Watson v ACT Planning And Land Authority & Anor (Administrative Review) - [2024] ACAT 93

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WATSON v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2024] ACAT 93

AT 68/2024

Catchwords: ADMINISTRATIVE REVIEW – third party application for review of development approval – "eligible entity" – representation made through agent – whether made by applicant – applicant an individual – comparison with criteria for standing of association – "material detriment", "adverse impact", "use or enjoyment of land" – personal use of land unconnected with decision to approve development – no adverse impact on applicant – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9
Administrative Appeals Tribunal Act 1975 s 27
Land (Planning and Environment) Act 1991 s 275
Legislation Act 2001 Ch 14
Planning and Development Act 2007 ss 152, 162, 407, 408A, 419

Subordinate
Legislation Cited: Planning and Development Regulations 2007

Cases cited:Gingell v ACTPLA [2016] ACAT 10
Kourpanidis & Perin Property Group Pty Ltd [1997] ACTAAT 184
North Canberra Community Council v ACTPLA [2014] ACAT 1
Re McHattan and Collector of Customs [1977] I ALD 67
Watson v ACTPLA (No 2) [2010] ACAT 7

List of

Texts/Papers cited: Macquarie Dictionary, (online at 3 December 2024)
P Herzfeld and T Prince, Interpretation (Lawbook Co, 2^nd ed, 2020)

Tribunal:Senior Member R Arthur
Senior Member L Hawkins

Date of Orders:  20 August 2024
Date of Reasons for Decision:      6 December 2024
Date of Publication:  13 December 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 68/2024

BETWEEN:

CHRISTOPHER WATSON

Applicant
AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

AND:

AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE EDUCATION DIRECTORATE
Party Joined

TRIBUNAL:Senior Member R Arthur
Senior Member L Hawkins

DATE:20 August 2024

ORDER

Being satisfied that it does not have jurisdiction to review this application, the Tribunal orders that the application be dismissed.
………………Signed……………..

Senior Member R Arthur
For and on behalf of the Tribunal

REASONS FOR DECISION

The application

Before the Tribunal is an application for review of a decision of the ACT Planning and Land Authority (the respondent) to approve, with conditions, Development Application 202342401 (the DA). The DA proposes the —
construction of an Early Childhood Education Care to Year 6 Primary School including school buildings and associated structures and facilities, school hall, play areas, landscaping, verge crossings, parking, bicycle parking, signage and associated works
on Block 1 Section 87, Strathnairn (the development site).[1]
[1] DA dated 26 June 2024
The Tribunal’s power to hear and decide an application made to it is given by section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) in respect of a provision of another Act which authorises the Tribunal to do so. The decision to approve the DA was made by a delegate of the Planning and Land Authority under section 162 of the Planning and Development Act 2007 (the PD Act) (repealed) and is recorded in a Notice of Decision dated 26 June 2024. That decision is reviewable under the PD Act.
The application for review was made by Christopher Watson (the applicant), who made a representation in response to public notification of the DA under section 152 of the PD Act and regulation 28 of the Planning and Development Regulations 2008.
The DA was submitted electronically on 10 November 2023. It is recorded in the Notice of Decision as having been ‘lodged’ on 20 December 2023. The DA was submitted on behalf of the Education Directorate of the ACT which, having become the land custodian of the development site, applied to be joined as a party to this proceeding. It was joined as a party by orders made on 8 August 2024.

The applications standing

Both the respondent and the party joined have applied to the Tribunal seeking dismissal of the application for review on the ground that the applicant does not have standing to bring the application and, accordingly, that the Tribunal has no jurisdiction to entertain it.

Statutory provisions

Section 408A of the PD Act provides that an ‘eligible entity’ may apply to ACAT for the review of a reviewable decision. Section 407 defines ‘eligible entity’ for a review of a decision as follows:
an entity mentioned in schedule 1, column 3 for the decision …
By reference to Schedule 1, in relation to a decision made under section 162, an entity is eligible 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 material detriment.
‘Material detriment’ for the purposes of the PD Act has the meaning given it by section 419(1) as follows:
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.

