those requirements are requirements of the Territory Plan. It follows that I reject the argument that the referrals to Icon Water and TCCS were not mandatory under s 148 of the PDA.
That requires attention to be given to the issue of the alleged inconsistency of the approval with the content of the advice from each of those entities. I was not referred to, nor have my own researches identified, a case in this Court in which the meaning of “inconsistency” in this section has been examined.
The ordinary meaning of “inconsistent” is as set out in the Macquarie Dictionary (8th ed, Pan Macmillan, 2020):
1. Lacking in harmony between the different parts or elements; self contradictory.
2. Lacking agreement, as one thing with another, or two or more things in relation to each other, at variance.
.…
In working out the meaning of the term in s 119(2) it is of course necessary to prefer the meaning which best achieves the purpose of the Act (see s 139 of the LA). In that regard I am conscious of the overall objectives of the PDA when it was first passed into law in 2008. I refer to the discussion of those objectives in the Concerned Citizens case referred to in paragraph [179] above. It is worth setting out the passage from the Explanatory Statement extracted by Refshauge J at [214] in that case. It is in the following terms:
The Government launched the Planning System Reform Project in December 2004 with the aim:
to create a contemporary planning and land administration system, processes and practices that will provide greater certainty, clarity and consistency and which is flexible, timely, less repetitious and administratively manageable.
The Government wishes to reform the planning system to save homeowners and industry time and money and give them greater certainty about what they need to do if they require development approval.
People using the ACT’s current planning system have found some aspects slow, cumbersome, inconsistent and confusing. Simple planning proposals often require the same long application and approval processes and timeframes as complex proposals. Low impact proposals often attract the same level of environmental impact assessment as higher impact proposals.
The new system will have less red tape and more appropriate levels of assessment, notification and appeal rights. This will make it easier to understand what does and does not need approval, what is required for a development application and how it will be assessed.
A central part of the Bill is simplified development assessment through a track system that matches the level of assessment and process to the impact of the proposed development.
(emphasis added)
Against this background it is necessary, in my view, to take a broad and practical approach to the analysis of inconsistency. A narrow and technical analysis would run the risk of frustrating the very purpose of the PDA of simplifying and speeding up the planning and development process in the Territory.
In relation to the concerns expressed by Icon Water, it is apparent that the substance of those concerns related to the risk that some of the building work which was planned for the development would adversely affect the water and sewerage network. It was that concern which no doubt caused Icon Water to stipulate that the development application should be referred back to it before “DA/BA Approval”. However, it is apparent that for a large commercial development such as that proposed by Elanor there are many steps required to be taken and many entities to be consulted before an approval decision can be made. The time limit set is very tight having regard to the administrative processes which have to be undertaken. Moreover, under s 163(3) of the PDA a failure to decide an application within the time limit leads to a deemed refusal of that application for the purposes of s 12 of the ACAT Act.
Elanor’s development application was, as I understand the evidence, amended on or about 15 September 2020. Having regard to the representation by Scentre the Authority had 45 days from that date in which to make a decision in relation to the application. That time expired on 30 October 2020. It is apparent from the process adopted in relation to Elanor’s application that by early November 2020 the Authority was satisfied that the application was appropriate for approval subject only to those matters made the subject of conditions. In those circumstances it would accord with the purpose of the PDA as a whole for the approval to be granted so as to allow the development to proceed to the greatest extent possible, while preserving the power of Icon Water to ensure the protection of water and sewerage network.
Contrary to the submission of Scentre, it seems to me that the very broad powers to impose conditions on an approval decision granted by ss 162(1)(b) and 165 are designed to provide the Authority with the flexibility to frame approvals to fit the myriad and complex situations which can arise in relation to development application. Section 165(3)(a) and (d) clearly envisage a condition along the lines of condition 3 in Part A of the notice of decision here.
The work to be done by s 119(2) is to ensure substantial compliance with the relevant entity advice. That is made explicit by s 151 of the PDA which in subsection (1) states:
151Effect of advice by referral entity
(1)This section applies if—
(a)a development application, including a development application amended under section 144, is referred to an entity; and
(b)the entity gives advice on the application in accordance with section 149; and
(c)the planning and land authority or Minister approves the application; and
(d)the approval is substantially consistent with the advice.
