Wythes and Act Planning and Land Authority & Anor (Administrative Review)
[2011] ACAT 11
•8 February 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WYTHES and ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2011] ACAT 11
AT 10/108
Catchwords: ADMINISTRATIVE REVIEW – planning and development – interim decision – proposed change of land use – application to strike out – standing of the Applicant
List of legislation: Australian Capital Territory (Planning and Land Management) Act 1988 (CTH), s 4, 5, 6, 10, 11, 12, 27, 28 and 29,
Planning and Development Act 2007 (ACT)
ss 6, 131A and 419, and definition of “development”.
Tribunal: A. Anforth, Senior Member
Date of Orders: 8 February 2011
Date of Reasons for Decision: 8 February 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 108 of 2010
BETWEEN:
SABINE WYTHES
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
HINDMARSH PROPERTY PTY LTD
Joined Party
TRIBUNAL: Mr A. Anforth, Senior Member
DATE: 8 February 2011
INTERIM ORDER
- The Respondent’s application to strike out the application for review is dismissed.
………………………………..
Ms L. Crebbin, General President for
Mr A. Anforth
Senior Member
REASONS FOR DECISION
Background
This interim decision pertains to an application by the Respondent to strike out the application for review of the Respondent’s decision of 12 October 2010 for lack of standing on the Applicant’s part. The test for standing to seek review is whether the Applicant will suffer a ‘material detriment’ arising from the Respondent’s decision (section 419 Planning and Development Act 2007 (ACT)). The Respondent contends that the Applicant will not, and in fact cannot, suffer a ‘material detriment’ arising from the Respondent’s decision.
The relevant factual history is set out in the Respondent Submissions of 24 January 2011. The decision of 12 October 2010 approved a development application lodged by the Joined Party on behalf of The Returned Services League of Australia Ltd (RSL) to change the use permitted of a block of land owned by the RSL in Campbell. The change in question was from various business and commercial uses to a ‘residential use’.
It was common ground between the parties that the National Capital Authority (NCA) has subsequently received and approved an application from the RSL to construct a multi-storey residential facility on the land. The Joined Party is to be the project manager.
The Respondent advertised the proposed change of land use. A range of people living in the immediate vicinity of the land, including the Applicant, lodged objections with the Respondent.
The objections were unsuccessful. This was communicated to the objectors in the Respondent’s letter of 20 October 2010. Several of these objectors and the Applicant have sought review of the Respondent’s decision by the Tribunal. The applications by the other objectors are presently pending before the Tribunal.
Standing of the Applicant
The Respondent has taken issue with the right or standing of the Applicant to bring the application per paragraph 1 above. No similar issue has been taken in relation to the standing of the other applicants. The essence of the Respondent’s contention is that the Applicant lives several streets away from the proposed development and therefore cannot suffer a material detriment from the development. The other objectors live in the immediately adjacent streets to the land in question. From the map of the suburb provided by the Respondent it seems that the Applicant lives 6 houses from the nearest of the other objectors who in turn lives next door to the remaining objectors. There is one street between the Applicant and the other objectors.
At the hearing of the Respondent’s strike out application on 21 January 2011 the Applicant appeared in person. Mr Stawski, solicitor, appeared for the Respondent and for the Joined Party, who have common cause in this matter.
The Applicant outlined the nature of her objections and Mr Stawski outlined the Respondent’s position.
In response to a question from the Tribunal Mr Stawski conceded that the nature of the Applicant’s objections were the same (or not materially different) from that of the other objectors whose applications for review were pending before the Tribunal and in respect of whom no challenge to standing was made by the Respondent. The Tribunal put to Mr Stawski that it was difficult to see what purpose was to be achieved in denying the Applicant the chance to put her case if it was only the same case that the Respondent had to meet from the other objectors. The only purpose to which Mr Stawski pointed was the possibility that some accommodation or settlement may be reached with the other objectors in which the Applicant may not join thus leaving the review application to run on the basis of the Applicant’s objections alone. The Tribunal acknowledges that this is a possibility but there was no evidence of this being likely or being anything more than a bare possibility.
Mr Stawski’s principal submission was that the issue of the purpose or efficacy of an interim order is not a relevant consideration in determining a strike out application for want of standing. In his submission, it is solely a question of whether the Applicant satisfies the test for standing, or not. There was some dialogue between the Tribunal and Mr Stawski on the issue of whether a purposive approach to the construction of statutes that confer public law rights may not better serve the end of public administration than an approach that insists upon the application of a law for its own sake.
In any event, the issue of the Applicant’s standing is not so clear cut and free from evaluative judgment as to lead to the necessary finding that she lacks standing. Taking the Applicant’s case at its highest, it is not clear that the Applicant will not suffer a material detriment of the same kind and to a similar degree as the other objectors. In such circumstances, and having regard to the fact that the Applicant raises nothing that the other objectors are not raising, the presently constituted Tribunal cannot see any public benefit gained in depriving the Applicant of the opportunity to be heard.
