ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CITY HILL PTY LTD & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2012] ACAT 80

No: AT12/36

Catchwords: ADMINISTRATIVE REVIEW - refusal to vary Crown lease purpose clause – whether development application contemplated ‘residential use’: objective construction – whether DA can be amended to include ‘residential use’ - influential circumstances to test whether a suggested change is a minor change – the tribunal’s power to amend a development application – meaning of ‘substantially the same’: whether development after amendment is development applied for originally – difference between an amended development application and a new development application

List of Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT), s.9Integrated Planning Act 1997 (Qld), s. 4.1.52Planning and Development Act 2007 (ACT), ss. 7, 162, 144, 145, 146 and 408.

List of Cases: Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd [2001] SASC 173Butler v Kingaroy Shire Council [2006] QPEC 93Cambridge Credit Corporation Ltd & Another v Parkes Development Pty Ltd [1974] 2 NSWLR 590Cooroy Golf Club Inc v Noosa Shire Council [2001] QPELR 431Heilbronn & Partners & Ors v Gold Coast City Council [2005] QPELR 386Jackson v Building Appeal Board (2010) 174 LGERA 290Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14Legg v Inner London Education Authority [1973] 3 All ER 177McKenzie v ACT Planning and Land Authority [2004] ACTSC 80Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula [2008] SASC 139Studio Tekton Pty Ltd v Redland Shire Council [2006] QPEC 107Walkington v ACTPLA [2010] ACAT 81

Tribunal: Dr T. Foley - Senior Member

Date of Orders: 19 December 2012

Date of Reasons for Decision: 19 December 2012

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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT12/36

BETWEEN:

CITY HILL PTY LTD Applicant

AND: ACT PLANNING AND LAND AUTHORITY

Respondent

TRIBUNAL: Dr T. Foley - Senior Member

DATE: 19 December 2012, as corrected on 21 January 2013

CORRECTED ORDER

1. The decision under review is confirmed.

………………………………..Dr T. Foley

Senior Member

REASONS FOR DECISION

1. These reasons explain why the Tribunal has decided to confirm a decision made

by the ACT Planning and Land Authority (“the respondent”) with respect to

Development Application 201120304 to refuse to vary the purpose clause in the

Crown Lease for Block 19, Section 29 Braddon (“the site”) so that the site can

be used for residential purposes.

2. The decision is a reviewable decision by virtue of section 408 and Schedule 1

Column 2 Item 3 of the Planning and Development Act 2007 (ACT) (the

Planning Act).

Background

3. In 2009, City Hill Pty Ltd (the applicant) lodged Development Application

200913948 (“DA1”) with the respondent, which sought to vary the provisions

of the Crown Lease setting out the permitted uses for the site. Section 7 of the

Planning Act says that development includes varying a lease. In August 2009,

the respondent approved DA1 subject to conditions. The uses that would be

permitted if the conditions were met are set out in a draft Crown Lease attached

to the Notice of Decision in respect of DA1:

Purpose 3 (a)(a) To use the premises only for the purposes of one or more of the following:

i. freight transport facility;ii. industrial trades LIMITED to motor vehicle tyre fitting and

ancillary motor vehicle repairs and servicing;iii. light industry;iv. non retail commercial use LIMITED to office and public

agency;v. plant and equipment hire establishment;

vi. residential use PROVIDED THAT residential use shall not be permitted at ground floor level or first floor level;

vii. restaurant;viii. shop PROVIDED ALWAYS THAT the combined maximum

gross floor area for supermarket or other shop selling food shall not exceed 200 square metres;

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ix. transport depot;x. vehicles sales; and

xi. warehouse;

4. The applicant lodged another development application in June 2011. When

Development Application 201120304 (“DA2”) was lodged and subsequently,

the draft Crown Lease approved in DA1 had not been registered.

5. At page 3 of the DA2 application form, under the heading ‘Fully Describe Your

Proposal’, the proposed development was described as:

Crown Lease Variation to vary the purpose clause by adding the following uses:club, commercial accommodation use EXCLUDING tourist resort, community use EXCLUDING place of worship and religious associated use, drink establishment, emergency services facility, funeral parlour, indoor entertainment facility, indoor recreation facility, light industry, expand non retail commercial use so it includes business agency and financial establishment, and store.

Please see the submitted Proposed Lease Variation report for full details.

6. DA2 included a ‘Lease Variation Proposal Report’. The report, under the heading

‘Existing Crown Lease Clauses’, listed the uses approved in DA1 as the

relevant current purpose clauses even though it had not been registered.

