ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GLASS v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2016] ACAT 21

AT 94/2015

Catchwords: ADMINISTRATIVE REVIEW – interim application seeking order to re-open the process of public notification – whether description in the public notification was incorrect – whether the Tribunal has jurisdiction to hear the application – whether the error in the description published in the public notification caused any practical injustice

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 61Planning and Development Act 2007 ss 120, 121, 153, 154, 155, 162, 407, sch 1

Cases cited: Coutts v Close [2014] FCA 19Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1Scurr v Brisbane City Council (1973) 133 CLR 242Walkington & Ors v ACT Planning and Land Authority [2010] ACAT 81

Tribunal: President G McCarthy

Date of Orders: 23 February 2016Date of Reasons for Decision: 21 March 2016

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 94/2015

BETWEEN:

ERIC GLASSApplicant

AND:

ACT PLANNING AND LAND AUTHORITYRespondent

AND:

GOODWIN AGED CARE SERVICES LIMITEDParty Joined

TRIBUNAL: President G McCarthy

DATE: 23 February 2016

ORDERThe Tribunal orders that:

1. The applicant’s interim application dated 12 February 2016 is dismissed.

………………………………..President G McCarthy

REASONS FOR DECISION

1. This matter concerns an application to the Tribunal dated 14 December 2015 for

review of a decision by the respondent, the ACT Planning and Land Authority

(Planning Authority), to approve the development of an aged care facility on

Block 10 Section 7 Farrer. That application is listed for hearing to commence on

30 March 2016.

2. In the meantime, on 12 February 2016 the applicant, Mr Glass, brought an

interim application seeking an order that the Planning Authority re-open the

process of public notification under division 7.3.4 of the Planning and

Development Act 2007 (the P&D Act) on the grounds that the Planning

Authority’s public notification of the proposed development given in July 2015

was inaccurate.

3. I heard the interim application on 19 February 2016. Mr Glass appeared for

himself. Dr Jarvis of counsel appeared for the Planning Authority, instructed by

the Office of the ACT Government Solicitor. Ms Taylor, solicitor, appeared for

Goodwin Aged Care Services Limited (Goodwin), being the Crown lessee of

Block 10.

4. At the commencement of the hearing, Mr Glass sought instead an order that the

Planning Authority’s development approval given on 18 November 2015 be set

aside and that the applicant for development approval be invited to submit an

amended development application, to be publicly notified, which correctly

states the numbers and types of dwellings proposed.

5. On 23 February 2016, I ordered that the interim application is dismissed. The

order took effect that day pursuant to section 61(2) of the ACT Civil and

Administrative Tribunal Act 2008 (the ACAT Act). I gave ex tempore reasons

for my decision, conscious that the substantive application was soon to be

heard, and noted that a formal statement of my reasons for dismissing the

interim application would be published in due course. I now do so.

Factual Background

6. By development application DA2015/27916 dated 2 July 2015 (the DA) at page

3 of 17, the applicant for development approval, on behalf of Goodwin, stated

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the essential elements of its development proposal. These elements relevantly

included:

A new Clubhouse.

154 ILU’s [meaning 154 independent living units] across the site located

in 5 new buildings.

A new 124 bed Residential Aged Care Facility (RACF)

267 car parking spaces.

7. Sections 153, 154 and 155 of the P&D Act provide for different kinds of

notification that must be provided about a proposed development, depending on

the development.

8. Section 153 provides as follows:

153 Public notice to adjoining premises(1) This section applies in relation to a development application if—

(a) the planning and land authority must notify the application under this section; and

(b) a place (the adjoining place) other than unleased land adjoins the place (the developing place) to which the application relates.

(2) If the adjoining place is occupied, the planning and land authority must give written notice of the making of the development application to the registered proprietor of the lease of the adjoining place at the adjoining place.

(3) If the adjoining place is unoccupied, the planning and land authority must give written notice of the making of the development application to the lessee of the adjoining place at the lessee’s last-known address.

(4) The planning and land authority must give a new written notice under subsection (2) or (3) if, before the public notification period ends, the authority—(a) becomes aware that the original notice is defective because its

contents are incorrect, incomplete or include misleading information; and

(b) is satisfied that the defect is likely to—(i) unfavourably affect a person’s awareness of the timing, location

or nature of the development proposal in the application; or(ii) deny or restrict the opportunity of a person to make

representations about the application under section 156.

