WILSON AND ACT PLANNING & LAND AUTHORITY
[2008] ACTAAT 4
•21 February 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:WILSON AND ACT PLANNING & LAND AUTHORITY [2008] ACTAAT 4 (21 FEBRUARY 2008)
AT07/76
Catchwords: Land and planning – jurisdiction - development application exempt from review by Tribunal - item 16 Schedule 7 of the Land (Planning and Environment) Regulations
Land (Planning and Environment) Act 1991, s 276
Land (Planning and Environment) Regulation 1992, s 43, Sch 7
Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325
Tribunal:Mr M H Peedom, President
Date:21 February 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/76
LAND AND PLANNING DIVISION )
RE: JOHN CUNDELL
WILSON
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 21 February 2008
Decision :
The application for review of decision is dismissed for lack of jurisdiction.
…………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/76
LAND AND PLANNING DIVISION )
RE: JOHN CUNDELL
WILSON
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
EX TEMPORE REASONS FOR DECISION
21 February 2008 Mr M H Peedom, President
The respondent in this case has applied to have the applicant’s application for review of decision struck out on the ground that the Tribunal has no jurisdiction to hear and determine the matter because the kind of development proposed is exempted from appeal rights by Regulations under the Land (Planning and Environment) Act 1991 (“the Land Act”).
2. The development application described the proposal as the construction of a new car park and entry and the closure of the existing car park entrance.
3. Section 43 of the Regulations provides that section 276 of the Land Act does not apply if the decision relates to development listed in Schedule 7.
4. Section 276 is the section in the Land Act that provides for applications for review of decisions to be made to the Tribunal by objectors and third parties in relation to the approval of development applications. If, therefore, the development application is of a kind listed in Schedule 7, the Tribunal has no jurisdiction to hear the appeal.
5. Item 16 of Schedule 7 relevantly specifies:
A development by or on behalf of the Territory that consists of the construction, alteration, demolition or removal of –
………..
(c) a public road, public path, cycleway or car park.
as an exempt development.
6. The applicant contends that item 16 does not specifically exclude a car park which is a “public car park” and therefore item 16 does not exclude his right to appeal. He
also contends that as the development application was for a “new car park and entry and closure of an existing car park entrance” it goes beyond what is described in item 16.
7. The first requirement for the application of item 16 is that the development is by or on behalf of the Territory.
8. The land in respect of which the development is proposed is held under a Crown lease granted to the ACT for unspecified purposes.
9. The development application was made by the Department of Education and Training and the Department of Territory and Municipal Services on behalf of the lessee.
10. The Territory Plan map shows the land as designated for use as a community facility.
11. The ACT Land Information Centre map of Canberra suburbs at folio 87 and other material in the T documents shows that the land is used for a public primary school.
12. The conclusion to be reached is that the proposed car parking facility is being installed on ACT leased land by or on behalf of the Territory for use associated with a school conducted by it.
13. In relation to the applicant’s contention that the car park is a public car park the plans of the development application do not show any restriction on access to the proposed car park. It will presumably be used by teachers and others working on the site and persons attending the school to transport their children who are enrolled there and to undertake their own business at the school.
14. Whether ordinary members of the public who have no connection with the school will, or be able to, use the car park is, at this stage, a matter for speculation. Whether the car park is properly to be designated as a public car park is not clear on the information available to the Tribunal. This, however, is not a matter of much significance.
15. Item 16 does not specify “public” as part of the specification of “car park” as an exempt development. This contrasts with the reference in item 16 to “public road” and “public path”. The omission of the description of a car park as a “public car park” results, as a matter of interpretation, in the car park being able to be either public or not public.
16. In relation to the applicant’s other contention that the works proposed involve more than merely the construction of a car park, it is well recognised as a legal concept that a reference to a specified use of land, for example, includes a reference to all things that are reasonably incidental or ancillary to that use.
17. The principle that I am referring to was described in Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325:
It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity. However, not all activities constitute separate uses in their own right. Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed "ancillary uses", the word "use" in this context is a misnomer. They are really activities which are an ancillary part of the primary use. [For an interesting discussion of this distinction see Mollica v Shire of Bulla 9 AATR 157 at pg 161-163].
In general terms there are two types of activities which are commonly considered to be ancillary uses. The first is where the ancillary activity is quite different to the activities constituting the primary use of the property but are a necessary adjunct to the primary use. A common example given is the sixth floor of Myers in Melbourne which is devoted to offices, yet the offices are ancillary to the primary use of the premises as a shop. In such cases there must exist a close association between the principal and ancillary uses. Thus, so long as the office of a business or industry deals with the administration of that business or industry, then it will not be classified as a separate office use but as part of the use constituted by the business or industry. But if other administrative work entirely unrelated to the business or industry in question is carried out, then that aspect of the office activity would cease to be ancillary to the primary use and would become a separate use in its own right which would need to comply with the planning scheme.
The second type of ancillary uses are those types of activities which grow out of or develop from the primary use and are intended to enhance it. The most common example of these in recent years has been the sale of convenience goods by petrol stations. Petrol stations have always tended to sell items over and above simply motor fuel and oil. At first, such goods were confined to motoring accessories and spare parts. This range expanded to include cigarettes, sweets and drinks for motorists themselves. Gradually the sale of further convenience goods came to be accepted as being ancillary to a petrol station.
18. Although the principle in that case was specifically related to the purpose for which land was authorised to be used it applies, as a matter of common sense, in the application of item 16 of Schedule 7. If it did not, it would not apply to the kerbing, guttering, shade tree planting, removal of trees standing in the way of the car park, signage and other features ordinarily associated with a car park. An entrance driveway to a car park and blockage of an existing entrance to a car park so as to properly regulate the flow of traffic into and out of it are as much an incident of it as the features I have identified.
19. In addition, I note that item 16 is not confined to the construction of a car park it extends to the “alteration” of a car park.
20. To the extent to which the features identified by the applicant such as the closure of an existing entrance might arguably fall outside the description of the “construction of a car park”, they would be included as part of the alteration of the existing car park.
21. I therefore conclude that the development application is within item 16 of Schedule 7 and the Tribunal has no jurisdiction to hear and determine the application for review of decision.
22. The application for review of decision is therefore dismissed.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/76
APPLICANT: JOHN CUNDELL WILSON
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MS J MUSSETT
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 21 FEBRUARY 2008 PLACE: CANBERRA
DATE OF DECISION: 21 FEBRUARY 2008 PLACE: CANBERRA
______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
ORAL DECISION GIVEN
0
0
0