Section 11a of the City Area Leases Ordinance 1936 (As Amended) and Morpath Pty Limited To Vary the Covenants In the Crown Lease of Blocks 8 and 9 of Section 43 Division of Turner [1986] ACTSC 73 (1 August 1986)

SUPREME COURT OF THE ACT

SECTION 11A OF THE CITY AREA LEASES ORDINANCE 1936 (AS AMENDED) AND MORPATH
PTY. LIMITED TO VARY THE COVENANTS IN THE CROWN LEASE OF BLOCKS 8 AND 9 OF
SECTION 43 DIVISION OF TURNER
S.C. No. 1298 of 1984
S.C. No. 1299 of 1984
Crown Lease

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Crown leases - application for variation of purposes clause - private objectors - relevance of National Capital Development Commission planning approval - what amounts to reasonable user of the land - are circumstances existing as in the opinion of the court make it desirable to vary the provision.

Axiom Pty Ltd (unreported, 21 April 1986)

In Re City Area Leases Ordinance (1963) 9 LGRA 190

Heaton v. Loblay (1960) SR(NSW) 332

Re Roseblade; Re Foenander (1964-65) NSWR 2044

Re Alexandra (1980) VR 55

Re Ghey and Galton's Application (1957) 2 QB 650

In the Matter of an Application by Warmac Dickson Pty Limited (unreported, 10 October 1969)

An Application by Atherane Pty Limited (unreported, 23 August 1985)

HEARING

CANBERRA
1:8:1986

ORDER

The application for variation is refused.

DECISION

These are applications by Morpath Pty Ltd (the applicant) pursuant to s.11A of the City Area Leases Ordinance 1936 (the Ordinance) to vary the purposes clause in the Crown leases of Blocks 8 and 9, Section 43, Division of Turner, being the whole of the land contained in Crown leases Volume 20, Folio 1958 and Folio 1979. The variation sought is the deletion of the words "for residential purposes" and the substitution of the words "to use the said land for one or more of the following purposes:

(i) offices;

(ii) professional suites;

(iii) carparking;

(iv) single unit caretakers flat not exceeding 150
square metres in area;

PROVIDED ALWAYS THAT:

(v) the gross floor area of the building or buildings
on the said land shall not exceed a plot ratio of
one to one. For the purpose of this sub-clause
gross floor area means the gross area of the floor
or floors of the building or buildings measured
from the external faces of the external walls
excluding rooftop plantrooms and basements used
for carparking and housing mechanical plant;

(vi) the lessee shall provide and maintain on site
carparking for sufficient cars to provide one
space for every 33 square metres of gross floor
area;

(vii) the building or buildings shall be three storeys
above ground level."

2. Blocks 8 and 9 are adjacent blocks at the intersection of Gould Street and the northbound carriageway of Northbourne Avenue, Turner. Both blocks are on the main highway giving access to the centre of Canberra from the north and close to the commercial concentration of the City of Canberra, known as Civic Centre.

3. In interlocutory proceedings four objectors were given leave to be heard in opposition to the applications for variation and to examine and cross-examine witnesses pursuant to s.11A(6) of the Ordinance. Those objectors are: A.C.T. Youth Accommodation Group Incorporated; Lady Lois Una Hicks of Block 9, Section 39, Turner; Mrs Katherine Thornton of Block 21, Section 43, Turner; and Mr Peter Hopner of Block 11, Section 43, Turner. Originally the A.C.T. Youth Accommodation Group Incorporated had been granted leave to object only in relation to Block 8 of Section 43, but at the hearing proper, upon another application based upon a change of circumstances, and where there was no objection from the other parties in the case, I granted it leave to object also in relation to Block 9 of Section 43.

4. The relevant legislation which deals with applications to change purposes clauses in leases in the Australian Capital Territory is contained in s.11A of the Ordinance which, where relevant, is as follows:

"11A. (1) Notwithstanding anything contained in
this Ordinance, the Supreme Court of the Australian
Capital Territory may, subject to this section, on the
application of the lessee (in this section referred to
as the 'application for variation'), vary any
provision, covenant or condition of a lease in relation
to the purpose for which the land subject to the lease
may be used.

(2) No such variation shall be made -

(a) unless the Court is satisfied that there are such
circumstances existing as in the opinion of the
Court make it desirable to vary the provision,
covenant or condition in order that the reasonable
user of the land should not be impeded; or

(b) if, not later than seven days before the day for
hearing named in the notice of motion filed by the
applicant in pursuance of this section, a
certificate is filed by the Minister with the
Registrar of the Court stating that, in his
opinion, the variation sought would be repugnant
to the principles for the time being governing the
construction and development of the City of
Canberra.

(3) An application for variation shall be made by
motion supported by affidavit.
(4) The applicant shall file with the Registrar
of the Court a notice of motion together with the
affidavit in support and shall, at least thirty days
before the day named in the notice for hearing the
motion

(a) serve a copy of the notice and affidavit on the
Minister; and

(b) publish the notice in the Gazette and a newspaper
circulating in the Territory.

(5) The Minister and also the applicant for
variation shall be entitled, either personally or by
counsel or solicitor, to be heard on the application
for variation and to examine and cross-examine
witnesses.

(6) Any person who, within twenty-one days after
the publication of the notice of motion in the
Gazette

(a) files with the Registrar of the Court notice of
his intention to oppose the application for
variation stating the grounds of his opposition;
and

(b) serves on the applicant for variation a copy of
such notice of intention,

shall, with the leave of the Court, be entitled, either
personally or by his counsel or solicitor, to be heard
in opposition to the application for variation and to
examine and cross-examine witnesses.
. . . . . ."