In my view the inclusion of condition 3 meant that the approval decision did, in substance, accord with the advice from Icon Water. The practical effect of the approval, so far as the water and sewerage network was concerned, was that the approval would not commence operation until Icon Water was satisfied that all of its requirements were met. The consequence of that, in practical terms, was that building work could not be commenced until Icon Water had issued its Statement of Acceptance.
Scentre’s argument as to the circularity of the approval decision ignores the fact that in relation to specific entity requirements, the scheme of the PDA permits precisely the type of condition to be prescribed as was imposed in condition 3. The same is true in relation to the limited “appeal” rights given to representors under the PDA.
In relation to TCCS, I do not accept that the terms of the comment under the heading “Additional Comments/Advice” (see [235(d)] above) amounts to the statement of a mandatory requirement. On the contrary the qualification appearing in parentheses (where “EPSDD” refers to the ACT Environment, Planning and Sustainable Development Directorate — the Authority being part of that Directorate) suggests that the request was in the nature of an expression of preference for a certain step to be taken. If it was intended to operate as a mandatory condition it would have to have been specified as such in the notice of decision. The text of numbered paragraph 1 under that heading is also more consistent with a request than a requirement.
In that context, having regard to the matters set out in item 6 under “Advisory Notes” in Part A of the notice of decision, which for the reasons given above, I see as conditions, I do not accept the submission of Scentre that there was any inconsistency in the approval decision with the advice from TCCS.
I reject the contention that the 13 November 2020 decision was prohibited by s 119(2), and I would consequently reject ground 2 of the Amended Originating Application.
Apprehended Bias
Submissions of Scentre (including in reply)
Scentre argued that a fair minded and informed observer might conclude that Mr Gell might not have been impartial, or approaching the matter with an open mind, when he made the 13 November 2020 decision. The basis for this submission arises from the following:
(a)Mr Gell made the 20 April 2020 approval decision;
(b)He did so at a time when substantial aspects of the development application remained unresolved;
(c)The reasons he gave were “manifestly inadequate” which was a ground for Scentre’s first judicial review proceeding;
(d)The 20 April 2020 decision was quashed by consent;
(e)Despite the history, Mr Gell again gave reasons which were “manifestly inadequate”;
(f)The main consideration taken into account by Mr Gell was that because a produce market had been present at the site for many years such a market should continue to operate at that site; and,
(g)Mr Gell’s assertion at paragraph 39 of his 5 March 2021 statement of reasons that one of the factors leading to his decision was “his strong understanding of desired planning outcomes for the Belconnen Town Centre”. Mr Gell’s failure to specify those outcomes supports the apprehension that he had reached a view that the application had to be approved.
Scentre refer to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner), Webb v The Queen (1994) 181 CLR 41 and McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 (McGovern) for the formulation of the test to be applied.
Submissions of Elanor
Elanor accepts that the decision in Ebner provides a starting point in the analysis of an allegation of apprehended bias based on pre-judgment. However, Elanor points to the refinements in that analysis arising from comments in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 (Isbester) and CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 (CNY17).
Reference is made to a passage from the judgment of Gageler J in Isbester at [59] where his Honour said:
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
In the CNY17 case Kiefel CJ and Gageler J said of that third step (at [21]):
...Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, "it is the court's view of the public's view, not the court's own view, which is determinative".
Elanor argues that the factors relied upon by Scentre and summarised at [265] above might be seen as addressing the first step of the required analysis. However, Elanor argues that there is no explanation given by Scentre as to the second step. That is, Scentre fails to articulate how the factors it relies on might have caused Mr Gell not to decide the application on the merits.
In relation to the factors which Scentre relies on, Elanor distils these to three issues. These are:
(a)The assertion that Mr Gell made both decisions and on both occasions gave manifestly inadequate reasons;
(b)The “overarching” focus on the existence of the produce market over many years in the past; and,
(c)Mr Gell’s expressed “strong understanding” without specifying the relevant planning outcomes.
