Standing to appeal an amended DA

High v ACT Planning and Land Authority (Administrative Review) [2019] ACAT 40
High (the applicant) was the neighbour of a residential property in Campbell for which the ACT Planning and Land Authority (ACTPLA) approved a development application (DA). The applicant was given notice of the DA but did not make a representation. A few months later, the development proponent amended the DA to include the construction of a BBQ and high wall. ACTPLA waived the requirement to publicly notify this amendment and approved the amended DA. The applicant argued that the amended DA would directly and adversely impact her and her property. 

This issue was whether ACAT could review ACTPLA's decisions to (1) waive the requirement to publicly notify the amendment of the development approval and (2) approve amendment of the development approval.

Reviewable decisions are listed in Schedule 1 of the Planning and Development Act. The decision to waive public notification requirements (under section 198B of the PD Act) is not in this list and therefore not reviewable.

ACAT therefore considered whether the decision to approve the amended DA was reviewable and, if so, whether the applicant was eligible to bring the application for review. ACAT considered that Item 4 of Schedule 1 PD Act makes a section 162 decision (the decision to approve the DA in the merit track) reviewable if the application was required to be notified under both section 153 (notice to adjoining premises) and section 155 (major public notification) PD Act. In this case, under regulation 27 of the Planning and Development Regulation 2008, the amendment application required notification under section 153, but not under section 155. It follows that the decision to approve the amendment application does not satisfy the requirements of item 4, and is not a reviewable decision. For this reason, the application for review was dismissed. ACAT noted that the applicant had received a pro forma reviewable decision notice that had incorrectly told her that she had a right to review at ACAT. This decision shows that applicants must make sure they have standing under Schedule 1 of the PD Act before going to ACAT. 


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