The OWNERS-UNIT Plan 14971 v Territory Planning Authority (Administrative Review)
[2025] ACAT 43
•21 March 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE OWNERS-UNIT PLAN 14971 V TERRITORY PLANNING AUTHORITY (Administrative Review) [2025] ACAT 43
AT 129/2024
Catchwords: ADMINISTRATIVE REVIEW – Controlled activity order under S424 Planning Act 2023 – failing comply with Crown lease – undertaking development without approval – units plan – direction to Owners Corporation to provide unrestricted public access to basement car parks of mixed use building complex
Development approval under S197 of Planning and Development Act 2007 amending development approval under S162 – approved drawing showing parking spaces designated as "Public" – no provision for mandatory visitor parking for residential use as required by Codes
Construction of development approvals and consents – public character restricting consideration of other documents – proper approach to construction of approved drawing – whether parking spaces designated as “Public” accessible by members of the public other than visitors – non-compliance with Codes precludes approval under S119 (1) Planning and Development Act – parking spaces for visitors only – controlled activity order set aside
List of Legislation: ACT Civil and Administrative Tribunal Act 2008
Planning and Development Act 2007
Planning Act 2023
Unit Titles Act 2001
Unit Titles (Management) Act 2011
List of Cases: Allandale Blue Metal v Roads and Maritime Services [2013] NSWCA 103
Bowler v Hilda P/L (in liq) [2001] FCA 342
Haridemos and ACTPLA [2012] ACAT 74
Hecar Investments No 6 P/L v Lake Macquarie MC (1984) 53 LGRA 322
Hunter Industrial Rental Equipment P/L v Dungog SC [2019] NSWCA 147
Modog v North Sydney City Council NSWLEC 1160
Pselletes v Randwick CC [2009] NSWCA 262
Springrange P/L v ACTPA [2010] ACTCA 17
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 425
List of Text /Papers: Herzfeld and Prince, Interpretation (Lawbook, 3rd ed, 2024)
Tribunal:Senior Member R Arthur
Date of Orders: 21 March 2025
Date of Reasons for Decision: 11 June 2025
Date of Publication: 20 June 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 129/2024
BETWEEN:
THE OWNERS-UNIT PLAN 14971
Applicant
AND:
TERRITORY PLANNING AUTHORITY
First Respondent
NG LANDHOLDINGS NO. 15 PTY LTD
Party Joined
TRIBUNAL:Senior Member R Arthur
DATE:21 March 2025
CORRECTED ORDER
The decision under review is the decision of the Respondent, the Territory Planning Authority, made on 24 October 2024 to issue to the Applicant, The Owners - Units Plan 14791, a controlled activity order under S 427 of the Planning Act 2023 ("the Act") directing the Applicant to:
Provide unrestricted public access to the basement car parks of Blocks 3 & 4 Section 7 Reid, known as 'Metropol'. This is to comply with Form 4, clause 3 (f), and Form 5, clause 3 (j) of Units Plan Number 14791, and in accordance with the approved plans of Development Application (DA) number 201833533/197M.Unrestricted public access means the public must be able to enter and exit the basement car park using the building's lift and entrances, without needing a security tag or using the driveway entrances/exits of the basement car park.
Remove the signages at the car park entrance displaying "PRIVATE PROPERTY" Residents Parking Only.
Pursuant to S 68 the ACT Civil and Administrative Tribunal Act 2008, the decision under review is set aside and to substitute therefor the decision not to issue a controlled activity order.
The Tribunal notes:
The Tribunal notes that its reasons for the decision will be provided at a later date.
…………………………
Senior Member R Arthur
REASONS FOR DECISION
On 21 March 2025 the Tribunal gave its decision and orders in this matter.
The decision under review is the decision of the Respondent, the Territory Planning Authority, made on 24 October 2024 to issue to the Applicant, The Owners - Units Plan 14791, a controlled activity order under S 427 of the Planning Act 2023 ("the Act") directing the Applicant to:
1.Provide unrestricted public access to the basement car parks of Blocks 3 & 4 Section 7 Reid, known as 'Metropol'. This is to comply with Form 4, clause 3 (f), and Form 5, clause 3 (j) of Units Plan Number 14791, and in accordance with the approved plans of Development Application (DA) number 201833533/197M.Unrestricted public access means the public must be able to enter and exit the basement car park using the building's lift and entrances, without needing a security tag or using the driveway entrances/exits of the basement car park.
2.Remove the signages at the car park entrance displaying "PRIVATE PROPERTY" Residents Parking Only.
Pursuant to S 68 the ACT Civil and Administrative Tribunal Act 2008, the decision under review is set aside.
The decision and order have since been amended under section 63 ACAT Act:
The decision under review is the decision of the Respondent, the Territory Planning Authority, made on 24 October 2024 to issue to the Applicant, The Owners - Units Plan 14791, a controlled activity order under S 427 of the Planning Act 2023 ("the Act") directing the Applicant to:
1.Provide unrestricted public access to the basement car parks of Blocks 3 & 4 Section 7 Reid, known as 'Metropol'. This is to comply with Form 4, clause 3 (f), and Form 5, clause 3 (j) of Units Plan Number 14791, and in accordance with the approved plans of Development Application (DA) number 201833533/197M.Unrestricted public access means the public must be able to enter and exit the basement car park using the building's lift and entrances, without needing a security tag or using the driveway entrances/exits of the basement car park.
2.Remove the signages at the car park entrance displaying "PRIVATE PROPERTY" Residents Parking Only.
Pursuant to S 68 the ACT Civil and Administrative Tribunal Act 2008, the decision under review is set aside and to substitute therefor the decision not to issue a controlled activity order.
These are the reasons for the Tribunal’s decision as originally made and as amended.
Background
NG Landholdings No 15 Pty Limited (NG 15) is a property developer and was the Crown lessee of a holding lease over Blocks 3 and 4 of Section 7 in Reid. In 2018 it lodged Development Application No 201833533 with the then Territory Planning and Land Authority (the Authority) in respect of a substantial residential and commercial development known as “Metropol” on a parcel of land across Cooyong St from Glebe Park, on the edge of the City Centre.
That development proposal was subject to compliance with the then Territory Plan 2008, and, in particular, various of its Codes.
The proposal was complex – involving two building towers, three levels of basement parking, over 500 residential apartments, and commercial premises on the ground floor. The development was part of a planned renewal of this part of the Canberra City environs and included off site works including the provision of public parking.
The proposal was given development approval on 30 April 2019, subject to approval conditions which included the provision of further information, in accordance with section 165 of the Planning and Development Act 2007 (PD Act).
The PD Act also made provision, under section 197, for amendments to be made to a development approval that had been given. A number of applications were made to the Authority for such amendments in this case.