In relation to the first of these it is submitted that merely deciding a matter twice is insufficient to give rise to an apprehension of pre-judgment. It is not uncommon for a challenge to an earlier decision to result in it being set aside and the matter remitted for reconsideration. In that circumstance the decision-maker will be required to decide the matter again. Indeed, that is what occurred here.
The reference to “manifestly inadequate” reasons is said to presume a certain outcome, given that the adequacy of the reasons is an issue for determination in these proceedings. Moreover, when regard is had to the statutory and factual context of the decision to be made the content of the reasons in incapable of giving rise to an apprehension of bias.
The existence of the market for many years was a matter of fact. It assumed a particular importance here having regard to the specific provisions of the purposes clause of the Crown lease. It was appropriate for Mr Gell to take these matters into account in making his decision.
There was also nothing to suggest pre-judgment in the statement by Mr Gell that he was relying on his understanding of the desired planning outcomes for the Belconnen Town Centre. Elanor referred to s 12 of the PDA and the planning expertise of the Authority to support the proposition that as the Authority’s delegate Mr Gell was required to draw on that understanding in making the decision.
Consideration
In dealing with an allegation of apprehended bias there must be a distinction made between situations involving a judicial decision-maker, and those involving administrative decisions. In McGovern, Spigelman CJ described that distinction in the following terms:
[6]Lawyers are, understandably, susceptible to approaching such issues, when they arise in the context of a statutory power, by treating judicial decision-making as some kind of paradigm, departures from which have to be explained or even justified by reason of the particular statutory power or decision-making body. In my view this is an incorrect approach. The case law on judicial decision-making is not a starting point when determining the application of the apprehended bias test in a specific statutory context. The statute must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach.
[7]How the apprehended bias test is applied is, as Basten JA indicates, affected by the statutory functions being performed and by the identity and nature of the decision-maker who is obliged by statute to perform those functions. The content of what the test requires varies from one context to another by a process involving, and usually determined by, statutory interpretation.
[8]Each of the elements in the apprehension of bias principle requires a context specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process.
[9] In each case the Court must have an understanding, in the particular context of:
·What is the process involved in ‘resolving the question’ that the decision-maker “is required to decide”.
·What may constitute an absence of ‘impartiality’ or lack of ‘prejudice’ in the mind of the decision-maker?
·What might a “fair minded lay observer … reasonably apprehend” as to the above two matters.
[10] These issues require a context specific approach, generally as a process of statutory interpretation. It is unnecessary to consider the longstanding debate as to whether the requirements of procedural fairness constitute a principle of the common law engrafted, subject to statutory modification, on the exercise of public power or whether the requirements emerge by reason of the proper interpretation of the statute conferring the power. On either basis an impartial and unprejudiced mind is required.
[11]However, as Hayne J has put it, it is necessary to inquire “what kind or degree of neutrality (if any) is to be expected of the decision-maker” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [187]). That expectation will differ from one statutory context to another. As indicated above, the judicial paradigm is not universally applicable.
His Honour also provided some useful guidance on what the term “pre-judgment” encompasses. His Honour said:
[15]The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be “capable of being persuaded” (at 1197c); pre-judgment is of such an “extent” that contrary representations “would be futile” (at 1197d-e); statements said to constitute pre-judgment must be an “expression of final opinion … which cannot be dislodged” (at 1197f); the position of the person must be “incapable of change” (at 1197g). The “incapable of persuasion” test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.
[16]A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker “is open to persuasion” (at [71] and [105]), or whether the “conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented” (at [72]).
It is also useful to note the comment made by Basten JA in that case in relation to the position of the fair-minded observer. At [78], his Honour set out an extract from the judgment of Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at p 87:
… In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case.
Basten JA, in addressing the circumstances in McGovern (which concerned allegations of pre-judgment bias against some members of the Council in granting consent to a development application), went on to say:
[80]Whether familiarity with relevant processes breeds contempt or trust is not a matter which need detain the Court in this matter: there is no particular reason to suppose that members of the general public are any better or less well-informed than judges about the proper institutional role of local councils or how they operate in practice. The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers.