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(5) However, the planning and land authority need not give public notice under subsection (2), (3) or (4) in relation to an adjoining place that is leased by the applicant or a person for whom the applicant has been appointed to act as agent.Note This section is subject to s 411 and s 412.

(6) The validity of a development approval is not affected by a failure by the planning and land authority to comply with this section.

(7) In this section:adjoins—a place adjoins another place if the place touches the other place, or is separated from the other place only by a road, reserve, river, watercourse or similar division.

registered proprietor—see section 234.

9. Pursuant to section 153, the Planning Authority notified the Crown lessees of

the leases adjoining Block 10 Section 7 Farrer of the proposed development by

means of 51 separate letters sent to those adjoining lessees.

10. Section 154 was not relevant for the purposes of the proposed development.

11. The Planning Authority also notified the proposed development under section

155 of the P&D Act, which provides for ‘major public notification’, by

displaying a sign on Block 10 that stated the proposed development and by

publicly notifying the proposed development in The Canberra Times.

12. Section 155 provides as follows:

155 Major public notification(1) If the planning and land authority must notify a development application

under this section, the authority must do each of the following:(a) display a sign on the place to which the application relates that states

the development proposed to be undertaken; (b) give public notice of the making of the application.Note 1 Public notice means notice on an ACT government website or in a daily

newspaper circulating in the ACT (see Legislation Act, dict, pt 1).

Note 2 This section is subject to s 411 and s 412.

(2) The planning and land authority must display a new sign under subsection (1) (a) if, before the public notification period ends—(a) the authority—

(i) becomes aware that the original sign is defective because its contents are incorrect, incomplete or include misleading information; and

(ii) is satisfied that the defect is likely to—

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(A) unfavourably affect a person’s awareness of the timing, location or nature of the development proposal in the application; or

(B) deny or restrict the opportunity of a person to make representations about the application under section 156; or

(b) the authority becomes aware that a sign was not displayed.(3) Subsection (2) does not apply if a sign is displayed, but is subsequently

moved, altered, damaged, defaced, covered or had access to it prevented.(4) The planning and land authority must publish a new notice under

subsection (1) (b) if, before the public notification period ends—(a) the planning and land authority—

(i) becomes aware that the original notice is defective because its contents are incorrect, incomplete or include misleading information; and

(ii) is satisfied that the defect is likely to—

(A) unfavourably affect a person’s awareness of the timing, location or nature of the development proposal in the application; or

(B) deny or restrict the opportunity of a person to make representations about the application under section 156; or

(b) the authority becomes aware that a notice was not published.(5) A person commits an offence if—

(a) a sign is displayed under subsection (1) (a) or (2); and(b) the person moves, alters, damages, defaces, covers or prevents

access to the sign while it is required to be displayed.

Maximum penalty: 5 penalty units.(6) An offence against subsection (5) is a strict liability offence.(7) Subsection (5) does not apply to a person if the person acts with the

written approval of the chief planning executive.(8) The validity of a development approval is not affected by a failure by the

planning and land authority to comply with this section.

13. The content of the notifications in the 51 letters sent to the adjoining lessees, on

the sign and in The Canberra Times was materially the same. For present

purposes, it is sufficient to quote from the sample notice containing the text

used in the letters sent to the 51 adjoining Crown lessees, which stated:

DEVELOPMENT APPLICATION 201527916:

COMMUNITY FACILITY - GOODWIN AGED CARE – 6 STOREY -

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124 RESIDENTIAL UNITS - 267 CARPARK FACILITY. Demolition

of some existing buildings. Proposed construction of additional 124

bed Residential Aged Care Facility; Club house, 267 car parking

spaces, landscaping and civil works. Removal of trees.

14. The letters to the adjoining lessees, the advertisement in The Canberra Times

and (I assume) the sign placed on Block 10 also stated that the DA was

available for inspection at the Planning Authority’s premises (with its physical

address provided) and could be viewed on the Planning Authority’s website

(with its internet address provided). By either means, anybody having an

interest in the development was able to view the full nature and detail of the

proposed development.

Submissions

15. Mr Glass contended, and the other parties accepted, that the description in the

notifications was incorrect when stating that the DA proposed “124 residential

units” when in fact, under the DA, Goodwin was seeking approval for 154

residential units (meaning independent living units).