7. The report also set out under the heading ‘Proposed Lease Variation’ that the

proposal was ‘to vary the purpose clause by adding the following uses’ and

then re-listed the additional uses sought under the heading ‘Fully Describe

Your Proposal’ in the DA Application Form. Under the heading ‘Proposed

Lease Variation’, the report said that the resultant amended purpose clause

would read as follows:

Purpose 3(a) To use the land for one or more of the following purposes:

i. club;ii. commercial accommodation use EXCLUDING tourist resort;

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iii. community use EXCLUDING place of worship and religious associated use;

iv. drink establishment;v. emergency services facility;

vi. freight transport facility;vii. funeral parlour;

viii. indoor entertainment facility;ix. indoor recreation facility;x. industrial trades LIMITED to motor vehicle tyre fitting and

ancillary motor vehicle repairs and servicing;xi. light industry;

xii. non retail commercial use;xiii. plant and equipment hire establishment;xiv. residential use PROVIDED THAT residential use shall not

be permitted at ground floor level or first floor level;xv. restaurant;

xvi. shop, PROVIDED ALWAYS THAT the combined maximum gross floor area for supermarket or other shop selling food shall not exceed 200 square metres;

xvii. store;xviii. transport depot;

xix. vehicles sales; andxx. warehouse;

8. In June 2011, the respondent sought comment from various entities and others,

namely, Environment Protection Authority (EPA), Territory and Municipal

Services Directorate (TaMS), ActewAGL, Office of Regulatory Services

(ORS), and Assessment Officer for Development Applications in North

Canberra (The Merit North Team). Entity advice was received from EPA,

TaMS and ActewAGL.

9. On 22 March 2012, the respondent partially approved and partially refused DA2.

The Notice of Decision approved, subject to conditions, the proposal to amend

the purpose clause for the site to include the following uses:

club; commercial accommodation use EXCLUDING tourist resort; community use limited to community activity centre, community

theatre, cultural facility, health facility, and educational establishment further limited to adult education;

drink establishment; funeral parlour; indoor entertainment facility; indoor recreation facility; business agency;

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financial establishment; and store.

10. A relevant condition was Condition A4:

REGISTRATION OF VARIATION

Prior to the registration of the Instrument giving effect to this approval, the Lessee(s) must surrender the existing Crown lease for Block 19 Section 29 Division of Braddon (Volume 1533: Folio 45) and register, at the Office of Regulatory Services, the new the (sic) Crown lease giving effect to the approval of Development Application (DA) No. 200913948 granted on 20 August 2009.

11. On 18 May 2012, the applicant filed an application seeking administrative review

of the Notice of Decision of 22 March 2012 stating that ‘this approval decision

should have included ‘residential use’ as part of the approval’.

12. The applicant contends that ‘residential use’ was contemplated in DA2 and if it

was not, the Notice of Decision should be amended to include ‘residential use’.

13. The respondent contends that approval of ‘residential use’ in DA2 could only

have been included in its partial approval of DA2 if the applicant had applied

for ‘residential use’. The respondent says the applicant did not apply for it.

14. There are two agreed issues for decision:

a. whether DA2 contemplated that ‘residential use’ be added to the purpose

clause of the Crown Lease in respect of the site;

b. if not, whether the development application can now be amended so as to

contemplate ‘residential use’.

15. More simply stated, the two questions are:

Was ‘residential use’ contemplated in DA2?

if not, can DA2 be amended to include ‘residential use’?

The Hearing

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16. The matter was heard on 26 November 2012. The Tribunal had before it the

documents provided by the respondent on which its decision was based (“the T

Documents”), the submissions and statements of facts and contentions filed by

each party as well as witness statements and other exhibits tendered in

evidence. The applicant was represented by Mr J. Hartley and the respondent

was represented by Mr L. Stawski.

17. The applicant called no oral evidence. Evidence for the respondent was given by

Ms Susan Messer.

Was ‘residential use’ contemplated in DA2?

The relevant law

18. This is a matter to be determined on an objective analysis of the application

Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14 [at 25].

A development application must be ‘viewed objectively and in a practical

sense’ Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd [2001]

SASC [16]. Butler v Kingaroy Shire Council [2006] QPEC 93 [at 17]

(“Butler”) gives some guidance as to the meaning of ‘construed objectively’…

[t]hat is to say, its meaning is that conveyed to the ordinary reader’.

19. It is clear that a planning authority must go beyond the use/s asserted in a

development application in determining an application Jackson v Building

Appeal Board (2010) 174 LGERA 290 [at 53]. A planning authority should

‘adopt a flexible and fair approach to the interpretation of an application’ [at

57].