5. The proposed variation of the purposes clauses was notified to the Minister and advertised as required by ss.11A(4) of the Ordinance. After the advertisement and within the time stipulated in ss.11A(6), the four objectors mentioned above, among others, filed and served a notice of their intention to oppose the application for variation and stated the grounds of their application in accordance with the sub-section.

6. At the outset of the hearing of the application counsel appeared for the Minister for Territories and indicated that the Minister had not filed a statutory certificate pursuant to ss.11A(2)(b) of the Ordinance relating to the proposed variation which, in effect, would have prevented the Court making the variation as applied for by the applicant. Counsel for the Minister further indicated that the Minister did not intend to file any such certificate. On the application of counsel the Minister was excused from further attendance at the hearing of the case. I think it fair to infer from those events that the Minister does not oppose the variations sought in these proceedings. After all the evidence had been heard and I had reserved my decision, a Full Court heard and delivered judgment in the matter of Axiom Pty Limited on 21 April 1986. Because of the decision in that matter, it occurred to me that some of the parties in the present matter might wish to make submissions about how I should treat the evidence in this matter, and on 5 June 1986 I heard further submissions from all parties on that subject. On that occasion the Minister was represented by counsel and made submissions on the subject. I shall return to the various submissions on the subject later.

7. It was common ground between the parties that all the formalities required by the Ordinance had been properly complied with.

8. I should indicate at the outset that applications similar to those which I am presently considering were made before Kelly J. earlier in the year in relation to Blocks 5 and 6 of Section 43 in the Division of Turner. Both these Blocks are very close to the Blocks currently under consideration. In those proceedings Kelly J. ordered that the purposes clause of both leases be changed from its existing purpose of residential purposes to the purposes which are sought in these proceedings, namely, inter alia, offices and professional suites. In my opinion it is quite significant that Blocks in the immediate vicinity of those under present consideration have already had their purposes clauses changed from residential to the purposes sought in the application in these cases. The orders made by Kelly J. in both cases which I have mentioned were in evidence in these proceedings as Exhibits 11 and 12.

9. The applicant is in each case the registered proprietor of the Crown lease for Blocks 8 and 9, Section 43, Division of Turner, Australian Capital Territory. The copies of the relevant Crown leases and certificates of title were in evidence (Exhibit 1).

10. It is appropriate to relate some of the background to the acquisition by the applicant of the blocks in question and what the applicant has done to the blocks and the residences on them since their acquisition. The evidence of Mr G. Osborn, the Secretary of the applicant, was that in either 1981 or 1982, while he was the Accountant of the applicant, he made enquiries on behalf of the applicant with a view to finding extra space for a pathology laboratory and like services carried on by the applicant. The applicant sought to obtain premises in various locations because it was so cramped in its laboratories. Mr Osborn tried areas such as Phillip, Fyshwick, and the houses that were being used along Barry Drive. He said that with most of the premises that were found the applicant encountered difficulties in being able to use them for laboratories. The applicant's laboratories at that time were located in Hughes, at the John James Hospital in Deakin, and in Phillip. However these premises proved to be not adequate for the applicant's purposes.

11. In the first half of 1982 the applicant acquired the Crown leases of Blocks 8 and 9, Section 43, Division of Turner. The blocks came on the open market and the applicant put deposits on them in April 1982. Settlement of the purchases of the blocks did not occur until the first week of July 1982. Mr Osborn stated that immediately after acquiring the blocks the applicant set about to repair the houses thereon. He gave evidence that the houses were in fairly bad condition. Old windows were replaced with new aluminium windows. The roof was repaired because it was leaking. Extensive repairs were made to the walling downstairs and the plumbing on the inside of the building. At that time the applicant wanted to use the premises as laboratories and, if necessary, was going to try to invoke s.10 of the Ordinance which would have enabled the premises to be used as a medical practice, provided the practitioner lived on the premises.

12. In August 1982 work on the building ceased because a building supervisor from the Department of the Capital Territory came to the premises and put a stop work order on the premises, preventing the applicant doing any further work. In September 1982 the applicant sent a number of letters to the Department of the Capital Territory requesting permission to carry out the repairs. The Department replied that it felt that what the applicant was doing was more than repairs and it would have to put in plans. In October 1982 the applicant submitted plans for the repair work which it wished to carry out. In 1982 and into 1983 Block 8 was used by the applicant as a storeroom and on occasion one of the rooms was fitted out as a bedroom. If the applicant had staff transferring from one of its country laboratories and coming up for training and such like, the applicant would house such staff in Block 8. However, the corner block, that is Block 9, was not used for any purpose whatsoever by the applicant.

13. In October 1983 the applicant heard rumours that L.J. Hooker Pty Ltd was buying the property at 4 Mort Street in Civic where the applicant had its city rooms. According to Mr Osborn, L.J. Hooker started to demolish the building where the applicant had its rooms. An injunction was sought and obtained by the applicant which prevented further demolition until September 1984. The injunction was granted by this Court, and part of its terms stated that if the applicant could move out of the premises at 4 Mort Street earlier than 1984 L.J. Hooker Pty Ltd would pay the applicant certain sums.

14. In November 1983 the applicant received an offer to purchase the two properties the subject of these proceedings and as a good price was offered the applicant accepted the offer. However, at that time the applicant was desperately in need of room for laboratory work and also a place it could use to store pathology specimens. On the strength of having sold the properties the subject of these proceedings, the applicant purchased premises at the McKay Gardens Medical Centre, Turner, for use as collection rooms and a factory in Queanbeyan for the purpose of storage.