16. Mr Glass also contended, which the other parties disputed, that the description

in the notification was also incorrect or at least inaccurate when stating that the

DA proposed a 124 bed Residential Aged Care Facility (RACF) when 42 of the

so- called ‘beds’ in the proposed RACF would be - to use Mr Glass’s term –

‘dwellings’ within the RACF because each would have private living areas

within the RACF.

17. Mr Glass contended that when the 42 ‘dwellings’ in the RACF are added to the

154 proposed ILUs, the total number of residential units proposed under the DA

is 196, not 124 as stated in the three means by which the Planning Authority had

given public notification. This error, Mr Glass said, had so misled the public as

to the true nature of the development proposal that either the public notification

process should be re-opened with a correct description of the proposal or

Goodwin should amend its proposal to reflect that which had been publicly

notified.

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18. Dr Jarvis representing the Planning Authority opposed Mr Glass’ interim

application for several reasons, which I have tried to summarise as follows.

19. Firstly, he said that the error in the public notification, when stating the

development application proposed 124 ILU’s, rather than 154, was not of such a

kind or degree that the Planning Authority needed to give a new written notice

under section 153(4) of the P&D Act.

20. Secondly, he said that even if the Planning Authority should have given a new

written notice under section 153(4) (which was denied), the public notification

period within which this should have occurred ended on 5 August 2015. It

followed, he said, that the Planning Authority’s obligation to give an amended

or new notice was no longer relevant because the public notification period had

ended. It was said that where the Tribunal’s jurisdiction on review extends only

to the exercise of the powers available to the decision maker (and in this case

the Planning Authority), the Tribunal cannot re-issue an amended written notice

after the public notification period has expired in the same way that the

Planning Authority could not do so.

21. Thirdly, notwithstanding the error, he said that if anyone had reviewed the DA

and the numerous accompanying documents that comprised the full DA, all of

which were available to be seen by anybody during the public notification

period, it would have been plain that the DA proposed 154 ILUs not 124. In

support of that submission, he noted that many of those who had made

representations to the Planning Authority in response to the proposed

development, including Mr Glass, were aware of the correct number of

proposed ILUs at the time they made their representations. In support of that

submission, Dr Jarvis asked me to note that 33 people made representations

about the proposed development complaining about its bulk, size and scale but

no one referred to or made complaint about the incorrect statement in the public

notification of 124 units rather than 154, or raised that as an issue in their

response to the DA.

22. Fourthly, even if the Planning Authority had not complied with section 153, the

non-compliance does not affect the validity of the development approval. He

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relied on section 153(6) of the P&D Act. I here note that the Planning Authority

approved the development with conditions on 18 November 2015.

23. Lastly, referring to section 121 of the P&D Act, it was said that the Tribunal’s

scope of review is restricted to reviewing whether the development proposal

complies with ‘the relevant rules’. It was said that the interim application was

not directed to such compliance and sought orders beyond the Tribunal’s

jurisdiction.

24. Ms Taylor adopted the submissions put on behalf of the Planning Authority and

made the further submission that because of the extensive community

consultation that occurred in relation to the proposed development prior to July

2015, all concerned persons were well aware of the proposed development

regardless of the statutory public notification. Ms Taylor acknowledged

however that during this community consultation Goodwin did not disclose that

the proposed development included 154 ILUs rather than 124, nor state how

many ILUs were proposed. Ms Taylor also disputed that the lack of detail in the

Planning Authority’s notification that 42 of the 124 beds in the RACF would

include additional facilities to provide those residents with a greater degree of

independent living did not deflect or defeat anyone’s awareness of the timing,

location or nature of the proposed development or restrict anyone’s ability to

make representations about it, especially where that detail could be seen upon

reviewing the full application.

25. In reply, Mr Glass contended it was not to the point that the development

application disclosed this detail about the RACF. He said that the public

notification was still inaccurate, by referring to beds rather than dwellings, when

in truth ‘dwellings’ is what they would be. I inferred the same submission in

reply regarding the public notification stating 124 rather than 154 ILU’s.

Consideration of the issues

26. The Tribunal is created under statute and its powers arise under statute. This is

particularly relevant to the Tribunal’s administrative review jurisdiction. Under

the P&D Act, chapter 13 and schedule 1, the Tribunal may review only those

decisions that constitute a reviewable decision, as defined in section 407 of the

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P&D Act, and only on application by an eligible entity, also as defined in

section 407 of the Act.