Eligibility – making of a representation

The first eligibility requirement is the making of a representation, or a reasonable excuse for not making a representation.
The applicant does not have or use a device for online communication. He gets assistance from other people and did so in this instance. He is part of a group of people called the “Voices of West Belconnen” who regularly meet to discuss issues affecting the area in which they live. The online form provided for making a representation has a section for ‘Representor details’ under which the title, given name, and family name of the applicant were inserted in the appropriate boxes. In the box headed ‘Organisation name’, “Voices of West Belconnen” was inserted. The email address given was that of the person who completed the online form, who also wrote down what the applicant dictated to them as the subject matter of the representation itself.
The respondent queried whether the applicant met the first limb (a) of the eligibility provision. We have no doubt that he does. Lacking the capability to make an online representation, but getting somebody to do it for you, is surely a reasonable excuse for not making it oneself.
In any event, the applicant should be regarded as having made the representation himself. Every day activities are undertaken by a person through an agent. There is a large body of law which recognises that such activities are undertaken by the agent for the principal who is legally responsible for the activity. In this case, the applicant asked another person to record and transmit his representation, and that was done. That is the archetypal principal and agent transaction. There could be problems if the identity of the principal was not disclosed by the agent,[2] but it was so in this case.
[2] As in Kourpanidis & Perin Property Group Pty Ltd [1997] ACTAAT 184
We are satisfied that the first limb of the eligibility requirement has been met.