15. In November 1983 the applicant became aware of the consideration being given by the National Capital Development Commission (the Commission) to the whole of Section 43 in Turner, including Blocks 8 and 9. It was also about this time that the applicant was notified by the purchaser of the properties that it could not obtain the money necessary for the purchase and the contract was soon thereafter terminated. Mr Osborn stated that when the draft Policy Plan was issued by the Commission the applicant thought that there would be little difficulty in using the premises for the original purposes for which the applicant had bought them, that is, for use as laboratories. Interest was also expressed by a group of radiologists who desired to use one of the houses as a radiology practice while the other house would be used by the company as a pathology practice. The company then decided that it would hold the land pending the decision by the Commission on the Policy Plan.

16. In December 1984 the applicant lodged the present applications. Mr Osborn gave evidence that the applicant intended to use Blocks 8 and 9 to build a medical centre called "The Northbourne Medical Centre", for the purpose of specialist medical practices. It would be similar to that which is known as the John James Medical Centre at Deakin. There have already been a considerable number of doctors and one dentist who have expressed interest and support for the plan. Mr Osborn said that the interest expressed by the medical specialists is indicative of the current high demand for professional medical office space close to the city. He referred to a dramatic increase in rents for medical rooms in the Civic area in the past 12 months or so and said that many doctors have either been given notices to quit or been informed that the owners of the premises either want to develop the premises in the near future or want to increase the rents dramatically. Mr Osborn was in effect saying that there is an enormous need for the proposed medical centre.

17. The construction of the medical centre proposed would cover both blocks in one building. Mr Osborn said that the applicant is willing to abide by any conditions imposed in relation to the construction of the building or the change of the purposes clause by either the Court or the Commission.

18. The consideration being given by the Commission to the redevelopment of Section 43, Turner, to which I have previously referred, commenced as a result of discussions in respect of the development plan for Civic Centre and the draft discussion paper issued by the Commission in February 1982. That development plan was circulated in the form of a blue booklet and became known as the Draft Policy Plan. In the Draft Policy Plan, Section 43 was allocated for residential use in a manner which permitted a greater intensity than the standard housing that was then located within Section 43.

19. During the public discussion phase of the Draft Policy Plan, suggestions were made that Section 43 and other areas of Turner would be suitable for small scale offices and residential intensification. The Commission considered these suggestions and in February 1984 released a draft proposal for public comment in a document known as the Green Book. There was further extensive public consultation as a result of which a summary of the issues raised was produced and the Commission made determinations in relation to those issues. Finally in October 1984 the Commission produced its Policy Plan for Section 24 and Section 43 Blocks 1-9. Part of the preamble to that Policy Plan reads:

"The Commission considers that there is a lack of
suitable accommodation in Canberra for small and medium
scale commercial uses, particularly close to Civic
Centre. The area to which these Policy and Development
Plans relate is considered to be well located to
accommodate this type of development.

The provisions of the Policy and Development Plans
outlined overleaf are designed to permit change of use
and redevelopment to occur in a manner which retains
the existing high visual quality of this part of Turner
and minimises adverse environmental impacts on existing
residential amenity."

The Policy Plan itself is in the following terms:

"TURNER SECTION 24 BLOCKS 1-13 AND SECTION 43 BLOCKS 1-9

The main objective is to provide opportunities for the
development close to Civic of small-medium scale
offices while ensuring that new development on Blocks
1-9 of Section 43 is related in form and function to
the existing medium scale commercial nature of
Northbourne Avenue.

Proposals for a change of use to 'Office/Professional
Suite' will normally be supported subject to compliance
with the following criteria:

. Buildings in Section 43 Blocks 1-9 shall be three
storeys above ground level, while buildings in
Section 24 shall be a maximum of three storeys
above ground level.

. The maximum plot ratio shall be 1 : 1, subject to
all car parking generated by the development being
accommodated on-site, in conformity with the
Commission's prevailing standard. (Some
encroachment of basement car parking into the
front landscape zone may be considered.)

. All buildings shall be constructed of materials in
the white to light buff colour range.

. Continuous building facades shall not generally
occupy more than two blocks. Proposals to use
more than two blocks will be considered on their
merits.

. Buildings shall be set back ten metres from the
front street property boundary at Northbourne
Avenue, Moore Street and Barry Drive.

ACCESS AND PARKING

No vehicular access to Barry Drive will be permitted
from developments on Section 24.
Full car parking demand generated by a change of use
and/or redevelopment shall be accommodated on site in
conformity with the Commission's prevailing standard.
The rate which represents this standard may vary from
time to time. The current rate is specified in the
Development Plan.

DEFINITION

Gross floor area is the sum of all floors within all
buildings on the block(s) as measured from their
external surfaces excluding rooftop plantrooms and
basements used for car parking and housing mechanical
plant."

20. As previously stated the present applications were instituted in December 1984. The applicant filed amended notices of motion on 8 March 1985. The notice of intention to oppose the application by A.C.T. Youth Accommodation Group Incorporated (A.C.T. Youth Accommodation) was filed on 16 April 1985. It sets out the grounds of opposition. Shortly stated, those grounds are that there is a severe shortage of land for residential purposes close to the City area in Canberra and that variation of the purposes clause would further reduce the availability of residential land in that area. Accordingly it is asserted that the use of the land for any purpose other than residential purposes is unreasonable.

21. The notices of intention to oppose filed by Lady Hicks, Mrs Thornton and Mr Hopner all raise common grounds of opposition based upon the loss of the amenities which they would suffer as nearby residents. Such loss of amenities includes loss of natural light, more extensive redevelopment which the change of purpose would attract and hence exacerbation of the loss, a probable increase in rates, increased noise levels, traffic and parking problems, and loss of resale value of their respective blocks. I have not particularised all the grounds of opposition but those referred to are sufficient to identify the nature of the opposition made by each of those objectors.