Several further revisions of DA 099 were lodged and approved in the period between 12 September 2019 and 24 May 2021 under section 197 PD Act. The last of them, DA 197 M was lodged and later approved on 24 May 2021. Amongst the drawings approved were architectural drawings identified as DA 097, DA 098 and DA 099 for Basement Level 3, Basement Level 2, and Basement Level 1 respectively. The drawings DA 097 and DA 098 comprised car parking for the residential apartments. The drawing DA 099 comprised some residential parking spaces, some commercial parking spaces, and some labelled at one time “Visitor” and, later, “Public”. It is the focal point of the dispute between the parties.
A revised version of DA 099 was lodged and approved on 9 July 2019 under section165 PD Act.
Having fulfilled its obligations under the holding lease, NG 15 was granted a Crown lease over Blocks 3 and 4 Section 7 Reid on 12 August 2021. On 17 August 2021 NG 15 applied for registration of a units plan over the parcel comprised in the Crown lease. The units plan UP 14971 was registered on 8 September 2021. The Owners’ Corporation (the OC) was then brought into existence.
Construction of the development had then been underway such that, on registration of the units plan, the purchasers of units in the development were able to take occupation.
On registration, the units plan consisted of 552 residential units on the floors above ground level, 10 commercial units located on the ground level, and one unit, Unit 563 located in Basement Level 1. Unit 563 was retained by NG 15 for its own use, together with the 26 unit subsidiaries annexed to Unit 563.
Commencing in about August 2022 the OC experienced vandalism and theft occurring in Basement Level 1 in relation to storage cages belonging to residential units. At that time access to Basement Level 1 was unrestricted both from the street and by way of the lifts to the ground floor lobbies. As a result theft of parcels and other incidents were occurring leading to the decision of the OC to activate the security system at the lifts such that entry to the basement or exit from the basement via the lift required the use of a key tag or swipe pass.
In the meantime NG 15 had put a proposal to the OC. In essence, the proposal was for NG 15 to be responsible for security within Basement Level 1 as part of its undertaking of a commercial parking operation. The OC did not accept the proposal.
In July 2024 NG 15 applied to the Authority for a controlled activity order requiring the owners corporation to reverse its restriction on access to and from the basement via the lifts, and to remove external signage identifying the car park as being for residents only.
Inspectors then investigated and reported to the Authority. The Authority then issued the Controlled Activity Order (the CAO) which is the subject of these proceedings on 24 October 2024.
Overview of applicable legislation and Territory Plan
The process of assessment and approval of the Metropol development began in 2018 and was completed under the PD Act. Towards the end of 2023 the PD Act was repealed and replaced by the Planning Act 2023 (Planning Act). Under transitional provisions in the new Act, the Authority (which had the formal name ‘ACT Planning and Land Authority’) was replaced by an equivalent entity formally named the ‘Territory Planning Authority’, with acts done by the former entity being deemed to have been done by the latter. [In these reasons the term “Authority” refers to the entity in existence at the relevant time.]
The CAO was issued in October 2024 and accordingly was made under the provisions of the Planning Act. Although nothing turns on it, those provisions are virtually identical with their counterparts in the PD Act as were the provisions regulating the development approval process.
All of the development approvals given prior to 27 November fall under the Territory Plan 2008 and is still in effect. Accordingly that Plan which sets the planning which the utility of the CAO is to be considered. The Territory Plan 2023 has relevance only in respect of applications made in the future.
The development approval process under the PD Act
‘Development’ and ‘use’
By section 7(1):
In this Act:
development, in relation to land means the following:
…
(d) using the land, or a building or structure on the land;…
By section 8:
In this Act:
Use land, or a building or structure on the land, means any of the following:(a) begin a new use of the land, building or structure;
(b) begin a new use of the land, building or structure;
(c) continue the use of the land, building or structure
(d) change a use of the land, building or structure, whether by adding a use, stopping the use and substituting another use or otherwise
Approvals
The requirements for approval of development proposals are set out in part 7.3 of the PD Act.
Relevant to this matter are the requirements for a development application to be in writing and be accompanied by information or documents addressing[1] the relevant rules and relevant criteria.[2] The Authority is to assess the application and must decide either to approve it, or approve it subject to a condition, or refuse it.[3]
[1] While also supporting a position with argument, “address” is principally concerned with putting forward a factual position which can be shown to be consistent with rules and criteria
[2] Planning Act, s 139 (2) (a) and (f)
[3] Planning Act, s 162 (1)
In making that decision, the Authority is prohibited from approving a development proposal which is not consistent with a relevant code.[4]
[4] Planning Act, s 119 (1) (a)
The Authority is not limited as to the kind of conditions it can impose, but the PD Act gives examples including the requiring of changes to be made to any plan, drawing, specification or other document forming part of the application for approval.[5]
[5] Planning Act, s 165 (3) (q)
If the authority approves a development application it is required to give written notice to the applicant, to the registrar-general for recording on the Land Titles register and to any person who made a representation in respect of the application.[6] The notice must describe the place to which the approval relates, briefly describe the development, state the dates of lodgement and approval of the application and when it takes effect and state the place where, and the times when, a copy of the development application in the approval may be inspected. A notice given to the applicant or to a person who made a representation must also set out the decision and the reasons for the approval. If the Authority decides to refuse the application, it must also set out the reasons for the decision in its notice to be given to the applicant and to persons who made a representation.[7]
Amendment of approval
[6] Planning Act, s 170 (1)
[7] Planning Act, s 171
A person who has been given a development approval may apply to the Authority to amend the approval so that it then approves the changed development proposal.[8] When deciding whether to amend an approval, the authority is required to treat the development originally approved as having been completed and the application as altering the completed development in the way sought.[9]
The Codes
[8] Planning Act, s 197 (2)
[9] Planning Act, s 198 (1)
Relevant to this proposal were the Multi-Unit Housing Development Code (MUHDC), the Parking and Vehicular Access General Code (PVAGC), the Access and Mobility General code (AMGC) and the Reid Precinct Map and Code (RPMC), each of which makes provision for aspects of car parking requirements applicable generally or to this proposal specifically.
Multi-unit Housing Development Code
| R 82 Visitor car parking spaces on the site comply with all of the following: | C 82 Visitor parking achieves all of the following: a) Accessible for all visitors b) Safe and direct visitor entry to common building entries |
| R 83 Visitor car parking complies with one of the following: a) Is located outside of any security barriers b) An intercom and remote barrier release system allows access to visitor parking located behind security barriers | C 83 Visitor parking is accessible to all visitors |
7.5 VISITOR PARKING
Parking and Vehicular Access General Code[10]
[10] Exhibit A3, 1
For residential users within the CZ 5 mixed use zone, the code adopts parking provision rates as set for the Residential zones.
Parking provision for apartments is:[11]
[11] At clause 3.1.5
1 parking space per single bedroom dwelling;
2 parking spaces per two bedroom dwelling and each dwelling with three or more bedrooms;
1 visitor space per 4 dwellings.
Locational requirements are specified as:[12]
[12] At clause 3.1.4
Development Long Stay Parking Short stay/Visitor Parking
Residential use Onsite Onsite or within 100 metres
‘Long stay’ is defined[13] as “generally longer than 4 hours”, and ‘Short stay’ as “generally up to 4 hours”.
