Watson v ACT Planning and Land Authority and Ors (Administrative Review) (No. 2)
[2010] ACAT 7
•26 February 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WATSON v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) (No. 2) [2010] ACAT 7
AT 09/72
Catchwords: ADMINSTRATIVE LAW – standing – material detriment – what constitutes
HUMAN RIGHTS – right to fair trial – composite process – flaw in public notification of development proposal – jurisdiction of tribunal
PLANNING – use and enjoyment of land – amenity
Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)
Planning and Development Act 2007 (ACT)
Human Rights Act 2004 (ACT)
Planning and Development Regulations 2008 (ACT)
Cases:Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493
US Tobacco Co v Minister for Consumer Affairs (1998) 20 FCR 520
Murragong Nominees Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 60 LGRA 210
Jewel Food Stores v Minister for Land and Planning (1994) 85 LGERA 62
Kourpanidis and Planning & Land Management & Perin Property Group Pty Ltd [1997] ACTAAT 184
Mcullough and ACT Planning and Land Authority [2003] ACTAAT 50
Lowndes and ACT Planning & Land Authority [2006] ACTAAT 5
Thomson & ACT Planning and Land Authority [2009] ACAT 38
Tran & ACT Planning and Land Authority and Ors [2009] ACAT 46
Tribunal: Professor P. Spender Presidential Member
Date of Orders: 26 February 2010
Date of Reasons for Decision: 26 February 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 09/72
BETWEEN:
CHRISTOPHER WATSON
Applicant
AND:
ACT PLANNING & LAND AUTHORITY
Respondent
AND:
PETER BYFIELD
Party Joined
AND:
KLEK HOLDINGS PTY LTD
Party JoinedTRIBUNAL: Professor P. Spender Presidential Member
DATE: 26 February 2010
ORDER
Upon being satisfied that it does not have jurisdiction to review this application, the Tribunal orders that the application be dismissed.
………………………………..
Professor Peta Spender
Presidential Member
REASONS FOR DECISION
1.Christopher Watson (‘the applicant’) has sought review of a decision of the ACT Planning and Land Authority as decision-maker (‘the respondent’) to approve, with conditions, Development Application No 200914395 (‘the DA’). The DA sought to vary the lease on Block 2 Section 31 Latham (‘the Subject Land’) to demolish the existing structures and to erect two buildings containing thirteen (13) apartment units with basement car parking and associated landscaping, paving and other site works.
2.The DA was lodged by Peter Byfield on 4 May 2009 and the lessee of the Subject Land is Klek Holdings Pty Ltd (‘Klek’). Both Mr Byfield and Klek were joined as parties to the proceedings by orders made on 28 September 2009 and 12 October 2009 respectively.
3.Pursuant to s 152 of the Planning and Development Act 2007 (ACT) (‘the Planning Act’) and regulation 28 of the Planning and Development Regulations 2008 (ACT) (‘the Planning Regulation’), the DA was required to be notified for 15 working days. The DA was publicly notified by the respondent from 26 May 2009 to 16 June 2009,[1] although there was a flaw in the public notification of the DA which will be discussed below.
[1] T22, T140 – T162
4.The applicant was the only person who made a representation about the proposed development.[2] The applicant’s representation was dated 15 June 2009.[3] The Notice of Decision states that one written representation was received during the public consultation[4] and there is no evidence of any further representations having been made.
[2] T101
[3] T15
[4] T22
5.In a separate decision dated 11 February 2010,[5] the Tribunal found that the public consultation period applying to the DA ran from 26 May 2009 until 16 June 2009 and the applicant made a representation within that period on 15 June 2009. The Tribunal also found in the decision dated 11 February 2010 that the applicant had made an application to the ACT Civil and Administrative Tribunal ('the ACAT') within the 28 day period required by s 10 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘the ACAT Act’).