22. Before dealing with the evidence, it is necessary to return to the impact of the decision in the matter of Axiom Pty Ltd delivered on 21 April 1986. Axiom Pty Ltd (Axiom) was registered as the lessee of land known as Block 1, Section 24, Division of Turner, and the lease provided that the land was to be used for residential purposes only. Axiom applied for a change of the purposes clause so that the land could be used for one or more of the following purposes:

(a) offices;

(b) professional suites;

(c) car parking;

(d) single unit caretaker's flat not exceeding
120 square metres in area.

23. Various objectors gave notice of their intention to oppose Axiom's application and when the application came on for hearing on 30 August 1985 all who had given notice of intention to oppose sought leave under s.11A(6) to be heard in opposition to it. Counsel for Axiom then submitted that many of the grounds for objection particularised by the objectors could not properly be considered by the court because they raised questions of town planning which, so the submission went, could not be considered by the court because of the provisions of the National Capital Development Commission Act 1957. A.C.T. Youth Accommodation was one such objector. Counsel for Axiom conceded that some of the grounds particularised in the notices of intention to oppose filed by objectors other than A.C.T. Youth Accommodation were valid.

24. Kelly J. heard submissions from Axiom and all objectors on whether A.C.T. Youth Accommodation should be given leave to be heard in opposition to the application. After hearing argument Kelly J. reserved his decision but on 6 September 1985 he ordered pursuant to s.8AB(3) of the Australian Capital Territory Supreme Court Act 1933 that the jurisdiction of the court in relation to the applications for leave to object to Axiom's application should be referred to a bench of three judges.

25. Accordingly the matter was re-argued before a bench of three judges and judgment delivered on 21 April 1986. The court ordered that the application by A.C.T. Youth Accommodation for leave to be heard in opposition to the application for variation be dismissed and that leave to be heard in opposition to the application for variation be granted to all 16 of the remaining objectors. The court remitted the matter to Kelly J. for further hearing.

26. I return now to the submissions which I heard on 5 June 1986 about how I should treat the evidence in relation to the present applications in the light of the decision in Axiom. I repeat that in relation to the present applications leave has been granted to all objectors including A.C.T. Youth Accommodation as there was no objection either by the Minister or the applicant to their being heard pursuant to s.11A(6) of the Ordinance. The submissions on how I should treat the evidence were made after all the evidence had been presented and after all objectors had been given the opportunity to examine and cross-examine witnesses.

27. It was submitted on behalf of the applicant that in Axiom this court had held that matters of town planning fall within the functions of the Commission under the National Capital Development Commission Act 1957 and accordingly I should disregard all the evidence led by A.C.T. Youth Accommodation relating to the principles and policies of town planning. It was conceded that the court should not disregard evidence given by the other objectors which relate to their loss of amenities because that evidence was relevant to the reasonable user of the land.

28. It was submitted on behalf of the Minister that in the light of this court's decision in Axiom the court should preserve the terms of the Policy Plan issued by the Commission in October 1984. The court may, so the submission went, examine the detail set out in the Development Plan which is part of the document issued by the Commission in October 1984, for instance, in relation to the extent of car parking. In order for an objector to succeed, however, it was submitted that the objector would have to show that the redevelopment would be repugnant to the principles for the planning and construction of Canberra as the National Capital. It was submitted that the Commission's Policy Plan having been devised after proper and careful consideration of all relevant matters should not be reviewed by the court.

29. Finally it was submitted that the applicant's proposed change of purpose clause appeared to comply with the Commission's Policy Plan.

30. It was submitted on behalf of the private objectors Lady Hicks, Mrs Thornton and Mr Hopner that consistently with the decision in Axiom the function of this court on the hearing of an application under s.11A of the Ordinance is not that of reviewing the planning processes to determine whether the correct decision was made. In this respect counsel for the private objectors was in part making the same submission as that made on behalf of the Minister. Counsel acknowledged that there may be circumstances in which the planning decision should be set aside, as recognised by Kelly J. in his judgment, where for reasons of administrative law the decision could not be allowed to stand. For the purposes of this application, however, the court should accept the Policy Plan as a planning instrument which adds to the permissible uses the sort of commercial uses set out in the Plan. It is then the court's function to apply town planning principles to the competing land uses of residential and commercial and come to a conclusion about them. Counsel submitted that if the court, applying the test in s.11A of the Ordinance, came to a conclusion that commercial use satisfied that test and is in accord with proper town planning principles, the court would grant the application to vary the purpose clause. If, on the contrary, the court found that commercial use did not satisfy that test and was not in accord with proper town planning principles, it would refuse the application and leave the residential purpose in relation to both blocks as it is. It would not be a proper exercise of the discretion which the court is required to exercise under s.11A of the Ordinance to elevate the Policy Plan into the only consideration which the court can take into account. To do so would be to make the court a rubber stamp, as there would be no role for the court to play. Counsel stressed that the retention of the present use is a relevant town planning consideration and all the evidence which went to the question of the merit of the Policy Plan is relevant to that consideration. Accordingly, all the town planning evidence should be taken into account.

31. It was submitted on behalf of A.C.T. Youth Accommodation that the court's function is to look at the reasonable user of the land and that function involves the examination of relevant town planning principles and whether the Commission in issuing the Policy Plan took into account all relevant considerations. It was submitted that the Commission had not given sufficient consideration to the metropolitan plan, which favoured retention of the subject blocks for residential purposes.