[13] At clause 1.5
Access and Mobility General Code
The code specifies that a required proportion of all parking spaces be configured for use by persons with a disability – either wider width, or adjacent to an open space, so as to allow wheelchair access.
Reid Precinct Map and Code
Rule 4 applies to development on Blocks 3 and 4 of Section 7 and requires, inter alia, off-site works providing on-street car parking for a minimum of 222 car parking spaces across the Cooyong Street urban renewal area.
Criterion 5 requires that public car parking achieves, inter alia, adequate on-street parking.
Unit titles legislation provisions
The Unit Titles Act 2001 provides for the subdivision of parcels of land by way of unit titling. The Crown lessee of a parcel of land may apply to the Authority for subdivision of the parcel into units, unit subsidiaries and common property. The design of the proposed subdivision plan, termed a units plan, is undertaken by the Crown Laci and undergoes a rigorous assessment process.
After the proposed units plan, has been approved, it is registered under the Land Titles Act. On registration, the Crown lease of the subdivided parcel ends and the former Crown lessee is granted a lease for each unit in the units plan and the owners corporation is granted a lease for the common property. The owners corporation is established under the Unit Titles (Management) Act 2011, on the registration of a units plan, as a corporate entity. Its members are the owners of the units in the units plan.
A unit subsidiary is a part of the registered units plan which is identified as being annexed to a particular unit. A part of the units plan designated as a car space is capable of being a unit subsidiary. The common property is any part of the units plan which is not designated as a unit or a unit subsidiary.
The functions of the owners Corporation include the control, management and administration of the common property. The owners corporation holds the common property as agent for the owners and must give all members of the corporation opportunity for the reasonable use and enjoyment of the common property. The owners corporation is responsible for the maintenance of the common property. It is not permitted to dispose of the common property.
The clauses in the Crown leases issued after registration over each unit, and termed ‘units leases’, are determined in the assessment and approval process prior to registration. They generally replicate the terms of the preceding Crown lease. As the owner of each unit under the new units plan, the former Crown lessee developer is able to dispose of each of the units or retain them as it wishes.
The controlled activity order provisions
Part 12.3 of the Planning Act contains provisions regulating controlled activity orders. The Authority may on its own initiative or on the application by a person make an order directed to the lessee or occupier of premises where a controlled activity is being undertaken.[14]
[14] Planning Act, s 424 (1)
In addition to being in writing there are various requirements as to the form and content of a controlled activity order.[15] Prior to issuing an order, the authority must issue a show cause notice of its intention to make an order,[16] and must take any response to that notice into account in deciding whether to make an order.[17]
[15] Planning Act, s 424 (2)
[16] Planning Act, s 425 Although the OC initially protested that it had been denied procedural fairness, that was no longer pursued at the hearing. There is, consequently no issue surrounding the form and content of the order.
[17] Planning Act, s 427
Activities which are controlled are set out in Schedule 4 of the Planning Act. Relevantly, they include:
(a)Failing to comply with – a provision of a lease[18]
(b)Undertaking a development for which development approval is required –
(i) Without development approval; or
(ii) Other than in accordance with the development approval.[19]
The lease covenants
[18] Schedule 4, Item 1
[19] Schedule 4, Item 3
Relevantly, each units lease contained the following covenant given by the owner lessee to the Commonwealth:
3. Each Lessee of the Units Nos 1 - 563 inclusive covenants with the Planning and Land Authority ("the Authority") on behalf of the Commonwealth of Australia ("the Commonwealth") in respect of each Lessee's relevant unit as follows: … (c) to use the premises for multiunit housing for not more than 552 dwellings AND IN ADDITION the premises may also be used for one or more of the following:
Car park
Community use
Indoor recreation facility
Non-retail commercial use limited to a maximum gross floor area of 100 m² per tenancyRestaurant limited to a maximum gross floor area of 200 m² per tenancy…(f) that the Lessee shall provide and maintain facilities and access on the parcel of land for persons with a disability in accordance with plans and specifications prepared by the Lessee and previously submitted to and approved in writing by the Authority…
6. In this schedule unless the contrary intention appears
… (e) "Car park" means the use of the parcel of land specifically allocated for the parking of motor vehicles
The lease of the common property contained the following covenants given by the OC
3. The Owners-Units Plan No. 14971 ("the Owners Corporation") covenants with Planning and Land Authority ("the authority" on behalf of the Commonwealth of Australia ("the Commonwealth") as follows:
… (b) to use the common property for the purpose of car parking, landscaping, paving, lighting, storage areas, service areas, vehicular and pedestrian access and for any other purposes approved by the Owners Corporation PROVIDED THAT these users are consistent with the permitted purposes of the units…(j) that the Owners Corporation shall provide and maintain facilities and access on the parcel of land for persons with a disability in accordance with plans and specifications prepared and previously submitted to and approved in writing by the Authority.
The Controlled Activity Order
The CAO issued by the authority directed the OC to:
Provide unrestricted public access to the basement car parks of Blocks 3 & 4 Section 7 Reid, known as 'Metropol'. This is to comply with Form 4, clause 3 (f), and Form 5, clause 3 (j) of Units Plan Number 14791, and in accordance with the approved plans of Development Application (DA) number 201833533/197M.
Unrestricted public access means the public must be able to enter and exit the basement car park using the building’s lift and entrances, without needing a security tag or using the driveway entrances/exits of the basement car park.Remove the signages at the car park entrance displaying "PRIVATE PROPERTY Residents Parking Only.”
The grounds for the CAO identified the relevant controlled activities as those set out above.
The reviewable decision
Section 424 (1) Planning Act, subject to the observance of certain procedures,[20] provides:
The territory planning authority may, on its own initiative or on application by a person, make an order directed to one or more of the following (a controlled activity order) [designated persons]
[20] See Planning Act ss 424 – 427
A person to whom the CAO is directed is an eligible entity under Schedule 5, Item 36, column 3 to apply to the tribunal for review of a decision made under S424 (1) pursuant to section 506 Planning Act.
The proceedings
The parties
The OC, as the person to whom the CAO was directed, applied to the tribunal for review of the CAO, and is accordingly the applicant in the proceedings. The Authority, whose decision it was to make the CAO, is the respondent. NG 15, whose complaint and subsequent application led to the order being made, was joined as a party to the proceedings pursuant to section 29(5) ACT Civil and Administrative Act 2008.
The matter was heard over two days. The OC was represented by John Bird of counsel, the Authority was represented by John Larkings of counsel, and NG 15 was represented by Andrew Greinke of counsel.
The evidence
The applicant relied on:
(a)Its Application to the Tribunal for review with 8 attachments[21]
(b)Witness Statement of Rachel Smith dated 24 February 2025[22]
(c)Bundle of evidence lodged in the Tribunal on 26 February 2025[23]
(d)Crime Prevention Through Environmental Design Report, May 2018[24]
(e)Development Approval number 201833533S197 H dated 12 September 2019[25]
[21] Exhibit A1
[22] Exhibit A2
[23] Exhibit A3
[24] Exhibit A4
[25] Exhibit A5
The Authority relied on:
(a)Tribunal Documents, with index to enlarged versions of photos.
