About Case Summaries

These are a collection of case summaries that were written for our newsletter with the aim of providing updates on recent case law developments in environment and planning law. Decisions are complicated and nuanced - you should read the whole decision (linked to the case summary) to fully understand the case.

Striking out an ACAT application for lack of substance

Errington & Anor v ACT Planning and Land Authority (Administrative Review) [2019] ACAT 47 
The applicants were the owners of a residential property next door to the Kuwait Cultural Office. The applicants applied for a Controlled Activity Order for activities conducted by the Kuwait Cultural Office, alleging it failed to comply with the Crown lease because it wasn't used for 'residential purposes'.

This application was refused by the ACT Planning and Land Authority (ACTPLA) in October 2018, and the applicants sought an application for review of that decision in the ACT Civil and Administrative Tribunal (ACAT). ACTPLA then lodged an application for ACAT to strike out the application on the basis that it was lacking in substance under section 32(1)(b) of the ACAT Act.

ACAT determined that there is a very high threshold to terminate an action summarily, and ACAT will use this power with "extreme caution". ACAT considered the merits of the applicant's ACAT application, particularly whether the Crown lease allowed 'diplomatic residence' or 'Chancellery' for embassy use. On the facts, ACAT found that the matter was not without substance and should go to a hearing. In dismissing ACTPLA's strikeout application, this decision assists in determining the circumstances when dismissing an application for review under section 32(1)(b) of the ACAT Act.

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. 

Australia’s Faunal Extinction Crisis Senate Inquiry

On 27 June 2018, the Senate referred the matter of Australia’s faunal extinction crisis to the Environment and Communications References Committee for inquiry and report by 4 December 2018 (this time has now been extended by the Senate to 13 November 2019). The Inquiry aims to provide insight into the wider ecological impact of faunal extinction, the adequacy of Commonwealth environmental laws and existing monitoring processes, assessment processes and compliance mechanisms for enforcing federal environmental law, among other things.

An interim report was tabled on 3 April 2019 that reports the committee’s work to date. The report focused on the effectiveness of the Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”) including:
  1. An overview of the faunal extinction crisis, key threats to the survival of Australia’s unique fauna;
  2. Considerations of evidence received regarding the effectiveness of the EPBC Act; and
  3. Potential reforms of the EPBC Act.
The Committee articulated that the EPBC Act is struggling to meet the scale of challenges that our environment faces, namely the threats to our faunal species, and that the Commonwealth is lacking an independent institution to administer and oversee Australia’s framework for environmental approvals and compliance. The Committee therefore recommended that the Commonwealth develops new environmental laws to replace to EPBC Act, and a federal environmental protection agency (EPA).

Learn more about this law reform project and access the Interim Report from the Committee here.

Decision to reverse a previously granted development approval set aside

Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58 (15 March 2019)
In this ACT Supreme Court decision, Associate Justice Verity McWilliam set aside a secondary ‘review’ decision by the ACT Planning and Land Authority to reverse a previously granted development approval. The judgement stated that the initial approval (dated 7 April 2017) allowed for the construction of a hard stand structure in an IZ2 Industrial mixed use zone next to a railway line running through the Canberra Railway Station in Fyshwick.
The key pieces of legislation in question were section 180 of the Legislation Act 2001 (ACT) and section 189 of the Planning and Development Act 2007 (ACT). The Planning and Land Authority argued that there was a contrary intention between the two sections, as well as power conferred by section 162 of the later Act, to allow a secondary review of the initial approval decision. The Plaintiff argued that the Authority did not have the jurisdiction to make this unilateral decision, since they had made no changes to the initial proposal.
McWilliam AsJ considered leading cases of administrative law such as Project Blue Sky andBhardwaj, and found in favour of the Plaintiff stating that invalidity of a development approval is established only by judicial rather than administrative determination. It was deemed that the initial approval in 2017 was valid and no contrary intention existed that allowed unilateral revocation in the legislation. 
She found that the Planning and Development Act contained provisions that allowed the Planning and Land Authority to revoke a decision, and that any revocations are limited to the provisions within the relevant Act.
The case is important in ensuring procedural integrity for planning decisions and development in the ACT. The Court noted that if a decision maker could arbitrarily revoke an approval for development, this would risk undermining commercial certainty for developers and stakeholders, as well as accountability to community interests in the land use

Landmark legal win for climate and community

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 
The NSW Land and Environment Court has confirmed a decision by the NSW Department of Planning and Environment to refuse an open-cut coal mine near Gloucester in the Hunter Valley. The decision is significant because, among other grounds, the court considered the climate impact of the mine. This included an examination of greenhouse gas emissions, including Scope 3 emissions (emissions that arise from sources not owned or controlled by the proponent). The court examined a range of reports, including by the Intergovernmental Panel on Climate Change, and noted Australia's commitments to international obligations such as the Paris Agreement. The issue of the mine's greenhouse gas emissions was raised by community group Groundswell Gloucester, represented by EDO NSW, who joined the company's appeal against the refusal. You can also read more from EDO NSW here.