32. In my view the submissions made on behalf of the private objectors have an appealing simplicity about them and they sit comfortably with the separate judgments of this court in Axiom. At pp.6-7 of his judgment the Chief Justice referred to the Policy and Development Plans that had been made by the Commission in that matter and said that they advanced an intention to exercise the functions of undertaking and carrying out the planning and development of the City of Canberra as the National Capital of the Commonwealth by controlling the change of use and redevelopment of land in the Turner area. He held that, as the objection of A.C.T. Youth Accommodation was to the use of the land for anything but residential purposes, a consideration of that objection would involve this court in a consideration of matters which are the subject of decisions of the Commission, which relate to the planning and development of the City as the National Capital and which are appropriately the province of the Commission. I understand the Chief Justice to be saying that the court should not in that case grant leave to A.C.T. Youth Accommodation so as to permit a review of the Commission's Policy and Development Plan.

33. At p.39 of his roneoed judgment Kelly J. referred to the National Capital Development Commission Act 1957 which charges the Commission to "undertake and carry on the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth". He expressed the view that s.11 of the Act gives to the Commission primacy in respect of deciding what are the principles for the time being governing the planning, construction and development of the City of Canberra. He said that in an application under s.11A the court is entitled to enquire into the validity of the Commission's stated principles so far as they affect the land the subject of the application, giving due regard to the primacy of the Commission's role. He viewed the objection of A.C.T. Youth Accommodation in that matter in the same way as the Chief Justice had done, namely as raising an inquiry into the policy behind the proposed change of user. His Honour said that such an inquiry is beyond the role of the court in an application under s.11A.

34. For my own part, I expressed the view at p.4 of the roneoed judgment that notwithstanding the delineation of the Commission's functions by s.11 of the National Capital Development Commission Act, the court still had a role under s.11A of the Ordinance and that in the absence of a certificate by the Minister that role is to consider whether the variation sought is desirable in order that the reasonable user of the land should not be impeded. I said that the court would, of course, have regard to the decision of the Commission properly formed in performance of its functions under the Act. I agreed with my brethren about the nature of the proposed objection by A.C.T. Youth Accommodation in that matter and that for that reason leave to be heard in opposition to the application should be refused.

35. The applicant called Mr Phillip O'Brien, an officer of the Commission, to give evidence on its behalf. He is the head of the Inner Canberra Section of the Town Planning Division of the Commission and holds appropriate town planning qualifications from the United Kingdom. His evidence accords with the concept of retaining the existing residential use of Section 43 but at the same time permitting redevelopment for commercial purposes of the type proposed by the applicant. In that respect Mr O'Brien has accurately expressed the operation of the National Capital Development Commission Act 1957 and s.11A of the City Area Leases Ordinance 1936. He said that the Commission and the Commonwealth can permit redevelopment to occur but it cannot require it to occur. The Policy Plan of the Commission gave an opportunity for redevelopment for commercial purposes to happen. Hence there had been a development from February 1982 when the draft Civic Centre plan provided for medium density residential purposes in Turner, to office and residential redevelopment in the draft Turner plan in November 1983 and then the Policy Plan for Turner in November 1983 providing for office use.

36. He gave evidence about the draft policy plan for Civic Centre issued in February 1982, the public consultation which took place in relation to the draft policy plan and the issue of a further draft proposal known as the Green Book, to which I have referred earlier, in February 1984. He said that the Green Book is the Commission's Policy Plan for Civic Centre and contains specific references to Section 43, Turner, where the blocks which are the subject of this application are situated.

37. He produced in evidence a document known as Draft Policy and Development Plan - Summary of Issues Raised. This document, which was admitted in evidence as Exhibit 7, really represents a precis of the issues raised by public consultation and the Commission's determination in relation to each of those issues. Such issues include the existing high environmental quality of the area, the anticipated effects of development on the area, the social effects of redevelopment, rates increases, the desire of residents to continue to live in the area, the responsibilities of the Commission, the need for redevelopment, traffic management, and other related issues.

38. Mr O'Brien stressed in his evidence that the Commission fully realised the impact of redevelopment on residents in Section 43 and that the Policy Plan and Development Plan admitted in evidence as exhibit 8, the relevant parts of which are set out earlier, was designed to lessen that impact. He said that the Commission had considered all the matters raised by way of public consultation and referred to the specific aspects of the Development Plan for Section 43 which were designed to minimise the impact of redevelopment, for example, a boundary wall on the western boundary with a landscaping zone adjacent to that wall, the location of garbage, storage installations and mechanical equipment, car parking, siting and height of buildings. Mr O'Brien detailed the reasons for those aspects of the Development Plan and expressed the view that the use of Blocks 8 and 9, Section 43, Turner, for office accommodation in accordance with the Policy Plan and Development Plan would be a reasonable user in all the circumstances.

39. It is unnecessary to set out the content of the extensive cross-examination of Mr O'Brien. He agreed that there is a shortage of residential accommodation for young people in the city area, there is an abundant supply of office accommodation in Canberra generally and in the city area in particular, and that there would be amenity costs to surrounding residential areas if this application is approved. They are, of course, the grounds of opposition to the application raised by A.C.T. Youth Accommodation, to which I have referred earlier.

40. The factors which had influenced the Commission to devise the plan were the demand for small office accommodation, the proximity to Civic Centre, the environmental problems of Northbourne Avenue, the appropriateness of having office development rather than cottages close to Civic, and the decision that singular block development of medium density would be inappropriate.