27. Mr Glass did not suggest that the Tribunal is expressly able to review the

Planning Authority’s public notification of the proposed development. He was

right not to do so: schedule 1 to the P&D Act, which lists the reviewable

decisions, does not include a ‘decision’ (if public notification were to be so

characterised) under any of sections 153, 154 and 155 in division 7.3.4 of the

P&D Act.

28. That absence does not by itself exclude the Tribunal’s power to review the

public notification process. Per items 2 – 6 of Schedule 1 to the P&D Act, the

Tribunal has power to review a range of decisions to approve a development

approval that may be made under section 162 of the P&D Act. There are many

what I will call ‘steps along the way’ that bear upon whether a decision under

section 162 was the correct or preferable decision. For example, in reviewing a

decision under section 162, the Tribunal can (and should) consider the track in

which the application was filed, advice received from entities to which the

development application was referred and the many subjective matters to be

considered under section 120 of the P&D Act. In my view, and in answer to the

submission from the respondent and the party joined per paragraph 23 above,

issues of this kind are not beyond the Tribunal’s jurisdiction and are

contemplated under section 121(2)(b) of the P&D Act.

29. The question arising under the interim application is whether compliance with

the public notification requirements under the P&D Act bears upon the Planning

Authority’s approval of the development. If it does, in my view the Tribunal

likewise has power to review compliance with the public notification

requirements when conducting de novo review of the decision. For example, if

the P&D Act provided that approval of a development application is conditional

upon or permits consideration of compliance with the public notification

provisions, then in my view the Tribunal could review that compliance when

reviewing a decision made under section 162.

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30. However, this is mere theory because sections 153(6), 154(6) and 155(8) of the

P&D Act, rather than making development approval in any way dependent upon

compliance with the applicable public notification requirements, instead provide

to the contrary. In each case, those sections state:

The validity of a development approval is not affected by a failure

by the planning and land authority to comply with this section.

31. The consequence is that the Planning Authority’s compliance (or not) with

sections 153, 154 and/or 155 has no bearing on the Tribunal’s review of a

decision under section 162. Sections 153(6), 154(6) and 155(8) mandate that the

validity of a development approval ‘is not affected’ by a failure to comply with

the sections. For that reason, in my view the Tribunal lacks jurisdiction to

review the Planning Authority’s compliance with sections 153, 154 and/or 155.

I was therefore obliged to dismiss the interim application.

32. Notwithstanding my dismissing the interim application for want of jurisdiction,

I do not suggest that the Planning Authority’s compliance with sections 153,

154 and/or 155 is immune from review. As Dr Jarvis properly observed,

Mr Glass might have remedies elsewhere.

33. In Scurr v Brisbane City Council (1973) 133 CLR 242, the High Court ruled

that a decision to approve construction of a building was invalid because the

Brisbane City Council, prior to making its decision, had not complied with

several mandatory procedural requirements concerning the information to be

provided in a notice to the public about the proposed development. The

High Court ruled that the Brisbane City Council’s failure to meet those

mandatory procedural requirements caused members of the public not to

appreciate the size and nature of the development, which in turn (on the

evidence in that case) compromised the rights of any objectors to the proposal.

The Court said:

Moreover, unless adequate information is contained in advertisements not only will effective objection be rendered difficult but the very need to object may not be sufficiently appreciated; a failure to object within the seven days or longer permitted by the section produces serious consequences since the right of appeal to the Local Government Court conferred by sub-s. (3) is limited to those who have "duly objected".

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Accordingly inadequacy of public notice renders nugatory the twin purposes of s. 22, of assisting the council to fulfil its task as a responsible planning authority and of providing those who may be affected by the granting of applications with opportunity to exercise their statutory rights of objection and appeal.

34. An administrative decision may (but need not) be ruled invalid for failure to

comply with procedural requirements that must be met prior to making the

decision. What course to take depends on the nature and significance of the

non-compliance. In Coutts v Close [2014] FCA 19 at [120] the Federal Court

said

It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (Emphasis added).

35. In this case, to address the substance of Mr Glass’ submissions, if the Tribunal

had had jurisdiction to review the Planning Authority’s compliance with

sections 153, 154 and/or 155, I would still have dismissed the interim

application. I am not persuaded that the error in the public notification by

stating 124 rather than 154 ILUs, or the notification not detailing that 42 of the

beds in the RACF would entail private living areas, materially affected or was

likely to affect anyone’s awareness of, relevantly, the nature of the

development, per section 153(4)(b)(i) or restrict anyone’s opportunity to make

representations about the development, per section 153(4)(b)(ii). To adopt the

High Court’s phrasing in Lam, in my view the error did not cause any practical

injustice.