Eligibility – suffer material detriment

A legal entity is one recognised by the law as being capable of having rights and obligations. It includes individuals and associations of individuals whether incorporated or unincorporated. If an unincorporated association is to be distinguished from its individual members, they must have agreed on a set of rules binding the members and on a statement of objects or purposes which are the rationale for its existence. For incorporated associations and corporations, those objects and purposes are officially recorded at the time of incorporation.
That distinction is reflected in the two limbs of the definition of ‘material detriment’ – limb (a) applies to individuals as they do not have objects or purposes, and limb (b) applies to those entities that do have objects or purposes.
The applicant is an individual. He needs to show that development of the development site in accordance with the development approval has, or is likely to, have an adverse impact on his use or enjoyment of land. That land could be land belonging to him or which he has some kind of right[3] to use, or it could be the development site.
[3] Public or private
‘Material detriment’ describes the measure by which standing is to be identified. It is not, however, its own measure of standing for all purposes – that measure is prescribed:
(a)for entities with objects or purposes (associations) in 419(1)(b); and
(b)for all other entities (individuals) in 419(1)(a).
In North Canberra Community Council v ACTPLA [2014] ACAT 1 (NCCC), the Tribunal was concerned with the application of section 419(1)(b) of the PD Act and noted that it effectively reproduced section 27(2) of the Administrative Appeals Tribunal Act 1975 (Cth), which had been referred to in another case as a ‘deeming provision’ and so obviated the need to independently establish any “special interest” on the general law test.[4]
[4] NCCC at [45]
In NCCC, the Tribunal concluded that:[5]
[S]ection 419(1)(b) may also be regarded as a deeming provision, because an entity is defined as suffering material detriment if the decision relates to a matter included in the entity’s objects or purposes ... [and that] … the Explanatory Statement for the Planning and Development Bill 2006 clearly states that the two limbs of section 419(1) are intended to operate disjunctively. Therefore, the question of standing is to be decided entirely by the question of whether the decision relates to a matter included in the NCCC’s objects and purposes.
[5] NCCC at [46]–[47]
This being so, and given the structure of section 419(1), it must be that the first limb (a) is also a deeming provision. It follows that material detriment is suffered if there is an adverse impact of the kind contemplated.
In that respect, the term ‘material detriment’ is just a shorthand term – a drafting device to connect the entity with the adverse impact. Whether the words ‘material’ and ‘detriment’ contribute to the textual interpretation as well is considered below. The Macquarie Dictionary has four meaning for the noun ‘impact’:[6]
1.     the striking of one body against another.
2.     an impinging: the impact of light on the eye.
3.     forcible contact or impinging: the tremendous impact of the shot.
4.     influence or effect exerted by a new idea, concept, ideology, etc.
[6] Macquarie Dictionary, (online at 3 December 2024), ‘impact’ (n, def 1-4)
The first three meanings concern direct physical contact between two physical bodies. Because it is difficult to conceive of such an occurrence resulting from a planning approval they would not be relevant – for example, a building may cast a shadow onto neighbouring land, but that is hardly to be characterised as physical contact between two physical bodies. More particularly, it is the response of the individual to the phenomenon perceived by them that is significant.
The fourth meaning is appropriate to the planning approval context – a decision to approve a development application, like an idea or concept, is not tangible but is capable of provoking response.
The ‘influence’ or ‘effect’ of something is the result or consequence of its occurrence or existence on something else. The impact may be perceived as helpful, or adverse, or not perceived at all or only slightly, or it may be neutral because it is capable of being easily mitigated.
The relevant ordinary meanings of ‘adverse’, ‘use’, and ‘enjoyment’ are listed below:[7]
[7] Macquarie Dictionary, (online at 3 December 2024), ‘adverse’ (def 1-4); ‘use’ (n, def 11, 15)’ ‘enjoyment’ (def 1)
(a)‘adverse’ —
1.antagonistic in purpose or effect: adverse criticism.
2.opposing one’s interests or desire: adverse fate; adverse fortune; adverse influences; adverse circumstances.
3.being or acting in a contrary direction; opposed or opposing: adverse winds.
4.opposite; confronting: the adverse page.
(b)‘use’ –
11.the act of employing or using, or putting into service: the use of tools.
15.the power, right, or privilege of employing or using something: to lose the use of the right eye.
(c)‘enjoyment’ –
1.the possession, use, or occupancy of anything with satisfaction or pleasure.
The concepts of ‘use’ and ‘enjoyment’ in the context of land are coextensive to some extent, but each has a different focus. ‘Use’ focuses on the physical processes of using land, where the focus of ‘enjoyment’ is on the intangible benefits deriving from one or more aspects of the use of land.
It is the effect on the person’s use and enjoyment of land that is to be considered.
The land could be any land – the opening words of the definition (“in relation to land”) do not suggest any limitation whether by location or ownership or otherwise.
The focus is on the use or enjoyment by the person (entity’s) of “the land”. As a matter of necessary implication, the use must be lawful. Use that is not permitted by the Crown lease of the land, or by a person in lawful possession of the land would not be lawful.[8]
[8] Such as a sublessee
Whether or not there is an adverse impact resulting from a decision to approve a development approval will require consideration of the matrix of factors involved – the nature and degree of the effect, whether the land belongs to the person or to another or is public land, whether their use is permanent or long-term or temporary or occasional and the frequency of use, the extent of any need, and so on.
So there may be, for example, standing for an effect which reduces the ability of a Crown lessee to use their land for its permitted purpose (even when they are not then using it in that particular way), but not where the intended use was not permitted or where, objectively considered, the need for such use would never arise or could be catered for elsewhere on the land.
Likewise, standing may exist where the amenity of the local park is affected, but probably not in respect of a park in another suburb that a person has become used to going to, when there are other options. Disruption of access to a shopping centre may result in standing for a person whose mobility is limited, but not for others who are not so limited. Likewise, disruption to traffic movement occurring near a person’s home may give rise to standing for that person, but not to others in the vicinity for whom it will be an occasional, not daily, disruption.
The law has always ignored trivial matters such that a trivial impact, though it may be discernible, is not to be treated as an adverse impact. Another disqualifying feature of an adverse impact, even one of significance, is that it must raise a planning issue. The purpose of enabling a third party to apply to the Tribunal in relation to a development approval is to enable them to engage in the planning discussion. It follows that, in accordance with that purpose, the adverse impact must be connected with a planning issue. If it is not, then there can be no relevant material detriment.
Given their ordinary meanings, the defining words suggest that an adverse impact that was more than just trivial would be sufficient. But that takes no account of the shorthand term words – ‘material detriment’ – whose ordinary meaning suggests that there should be an ‘injury’ or ‘damage’ of ‘substantial import’ or ‘much consequence’.[9]
[9] See Macquarie Dictionary, (online at 3 December 2024) ‘material’; ‘detriment’
The authors of Interpretation, after reviewing diverging High Court authority on the effect of what they call ‘labelling definitions’, say: [10]
[W]hile definitions may take the meaning of the word or expression well outside its ordinary meaning if the drafting of the definition is clear, the preferable view is that the ordinary meaning of a word may exert some influence on the construction of the definition itself.
[10] P Herzfeld and T Prince, Interpretation (Lawbook Co, 2^nd ed, 2020) at [3.50]
If this means that the adverse impact on use or enjoyment of land is to result in ‘much harm’ before standing is to be accorded, it may be that the threshold is now higher than it was in previous times. However, given that we take the view that the applicant in this case has suffered no adverse impact at all, further examination of this issue is best left to a future occasion when the tribunal needs to do so for the purposes of determining the case before it.