41. Counsel for A.C.T. Youth Accommodation opened his client's case with the following propositions:

(1) in Canberra at present, and in inner Canberra in
particular, there is a severe shortage of housing and
that shortage is creating very substantial and serious
problems both in social terms and in terms of the real
estate market;

(2) there will very shortly be a very substantial over
supply of office space both in Canberra generally and
in Civic Centre and its environments;

(3) in deciding whether it is desirable to grant the
present application the court must balance the effect
of the change of purpose upon the supply of housing and
the social effects which the change will have against
the effect that it will have upon the applicant;

(4) there will be not only substantial inconvenience but
very substantial social disruption caused to
individuals by the grant of the application, whereas
there would be minimal inconvenience caused by a
refusal;

(5) the implementation of the Commission's final plan for
Section 43 is inconsistent with the Metropolitan Plan
and in town planning terms that would be sufficient to
require the court to refuse the application;

(6) the implementation of the plan will very substantially
contribute to traffic and parking overloading in Civic
and its environments; there will thereby be a very
substantial cost imposed upon the public in the
provision of infrastructure to support the offices to
be built in accordance with the plan;

(7) for the same reasons implementation of the plan will
bring about a very substantial deterioration to the
surrounding areas of Turner and will, as a matter of
town planning, result in the rezoning of those areas to
commercial and that will bring about a very significant
decline in housing in the inner city;

(8) implementation of the plan for Section 43 will have a
very significant effect upon the viability of the town
centres of Tuggeranong and Gunghalin, and that effect
will be very substantial upon the residents of
Tuggeranong and Gunghalin and the court must take that
into account; and

(9) it will inevitably result in a substantial amount of
speculation in land in inner Canberra and deliberate
dilapidation of that land by the speculators.

42. A.C.T. Youth Accommodation called as a witness Dr Patrick Nicol Troy, Professorial Fellow at the Australian National University and Head of the Urban Research Unit. His qualifications are Bachelor of Engineering (Civil), Diploma of Town Planning, Master of Technology (Highways), Member of the Institution of Civil Engineers, Member of the Royal Australian Planning Institute, Certificated Town Planner in the State of New South Wales. First, he expressed the opinion that the planning process to result in the publication of the Commission's Policy Plan for Section 43, Turner, had not been desirable in that it did not really allow full consultation with people who might have an interest in the planning outcomes, nor did the process allow reasonable consideration of the alternatives which might be available to development in Turner. In his opinion, Section 43, Turner, would have been better redeveloped as a consolidated medium density development and, in all events, it should have been left as residential.

43. He criticised the technique whereby private property owners and entrepreneurs bring about a change in an area by deliberately creating what is sometimes called planning blight. The technique is to allow residential premises to fall into a state of dilapidation. Having done so, they then press law enforcement agencies and the court processes to bring about a change in the bad situation which they have created by pressing for change in the use to which the land can be put. The remedy to this sort of process, according to Dr Troy, is for the administering authority to be strict about enforcement of lease purpose clauses and thereby discourage people from speculating in the possibility of obtaining a change of use or change of conditions relating to the particular lease.

44. In relation to Section 43, Turner, Dr Troy said that he had no doubt at all that the conversion to commercial development of Blocks 1-9 will materially increase the degradation of the residential amenity of that area. He said that the mushrooming of small offices around Civic is a major departure from the Metropolitan Policy Plan and that departure has never been discussed in the public arena. The reason that the planning process epitomized by the mushrooming of small offices is not consistent with metropolitan planning is as follows. The whole basis of the structure of Canberra's planning has been that each of the so-called towns i.e. Belconnen, Woden, Tuggeranong, and the prospective Gunghalin, is designed to a very large degree to be self-contained. That means that in each town there would be a sufficient supply of residences and work places in happy conjunction with one another, together with the variety of activities that people take part in to minimise the journey to work and to gain a number of other social activities. The development in Turner is inconsistent with that objective.

45. It will create a major traffic problem for which the transport system is not designed. There will be increased pressure on parking, already exacerbated by the fact that people cannot get parking in Civic already and park in residential areas. The facilities which will be provided by the redevelopment in Turner will not go to the other town centres and accordingly the quality of life of the people who live in those areas will materially diminish. The redevelopment in Turner will lead to an intensification of development in Civic, as a consequence of which there will be a concentration of traffic for which there is no parking provision and for which the street system is not designed.

46. Furthermore, to the extent that Civic is favoured and development focussed in Civic, investors will be reluctant to invest in the provision of the same kinds of facilities in Woden and the other town centres. Uncertainty about whether they would get tenants for buildings in those town centres may well lead to high rates of return in Civic and accordingly increased pressure would then be brought to bear on the Commission to allow further departures from the City plan.

47. In regard to the traffic problems which redevelopment would create, Dr Troy said that vehicles entering and exiting the subject properties in significant numbers from Northbourne Avenue, which is the main artery of Canberra, would reduce the capacity of Northbourne Avenue to cope with traffic. That capacity is already becoming a problem in peak hour. It would also very significantly increase the accident risk which is already a problem, the more serious because the area is downstream of a major intersection and traffic lights at which traffic tends to bank up and when the lights change there is a large flow. Any flow of traffic which is impeded by vehicles exiting or entering the traffic flow at that point, especially when people do not really expect it, puts the drivers on the inside lane especially at risk, but the risk can also distribute itself across the other lanes of traffic. In amplification of that concern, Dr Troy argued to the effect that traffic travelling north in the western lane of Northbourne Avenue, having just been given the green light, is all accelerating in a sort of platoon of vehicles, which makes the hazard of taking evasive action all the greater and could result in a significant increase in rear end collisions.