20. In Paradise Development (Investments) Pty Ltd v District Council of Yorke

Peninsula [2008] SASC 139, the Supreme Court of South Australia made clear

that

‘the planning authority should not simply rely on the description of the proposed development in the development application…Instead, the planning authority has a duty itself to examine the plans which accompany the development application and any other information provided by the applicant and determine the nature of the development.’

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Applying the law

21. The development application for DA2 consists of:

the Development Application form,

a Development Application Letter of Appointment,

a Lease Variation Proposal report,

a letter setting out a summary of assessed value,

a Lease Variation - Statement Against Criteria report [all contained in

T152-181], and

a Change of Use Charge Assessment [Exhibit 2].

22. The Development Application form, in the section headed ‘Fully Describe Your

Proposal’, refers to the application as ‘Crown Lease Variation to vary the

purpose clause by adding the following uses’. Residential use is not included in

those uses.

23. The Development Application Letter of Appointment does not set out the

proposed uses.

24. The Lease Variation Proposal report, in the section headed ‘Proposed Lease

Variation’, refers to the application as being ‘to vary the purpose clause by

adding the following uses’. It does not include residential use as an additional

use.

25. The letter setting out a summary of assessed value does not consider the proposed

uses.

26. The Variation - Statement Against Criteria report states (at p4) that ‘the proposal

is to vary the purpose clause by adding the following uses: [a list of various

uses]…No other variations are sought’. The report does not include residential

use in those additional uses.

27. The Change of Use Charge Assessment states (at p13) that the development

application ‘seeks to vary the Crown Lease purpose clause to include [a list of

various uses]’. This list does not include residential use.

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28. DA1 includes residential use. A number of documents that constitute DA2

assume that the approved but unregistered amendments to the purpose clause of

the Crown Lease consequent on DA1 have been or will be made. The

documents are:

the Lease Variation Proposal report assumes the DA1 approved

development as the ‘Existing Crown Lease Clauses’,

the Change of Use Charge Assessment assumes the DA1 approved

development as the existing ‘Purpose Clause’, and

the Change of Use Charge Assessment assumes ‘the resulting purpose

clause’ to be a combination of the DA1 approval and the DA2

application.

29. The Change of Use Charge Assessment values the ‘after value’ of the site as

including the potential for ‘14 resi units’ within the anticipated total GFA. The

‘before value’ of the site is not based upon GFA calculation and does not

contemplate residential use. However the assessment provides for a Nil

(upgraded to negligible in subsequent correspondence) change of value. A Nil

change in value gives rise to a reasonable inference that DA2 did not seek to

add residential use.

30. The tribunal is satisfied that there is nothing in the bundle of documents

constituting DA2 that can be objectively construed as a request for variation of

the lease to include residential use.

Can DA2 be amended to include ‘residential use’?

The relevant law

31. The scope of the tribunal’s ‘amendment’ approving power is not open ended. The

tribunal recited in Walkington v ACTPLA [2010] ACAT 81 (‘Walkington’) [at

27] with approval the comments of Crispin J in McKenzie v ACT Planning and

Land Authority [2004] ACTSC 80 (‘McKenzie’) [at p21] that a tribunal is

‘clearly not entitled to consider a completely different development

application’. Instead what is open to the tribunal (now standing in the shoes of

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the respondent) is to apply the statutory formula provided for in section 144 to

146 of the Planning Act to amend a development application in limited

circumstances.

32. Relevantly, section 144 to 146 provide:

144 Amending development applications

(1) The planning and land authority may, if asked by the applicant, amend a development application.

(2) However, the planning and land authority must not amend the development application unless satisfied that—

(a) the development applied for after the amendment will be substantially the same as the development applied for originally; and

(b) the assessment track for the application will not change if the application is amended.

145 Referred development application amended

(1) This section applies if—

(a) a development application has been amended under section 144; and

(b) before it was amended, the application was referred to an entity under division 7.3.3.

(2) The planning and land authority must refer the development application to the entity.

(3) A referral under subsection (2) must include a brief description of how the application has been amended since the entity last saw it.

(4) However, if the planning and land authority is satisfied that the proposed amendment of the application does not affect any part of the application in relation to which the entity to which the application was referred made a comment, the authority need not refer the proposed amendment to the entity.

146 Notice of amended development applications

(1) This section applies if—

(a) the planning and land authority amends a development application; and

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(b) the making of the application has been publicly notified.

(2) The planning and land authority must publicly notify the amended application under division 7.3.4 (Public notification of development applications and representations).