Previous authority

This analysis of standing to oppose a development application has been limited to consideration of the provisions of the PD Act. Previous consideration of limb (a) by the Tribunal[11] has approached the matter by reference to case law relating to standing under the planning legislation prior to 2007. The Land (Planning and Environment) Act 1991 (repealed in 2007) gave standing to entities whose “interests are affected by a decision”. That case law drew on authorities in other areas of law where the focus was on “interests” which were “affected”,[12] especially arising in matters before the Commonwealth Administrative Appeals Tribunal, and in turn looked back to UK authorities and consideration of ‘ordinary members of the public’ as opposed to those with a ‘special interest’.
[11] See Watson v ACTPLA (No 2) [2010] ACAT 7; Gingell v ACTPLA [2016] ACAT 10
[12] Land (Planning and Environment) Act 1991 s 275; Administrative Appeals Tribunal Act 1975 (Cth) s 27(2); and see Re McHattan and Collector of Customs [1977] I ALD 67; Kourpanidis & Perin Property Group Pty Ltd [1997] ACTAAT 184
With respect to the thinking of that time, the lines of thought developed around other formulations of tests for standing may lead to similar outcomes, but consideration of the actual words employed in section 419(1)(a) of the PD Act is necessary to be confident that the legislative intention behind them is being ascertained. The process of interpretation should follow the path set by chapter 14 of the Legislation Act 2001 by considering the provisions of the relevant legislation. While the meaning of another statutory provision performing a similar function may be considered, it must carry low weight when it employs different words and has been repealed.
Although those authorities may throw useful light on the concepts involved in considering what is a sufficient interest giving rise to standing in a particular context, there is a risk that focusing on those authorities may put an unwarranted gloss on the actual words used in section 419(1) and lead to error.
The generality of the earlier formulations necessitated the development of limiting concepts to differentiate a person who deserved standing from others who did not. The words of section 419(1)(b), on the other hand, direct attention to the impact on the use and enjoyment of land by a person – and nothing else. The words do not suggest a need for comparison with other persons (‘special interest’) or the automatic exclusion of psychological impact (‘emotional’, ‘intellectual’).
So long as a person uses or enjoys land in some way, it does not matter if they are intellectually offended or emotionally stirred, or whether there are, or are not, others having the same experience.