[5] Watson & ACT Planning And Land Authority & Ors [2010] ACAT 5
6.The respondent and the parties joined have made a further challenge to the jurisdiction of the Tribunal, arguing that the applicant has no standing as he is not an eligible entity because he will not suffer material detriment as required by part (b) of column 4 of item 4 of Schedule 1 of the Planning Act.
Standing – the General Principles
7.The principle of standing requires that a person who seeks to enforce the public law must have a special interest in the subject matter of the action. As Gibbs J stated in Australian Conservation Foundation v Commonwealth (‘ACF’) [6] it is quite clear that:
[6] (1980) 146 CLR 493 at 526
an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of the public right or to enforce the performance of the public duty.[7]
His Honour considered that it was necessary for the would-be litigant to have a special interest in the subject matter of the action. However, an interest 'does not mean a mere intellectual or emotional concern'.[8] Rather:
a person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest if his action succeeds or suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails.[9]
[7] (1980) 146 CLR 493 at 526
[8] (1980) 146 CLR 493 at 530
[9] (1980) 146 CLR 493 at 530
8.The standing principle was further elaborated by the Full Court of the Federal Court of Australia in US Tobacco Co v Minister for Consumer Affairs [10] as follows:
The term `interest' has long been an expression used within the law with respect to parties so as to require an involvement with the case greater than the concern of a person who was a mere intermeddler or busybody. ... The necessary interest need not be legal, proprietary, financial or other tangible interests. Neither need it be peculiar to the particular person.
[10] (1998) 20 FCR 520 at 527 that
The Statutory Provisions
9.The question of whether a person is affected or what is a sufficient interest is to be determined by the context of the legislation that gives the right.[11] In this case, the right is to object to a development proposal and consequently to appeal to the Tribunal against approval of a development application.[12]
[11] Murragong Nominees Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 60 LGRA 210
[12] Murragong Nominees Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 60 LGRA 210
10.Chapter 13 of the Planning Act states who may make an application to ACAT for review of a reviewable decision. Section 408 states that an eligible entity for a reviewable decision may apply to ACAT and s 407 defines ‘eligible entity’ for a reviewable decision as follows:
each entity mentioned in Schedule 1, column 4 in relation to a reviewable decision is an eligible entity for the decision for review of the decision.
11.In this case the reviewable decision is the decision to approve a development application in the merit track under s 162 of the Planning Act which is set out in Schedule 1 at column 1 item 4. This item is set out in full below (emphasis added).
column 1
itemcolumn 2
reviewable decisioncolumn 3
decision-makercolumn 4
eligible entitiescolumn 5
interested entities4 decision under s 162 to approve a development application in the merit track, whether subject to a condition or
otherwise, if—
(a) the application was required to be notified under s 153 and s 155, whether or not it was also required to be notified under s 154; and
(b) the application is not exempted by regulation.planning and land
authority
an entity if—
(a) the entity made a representation under s 156 about the development proposal or had a reasonable excuse for not making a representation; and
(b) the approval of the development application may cause the entity to suffer materialdetriment
the approval-holder
12.Section 419 (1) of the Planning Act provides for the meaning of 'material detriment' in the Planning Act as follows:
(1) In this Act:
material detriment, in relation to land—an entity suffers material detriment in relation to land because of a decision if—
(a) the decision has, or is likely to have, an adverse impact on the entity’s use or enjoyment of the land; or
(b) for an entity that has objects or purposes—the decision relates to a matter included in the entity’s objects or purposes.
13.Subsection 419(b) is not relevant in the present case, because the applicant has brought the application to review the decision to approve the DA in his personal capacity.