(b)Supplementary Tribunal Documents (10 documents).
(c)Bundle of documents in reply.[26]
(d)Witness statement of Paul Wang dated.[27]
(e)Witness statement of Richard Davies dated.[28]
[26] Exhibit R1
[27] Exhibit R2
[28] Exhibit R3
NG 15 relied on:
(a)Metropol Carpark Proposal.[29]
(b)Each of the documents relied on was given a provisional exhibit number, but ultimately were admitted into evidence without objection. The Tribunal Documents were accepted into evidence at the outset.
(c)Witnesses Smith and Davies gave oral evidence and were cross-examined.
The issue
[29] Exhibit PJ1
The CAO required the OC to:
“[p]rovide unrestricted public access to the basement car parks… to comply with Form 4, clause 3 (f), and Form 5, clause 3 (J) of Units Plan Number 14791, and in accordance with the approved plans of Development Application (DA) number 201833533/197M”.
The architectural drawing DA 099 was issued in a number of revised versions, the last of which – Revision 8 – was dated 12 May 2021 and accompanied development application No 20133533S197M. It was approved on 24 May 2021.. It consisted of a single page diagram showing the layout of car spaces in Basement Level 1 separated by access aisles and included the locations of storage cages and the location of lifts, stairs, and other features of the basement. Each of the car spaces and storage cages was coloured. Drawing DA099 (Revn 8) is reproduced in full at Appendix A to these reasons.
In the top right corner of the page were two tables:
STORAGE CAGE SCHEDULE – BASEMENT 01 Length Width Height Quantity [Orange] 1800 mm 1020 mm 2100 mm 118 [Blue] 2400 mm 750 mm 2100 mm 26 [Green]] 2400 mm 800 mm 2100 mm 13 TOTAL 157
CAR PARK SCHEDULE – BASEMENT 1 Colour code Type Quantity [Pink] Commercial 10 [Yellow] Commercial (Tandem) 10 [Blue] Public 121 [Blue] Public (accessible) 8 [Blue] Public (small car) 3 [Green] Residential 67 [Green] Residential (adaptable) 5 [Orange] Residential (small car) 1 TOTAL 225
Beside the tables was a stamp:
PLANNING AND DEVELOPMENT ACT 2007
APPROVAL AMENDED
PURSUANT TO SECTION 198
IN RESPECT OF THE NOMINATED
AMENDMENTS ONLY
Delegate name [name]
Date 24/5/2021
Sheet 38 of units plan 14791[30] shows the location of Unit 563 as corresponding with the six car spaces coloured blue shown in the top left corner of drawing DA 099. That Sheet and Sheet 39 show the locations of 26 unit subsidiaries annexed to Unit 563 as corresponding with the remainder of the car spaces coloured blue on the drawing. The blue coloured spaces total 132.
[30] Tribunal Documents 1451
The storage cages are shown on Sheets 37, 38 and 39 as unit subsidiaries annexed to various residential units. The remainder of Basement Level 1 including the access aisles, the ramps mechanical facilities, lifts, stairs and so on are common property under the control, management and administration of the OC. Resolution of the dispute between the parties turns, initially, on the significance of DA 099 and its status as an approved plan.
Evidence of Richard Davies
Mr Davies is a qualified town planner with lengthy experience as a senior officer within the Environment, Planning and Sustainable Development directorate engaged in assessment and determination of development proposals. He prepared a witness statement which set out his response to 3 questions asked of him by the Government Solicitor's Office, acting on behalf of the respondent Authority. He had had only a limited involvement with the development application the subject of these proceedings and for the purpose of answering the questions made himself familiar with the relevant files.
He was asked in respect of the Metropol development approval and its subsequent amendments.
(a)Whether there was an application (or any part of an application) for development that included public car parking allocations in the development?
(b)If so, was any public car parking allocation in the Metropol development approved by the Authority and, if so, when was it approved?
(c)In your opinion, is the allocation of public car parking in the Metropol development characterised as a stand-alone use as a car park or as ‘minor use’?
He said that, for the purpose of answering those questions he had limited himself to looking at the appropriate files only, and for that reason was unable to answer some of the questions put to him in cross-examination.
Because of his familiarity with the assessment and determination process, Mr Davies' evidence was useful to the Tribunal in understanding the mechanics of the assessment process, focusing on its significant parts, making technical documents intelligible and explaining their purpose, and in explaining the significance of certain markings and symbols on drawings.
To that extent, I was assisted by his evidence, but my ultimate findings are not dependent on any opinions expressed by him in the course of his evidence.
The OC’s documents as explained by Mr Davies
Documents recording the approval history of the Metropol had been subpoenaed by the OC and were tendered in evidence. It is convenient to consider relevant parts of those documents together with Mr Davies’ explanation of them.
Original approval
Development Approval of application 201 833533 was given on 30 April 2019. The Notice of Decision[31] described the development as:
“The demolition of existing structures and removal of trees, the construction of a staged mixed-use development comprising of three mixed-use/apartment buildings ranging from 9 to a maximum of 12 storeys and 3 levels of basement car parking, landscaping and associated works”
The mix of uses was noted as “numerous dwellings and commercial tenancies at ground level”.
[31] Supplementary Tribunal Documents 1
Among the drawings was an unrevised version of drawing DA 099 dated 28 May 2018, which showed the floorplan of Basement Level 1. None of the car park spaces shown were labelled.
The approval was given “in accordance with the plans, drawings and other documentation approved and endorsed as forming part of this approval”. It was subject to various conditions. To meet those conditions, various plans were provided to the authority under section 165 PD Act
DA201833533S165E
Further information was received and approved under section 165 as required by a condition of approval. Included was a Basement Level 1 floor plan drawing DA 099 (Revision 05) dated 5 July 2019, and also another plan identified by Mr Davies as ‘Stage 1 Basement 1 plan - DA129 - Rev. 03 dated 5 July 2019. Mr Davies said that on this plan, vehicle parking spaces were identified as “VIS” for visitor and “COM” or “COMMERCIAL”. He provided a blown-up portion of that plan, from which it can be seen that the corresponding portion of DA 099 (Revision 05), otherwise too small to be legible, has the same markings. Mr Davies confirmed that these drawings were approved and stamped on 13 August 2019.
DA201833533S197H
The next set of plans identified by Mr Davies on the approval file were the S197 H plan set. They included DA 099 (Revision 06) dated 6 September 2019. He observed that the previous visitor parking spaces were now described as “PUBLIC” or “PUB”. The plan identifies changes made to it as including “6. Commercial/public parking zones reconfigured”, but adjacent to the approval stamp are the words “NOTE ALLOCATION OF BASEMENT PARKING SPACES NOT PART OF THIS APPROVAL”. Mr Davies noted that this matched the actual decision[32] made on 27 September 2019 which refused this amendment. Reason was given as:
“although there is a slight increase in overall parking provision, there was concern over the allocation of residential visitor parking and commercial parking. Rather than delay this decision while the issue is resolved, it was determined this aspect could be resolved through [sic – seemingly a line was dropped]”.