The applicant’s submissions

At hearing, the applicant addressed the matter of his standing in his representation, in his application to the Tribunal. This was done in response to a letter from the ACT Government Solicitor, on behalf of the respondent and the party joined, asking him to explain his claim. In oral submissions, he raised the following points:
(a)He has lived in Belconnen for 50 years and over that period has visited the Ginninderry area alongside the Murrumbidgee River Gorge constantly. As a result, he has a personal interest (and material interest) in an area he loves and that he has been part of and of which now the Ginninderry area development including Strathnairn is part of.
(b)The school site, with its wonderful mature eucalypts, should be a small nature reserve.
(c)He has a material interest in and is concerned for his great-grandchildren and the lack of playing areas in the proposed school. His material interest is that he is concerned for the physical and mental well-being of the children who will be using the school, including his own great grandchildren.
(d)He has always lobbied for the best interests of his local community.
(e)He is very concerned about building a school on Canberra’s western front which has a high catastrophic fire risk from the nearby Brindabellas.
(f)All schools require adequate playing areas from day one when the first students arrive.
(g)The adjacent wetland pond may require enlargement in the future as well as the current urgent necessity for suitable native plantings around its periphery.
(h)The school site is inappropriately located on the edge of a suburb.
(i)The site needs to be classified as a nature reserve. He is concerned about the location of the school adjacent to the only historical precinct in the area.
(j)He is concerned about the area around the historical Strathnairn Homestead being used as proposed when it would be better suited to a nature area with its existing mature gums, wildlife and appropriate native biodiversity plantings.
(k)He has lived in Latham for 50 years and frequently followed Ginninderra Creek from where it is adjacent to his house to the Murrumbidgee River and on to the River Gorge.
(l)He was the original president of the Ginninderry Falls Association Inc. He has been active in advocating for better planning in the community interest over that time.
(m)He regularly visits Strathnairn Homestead, often to have a coffee at the café and enjoy the views of the Brindabellas.

He said that he had not actually been on the site of the proposed School and that the route of Ginninderra Creek took it some considerable distance to the east of the proposed site. He said that the suburb of Holt lay between Latham and Strathnairn.
In summary, the land he uses and has used is:
(a)Belconnen and particularly Latham where he has been resident for 50 years.
(b)The Ginninderry area near the river gorge.
(c)The Ginninderra Creek walking route.
(d)Other areas also generally, but not specially.
(e)The Strathnairn Homestead where he enjoys its historical ambience while having a cup of coffee and taking in the views of the Brindabellas.
He concedes that none of these areas are immediately proximate to the development site, the suburb of Holt being between Latham and Strathblane and the route of the Creek been quite some distance to the east of the development site. He also concedes that he has not been on the development site or the immediate surrounds such as the area he refers to as the “pond wetlands” which is currently a water quality control pond.
He makes the point that land generally is significant for indigenous culture. That is so, but as a non-indigenous person, his use of the land in whatever way is not affected.

Conclusion

Clearly, the applicant has used these lands and enjoyed them for their natural values, but it is also clear that his use and enjoyment of them will not be affected because of their distance from the development site. The closest land is around the Strathnairn Homestead, but he will continue to be able to visit and his views of the Brindabellas, which are to the west and mostly to the south-west, will not be interrupted by the school buildings which will be 100 to 200 m to the north, with access from a different street.
He clearly has a strong interest in, and a genuine concern for, development which is in the community interest. The views he has expressed generally address relevant planning issues and could be pursued before ACT Civil and Administrative Tribunal if they were being expressed by the representatives of an association which had the necessary attributes to be an eligible entity for the purposes of section 419(1)(b).
However, there is no adverse impact on any of the ways in which the applicant personally uses or enjoys land. Accordingly, he is not likely to suffer material detriment in his use or enjoyment of land and is therefore not an eligible entity capable of making a competent application for review of the development approval decision. As a result, the Tribunal has no jurisdiction to entertain his application, which must be dismissed.
………………………………..

Senior Member R Arthur
For and on behalf of the Tribunal

Date(s) of hearing:	20 August 2024
Applicant:	In person
Solicitors for the Respondent:	Ms S Gasser, ACT Government Solicitor
Counsel for the Party Joined:	Mr N Oram
Solicitors for the Party Joined:	Ms L Chandra, ACT Government Solicitor