14.Under the Territory Plan 2008 (ACT) the Local Centres Development Code applies to the Subject Land, because it is zoned CZ4. The Local Centres Development Code states in its introduction that the code is intended to ensure that the type and form of development within the Local Centres is responsive and sympathetic to the character, or proposed character of the locality. Under Part A - General Development Controls, the code states the following:
Local centres are smaller shopping centres throughout Canberra that provide for convenience retailing and other accessible, convenient shopping and community and business services to meet the daily needs of the local population. They also act as a social focus of the neighbouring community and may vary in size and composition from one or two shops to a larger centre incorporating a range of community and commercial activities. Planning policies for Local Centres seek to retain a smaller scale character that is consistent with adjacent areas, provide opportunities for residential development, and ensure that basic shopping is available to the local community.[13]
[13] Local Centres Development Code (2008), page 5.
The ACT Case Law
15.The relevant case law in the ACT is based upon section 237 of the Land(Planning and Environment) Act 1991 ('the Land Act'). Section 237 of that Act provided as follows:
Any person who may be affected by the approval of an application may, within the prescribed period ... object to the grant of the approval.
16.In Jewel Food Stores v Minister for Land and Planning, Higgins J observed that section 237 did not contain any other words of limitation on the manner in which an objector must be affected. However, it remained necessary for a prospective objector to show that if the objection were to be upheld it would confer on the objector a benefit or advantage of discernable consequence or significance. [14]
[14] (1994) 85 LGERA 62 at 71
17.In Kourpanidis and Planning & Land Management & Perin Property Group Pty Ltd ('Kourpanidis')[15] President Curtis discussed the nature of the manner in which a person was required to be affected in the context of the Land Act. Curtis P followed the ACF case and made the following observations:
21. The potential effect must not only be adverse; it must, in my view, also be an effect of some substance. Having regard to the consequences that flow under the legislation from the lodging of an objection, the potential effect must not be merely incidental or inconsequential....
24. There must be a potentially tangible effect, but the range of possible effects must also be assessed in the light of the planning context in which the issue arises. Too narrow a view should not be taken of the range of possible interests, having regard to the variety of relevant issues that arise in planning matters. Thus, for example, where the amenity of a neighbourhood arises as an issue in respect of a development application it may be that any person who is able to show that the amenity which he or she presently enjoys would be adversely affected in a substantial way by approval of the proposal has a relevant interest. ... What is a sufficient interest to entitle a person to lodge an objection to a development application must therefore depend on the facts of the particular case. It would be unwise to attempt to lay down general rules, but it is, I think, clear that the range of potential interests go beyond financial or other material interests and may extend, in appropriate cases to aesthetic interests or to matters that affect the objector's enjoyment of life, having regard to the breadth of the concept of amenity in planning matters.[16]
[15] [1997] ACTAAT 184
[16] Citing Murragong Nominees Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210 at 226
18.President Peedom in Mcullough and ACT Planning and Land Authority (‘Mcullough’)[17] dealt with an objection to a development application which involved a variation of a Crown lease and construction of residential apartments in the Red Hill local centre. President Peedom said that it can be expected that the members of the community serviced by a local centre will often be able to demonstrate an interest in a proposal to change the kind of activity able to be carried on in the local centre that goes beyond that which they have as ordinary members of the public. However, no such interests of the applicants had been demonstrated by the evidence in that case.
[17] [2003] ACTAAT 50
19.Peedom P found that the evidence presented to the Tribunal on behalf of the applicants did no more than establish that they frequented the Red Hill local centre of the purpose of procuring goods and services. No impact on them of noise or odour was suggested. Although concern was expressed that approval of the development application might have some impact on traffic in the area no evidence was given to the Tribunal on behalf of the applicants to explain either the nature or extent of such an impact. In the President’s view there was:
No visual impact, effect of noise, smell, traffic or other impact of a planning nature has been identified. No suggestion has been made that the changed use proposed for the subject block or the proposed development will interfere with the applicants' present use of the facilities available at the Red Hill shops...[18]
[18] Mcullough and ACT Planning & Land Authority [ 2003] ACTAAT 50 at [32]
20.Moreover,
There [was] nothing before the Tribunal which shows that the applicants' use of their own land would be constrained by approval of the development application or that their enjoyment of life would be affected.[19]
[19] Mcullough and ACT Planning & Land Authority [ 2003] ACTAAT 50 at [32]
21.Similarly, Senior Member Hatch held in Lowndes and ACT Planning & Land Authority[20] that the applicant in that case did not have standing to seek a review of the approval to allow redevelopment of the Rivett local centre.