36. Two issues were determinative of my conclusion.

37. Firstly, the notices sent to the adjoining lessees and others, the sign on Block 10

and the advertisement in The Canberra Times made clear that the proposed

development was a significant development involving residential aged care

accommodation for over 200 people. The notices and sign informed persons that

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were interested in the development that the full application could be viewed at

the Planning Authority’s premises or on its website.

38. The descriptions in the public notifications, taken as a whole, propose a very

substantial development on a large block of land for a stated purpose. In the

wider scheme of things, as Dr Jarvis pointed out in his submissions, the

objections were (and remain) to its bulk, size and scale. I am not persuaded that

anyone would have responded differently to the proposal had they known that

the developer intended 154 rather than 124 ILUs, that being only one part of the

overall development. When one takes the full scale of what is involved into

account, and where the correct number of ILU’s could be readily noted by

reading the DA, I consider the error was of minor importance in the wider

scheme of what is proposed.

39. I take a similar view regarding the 42 ‘beds’ in the RACF, which the developer

proposes will entail some private accommodation to enable more independent

living for those using those 42 beds than will be available to those using the

remaining 82 beds. Details of this kind, for public notification purposes, in my

view are not material. That the RACF proposes 124 beds was accurate. The

details of other proposed facilities within the RACF could be readily ascertained

by reading the application. They include many facilities in addition to the

facilities that will enable more independent living for 42 of the 124 intended

residents in the RACF. The description ‘124 bed’ is simply an overall

description to give an indicator of the size and scale of the RACF similar to the

way a hospital is sometimes described by reference to its number of beds to give

a broad understanding of the size of the hospital. The five line descriptor of the

proposed development, as published in The Canberra Times and in the letters to

the adjoining lessees, was intended to give no more than that broad indicator of

what was intended, and I therefore reject the submission that the RACF was

inaccurately described.

40. Secondly, public notification was to inform persons about the proposed

development in a manner sufficient to enable those who wished to object to do

so. That purpose was achieved, and Mr Glass (on behalf of many others) is

exercising his rights of review in this proceeding. There is no evidence of

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anyone who would have objected, but for the error in the public notification as

to the number of proposed ILU’s or lack of detail about the 42 beds in the

RACF, and who is now ‘shut out’ from seeking review of the approval.

41. Before concluding my reasons, I deal with two ancillary matters arising from

the submissions.

42. Firstly, I accept the submission that the Planning Authority was not obliged to

give a new written notification under section 153(4) or display a new sign under

section 155(4) – assuming it became aware of the error before the public

notification ended. I accept that the original notice and sign were ‘incorrect’,

such that section 153(4)(a) and 155(2)(a)(i) were engaged. However, for the

reasons given in paragraphs 37 – 40 above, if the Tribunal had had jurisdiction

so to determine, I would not have been satisfied of the circumstances set out in

sections 153(4)(b)(i) or (ii) or sections 155(2)(a)(ii)(A) or (B), respectively.

43. Secondly, Mr Glass submitted that the defective notices was in some respects

similar to that of an amended development application, as was considered by the

Tribunal in Walkington & Ors v ACT Planning and Land Authority [2010]

ACAT 81. I reject that submission. Walkington concerned the limits on the

Planning Authority, under sections 144, 145 and 146 of the P&D Act, to permit

a developer to amend a development proposal after the development application

had been made and notified. Those limits on the Planning Authority apply

equally to the Tribunal on review. That is not this case. As Ms Taylor noted,

Goodwin did not seek any change or amendment to its proposed development

before or after approval was granted and does not do so now in these review

proceedings before the Tribunal. The question of whether an amended proposal

is permissible without fresh public notification, being the question arising in

Walkington, therefore does not arise in this case.

………………………………..President G McCarthy

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HEARING DETAILS

FILE NUMBER: AT 94/15

PARTIES, APPLICANT: Eric Glass

PARTIES, RESPONDENT: ACT Planning and Land Authority

PARTY JOINED Goodwin Aged Care Services Limited

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Dr Jarvis

COUNSEL APPEARING, PARTY JOINED

N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

SOLICITORS FOR PARTY JOINED Ms Taylor

TRIBUNAL MEMBERS: President G C McCarthy

DATES OF HEARING: 19 February 2016

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