48. Dr Troy detailed other particular traffic problems that might arise, making the point that Northbourne Avenue is already experiencing the kinds of traffic loads which one would expect to find in major capitals and that threat will continue to increase. He said that, if it is assumed that the market is to be the most efficient allocator of housing accommodation, the endeavour should be to preserve and increase the supply of all housing so that the market will then allocate a proportion of housing to low income people, at least for the next four years. On social grounds therefore there should be no withdrawal of housing. That situation should prevail for the next four years.

49. With regard to the evidence of market demand for a medical centre in the inner city area, Dr Troy said that he agreed that some demand for accommodation for medical practitioners existed. He pointed out that they are all accommodated at present and that if the demand were to be satisfied it should be as a result of a sensible planning process in which all people who want to take the initiative in respect of medical centres could bid for the sites.

50. He suggested that there were some sites close to the city centre which could be developed for offices and for a medical centre in particular. Such sites would be more accessible by public transport than Section 43 in Northbourne Avenue. He instanced the White development in Constitution Avenue, and the YMCA development and said that they were both very substantial with significant car parking close by and are in an area where there was no previous residential development, so they are not displacing any such development. He mentioned also that the Uniting Church site was another possibility and had the further advantage of being located close to the A.C.T. Health Commission's own centre.

51. He stressed that if the court refused this application it would be a very clear signal to all those people who currently own housing and wish to put it to some other use, or who are currently putting it to some other use, that the existing supply of housing would be protected. On the other hand, if the court were to grant the application, it would be a clear signal to the market and the immediate effect would be to encourage those people who want to punt against the risk of prosecution for enforcement of lease conditions. More housing would be withdrawn from the market and hence the supply of housing to low income people would be reduced. The confidence that people have in housing generally would be undermined and the whole planning development process of Canberra could be pulled apart. If the market feels that the planning of Canberra is not going to be enforced and in that situation an individual sees some marginal advantage to himself to take an advantage which is inconsistent with the plan, they will take it in the knowledge that they have a sporting chance of being able to get away with it.

52. He was asked in cross-examination by counsel for the private objectors about his preference for medium density housing in the redevelopment of Section 43. He said that what he was suggesting as the sensible thing was to develop techniques for, in effect, amalgamating the sites in Section 43 with a view to some kind of redevelopment on the site in globo. Such a redevelopment would achieve the most sensible use for Section 43, being medium density housing. Dr Troy amplified the way such a development technique would be implemented.

53. Dr Troy was an impressive witness and in my judgment his objections to the application were cogent and well substantiated.

54. The next witness called on behalf of A.C.T. Youth Accommodation was Mr Kelvyn Grenfell Enwright, a lecturer in urban and regional planning at the Canberra College of Advanced Education. He has the qualifications of a Bachelor of Arts from the University of Otago and a post-graduate diploma in town planning from the University of Auckland. He has worked for just on 10 years in local government in New Zealand as a town planner and since 1973 has been lecturing in town planning at the Canberra College. He has studied the planning practices of the Commission.

55. It is only necessary to refer to that part of his evidence where he said that there is insufficient accommodation for those members of the community who are on minimum income benefits. He said that the research which had been conducted by his students demonstrated that there are 4,000 people in Canberra who do not have acceptable accommodation, and that is a proper matter for concern by town planners. He said that he could see no justification in terms of metropolitan strategy for a change of use in Section 43 to professional suites or offices. He could see every justification for continued residential use in the form of three storey construction. He criticised the change of purpose as unsatisfactory town planning both from the point of view of the actual development and the process that has been gone through. The Metropolitan Plan should not be departed from and the final policy plan for Turner is inconsistent with the Metropolitan Plan.

56. If Section 43 had to be redeveloped and the metropolitan policy constraint did not exist, and there was a clear need for additional office space and Section 43 was chosen as the area for office space, Mr Enwright would prefer the boundary of redevelopment to go down Moore Street rather than down the back of the blocks separating Section 43. His reason for that preference was that there would be a better interface and one can handle much more satisfactorily the ingress and egress into Section 43 off Moore Street. There would be more space to handle car parking on Section 43, handle the landscaping and all those sorts of local design issues which are better handled when you have the depth of two blocks and the distance of a full street width before the houses in Section 39. The impact of a zone change would be less across the width of Moore Street than it would be across the back fence.

57. He too favoured medium density residential as the use and that the boundary should be down Moore Street rather than down the centre of Section 43. He could see no need at all for professional offices to be located in Section 43 rather than within Civic itself.

58. The next witness called on behalf of A.C.T. Youth Accommodation was Dr Edward Paul Ratcliffe, the Acting Director of Transportation Planning in the Department of Territories. He holds a Bachelor of Engineering degree and a Doctorate in Transport Planning. He said that the duties of the transport planning section are to look at the impact of any development plans produced by the Commission with a view to the management and administration of Canberra by the Department. Their particular interest at the present time is in parking and parking management in Canberra.

59. With the present employment levels in the Civic area the supply of parking spaces is more or less in balance with the demand. That balance does not prevail over all parts of Civic and in the north-western area, where Section 43 is located, there is an excess of demand over supply. He said that there is a significant level of recirculating traffic in the Civic area caused by motorists driving around until they find somewhere to park, particularly for short stay parking. This practice has its costs in terms of congestion, pollution and road safety.

60. Dr Ratcliffe gave evidence that there were a number of office buildings currently under construction in Civic. He said that when those buildings were completed there would be a significant excess of demand over supply, probably in the order of 5000 parking spaces. Where those 5000 spaces will be accommodated will depend to some extent on the level of parking enforcement employed at the time, but it is expected that most of those cars would be parking outside the City boundary but as close as possible to the City. Dr Ratcliffe would expect parking to extend north of Barry Drive into the Turner area, probably between Northbourne Avenue and McCaughey Street and to about Haig Park in the north. This area would embrace Section 43. As the present offices under construction are occupied, there will be a substantial increase in the numbers of people wishing to park in the area around the offices and there will be a whole series of ripple down effects from that.