[20] [2006] ACTAAT 5
The Applicant's Contentions
22.The applicant argues that he is entitled to apply for a review of the decision as he is an ‘eligible entity’ under s 408 of the Planning Act because :
- he made a representation under s 156 of the Planning Act about the development proposal on 15 June 2009;[21] and
- the approval of the DA will cause him to suffer material detriment.[22]
[21] Document T101/2
[22] Section 407, item 4 Schedule 1, column 4 Planning Act
23.The applicant argued that the ‘land’ referred to in s 419(1)(a) of the Planning Act may be either the Subject Land or the entity’s own land. Therefore the material detriment suffered in relation to ‘land’ as a result of the approval of the DA may relate to an entity’s use of the subject land or the entity's own land.
24.The applicant argued that he will suffer detriment due to safety concerns at the corner of Onslow and Wanliss Streets, Latham. He submitted that the erection of a two storey structure on this corner gave rise to a hazard which jeopardised his personal safety, because the corner had become blind due to the setbacks in the DA. The applicant also asserted that pedestrian path will be affected by the development, and there will be a loss of significant plant beds with mature trees and shrubs that are currently growing on the Subject Land. The applicant also raised the issue of safety for pupils and parents crossing to the preschool and primary schools at Latham. Finally, the applicant made an argument based on the amenity of the Latham local centre and expressed concern that the DA failed to recreate an inviting commercial/community focus on the Subject Land due to a lack of landscaping and safe and visible off-street parking which might be used by the public.
The Respondent's Contentions
25.In its Facts and Contentions dated 20 November 2009 the respondent contended that the applicant has no standing to bring the application as he would not suffer any material detriment as a result of the conditional approval of the DA. The respondent says that the applicant suffers no material detriment because the applicant's residence is approximately 600 m from the Subject Land and there will be no adverse impact on the applicant's use of his property. This distance is greater than the distance between the applicant's residence and the relevant land in Mcullough and almost twice the distance of the applicant’s residence from the relevant land in Lowndes. The respondent placed considerable emphasis upon the applicant's enjoyment and use of his own land, rather than the Subject Land.
26.In response to the allegations of material detriment made by the applicant, the respondent firstly said that currently there is a plant bed with overgrown shrubs located directly on the corner of Onslow and Wanliss Streets. This landscaping will be removed as part of the works under the DA. The respondent considers that the change to a building, with a greater effective setback, would improve rather than diminish safety by increasing the visibility of pedestrians at the corner for cars turning left into Wanliss Street from Onslow Street. Other pedestrian sidelines will be unaffected by the proposal as cars turning from Wanliss Street into Onslow Street will be on the roadside away from the development and cars turning right from Onslow Street into Wanliss Street will have a clear view of the corner. Moreover the intersection is located within the School Zone for the Latham Primary School and so the speed limit during peak periods of use is 40 km/h. The respondent provided evidence that there have been no accidents within this intersection in the past five years.[23]
[23] Attachment G to the Witness Statement of Gabriel Caddy dated 20 November 2009, (Exhibit R5).
27.The respondent argued that the existing verge pathways will be unaffected by the proposal and that the proposed driveway to the on grade and basement parking is located at one of the existing verge crossings so no new point of vehicle entry to the site will result from the proposal. The pattern of vehicle use of the site will therefore not change in a way that introduces the pedestrian hazard of a new, unexpected vehicular verge crossing point.