(3) However, the planning and land authority may waive the requirement to publicly notify the amended application for development approval if satisfied that—

(a) no-one other than the applicant will be adversely affected by the amendment; and

(b) the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development.

33. Section 144(2) provides the threshold considerations. The parties accept that the

amendment sought will not change the assessment track and that therefore

section 144(2)(b) is satisfied. The question for decision by the tribunal is

whether the amended development sought is ‘substantially the same’ so as to

satisfy section 144(2)(a).

Meaning of ‘substantially the same’

34. Some guidance is provided in decisions considering a similar legislative licence

permitting amendment in section 4.1.52 of the Integrated Planning Act 1997

(Qld). That section permits amendment which is only ‘a minor change’.

35. In Butler, Brabazon J cites two ‘influential circumstances’ as being relevant to the

consideration of whether a proposed change is ‘a minor change’:

a. is the change likely to be more acceptable or more objectionable to those

who have objected?

b. is the change such that it would be likely to cause a person to make an

objection if available?

36. These ‘tests’ were considered by the Planning & Environment Court of

Queensland (QPEC) in Studio Tekton Pty Ltd v Redland Shire Council [2006]

QPEC 107 (“Studio Tekton”). The court cited with approval Rackemann DCJ’s

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remarks in Heilbronn & Partners & Ors v Gold Coast City Council [2005]

QPELR 386 [at 10], that the power to modify is beneficial and should be

applied flexibly. The court also cited Robin DCJ in Cooroy Golf Club Inc v

Noosa Shire Council [2001] QPELR 431 [at 11] to the effect that a

modification is minor if ‘not materially different from the original one’ and that

‘minor’ is a relative term which ‘must be addressed against the application in

its unmodified state’.

37. In Studio Tekton, QPEC said that it should be possible to answer the question

posed by Brabazon J’s first ‘influential circumstance’, with reasonable certainty

because objections have already been made and an objective assessment can be

made as to whether the views of objectors will be changed by the amendment.

However, the answer to the question posed by Brabazon J’s second ‘influential

circumstance’ is much more speculative.

38. This tribunal considered whether changes to a development application resulted

in a development which was ‘substantially the same’ in the matter of

Walkington. The tribunal applied section 144 of the Planning Act during a

review of a decision relating to a development application for the construction

of six residential units (5 attached and one separate) on an amalgamated block.

During proceedings, the developer asked the tribunal to approve an amended

development consisting of only four separate units. While these changes were

described as ‘not insignificant’ by the tribunal, ‘the scaling down of the

development so as to reduce impact [was seen as] a relevant consideration’

likely to be beneficial to objectors [at 30]. As such, the amended development

was adjudged to be ‘substantially the same’. The reduced impact of the

development would produce a change which also satisfied the first test

suggested in Butler.

39. In Walkington the tribunal considered where the line should be drawn between

conditions that amend an existing application and conditions that destroy the

substance of the original application so as to constitute a new application. This

reasoning is instructive for a determination under section 144. The test the

tribunal used was drawn from Cambridge Credit Corporation Ltd & Another v

Parkes Development Pty Ltd [1974] 2 NSWLR 590 (“Cambridge Credit”) in

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regard to amended conditions imposed by a decision-maker on a development

approval. The court in Cambridge Credit held that the relevant test was whether

‘the condition imposed amounts to a complete rejection of the original

development application?’ If the answer to that question is yes, the amended

application is objectively a new application.

40. The ACT Supreme Court’s decision in the matter of McKenzie is somewhat

analogous to Walkington. The Court was considering an appeal from a decision

of the ACT Administrative Appeals Tribunal. In the course of the proceedings

before the tribunal, the developer submitted amended plans which addressed

the primary concerns of one of the objectors. The tribunal had been of the view

that it could not assess the amended proposal because its function was ‘to

review the decisions of others and not to itself act as an artificial decision-

maker’ [at 14]. Crispin J rejected this view, holding that it was open to the

tribunal to assess the amended proposal, subject to considering whether the

amended plans involved ‘such a substantial departure from those originally

submitted as to properly be regarded as a different application rather than a

revision of some aspects of the original application…’ [at 18]. The court held

that the amended plans were not a new application but rather an amended

application which the tribunal could consider.

41. The applicant submits that the point of comparison for determining whether the

proposed amended development application is ‘substantially the same’ as DA2

is the totality of the outcome of the respondent’s decision for DA2. The

decision gave partial approval to amend the purpose clause to add various uses

(which do not include ‘residential use’) subject to the satisfaction, inter alia, of

Condition A4 requiring the surrender of the existing Crown Lease giving effect

to the DA1 approved uses (which do include ‘residential use’).