DA201833533S197K
[32] see Exhibit A-3 at 98
The next approved plans folder seen by Mr Davies related to the S197 K application and decision dated 20 December 2019. The decision listed 27 amendments, none of which involved amendment to the car parking spaces. Drawing DA 099 (Revision 06), unaltered, was again presented. Mr Davies did not see this amendment application as affecting the provision of car parking spaces.
DA201833533S197L
The next approved plans folder seen by Mr Davies involved the S197 L application and decision dated 22 September 2020. He noted that the Notice of Decision recorded 17 amendments as being sought including:
“3. Residential car parking increased by 22, from 677 to 699. Accessible parking locations modified. 4. Public car parking spaces increased by 5, from 130 to 135.”
He said that he read the 3 plans, drawings DA 097, DA 098 and DA 099 as not allocating use or allocation identifications.
DA201833533S197M
The next approved plans folder seen by Mr Davies involved the S197 M application and decision dated 24 May 2021. The notice of decision listed seven approved amendments including Item 3 being “Changes to storage and car parking allocations”. The related plan was DA 099 Basement 1 floor plan 12 May 2021. He said that the plan appeared to introduce roller doors or similar which effected zoning of parts of the car park. He noted that the southern end of the basement appeared to have a controlled entry and a distinct area only for residential parking, with another in effect separating the mid-area residential parking spaces. ‘Zooming in’ disclosed a thicker line which appeared to be some kind of fencing separating the residential parking spaces joining the roller door. [In fact, identical roller doors seem to the shown in the DA 099 drawing presented with the 197L application].
A more detailed description of that plan has been set out in these reasons above.
The Notice of Decision was dated and signed by the delegate of the Authority on 24 May 2021, the relevant parts of which were couched in the following terms:
I, [delegate], pursuant to section 198 of the [PD Act], approve subject to conditions, to amend the development approval, in accordance with the application made under section 197 of the Act in accordance with the plans, drawings and other documentation approved and endorsed as forming part of this approval.
Pursuant to section 197 of the [PD Act] approval is sought to amend to development approval number 201833533 dated 30 April 2 019 by:1.Subdivision…;
2. Landscape…;
3. Changes to storage and car parking allocations;
4. … signage;
5. Awning…;
6. … panels;
7. Minor external…Part A – Conditions of Approval
[Details of conditions of approval – none being relevant in this matter]
Part B – Reasons for that DecisionThe application was approved because it was found to meet the relevant rules and criteria of the Territory Plan and section 120 of the [PD Act]
Evidence of Rachel Smith
Ms Smith was the inaugural chair of the OC and, at the date of the hearing, remained in that position. She gave evidence about the access arrangements to the Basement 1 car park of Metropol as follows:
(a) The Metropol development comprises three buildings known as “Building 1”, “Building 2”, and “Building 3”.
(b) The car parking for Metropol consists of parking for both residential unit owners, commercial/retail unit owners and visitor parking. Parking for residential unit owners is separated by remote operated roller doors, cyclone fencing, and key tag activated Maglock pedestrian gates.
(c) Car park users can enter the car park via Cooyong Street and turn left and drive down a ramp to a split-level open floor car park on basement 1. There are no barriers (such as boom gates or roller doors) that restrict access to members of the general public driving into the basement 1 car park.
(d) Once vehicles have been parked in the car park of basement one, pedestrian access to the street or apartments is via lifts going to 1 of 3 different foyers and the apartments above in Building 1 or Building 2. Each of these lifts require the use of either a key tag used with a key tag reader or an intercom connected to individual residential apartments which allows residential unit owners to authorise access to the lifts.
(e) Pedestrian access back into the Basement 1 car park is via one of the three lift foyers which requires the use of a key tag or an intercom to facilitate access into the lobby.
(f) The access control measures installed by NG 15 included:
a.One key tag reader in Building 2 basement 1 which was later moved by the owners corporation to be between the two elevators
b.An intercom and keytag reader in Building 1 basement 1 South.
c.Two intercoms and two keytag readers in Building 1 Basement 1 North lobby
d.Keytag readers in the ground floor foyer restricting access from street level to the Basement 1 car park.
(g) The key tag readers and intercoms to access the foyers from the ground floor have been operational at all times since she had have moved in initially, however, the intercom and key tag readers in Basement 1 were not operational which allowed anyone who entered the basement car park to have unrestricted access to the foyers and to some residential corridors
(h) She related the safety and security concerns which had prompted the OC to restrict access to the lifts and lobbies when exiting the Basement 1 car park, and said that the situation had considerably improved as a result. Access for a pedestrian from the street by the ground floor to Basement 1 has always been restricted by the key tag reader installed by NG 15.
(i) She gave evidence about the use of the Basement 1 car park by members of the general public who are not unit owners or their visitors, saying that the car park was usually full by 8 AM on weekdays. When full, cars continued to be parked in an unsafe manner in locations not designated as car parks, including at times by blocking thoroughfares. Frequently, cars were parked in disabled spaces without displaying a disability parking permit.
(j) She said that she had seen drivers of the cars being parked in Basement 1 leaving and re-entering the car park by foot via the entry ramp, and also the fire stairs.
(k) She said that NG 15 had put a proposal to the OC for the operation by NG 15 of commercial parking on the car spaces in its control, which the OC had not accepted.
Submissions of the parties
The parties made written and oral submissions. Those submissions provoked the following issues for consideration:
(a)What is the proper approach to the interpretation of drawing DA 099?
(b)What is the effect of drawing DA 099 when properly construed?
(c)In the light of that proper construction, is the owners corporation engaging in controlled activities as alleged by the CAO?
All parties acknowledge that the process must start with the document which manifests the decision to approve/consent. Whether further documents may be looked at is considered below.
The proper approach to the interpretation of Development Approval 197M
Development approvals under the planning and development legislation of the ACT have their counterparts in other Australian jurisdictions most commonly called ‘development consents’.[33] There is a considerable body of authority concerning the interpretation of development consents,[34] which is applicable in the ACT.[35]
[33] Also ‘development permits’
[34] See Herzfeld and Prince, Interpretation, 3rd ed., Thomson at [16.190]-[16.220]
[35] Bowler v Hilda P/L (in liq) [2001] FCA 342 at 57-58 per Gyles J, referred to in Springrange P/L v ACTPA [2010] ACTCA 17 at [15] per Gray P, Penfold J
The principles guiding the construction of development consents/approvals and the rationale behind them have been stated and repeated many times. They include:
(a) The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority.
(b) Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication.
(c) Evidence may also be led to identify a thing or place referred to in the consent… Not [so as] to vary the consent but to identify the theme referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose.