While Basten JA was in the minority on the issue of whether the trial judge had applied an incorrect test in asking whether the decision-maker would, rather than might be, impartial, that does not undermine the force of his conclusion as to what a fair-minded observer might reasonably expect from the person or body charged with deciding whether to approve or reject a development application.
With these principles in mind, I turn to the issues raised by Scentre, which are said to be matters suggesting that Mr Gell might decide the application other than on its merits. I agree with the characterisation of these as submitted by Elanor. The first relates to the fact that Mr Gell was to decide the matter again after the first decision was set aside. As to that, it seems to me that it can be assumed that the observer would know that Mr Gell was making the 13 November 2020 decision after his initial decision had been set aside by consent. This was not a matter where there was any criticism made of Mr Gell by the Court, nor any indication given in the orders that some other delegate of the Authority should deal with the application. There was no suggestion that he had a personal interest in the outcome of the application, or indeed, any other reason for not dealing with it as he would any other development application which he was required to decide.
It seems to me that nothing in those circumstances would suggest to a fair-minded observer even a faint possibility that Mr Gell would not bring an impartial mind to the decision he was required to make.
I do not see the argument about the adequacy of reasons as assisting Scentre on this issue. I have found that there were technical inadequacies in the reasons given for the 13 November 2020 decision. However, it seems to me most unlikely that a relevant observer would draw a conclusion one way or the other about Mr Gell’s impartiality from the fact that there were such inadequacies, and indeed, that there may have been similar such inadequacies in relation to the 20 April 2020 decision. The observer can be taken to have been aware of the decision of Refshauge J in Forman. He or she will also have been aware that so far as Mr Gell was concerned, the reason why the 20 April 2020 decision was set aside was the error made as to the zoning of the land, not due to a problem with the reasons given for that decision.
I accept that Mr Gell saw the historical presence of the produce market since the 1970s as an important factor in deciding whether or not to approve the application. I also accept that it is likely that a fair-minded observer would have come to a similar conclusion. That observer must be assumed to be aware of the terms of the Crown lease and the content of Elanor’s development application. In that context I accept the submission of Elanor that Mr Gell’s reference to the history of the market was entirely unremarkable. I reject the suggestion that that reference might suggest to the fair-minded observer that Mr Gell might have had a closed mind in relation to the application.
I am likewise unpersuaded by the reliance by Scentre on paragraph 39 of Mr Gell’s 5 March 2021 statement of reasons. The whole paragraph, which appeared at the end of the section headed “The findings on material facts” read as follows:
[39]Following the consideration of the Assessment against the Territory Plan, comments received during both public notification periods and entity comments received for both the original and S144C application, together with my strong understanding of desired planning outcomes for the Belconnen Town Centre, I decided to approve Development Application 201936486 with conditions on 13 November 2020.
In the context of the statement of reasons, paragraph 39 was clearly intended to express a rolled-up conclusion summarising the various matters which Mr Gell had considered or taken into account in reaching the 13 November 2020 decision. The reference to his understanding of the “desired planning outcomes” was no more than an expression of his broad view that the development approval accorded with the overall planning policy for the Belconnen Town Centre. I am unable to see how a fair-minded observer could infer from that comment that Mr Gell had been partial in making his decision. I also am unable to see how the failure to expand on the comment by explaining the details of the policy he was referring to, could make a difference to that inference.
The assertion of apprehended bias fails. I would reject ground 5 of the Amended Originating Application.
Public notification
Mr Walker SC submitted that Scentre relied on this issue in relation to the relief which it sought, should it succeed in having the 13 November 2020 decision set aside. In the circumstances I do not see it as necessary for me to deal with the public notification question.
Conclusion
Having found that Scentre lacked standing to bring the application for judicial review, the Amended Originating Application must be dismissed.
Orders
The orders of the Court are:
(1)The Amended Originating Application dated 21 June 2021 is dismissed.
