Shatzman v ACT Planning and Land Authority
[2016] ACAT 117
•1 August 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SHATZMAN v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2016] ACAT 117
AT 36 of 2016
Catchwords: ADMINISTRATIVE REVIEW – planning and development - party joinder application – distinction between being joined as an applicant or only as a party – whether interests affected are more than an emotional or intellectual concern
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 22Q, 29
Planning and Development Act 2007 ss 408, 419, Schedule 1
Cases cited:McHattan v Collector of Customs (1977) 18 ALR 154
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn & ACT Heritage Council [2012] ACAT 81
Tribunal: Presidential Member M-T Daniel
Date of Orders: 1 August 2016
Date of Reasons for Decision: 26 October 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 36/2016
BETWEEN:
STEPHEN SHATZMAN
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
VOYAGER PROPERTY PROJECT NO 1 PTY LTD
Party Joined
TRIBUNAL: Presidential Member M-T Daniel
DATE: 1 August 2016
IN CHAMBERS ORDER
The Tribunal orders that:
The application by Mr Gardner for joinder as a party to these proceedings is dismissed.
……………Signed……..
Presidential Member M-T Daniel
REASONS FOR DECISION
On 1 August 2016 the Tribunal decided not to join Mr Gardner as a party to these proceedings, and his application for joinder was dismissed.
Mr Gardner has requested written reasons for the decision to dismiss his application. Those reasons follow.
Background
On 27 May 2016 the ACT Planning and Land Authority (ACTPLA) decided to approve, subject to conditions, an application to demolish a number of dwellings in Forrest and construct in their place a six-storey apartment building (the decision). One of the dwellings to be demolished was located at 14 Dominion Circuit, Forrest.
On 30 June 2016 the tribunal received an application for review of the decision (the substantive application).
On 13 July 2016 Mr John Gardner applied to the tribunal to be joined as a party to the substantive application.
In his application, Mr Gardner explained that 14 Dominion Circuit, Forrest was his former family home. He said that he was opposed to having the home “demolished in the name of redevelopment.” In addition to his concerns about the demolition of his former family home, Mr Gardner said that in his opinion the proposed redevelopment “is a crazy idea, adding congestion to congestion, and danger to danger, to the point of irresponsible.” He wrote “I attempted to have the house declared as ‘heritage’, but did not succeed in that. I still think it only just short of ‘heritage’, and should not be demolished. It is its location which the developers covet, being so close to Parliament House.”
Mr Gardner also noted in his application that he had another concern with the decision. This was that the decision permitted removal of regulated tree 22. Mr Gardner felt that the removal of this tree was unnecessary and noted “it is a fine majestic tree, of sufficient girth and height to be considered “regulated”, if not heritage.”
Mr Gardner lives in Canada, but wished to be joined to the proceedings even though he acknowledged it could be difficult or expensive for him to participate in the hearing of the substantive application.
The proceedings
The matter came before the Tribunal on 18 July 2016 for a directions hearing on the substantive application and consideration of the application to be joined as a party. Mr Gardner, being then in Canada, was not present. He had sent through to the registry by email on 18 July 2016 a written submission to which the Tribunal had regard.
The applicant neither consented to nor opposed Mr Gardner’s application to be joined as a party.
The respondent opposed Mr Gardner being joined as a party. In an email to Mr Gardner of 15 July 2016, to which they referred on 18 July 2016, the solicitors for the respondent had written:
The basis of our objection is that you do not reside in or own your former family home at 14 Dominion Circuit and that you have been living in Canada for some years now. Accordingly we do not believe your interests would be affected by this proceeding for the purposes of section 22Q of the ACT Civil and Administrative Tribunal Act 2008; and further that you will suffer “material detriment” – meaning that the ACTPLA’s decision will or is likely to adversely affect your use or enjoyment of the land subject to the Development Application, currently under review before the Tribunal (see section 408, 419 and Schedule 1, item 4, column 3 of the Planning and Development Act 2007).
The issues set out in that email would be relevant if Mr Gardner was seeking to be joined to the proceedings as an applicant, or to bring his own application for review of the decision. However this was not the case. Mr Gardner was seeking only that he be joined as a party to the proceedings. Such an application may be granted under section 29 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), notwithstanding that the party joined is not themselves eligible to apply for review of the decision.
It became apparent on 18 July that neither Mr Gardner nor the respondent had considered the question of whether Mr Gardner should be joined to the proceedings as an ‘interested party’ under section 29 of the ACAT Act. Accordingly, the Tribunal reserved the determination of Mr Gardner’s application and directed the parties and Mr Gardner to file further written submissions on the issues relevant to section 29 of the ACAT Act.
The key facts
From the documents filed by Mr Gardner the following key facts can be distilled.
The house at 14 Dominion Circuit was built under the direction of Mr Gardner’s father. When it was finished the family moved into it and lived there initially for about 5 years. Mr Gardner over this time of construction and residence was aged from 8 to 16 years.
The family then moved overseas to Canada but after 3½ years returned to Australia, to the home at 14 Dominion Circuit. Mr Gardner could not settle down and found his way back to Canada where he has subsequently lived most of his life.
The house remained in the family for 55 years until November 2011 when the property was sold.
Mr Gardner has made at least 5 trips to the ACT in the last 5 years. He visited the ACT in November 2011 to meet with the new buyer and urge them not to demolish but to preserve the property. He has made multiple written representations to third parties about the future of the house.
The submissions
The applicant by email to the Tribunal confirmed that they neither consented to nor opposed Mr Gardner’s application and declined to make any written submissions.