If the Applicant were to advance further categories of alleged detriment to her that went beyond the kind of detriment pleaded by the other objectors then the Respondent may have grounds for contending that no such further detriment to the Applicant existed. This would then be a matter for evidence. At present no such further detriments were identified.
Whether all the objections are futile:
During the interim hearing it emerged that the applications from all the objectors may be proceeding on a misguided premise. Mr Stawski informed the Tribunal that the objections were directed not so much to the permitted residential use of the land but rather to the decision of the NCA to approve the multi-storey residential complex on the land. He put to the Tribunal that the Respondent had no control over the process of approving the building of the multi-storey premises which was entirely a matter for the NCA. Therefore the review before the Tribunal was confined to the narrower issue of the conversion of the permitted use from business/commercial to residential, without regard to the subsequent decision of the NCA to approve the multi-storey residential complex.
The Tribunal observed that if this were the case then it was well to clarify this issue in advance of the substantive hearing of the objections to obviate the potential waste of time and resources by all concerned in preparing and leading evidence going to the nature of the particular approved residential complex. It was further observed by the Tribunal that the narrowing of the scope of the review in this matter simply reinforced the unlikely eventuality that the Applicant could or would raise any relevant objections that went beyond the scope of that raised by the other objectors.
The Respondent has filed very helpful submissions by way of clarification of the above issue.
The legislative regime for control of ‘designated areas’ in the ACT
The Commonwealth has retained a degree of control over land use and development in the ACT via the Australian Capital Territory (Planning and Land Management) Act 1988 (PALM Act).
The land in the ACT is divided into two categories, ‘national land’ and ‘territory land’. ‘National land’ is defined in section 27(1) PALM Act to be land that is declared by gazette to be ‘national land’ being land that is, or is intended to be, used by the Commonwealth. Section 27(3) vests the management of ‘national land’ in the executive of the ACT government.
All land in the ACT that is not ‘national land’ is defined by section 28 PALM Act to be ‘territory land’.
Section 29 vests the management of ‘territory land’ in the executive of the ACT government.
Section 4 PALM Act defines ‘management’ in relation to land to include the ‘care, control and maintenance.’
The land in question in the present matter is located in Campbell. It is not ‘national land’ and is therefore ‘territory land’.
Section 10 PALM Act provides for the promulgation of the National Capital Plan (the Plan) to be drafted and administered by the National Capital Authority (NCA) which is a Commonwealth authority (section 5 PALM Act).
The Plan is not limited to regulating ‘national land’ and extends to the regulation of ‘territory land’. The ‘territory land’ that is regulated by the Plan includes, without being limited to, those lands identified in the Plan that have ‘the special characteristics of the National Capital’ (s10(1) PALM Act).
Section 10(1) PALM Act provides that the areas regulated by the Plan that have the special characteristics of the National Capital may be specified as ‘designated areas’ in the Plan. The definition of a ‘designated area’ in section 4 PALM Act adopts any specification of ‘designated areas’ in the Plan.
Section 10(2)(c) PALM Act provides that the Plan may ‘set out the detailed conditions of planning, design and development in Designated Areas...’
Section 6 PALM Act sets out the functions of the NCA which includes ‘to commission works to be carried out in Designated Areas in accordance with the Plan...’(s6(1)(c)). Section 12 PALM Act provides that no works shall be carried out in designated areas without the approval of NCA.
The term ‘works’ is defined in section 4 PALM Act to include ‘the construction, alteration, extension or demolition of buildings or structures’.
It is apparent from the above that the issue of the construction of buildings in ‘designated areas’ in the Plan is within the power of NCA and requires NCA approval.
The Respondent’s role in approving changes in land use in ‘designated areas’
If for no other reason, the subordinate status of the ACT to the Commonwealth means that no ACT enactment can override the effect of section 12 PALM Act. Hence no ACT enactment can approve building in a designated area except with the approval of the NCA. More particularly for present purposes, no ACT enactment, including the ACT Civil and Administrative Tribunal Act 2008, can override an actual decision of the NCA to approve the construction of the multi-storey residential complex upon the land.
Any potential conflict between the role of the ACT as the manager of territory lands and the role of the NCA in controlling developments in designated areas is resolved by section 11 PALM Act. Section 11 provides that the Plan may deal with issues of ‘planning, design and development’ in designated areas (s11(2)(c)). Section 11 further provides that any enactment (including an ACT enactment) that is inconsistent with the Plan, is void to the extent of that inconsistency. Thus, any ACT statute or planning instrument relating to the planning or developments in ‘designated areas’, is void to the extent of inconsistency with the Plan.
The term ‘planning’ is not defined in PALM Act and would take its meaning from its statutory context. The Tribunal has no doubt that the concept of ‘planning’ embraces both permissible land uses as well as the construction occurring upon the land.