28.In relation to the loss of significant plant beds, the respondent noted that photographs of the plant bed can be seen at T59 and T60. The proposal was referred to the Tree Protection Unit, who noted that no regulated tree would be affected by the proposal.
29.As regards the issue of the safety of pupils and parents crossing to the Latham Preschool and Primary School, the respondent said that the Subject Land is within the school zone and there will still be clear the sightlines and argued that there cannot be an increased danger to these pedestrians. The respondent also noted there is a controlled point further along Onslow Street, where pupils can cross to the primary school.
30.In relation to the applicant's arguments regarding the community amenity of the Latham local centre, the respondent contended that there was little or no community amenity on the Subject Land and the DA had the potential to improve that situation. The site had been zoned for use as a service station but the service station had closed in 1997. In recent years the site had been used as a post office and clothing shop but these businesses have now closed. The current condition of the Subject Land is dilapidated. The respondent referred to amendments made it to the DA which would allow the conversion of certain ground floor units into commercial space.[24] The respondent also argued that the development proposal does not affect the viability of the convenience store which is currently being operated at Block 7 Section 31 Latham, which is adjacent to the Subject Land.
[24] Document T225
Consideration of the Issues
31.Relying upon the comments of Curtis P in Kourpanidis, in order to establish standing, the applicant must demonstrate not only that the potential effect is adverse, but also that it is an effect of some substance. Moreover, in accordance with the ACF case, the affected interest must be more than a mere intellectual or emotional interest.
32.It is clear that the Tribunal must assess standing with regard to the relevant statutory provisions set out above. The relevant sections of the Planning Act focus upon the detriment that may be suffered by the applicant rather than any advantage he might gain. The statutory provisions require that 'material detriment’ be established, which is detriment of a real and not trivial or imaginary kind.[25] The detriment must not be subjective, but must be a detriment 'in an objective and reasonable sense'.[26]
[25] Attorney-General; Ex rel Whitten v Shire of Gisborne (1980) LGRA 1 at 9
[26] Attorney-General; Ex rel Whitten v Shire of Gisborne (1980) LGRA 1 at 9
33.The Tribunal accepts the applicant’s arguments as to the proper construction of s 419 Planning Act and finds that the Tribunal may take into account the applicant’s use and enjoyment of the Subject Land when determining what constitutes 'material detriment' for the purposes of s 419 and part (b) of column 4 of item 4 of Schedule 1 of the Planning Act. Although President Peedom in Mcullough ultimately adopted the more narrow view favoured by the respondent in the present case, President did consider whether there was any evidence that the proposed development would interfere with the applicant’s use of the Red Hill shops. This approach was also adopted by Senior Member Hatch in Lowndes and ACT Planning & Land Authority (‘Lowndes’).[27] The wider view was preferred by Curtis P in Kourpanidis where the President emphasised that too narrow a view should not be taken of the range of possible interests, which must be assessed in the light of the planning context in which the issue arises. In Kourpanidis Curtis P stated that where the amenity of a neighbourhood is under consideration a person may have a relevant interest who is able to show that the amenity which he or she presently enjoys would be adversely affected in a substantial way. Therefore, matters that affect the objector's enjoyment of life could be taken into account when assessing standing, 'having regard to the breadth of the concept of amenity in planning matters.'[28] This approach is also consistent with the planning polices set out in the Local Centres Development Code discussed above.
[27] [2006] ACTAAT 5
[28] Kourpanidis and Planning & Land Management & Perin Property Group Pty Ltd [1997] ACTAAT 184
34.Consequently, an assessment of the applicant’s standing will take into account a wider range of considerations than the distance between his or her residence and the Subject Land.