(d) A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it. However the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself.
(e) What is sufficient to constitute incorporation, by necessary implication, for the purpose of these principles is less clear. If the consent in terms does no more than approve the application, it will be necessary to go to the application at least to identify the subject matter of the consent. [Footnotes omitted][36]
(f) In construing a development consent, a construction should be adopted which does not lead to its invalidity[37]
(g) Conditions of consent are to be construed, not as documents drafted with legal expertise, but to achieve practical results[38]
[36] Extracted from the decision of Meagher JA in Allandale Blue Metal v Roads and Maritime Services [2013] NSWCA 103 at [42]-[46]
[37] Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270 at [19] per Foster AJA with whom Mason P and Santo JA agreed
[38] Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSW CA 425 at [36] per Hodgson JA.
A broader range of materials may be available in a situation where the particular planning system incorporates the recording of development consents accessible to the public, together with the initiating application and accompanying documents – on the basis that since they are available to the public they should be available for interpretation purposes.[39]
[39] See Hunter Industrial Rental Equipment P/L v Dungog SC [2019] NSWCA 147
Recourse to a broader set of materials is also possible where the context in which a consent/approval is being interpreted is limited to dealings between the applicant for approval/consent and the approval/consent authority.[40]
Consideration
Original approval
[40] Pselletes v Randwick City Council [2009] NSWCA 175 – in proceedings brought by a development applicant to enforce the consent, correspondence between the applicant and a council officer was admitted to show that the applicant had voluntarily withdrawn from the application, prior to the consent being given, a balcony shown on the approved plan.
The original version of DA 099 was tendered in evidence by the Authority.[41] None of the car spaces are shown as being allocated. The Notice of Decision in relation to the original approval was part of the Tribunal documents.[42] The drawing is not stamped, but I infer that it was part of the documents considered by the Authority at the time. There is no reference in the plan or the NOD to provision for parking, but it can be presumed that the Authority was satisfied that the number of spaces (including those in basement Levels 2 and 3) in total met the parking provision requirements under the Codes.
[41] Exhibit R1 at [1]
[42] Supplementary Tribunal Documents page [1]
Reliance on the presumption of regularity[43] for that purpose is appropriate, because approval could not have been given in accordance with section 119 PD Act unless the code requirements were met and further, the issue of sufficiency of parking in a development such as this (in fact in any development of any size) is of principal importance and would not have been overlooked, and because the car parking spaces identified as such in all subsequent versions of DA 099 correspond with what is shown in the original version. Accordingly it can be assumed that the requisite number of spaces for visitor parking were provided in Basement Level I, albeit unallocated.
Car parking use
[43] An example of the application of the presumption in the planning context is Modog v North Sydney City Council [2018] NSWLEC 1160 at [60]
The provision of separate visitor parking is peculiar to the residential use. Shops and offices and restaurants for example all have persons who “visit” them for the purpose of buying goods, attending a meeting, or dining, but the level of provision of parking for this demand is factored into the formula applicable to those kinds of development.[44]
[44] See PVAGC at 3.3.3
‘Car parking’ is a permitted use in most Zone Land Use tables in the Plan. It is defined as “the use of land specifically allocated for the parking of cars”.[45] No subcategories such as ‘public’, ‘private’ or 'visitor' are created. Accordingly, it is arguable that it is a use permitted by the units lease clause 3 (c).[46] That does not mean, however, that existing car parking spaces which are required for, and had been counted as, visitor parking for Code compliance purposes can be converted, without more, to spaces available to the general public. Those spaces have an ancillary connection with the use of a large part of the development for multiunit housing. As such they are part of that residential use – not separate from it.[47] Such a conversion would involve a change of use, and require development approval.
Compliance with lease clauses
[45] Territory Plan – Definitions
[46] Which lists ‘car parking’ as a permitted use.
[47] Haridemos and ACTPLA [2012] ACAT 74 at [77] – [85]
The intended effect of the CAO, made clear over the course of the hearing, is that members of the public, particularly those with disability, must be able to enter and leave Basement Level 1 on foot or by wheelchair without needing a security tag or having to use the driveways.
This intent is predicated on members of the public having an entitlement to such access. The terms of the leases, however, refer only to persons with a disability and do not use the word ‘public’.[48] It is only if the public aspect is engaged by the requirement in the covenants that there be compliance with plans and specifications previously approved by the authority that an entitlement of all members of the public – disabled or not - can be established. The contention of the Authority and NG 15 is that it is so engaged.
[48] It was suggested that clause 3 (h) of the common property lease, which requires the OC to “keep illuminated all public access areas, car parks and driveways” was consistent with an intention to provide public car parking. I do not read it that way. It is a standard clause appearing in leases for large-scale commercial and residential developments to promote safety and security within the development and at its perimeter interface with the public realm. In this instance it also connects with the public pedestrian access easement required by the preceding subclause.
DA 099 is a plan previously approved by the Authority – the Crown lease was granted in August 2019, several months after the original DA 099 was approved in April 2019. The units leases came into being soon after, but before DA197M was approved. No point was taken in relation to this and I do not think it is an issue – the covenant applies, not as at the date of the lease, but as at the date of the activity in contemplation.
The second limb of the CAO – compliance with the development approval – necessarily involves consideration of the NOD irrespective of whether that is permissible to consider in relation to the lease.
Undertaking development not in accordance with a development approval
NG 15 and the Authority point to the fact that 132 spaces on drawing DA 099 approved by DA 197M are designated for public use because their colour corresponds with the accompanying key which ascribes to them the word ‘Public’.
Neither ‘public’ nor ‘visitor’ is defined for any purpose in the Territory Plan and the PD Act. No party otherwise suggested they had any special meaning. Accordingly, starting with its ordinary and natural meaning, it is necessary to consider how each Is to be understood in the context in which it is used.
The hearing was conducted on the tacit assumption that the only ‘plan’ potentially incorporated into the lease was DA 099. That assumption is questionable – DA 099 together with 098 and 097 comprise the plans approved by DA 197M with reference to Item 3 in the list of approved matters set out in the NOD. For the purposes of the codes, it was the provision of parking across all three Basement Levels that determined code compliance, each Level being interdependent with the others in the overall contribution to the required provision. In any event, each of the plans is incorporated into the lease by reference in relation to facilities and access for persons with a disability which are provided on all levels.
In my view, it is not only appropriate but required that all 3 plans be read together when any of them is being construed.
The dictionary[49] meaning of ‘public’, as an adjective in relation to a facility, is “open to the public generally”, the example being a public library. In the context of Basement Level 1, it is clear that ‘Public’ is being used to distinguish those spaces from those which are for residents and commercial tenants of the building – the latter have an obvious connection with the building, where members of the general public do not.