(2)Subject to Order 3, the plaintiff is to pay the third defendant’s costs of the proceeding.
(3)Order 2 is vacated and costs shall be reserved in the event that any party notifies the Court in writing before 4:00pm on 19 August 2021 that it seeks a costs order different from that made in Order 2.
| I certify that the preceding two hundred and ninety [290] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe Associate: Date: 5 August 2021 |
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Amendments
| 10 August 2021 | Replace “Parte” with “parte” | Paragraph: [20] |
| Replace “Achterstraacht” with “Achterstraat” | Paragraph: [22] | |
| Replace “Alphafarm” with “Alphapharm” | Paragraphs: [81], [94] | |
| Replace “s 199(2)” with “s 119(2)” | Paragraph: [259] |
| 9 November 2021 | Replace “United States Tobacco v Minister of Consumer Affairs [1988] FCA 213” with “United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520” | Paragraph [75] |
| Replace “Batemans Bay” with “Bateman’s Bay” | Paragraph [94] | |
| Replace “ (3) the enactment…” with “(a) the enactment…” | Paragraph [105] | |
| Replace “ (4) all of the following apply:” with “(b) all of the following apply:” | Paragraph [105] | |
| Replace “(2) The Supreme Court may…” with “(3) The Supreme Court may…” | Paragraph [105] | |
| Replace “(3) In this section:” with “(4) In this section:” | Paragraph [105] | |
| Replace “ex parte Palme [2010] HCA 56” with “Ex parte Palme [2003] HCA 56” | Paragraph [135] | |
| Replace “decision making” with “decision-making” | Paragraph [138] | |
| Replace “Minister for Immigration Local Government and Ethnic Affairs v Taveli [1990] FCA 229” with “Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162” | Paragraph [144] | |
| Replace “Baptist Community Services v ACT Planning and Land Authority ([2015] ACTCA 3; 293 FLR 97” with “Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3; 10 ACTLR 258 | Paragraph [146] | |
| Replace “…and economic aspirations of the people of the ACT “ ” with “…and economic aspirations of the people of the ACT”” “ | Paragraph [150] | |
| Replace “Forman v ACT Planning and Land Authority and Evans and Evans [2013] ACTSC 167; 279 FLR 54” and “Forman v ACT Planning and Land Authority [2013] ASCTSC 167; 279 FLR 54” | Paragraph [151] | |
| Replace “Ferdinand v Commissioner for Public Employment” with “Ferdinands v Commissioner for Public Employment” | Paragraph [153] | |
| Replace “Commissioner for Police v Eaton” with “Commissioner of Police (NSW) v Eaton” | Paragraph [153] | |
| Replace “…referred to at [150] above” with “…referred to at [151] above” | Paragraph [171] | |
| Replace “ “such force and effect as is given to it by the law pursuant to which it was made. “ with “ “such force and effect as is given to it by the law pursuant to which it was made”. “ | Paragraph [181] | |
| Replace “(at [170])” with “(at [171])” Replace “at [132]” with “at [129]” | Paragraph [184] | |
| Replace “Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 514” with “Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LEGRA 508” | Paragraph [203] | |
| Replace “Buzzacott v Minister” with “Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities” | Paragraph [203] | |
| Replace “Ebner v The Official Trustee in Bankruptcy” and “Ebner v Official Trustee in Bankruptcy” | Paragraph [266] | |
| Replace “Webb v R [1994] HCA 30” with “Webb v The Queen (1994) 181 CLR 41” | Paragraph [266] | |
| Replace “McGovern v Kuringai” with “McGovern v Ku-ring-gai” | Paragraph [266] | |
| Replace “CNY17 v Minister for Immigration [2019] HCA 50; 94 ALJR 140” and “CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76” | Paragraph [267] | |
| Replace “(b) The “overarching” focus on the existence of the produce over many years in the past” with “(b) The “overarching” focus on the existence of the produce market over many years in the past” | Paragraph [271] | |
| Replace “Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70” with “Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70” | Paragraph [278] | |
| Replace “a tribute” with “attribute” | Paragraph [278] |
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