35.As stated above, the applicant raised several issues which, he argued, proved that the amenity which he presently enjoys on the Subject Land would be adversely affected in a substantial way by the development proposal. In this case, however the Tribunal finds the applicant has not established that the amenity enjoyed by him has been adversely affected in a substantial way and he has consequently not proved that he will suffer material detriment as required by part (b) of column 4 of item 4 of Schedule 1 of the Planning Act. The Tribunal finds that the safety concerns raised by the applicant are without substance. The Tribunal notes that a letter dated 9 December 2009 from the School Board Chair of Latham Primary School[29] states that there has not been a change in articulated student or general pedestrian safety concerns to the School leadership group with the increase of residential unit numbers in the area nor a marked increase in traffic around the school during operational hours.
[29] Annexure E of the Applicant's witness statement dated 10 February 2010 (Exhibit A1)
36.As regards the applicant’s argument about removal of plants pursuant to the development proposal, although it is unfortunate that the existing plant beds on the Subject Land will need to be removed, the proposal includes landscaping along Wanliss and Onslow streets as well as between the Subject Land and the adjoining land at Block 3 Section 31.
37.The applicant has been a long time advocate for the Latham local centre and it is understandable that he wishes to preserve the community focus of his local shops. However the Subject Land is currently derelict and the evidence given to the Tribunal by Mr Glavinic indicates that further commercial development of the local centre may not be commercially viable. Mr Glavinic testified that rent-free incentives had been offered to tenants, but these have not been sufficient to maintain the viability of the businesses that have previously been conducted on the Subject Land.
38.Moreover, the amendments to the DA allowing for the conversion of ground floor units into commercial space at least provide options for future commercial development and the continued operation of the convenience store at the Latham local centre ensures that basic shopping is still available to the Latham local community, including the applicant.
39.Although the applicant may feel a sense of grievance about the development proposal he has not established a special interest or disadvantage sufficient to constitute 'material detriment' for the purposes of s 419 and part (b) of column 4 of item 4 of Schedule 1 of the Planning Act.
40.As a consequence, the applicant is not an eligible entity for the purposes of Chapter 13 of the Planning Act and, prima facie, the Tribunal lacks jurisdiction.
Application of the Human Rights Act
41.In construing the relevant legislative provisions to determine the extent of its jurisdiction, ACAT must apply s 30 of the Human Rights Act 2004 (ACT) (‘HRA’). Section 30 provides that:
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
42.In hearing this interlocutory application, the Tribunal is acting as a public authority under s 40 of the HRA.[30] The respondent is also a public authority under s 40 of the HRA.
[30] Thomson & ACT Planning and Land Authority[2009] ACAT 38 at [35].
43.Section 40B of the HRA states that:
It is unlawful for a public authority— …
in making a decision, to fail to give proper consideration to a relevant human right.44.A relevant human right that must be considered by the Tribunal in this case is the right to fair trial under s 21 of the HRA. Section 21 states:
Everyone has the right to have … rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
45.The Tribunal has previously held that s 21 of the HRA must be considered where an applicant's access to merits review is limited or removed by legislation. This issue was dealt with at some length by the Tribunal in Thomson & ACT Planning and Land Authority[31] (‘Thomson’) and Tran & ACT Planning and Land Authority and Ors (‘Tran’) [32] the current Tribunal concurs with the approach to interpretation adopted by the Tribunal in those decisions and following those decisions, finds that the right to fair trial pursuant to s 21 of the HRA is enlivened in this case.
[31] [2009] ACAT 38
[32] [2009] ACAT 46
46.The Tribunal in Thomson stated that proof of the sufficiency of the composite process in administrative decision making will be required where the right to fair trial is engaged under s 21 of the HRA and limitations are placed upon merits review. To elaborate, compliance with s 21 of the HRA in administrative contexts requires examination of the ‘composite process’ of decision-making. This requires an overall assessment of the process used (in arriving at the decision and rights of appeal) to determine whether the composite process is fair, even if there are deficiencies in one or more steps of the process. In the planning context it is necessary to look at:
• the characteristics of and procedures followed by the initial decision maker;
• opportunities for third parties to have input in the approval process, and
• the availability and quality of review mechanisms, including judicial review
47.In the present case the respondent concedes that there was a flaw in the public notification of the DA. This was an administrative error that led to the change to the lease purpose clause being notified both in the newspaper advertisements and in the notice placed upon the Subject Land. However the notifications did not include any details of the development component i.e. any reference to building works on the site. The respondent admitted that the correct wording was an oversight by the section of the respondent which administers notification due to confusion caused by previous discussions about the lease purpose clause. The respondent contends that the form of public notification of the application[33] does not prevent ACAT from reviewing the decision in the circumstances of this case and confirming or varying the decision under review.