[49] Macquarie
The dictionary meaning of ‘visitor’ is “one who visits". ‘Visit’ is defined as “2. To call upon (a person, family etc.) for social or other purposes”. Some characteristics of a ‘visitor’, as that term is used in the PVAGC, can be seen from the facts that the number of required visitor spaces is a function of the number of dwellings in a building, and also in the facilitation of access by means of an intercom arrangement linking the visitor with a resident. These suggest that a ‘visitor’, as that term is understood for the purposes of the PVAGC, is a person who, at the time of the visit, has an existing connection with a resident in the building who is able, remotely, to allow them access to the building, but who otherwise has no connection with the building. ‘Visitors’ are thus a subset of the public but should, importantly, be distinguished from the general public because by reason of the connection – be it a standing social connection or an ad hoc connection, as delivering goods to, or providing a service to, a resident – the Codes require that they be counted as part of the parking demand generated by the development.
In construing DA 099 and its reference to “public”, several matters need to be kept in mind as having potential bearing on the outcome:
(a)DA 197M was an approval of an application to amend an existing Development Approval with reference to 7 nominated aspects,[50] of which only “3. Changes to storage and parking allocations” can be seen as having any connection with car parking.
(b)DA 099 was approved at the same time as DA 098 and DA 097,[51] the latter relating to Basement Level 2 and Basement Level 3 and, in the same manner[52] as DA 099, identifying all parking spaces in each level as “Residential”. The need to construe them together is noted above.
(c)The MUHDC and PVAGC requirements in relation to parking are set out above. Those codes do not otherwise regulate the configuration,[53] or appellation of car spaces according to their category.
(d)The three basement plans show that the required parking provision overall is achieved. This is confirmed in the NOD.[54]
(e)Mr Davies’ evidence was that DA197M approval was the first time that ‘Public’ appears on an approved plan.[55]
[50] Enumerated as approved amendments in the NOD, at Tribunal Documents 600
[51] Tribunal Documents at 1513 and 1514
[52] By reference to colour coding
[53] Except in relation to certain dimensions of car spaces and the positioning of accessible spaces, and aisle widths.
[54] NOD – Part B, at Tribunal Documents 604
[55] Though the evidence showed that it had appeared on earlier unapproved plans, leading to Counsel for the OC to submit that public parking had been a "live issue" for some time.
Emerging from the principles of construction set out earlier are three of particular relevance in this matter:
(a)That documents made by non-legal persons such as planners should be construed so as to give them practical effect.
(b)That such a document should be construed to ensure its validity, if that is possible.
(c)A plan such as DA 099 is not the actual approval, but a manifestation of the decision to give the approval.[56] The latter is recorded in the NOD.
[56] See, e.g., Pselletes v Randwick CC [2009] NSWCA 262 at 44-57. The position under the PD Act is analogous – the Authority is required to decide a development and if approved, give notice of the approval. A stamped plan would seem to constitute part of that notice. The Authority is required to retain a copy of the decision for inspection.
It perhaps goes without saying that a development approval retains its character as such after incorporation by reference in a lease.
Proper approach to the interpretation of drawing DA 099
Counsel for NG 15 submitted that, as the approved plan DA 099 was “the final word on basement 1" in a process in which "the final version supersedes previous versions”[57]. He submitted that in order to understand the lease it would be necessary to look at the approved plan DA 099, but that it was not necessary or appropriate to look beyond the plan.[58] Counsel for the authority took the approach that looking at the NOD was necessary to understand DA 099, and seemed not averse to taking into account further documents. Counsel for the OC supported his position by reference to the entire chain of documents.
[57] Transcript of proceedings dated 13 March 2025, at page 149 line 37 to 38
[58] Transcript of proceedings dated 13 March 2025, at page 139 lines 1 to 40
Whether one starts with DA 099 as stamped, or the NOD that precedes it, it will be necessary to consider the other in order to understand what has been approved. This is because the plan states that the “approval is in respect of nominated amendments only”.
The evidence of Mr Davies was that the practice of “clouding” to show intended changes to a plan was an indicator as to what changes were intended, but not invariably so.[59] It should be added that it may be the case that although the location of a change has been clearly delineated, the actual content or extent of that change may depend on some text not shown on the plan.
[59] Transcript of proceedings dated 12 March 2025, at page 61 to 85
The scope of the investigation of material is considered below.
Construction of ‘Public’
The contention of NG 15 and the Authority that ‘public’ does not mean ‘visitor’ entails a significant change in the category of persons for whom parking in the building is to be provided as opposed to those for whom parking is provided. It would mean that members of the general public who have no necessary connection with the building would now be able to park in spaces that the codes require be provided for members of the public who do have a necessary connection with the building.
The evidence of Ms Smith,[60] shows the practical possibility that the former could almost entirely crowd out the latter from the basement car parking. Neither NG 15 nor the Authority addressed the implications of this situation, and how the Tribunal should deal with it.
[60] That the car park was full to overflowing by 8 AM on weekday mornings.
In particular, there was no evidence nor submission to the effect that there were any operational arrangements that could be implemented to avoid this outcome.
A reduction in the number of spaces reserved for visitors would lead to non-compliance with the codes. The approval of an amendment which has that effect is prohibited by section 119 PD Act. The resulting invalidity of the DA 197M approval requires that alternative interpretations which are open should be considered.
An alternative construction is to recognise a distinction between visitors to the building – outsiders – from the private community of those who live and work in the building – insiders – but also to recognise that, vis-à-vis the residential and commercial inhabitants of the building, both are appropriately described as members of the public. That distinction rests on the fact that only one sector of the latter group can take advantage of the existing connection with a resident and, accordingly are the members of the public being referred to. The distinction drawn makes ready sense in the planning context[61] of this particular development.
[61] For examples showing how the planning context controls or illuminates the meaning of a development consent/approval see Hecar Investments No 6 P/L v Lake Macquarie MC (1984) 53 LGRA 322 at 326; Warehouse Group (Australia) P/L v Woolworths Ltd [2003] NSWCA 270 at 20-21, 28
That context is the submission for approval of an amendment to a prior approval which gave effect to the statutorily required provision of approximately 130 car parking spaces for visitor car parking. The amendment involved the application of the appellation ‘public’ to 132 spaces identified on the plan as “public” – spaces which had not previously had an attached appellation, although the number was consistent with the number required to be designated as ‘visitor’.
The expression ‘public’ juxtaposed with ‘residential’ and ‘commercial’ makes sense in the context of a decision to approve an arrangement which provides for car parking prescribed for residents, commercial tenants, and members of the public visiting residents.
The decision-maker is a planning authority. The terms of DA 197M and the approved drawing that followed are not to be construed as if drafted by lawyers.
In my view that is the proper construction of ‘public’, as it is applied to a parking space shown on drawing DA 099, is to denote a parking space reserved for a person who is visiting a resident of the building and who, at the time of the visit, has an existing connection with the resident who is then able, remotely, to allow them access to the building, but who otherwise has no connection with the building. That construction achieves a practical outcome in line with the Code requirements and thus preserves the validity of DA 197M. That construction also recognises the enduring character of the approval in that it rests on matters that will remain constant in the future.[62]
[62] The planning regime that existed at the time of the development approval is permanently recorded in the ACT Legislation Register maintained pursuant to the Legislation Act.