On 22 July 2016 Mr Gardner provided the Tribunal with an overview describing his interest in the proceedings. He attached a number of documents, being:
(a)the submission he put to the auction on 3 September 2014;
(b)his letter to the National Capital Authority of 16 February 2015;
(c)his letter to the Environment and Planning Directorate of 13 January 2016; and
(d)his emails to the Directorate and the Heritage Council of January 2016 together with photographs of the house and surrounding area.
In his email of 18 July 2016 Mr Gardner refuted the suggestion that he would not be personally affected by any redevelopment taking place at the relevant location, merely because he lives in Canada. He explained that ever since the house had been sold in 2011, he had fought a campaign against its demolition. He listed multiple occasions on which he travelled to Canberra and made representations about preserving the house[1]:
(a)at the Peter Blackshaw auction at the Hotel Realm, 3 September 2014;
(b)to the National Capital Authority, 16 February 2015;
(c)to the Environment and Planning Directorate, 13 January 2016; and
(d)to the Heritage Council, 28 January 2016.
[1] although he acknowledged that these trips were in part to visit family and friends
While he acknowledged that his main concern was preserving the house, he noted that on each occasion (except the auction) he mentioned the greatly increased traffic congestion and other issues flowing from allowing the proposed development.
Mr Gardner wrote that he accepted that his personal feelings about the house ‘were no longer a factor in this situation’ but wanted the Tribunal to be aware of the consistent effort he had made over the last five years to preserve the house. He explained that although he lives in Canada, he is an Australian citizen, has returned to Canberra several times over the past years and intends to keep doing so. He wrote “I spent the 2nd half of my childhood living in that house, and I feel it is agonisingly unfair to exclude me from even the most passive participation in a process which I understand may take some months.”[2] He said that he would be personally affected by any redevelopment, “I am quite affected already, and it shows through in this submission.”
[2] Email dated 18 July 2016 from Mr Gardner
He wrote:
The tribunal will see my very strong feelings, but I am not asserting that these are grounds why redevelopment should not happen. Actually I have urged for some time that the house not be demolished, but preserved and incorporated into any redevelopment, which I accept is going to come. In spite of my strong feelings, I ask the tribunal to consider the valid objective arguments I have made, and have made for some time now. I think I have more than earned the right to be a “joined party”, and so be officially informed of what is happening.
On 27 July 2016 the respondent filed submissions in which it objected to Mr Gardner being joined as a party to the proceedings. The respondent referred the Tribunal to Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn & ACT Heritage Council [2012] ACAT 81 as authority for the correct application of section 29(5) of the ACAT Act.
In that case the Tribunal outlined the principles to be applied in determining an application for joinder under section 29(5) of the ACAT Act, and noted that the correct test is that used for analogous Commonwealth statutory provisions.[3]
[3] RomanCatholic Church for the Archdiocese of Canberra and Goulburn & ACT Heritage Council [2012] ACAT 81 at [57]
The respondent summarised this test as requiring that the following be established in order for a person to be joined as a party:
(a)Their interests are affected in a way that is greater than a mere emotional or intellectual concern and greater than that held by a member of the public who holds the view that the law should be observed;
(b)their interest must be genuine, real and direct but need not be legal or equitable or pecuniary; and
(c)there must be evidence to show that the interests are affected by the decision in a way that is not too remote.
Applying these criteria, the respondent submitted that while Mr Gardner had a strong personal attachment to the house and subject block and is interested in its future, and had made at least five trips to Canberra in the last five years at least partly for the purpose of visiting the house and urging persons to save it, his interest was not greater than a mere emotional or intellectual concern. The respondent also submitted that while Mr Gardner’s interest appeared genuine and real it was indirect and too remote.
Consideration
It is clear that the decision under review is a decision in which Mr Gardner has no legal, proprietary, financial or in any sense tangible interest. Nonetheless the importance of the decision under review to him, to his sense of family history and respect for his father’s achievements, cannot be contested. He has written that the house “is my anchor in the world” and:
I’m here once again to try to save our old house from destruction. This is the great fight of my life, and I have to know that I have done my utmost to save my father’s house. I have the money to do this, and that is exactly why I am obligated to do it.
These are proceedings for review of a decision to allow the demolition of a house. Every house will have accommodated persons over its duration, some during their childhood, some as adults. Every house is built for someone or designed by someone, and those persons may have children. It follows that the decision to demolish any house has the potential to impact on former residents or persons associated with the builder or designer. As eloquently written by Brennan J (as he then was) in McHattan[4]: for every decision “Across the pool of sundry interest, the ripples of affection may widely extend.”
[4] McHattan v Collector of Customs (1977) 18 ALR 154
What is the nature of the interest of a former resident or a relative of the designer or builder of the house which is to be demolished? Is such an interest of itself sufficiently proximate to justify joinder to the proceedings reviewing the decision to demolish? The answers to these questions may vary from case to case.
I am satisfied that in this case, Mr Gardner’s interest in the decision is genuine and real. However the nature of Mr Gardner’s interest in the decision is best described as emotional and intellectual. For this reason, and without proceeding to consider the question of proximity, I am not satisfied that the test for joinder is met.
The strength of Mr Gardner’s personal interest in what happens to his family home, and the depth of his commitment to saving it, are not determinative of an application for joinder. Rather it is the nature of the interest which is critical when applying the accepted test.
Accordingly, I decline to join Mr Gardner to the proceedings and order that his application be dismissed.
………………………………..
Presidential Member M-T Daniel
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