What is the "intent" of lease conditions and development requirements?

Williams v ACT Planning and Land Authority & Anor (Administrative Review) [2018] ACAT 128 (18 December 2018)
The ACT Civil and Administrative Tribunal set aside a decision by the Planning and Land Authority to approve a development in Gungahlin. The applicant argued that the proposed development was different to surrounding houses; was contrary to the overall design and character of the existing developments; and would overshadow nearby townhouses. She was concerned that it would set a precedent for similar developments on nearby vacant blocks. 

Following the previous decision of Lourandos, ACAT concluded that "Lease Conditions & Development Requirements"  (LDCs) under the previous Land (Planning and Environment) Act 1991 are "lease and development conditions" for the purposes of the current Planning and Development Act 2007.

On the facts, the proposed development did not comply with the LDCs, and therefore the relevant codes (R1 of the CZD Code and R22 of the Single Housing Code). However, compliance is not necessary - under both Codes, it is sufficient if the proposed development meets “the intent” of the LDCs.

ACAT considered what was the “intent” of the development conditions and concluded that the proposed development did not “meet the intent” of the LDCs. The proposed development therefore did not comply with  the relevant codes, which meant that the proposal is inconsistent with the Territory Plan and the decision set aside.

ACAT discusses removal of protected tree

Pinkas v Conservator of Flora and Fauna (Administrative Review) [2018] ACAT 92 (20 September 2018)
The applicant applied to the Conservator to remove a Yellow Box (Eucalyptus melliodora) in his Chifley backyard.  The Conservator rejected the application after assessing the tree and finding that found it was healthy and did not meet any of the criteria set out in schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2). A Tree Advisory Panel also found the tree was healthy, and should not be removed.

The applicant then applied to ACAT for review of the Conservator's decision, arguing that the tree was a safety risk; could cause damage to nearby buildings; the tree was inappropriate given its potential size and growth habit (excluding remnant eucalypts); or was affecting solar access. 
The applicant also needed to show that the tree was not a remnant tree, that is, that it was not a tree already present and established in the landscape before the suburb was developed. The tribunal found on the facts that none of the criteria for removal of the protected tree were met and upheld the Conservator's decision.

Development application non-compliant with rules and criteria

McGrath and Anor v ACT Planning and Land Authority & Anor (Administrative Review) [2018] ACAT 100
The applicant applied to ACAT for review of an ACT Planning and Land Authority decision to approve (on reconsideration) a development application for the construction of two single-story dwellings on a block of land in Curtain. The applicant contended that the proposal did not comply with the Multi Unit Housing Development Code and that decision had given insufficient regard to the objectives for the RZ1 zone, had not properly addressed the issues raised in the representations received and had not addressed the Conservator’s opinion that the regulated trees that were, at the time, on the subject block should be retained.

As discussed in previous newsletters, the ACAT noted that its jurisdiction is currently under consideration following the Supreme Court appeal of Sladic. However, in this case it was not necessary to discuss this issue because ACAT found that the development application was non-compliant with applicable rules and criteria. In particular, the rules and criteria for boundary setbacks and allowable encroachments were not met. The ACAT also discussed plot ratio, landscaping, surveillance, building design, solar access, principal private open space, driveway and turning space, and regulated trees for the purpose of any future development application by the developer.

Another discussion about ACAT's jurisdiction

Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & ORS (Administrative Review) [2018] ACAT 95
This ACAT matter was an administrative review of the ACT Planning and Land Authority decision to approve with conditions a development application for the construction of a childcare center in Rivett. Noah’s Ark Resource Center operates a childcare center near the site and applied to ACAT for a review of this decision, citing reasons including a loss of community services by Noah’s Ark and non-compliance of the proposal with the Parking and Vehicular Access General Code. As discussed in previous newsletters, ACAT's jurisdiction is currently on appeal in the Supreme Court, following the decision of Sladic. ACAT noted Sladic is not binding on the ACAT because it is on appeal. ACAT followed the previous Noah’s Ark case, which contained a broader interpretation of section 121 and made a decision as if they were the original decision maker. 
ACAT decided Noah’s Ark had standing to bring the application for review. ACAT confirmed the approval decision but varied the conditions on which the approval was given with regards to on-site car parking and pedestrian paths.


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