The proper construction is as objectively established above. It is not dependent on the subjective opinion of the decision-maker or a prospective purchaser. It can be discerned from consideration of DA 099 (and its counterparts) only – if that is the only document permissible to consider for the purposes of the lease.
Consideration of further documents
Although I think it is not necessary to look at any further material beyond DA 099 in order to reach the conclusion I have made, doing so would simply confirm that conclusion. The qualification on the stamp – that the approval is in respect of nominated amendments only – necessarily entails an understanding of what amendments were nominated requiring investigation of the underlying notice of decision and the application. It is clear from the notice of decision alone that what was sought (relevantly to parking) was approval for “changes to storage and car park allocations”. That connotes a reallocation of some spaces from one category to another, but not the allocation of all spaces in one category to a new category which is not one or other of the other existing categories. Even if the specific changes could not be identified (given the observations in evidence that the “clouding” method of identifying changes to drawings was not entirely reliable) a counting of the spaces in each category would confirm that the code requirements for each category had been satisfactorily met.
Further, since this controversy involves both the applicant NG 15 for approval and the approval authority, it would be appropriate to go behind the approval decision and to have regard to the communications between the delegate of the authority and the representatives of NG 15[63] as to the reason why clarification of the number of visitor spaces was sought, as was done in Pselletes,[64] to show that the balcony shown on the approved plan had in fact been withdrawn from the application before approval.
[63] Referred to during cross-examination of Mr Davies, transcript of proceedings dated 13 March 2025 at page 83 lines 46-47, page 84 lines 1-5
[64] See above
The applicant and Mr Davies also referred to other indications throughout the assessment process which indicated the thinking of the various assessment officers consistent with the expectation that visitor parking spaces were required. In my view those pieces of the evidence go to the intention of the approval authority and cannot be taken into account in determining what the words of the approval mean, not what the maker of the words intended them to mean. The subjective intention of the decision-maker is not relevant.
Voidable decision
Counsel for NG 15 suggested, at various points[65] associated with the submission that ‘public’ should be given its ordinary meaning, that the question whether the approval was given in error was not for this tribunal to determine. I have not accepted that submission because it does not give proper effect to the operation of section 119(2). The Authority does not have power to approve a proposal which is not code-compliant, and this Tribunal on merits review is equally unable to do so. It can, however, construe the terms so as to ensure that they are within power whether on merits review of the approval itself or, as in these proceedings, when the validity of the approval is in question.
Effect on the CAO
[65] In particular at Transcript of proceedings dated 13 March 2025, page 141 line 24 to page 142 line 10
The implications of this finding for the controlled activity order is that the grounds on which it is based have been shown not to exist. Consequently, the only members of the public who are entitled to enter and exit the basement car park using the building's lift and entrances, without needing a security tag or using the driveway entrances/exits of the basement car park, are those members who also have the visitor characteristics which I have set out above.
The arrangements which the CAO sought to disturb presently enable such visitors access by means of the intercom system, meeting the requirements of MUHDC Rule 83 a) – in that access for visitors to parking is located outside of the security barriers at the lifts. Limb b) of Rule 83 is an alternative which does not come into play if limb a) of the criterion are met. The arrangement certainly meets Criterion 83.
Accordingly, the preferable if not correct decision is to set the controlled activity order aside, and I will make an order to that effect.
I am conscious that this will also reverse the effect of the order to remove the signs. Although mentioned at various times by the Tribunal and the parties, whether there was in fact dispute about the signs was left open at the end of the day. However, dispute or not, I consider it appropriate for the signs to remain in place. As I understand it they are on common property, and are unobtrusive, but they serve an important purpose in dissuading members of the public other than visitors from entering the basement. In particular, it seems that there is no suggestion that the signs themselves require development approval.[66]
Discretion
[66] See Transcript of proceedings dated 13 March 2025, page 141 lines 1-22
The Tribunal’s power to decide this matter is discretionary,[67] with regard to be had to relevant planning considerations and the public interest in maintaining the integrity of relevant planning policies.
[67] Nb & Nb Marsh P/L and Minister for Planning [2003] ACTAAT 11 at [28]
Counsel for NG 15 appeared to suggest that because there is a public interest the provision of public parking the Tribunal should, in the exercise of its discretion, allow the CAO to stand. In this case, however, the public interest and planning considerations run in diametric opposition to that submission. Not only is the provision of public parking the subject of an obligation on NG 15 to provide 222 on-street spaces under the Read Precinct Map and Code, but the very purpose of requiring visitor parking to be provided on-site is to alleviate pressure on-street parking from the parking demand generated by a development.
A more compelling reason why the discretion should not be exercised in such a manner, even if I am wrong in my finding as to the proper construction of 'Public', arises from the operation of section 50 PD Act[68] and its application to the Tribunal as a territory authority. Section 50 provides:
The Territory, the executive, a Minister or a territory authority must not do, or approve the doing of, an act that is inconsistent with the territory plan.
[68] The equivalent provision in the Planning Act is s 52
If, as the consequence of the DA197M approval, the car spaces previously reserved for visitors have become available to all members of the public[69] then, as I have indicated, the Code requirement for visitor parking has not been complied with. The Authority should not have given that approval. The effect of the CAO is to reinforce that contravention of section 50 by forcing the OC to reverse the measures it had put in place to deter members of the public other than visitors from using the basement car park. Confirmation of the CAO would be an act by the Tribunal inconsistent with the territory plan.
[69] If they were not reserved the effect of the approval would have been to affirm that status inconsistently with the territory plan.
I predicated this alternative decision on the potential of an error in my finding as to the interpretation of the terms of the approval. That was a constructional finding circumscribed by the principles applicable in the relevant circumstances - section 50 PD Act is a different legal context. I am able, and must, form my own view as to the consistency of the tribunal's[70] acts with the territory plan. I am confident that the view I have just expressed is correct. Accordingly, in the exercise of my discretion[71] I conclude that the CAO should be set aside.
[70] As constituted by me in these proceedings
[71] Exercising, on review, the discretionary powers of the Authority – see Haridemos at [73] – [87]
Finally, I have briefly considered whether a different form of Order might be made to alleviate the remaining potential problem arising from the fact that no vehicle entry barrier with remote intercom connection has been installed at the property boundary such that physical access to Basement Level 1 by ordinary members of the public is still possible. There are, however, too many imponderables arising from the anomalous circumstance that the parking spaces themselves are owned (leased) by NG 15 but everything surrounding them on which they depend to function as parking spaces – access aisles, ramps, access barriers, etc – is common property under the control of the OC. A solution is beyond the capacity of the Tribunal in these proceedings.
………………………………..
Senior Member Richard Arthur
Date(s) of hearing: | 12 and 13 March 2025 |
Applicant: | Mr J Bird, of counsel |
Respondent: | Mr J Larkings of counsel & Mr A Von Treifeldt solicitor |
Party Joined | Dr A Greinke, of counsel |
Appendix
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