The curious thing arising from the above is how the Respondent became involved in approving the change in land use to ‘residential’ in the decision of 12 October 2010. The change in land use is a planning matter for the NCA. If the NCA has already amended the Plan to reflect the residential use of the land in question, it would seem to be beyond the power of the Respondent to purport to make a decision on the same issue. Mr Stawski advised that Part 1 section 1.5.4 of the Plan does in fact designate the land concerned for residential use. The question arises as to what role is left for the Respondent concerning the land use issue other than to give effect to the decision of the NCA by noting accordingly the changed land use term on any crown lease.
If the Plan has not been amended by the NCA to show residential use of the land then any decision by the Respondent that purports to change the land use to residential would surely be inconsistent with the existing land use under the Plan and therefore void.
On either of the scenarios in paragraphs 32 and 33 above, it is difficult to see what efficacy there is in conferring upon affected citizens a right to review of the Respondent’s decision. The review would seem to be meaningless in substance in that it could not affect the decision of the NCA to approve the change in land use under the Plan, or the approval of the multi-storey residential complex.
Conferring a meaningless right is not just a nuisance it is positively negative in effect in that it wastes resources for all concerned and creates expectations in the community that are bound to be frustrated.
This issue was taken up with Mr Stawski at the hearing who indicated that there was some residual role for the Respondent to perform, other than just noting the terms of the NCA decision on the relevant crown leases. He pointed to section 131A Planning and Development Act 2007 (ACT) (P&D Act) which reads:
131A(1) This section applies to a development proposal that is a variation of a lease in a designated area.
(2) Section 50 (Effect of territory plan), section 65 (Effect of draft plan variations publicly notified) and the territory plan do not apply in relation to the development proposal.
(3) The development proposal must be dealt with under the provisions of this Act (other than any territory plan-related provisions) that apply in relation to the merit track.
(4) However, if the impact track applies to the development proposal under section 123 (b), (c), (d) or (e), the proposal must be dealt with under the provisions of this Act (other than any territory plan-related provisions) that apply in relation to the impact track.
(5) In this section:
"territory plan-related provision "means a provision of this Act that applies a development table, code, rules or criteria, objectives for a zone, statement of strategic directions, or anything else in the territory plan.
The concept of a ‘development’ is defined in the P&D Act(section 7) as:
"development", in relation to land, means the following:
(a) building, altering or demolishing a building or structure on \
the land;
(b) carrying out earthworks or other construction work on or
under the land;
(c) carrying out work that would affect the landscape of the
land;
(d) using the land, or a building or structure on the land;
(e) subdividing or consolidating the land;
(f) varying a lease relating to the land (other than a variation
that reduces the rent payable to a nominal rent);Because the definition of a ‘development’ includes land use (para (d)) it is prima facie possible for the Respondent to become involved in changing land uses in ‘designated areas’. But any endeavour to make such a decision in relation to ‘designated areas’ must bring the Respondent into conflict with the Plan per paragraphs 32 and 33 above.
The note to section 6 of the P&D Act acknowledges this point:
Note: This Act, like all Territory Acts, has no effect to the extent that it is inconsistent with the national capital plan, but is taken to be consistent with the national capital plan to the extent that it can operate concurrently with it (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwth), s 11 (1)).
In the Tribunal’s view, section 131A P&D Act does not authorise the Respondent to make a decision on land use in a designated area other than to affirm whatever the permitted land use is under the Plan, which is no true decision at all.
It may be that the NCA has delegated some of its power under the PALM Act to the Respondent. If so the Tribunal is unaware of this. In any event the Respondent advised that the Plan had already been amended by NCA to permit residential use. This would appear to negate the purpose of any possible delegation to the Respondent on the point i.e. there is no purpose served in the Respondent approving a use that the NCA has already approved.
As presently advised the only role for the Respondent that the Tribunal can see in relation to the change in land use is to note the crown leases accordingly (para (f) of ‘development’). This action by the Respondent is not a decision by the Respondent. It involves no judgment, discretion or evaluation on the Respondent’s part. It is a simple administrative step to give effect to the change in permitted use under the lease arising automatically from the change to the Plan by the NCA.
For the reasons given at paragraph 34 above the Respondent has no role to play in approving the building upon the land.
The decision:
If the present application were the only matter before the Tribunal challenging the Respondent’s alleged decision to approve a change in land use to ‘residential’ then the Tribunal would strike out the application as being a futility. That decision would not have been due to any lack of merits in the Applicant’s assertions (which are untested at this time) but because there is in truth, no decision to review.
However the Tribunal as presently constituted is conscious that the other objectors’ applications are pending. They are not parties to this present application and hence have not had an opportunity to respond to the issues raised above. It may also be that the Presidential member that hears the objectors’ substantive applications may take a different view on the futility of the applications. For this reason, the Tribunal has determined not to strike out the present application but rather to allow it to proceed to hearing together with the applications by the other objectors. By this process the Presidential member hearing the matters can determine the fate of all the applications together.
………………………………..
Ms L. Crebbin, General President for
Mr A. Anforth
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 10/108
APPLICANT: SABINE WYTHES
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: HINDMARSH PEROPERTY PTY LTD
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Mr A. Anforth, Senior Member
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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