[33] Document T139
48.The respondent also contended that ACAT is not empowered to refuse the DA on grounds of the perceived defect to the notification procedure having regard to s 155(5) of the Planning Act. The respondent further contends that ACAT’s function in deciding a DA is confined to consideration of the planning matters prescribed in sections 119 and 120 of the Planning Act.
49.The respondent submits that the principles in Thomson's case may have application to the present case in that the rights of persons to object and, as a consequence, to participate in appeal proceedings have possibly been truncated by the description of the proposal in the notification procedure. The respondent invited ACAT to consider what course might be appropriate if the Tribunal finds that a human rights issue was raised by the flaw in the notification procedure.
50.Part (a) of column 4 of item 4 of Schedule 1 of the Planning Act provides that persons who have not made a representation about the development proposal under 156 of the Planning Act but who have a reasonable excuse are not making a representation can apply to ACAT for a review of the decision. In this case the excuse would be that they did not become representors because the notification may have misled them as to the full nature of the proposal.
51.The Tribunal concludes that public notification of development proposals is a critical component of the composite process grounding the right to fair trial under section 21 of the HRA and there is a significant likelihood that potential representors have not made a representation due to being misled about the nature of the proposal. Accordingly, the Tribunal notes that the respondent has indicated that the Tribunal may direct that potential applicants as set out in the notification list at T 140 - 147 be notified by the respondent of the approval decision, and informed that, pursuant to section 10 (3)(a) of the ACAT Act, they have 28 days to make an application.
52.The Tribunal doubts that it has jurisdiction to make such an order in the present case. Although the general composite process is flawed in the present case, the applicant nevertheless made a representation about the DA and brought proceedings in ACAT within time seeking review of the decision to approve the DA. The Tribunal’s jurisdiction is based upon the application filed by the applicant under s 10 of the ACAT Act in the present case and the Tribunal has found that the applicant lacks standing and, in relation to the present application, the Tribunal lacks jurisdiction. The Tribunal therefore considers that it may lack jurisdiction to make an order rectifying the notification of the development proposal which may have affected the rights of other potential applicants to ACAT who may seek review of the decision to approve the DA but who have no current application pursuant to s 10 of the ACAT Act before the present Tribunal.
53.Therefore the Tribunal declines to make such an order, however the Tribunal notes that the respondent has the same obligation as the Tribunal under s 40B of the HRA to give proper consideration to a relevant human right and recommends to the respondent that it considers its own obligations as a public authority to preserve and foster the rights of potential affected parties under s 21 of the HRA and to make arrangements to re-notify the development proposal.
………………………………..
Professor Peta SpenderPresidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 09/72
APPLICANT: CHRISTOPHER WATSON
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: PETER BYFIELD
PARTY JOINED: KLEK HOLDINGS PTY LTDCOUNSEL APPEARING: APPLICANT:
RESPONDENT: JARVIS
SOLICITORS: APPLICANT:
RESPONDENT: MATHIE
OTHER: APPLICANT: SELF
RESPONDENT:
PARTIES JOINED: GLAVINIC
TRIBUNAL MEMBER/S: PROF. P. SPENDER Presidential Member
DATE/S OF HEARING: 10 February 2010 PLACE: CANBERRA
DATE/S OF DECISION: 26 February 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
4
6
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