42. It is the applicant’s contention that if this is the focus of the comparison, the

proposed amended development application and DA2 are in fact identical. The

applicant says that adding ‘residential use’ provides for an outcome that is

substantially the same as that contemplated by the respondent when DA2 was

partially approved.

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43. The respondent submits that the correct point of comparison is (as per the words

of section 144 (2) (a)) whether the amended development sought is

‘substantially the same as the development applied for originally’. On the

respondent’s view what was originally applied for was a collection of uses

listed under the heading ‘Fully Describe Your Proposal’ which do not include

‘residential use’. The Lease Variation Proposal Report which forms part of

DA2 notes the ‘approved, but unregistered variation on this lease’ flowing

from DA1 (which included ‘residential use’) but does not expressly or

impliedly describe DA2 as applying for ‘residential use’.

44. As Ms Messer said in her oral evidence, describing the ‘Existing Crown Lease

Clauses’ as being those approved in DA1, is ‘somewhat misleading’. At the

time DA2 was lodged, these uses were not the actual ‘existing’ uses. This

misleading position was carried forward in the combination of the unregistered

DA1 uses and those uses sought in DA2 as equating to the ‘Proposed Lease

Variation’. This ‘somewhat misleading’ position is not a sufficient basis to

simply amend DA2 to include ‘residential use’.

45. The respondent further argued that the Lease Variation – Statement Against

Criteria recites the proposal of DA2 as adding a specific set of uses (which do

not include ‘residential use’) and which noted ‘No other variations are sought’.

46. The tribunal finds that the correct point of comparison is the ‘development

applied for originally’. This development was for a specific set of uses, namely:

club, commercial accommodation use EXCLUDING tourist resort, community use EXCLUDING place of worship and religious associated use, drink establishment, emergency services facility, funeral parlour, indoor entertainment facility, indoor recreation facility, light industry, expand non retail commercial use so it includes business agency and financial establishment, and store.

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Applying the law

47. As to the two ‘influential circumstances’ asserted as being relevant in Butler, no

representations were received in relation to DA2 during the public notification

periods, so there is no point of comparison by which to answer the first

question (‘is the change likely to be more acceptable or more objectionable to

those who have objected?’). The comments received from entities to which

DA2 was referred at best, allow some speculation about an answer to the

second question (‘Is the change such that it would be likely to cause a person to

make an objection if available?). The EPA advised that the site should be

assessed for the possible presence of land contamination and as a source of

possible environmental noise. This was made a condition of the partial

approval. TaMSD advised that approval should be conditional on an additional

design and siting approval. This was made an advisory note to the partial

approval.

48. The entity advice suggests that an amendment that adds ‘residential use’ would be

likely to cause a person to now make an objection.

49. This view is supported by applying the test in Cambridge Credit used by the

tribunal in Walkington. Asking the question ‘does the amended application

amount to a complete rejection of the original development application?’

suggests that the development applied for after the amendment has the effect of

‘destroy[ing] the substance of the original development’ because it would now

include ‘residential use’ which was not previously sought.

50. The tribunal finds that the application cannot now be amended to include

‘residential use’ because such an amendment would amount to a complete

rejection of the development application.

51. Given the tribunal’s decision that DA2 cannot be amended under section 144 to

include ‘residential use’, the considerations in section 145 (entity referral) and

section 146 (public notification) do not come into play.

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Conclusion

52. The Tribunal finds that:

a. DA201120304 did not contemplate that residential use be added to the

purpose clause of the Crown Lease in respect of Block 19 Section 29

Braddon; and

b. amending the development applied for in DA201120304 to now include

residential use would result in a development that is not substantially the

same as the development applied for originally.

Decision

53. The Tribunal is satisfied that the respondent’s decision with respect to

Development Application 201120304 to refuse to vary the purpose clause in the

Crown Lease for the site so that the site can be used for residential purposes is

the correct decision and that the decision should be confirmed.

………………………………..Dr T. Foley Senior Member

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PUBLICATION DETAILS

TO BE PUBLISHEDTo be completed by Tribunal Staff

PART A FILE NO: AT 12/36

APPLICANT: CITY HILL PTY LTDRESPONDENT: ACT PLANNING AND LAND AUTHORITY

COUNSEL APPEARING: APPLICANT:RESPONDENT:

SOLICITORS: APPLICANT: Meyer VandenbergRESPONDENT: ACT Government

Solicitor

OTHER: APPLICANT:RESPONDENT:

TRIBUNAL MEMBER/S: Dr T. Foly

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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