61. Dr Ratcliffe referred to the document issued by the Commission and known as Traffic Bulletin april 1985 (Exhibit K). It sets out the figures for the main arterial roads of Canberra and gives the carrying capacity of Northbourne Avenue in the relevant area of Section 43 as between 1200 and 1320 vehicles per hour on an AM peak week day and 1870 per hour for a PM peak week day. Northbourne Avenue is a major arterial road and the more ingress and egress from an office block on to such a road the more effect it has on traffic flow. It substantially reduces the capacity of a major arterial road.

62. The next witness called by A.C.T. Youth Accommodation was Ms Michelle Frances O'Neil. Her evidence was supplemented by her affidavit affirmed on 24 April 1985. She expressed her opinions about the shortage of low cost housing in Canberra and the effect of any reduction in that stock of housing. She explained the reason why A.C.T. Youth Accommodation had applied for leave to oppose the present application. Shortly those reasons were that as the co-ordination point for those agencies in the Australian Capital Territory concerned with homeless young people, it took a decision that the effects of a reduction in housing stock on those people by the grant of the present application should be brought to the court's attention.

63. For the reasons stated earlier and, in my view, consistently with the decision of this court in Axiom, supra, the shortage of low cost housing should form part of the court's considerations in the present application, not with a view to reviewing the decision made by the Commission, but as one of the relevant factors in balancing the competing land uses for Blocks 8 and 9, Section 43.

64. The private objectors called Mr Michael John Stafford Collie to give evidence on their behalf. He is a Bachelor of Town and Regional Planning at the University of Melbourne, member of the Royal Australian Planning Institute and member of the Royal Australian Institute of Parks and Recreation. He had familiarised himself with the documentation of the Commission which led to the final Turner Policy Plan. He expressed the view that there had been insufficient consultation by the Commission with the people in the area who may be affected by any proposed change of use and insufficient detailed study of any likely impacts of those proposed changes on the residents in the area, traffic flow and all sorts of other environmental matters.

65. Referring to the specific planning controls set out in the Policy Plan, he expressed the opinion that the controls are not sufficient and were designed to minimise the decision itself rather than to reach a proper decision. He advocated that there should not be a planning change at all and that the most appropriate land use in the area would be a residential land use. He contended that it would be appropriate town planning policy to concentrate the commercial development by surrounding it with residential activity and other forms of community life so that the city does not die after five o'clock on weekdays.

66. He referred to the overflow parking in the residential areas of Turner which he assumed is related to commercial developments nearby and referred to the general direction in which Civic is heading in terms of under supply of car parking spaces which will lead to parking in surrounding residential areas. He also criticised the Commission's Policy Plan in relation to one car parking space per 33 square metres of gross floor area and said that it would not meet the demand at all. He said that any surplus would result in overflow parking in the residential streets. He rejected Section 43 as appropriate for three-storey commercial development because it would change a pattern of use along the whole of the western side of Northbourne Avenue, creating a commercial development leading into the residential area and he could see no need for that to occur. In his opinion it is desirable to limit vehicular access into Northbourne Avenue because it is such an important arterial road.

67. The first of the private objectors to give evidence was Mr Peter Hopner, who lives on Lot 8, Section 43, Turner, also known as 40 Moore Street, Turner. He has lived at that address for about 26 years. Mr Hopner relied first upon the grounds of opposition set out in his Notice of Intention to Oppose the application dated 29 January 1985. Those grounds are:

1. There has not been an adequate demonstration of
the need for redevelopment of this residential
(Section 43) block. Within close proximity there
are existing commercial premises (Section 45) and
there will be further intensification of
commercial development of Block 2, Section 37.
All of this development is in addition to the half
dozen or so high rise office buildings just
completed or under construction less than 1
kilometre away in Civic.

2. Because of the proposed adjacent commercial
development there will be a loss of value and
therefore reduced saleability of his property as a
residence.

3. Residential housing adjacent to or surrounded by
commercial buildings of 3 stories will not be
compatible.

4. There will be a "Snowballing effect", once
commercial activity has been allowed on the so
called fringe, by pressure from developers to move
further into Turner.

5. The visual quality of the proposed building will
not be compatible with and would detract from the
high visual quality of the existing residences.

6. Because of this development there will be an
increase in air and noise pollution above what
already exists. As car parking and garbage
facilities will be located at the rear of the
proposed building these facilities will cause
pollutants (air and noise) that will have an
effect on the quiet enjoyment of his backyard.

7. The height of the building will mean there will be
a loss of natural light, especially in winter and
a significant loss of outlook. This will have an
effect on his garden and its growth.

8. With the adjacent commercial development there
will be an increase in longstay parking in Moore
Street. This has been an increasing problem over
the past few years which has resulted in drive way
access problems. With this development this
problem will be compounded. There will also be an
increase in traffic because of this development.

9. His residential ammenity will be affected by the
loss of privacy as a result of the size of any
proposed building. The height and closeness of a
building of 3 stories will allow a direct view
into his yard and house.

10. Adjacent commercial buildings would cause a
decrease in the level of security by providing
thieves with unmonitored access to residential
backyards, especially during non business hours -
at night and during weekends.

11. Development of this type will promote property
speculation for further future land rezoning thus
causing accelerated rate increases.

68. In amplification of those grounds, he said in evidence that, having regard to the residential nature of the suburb, to have half residential and half commercial on Section 43 would not be compatible with the existing residences in Section 43 and the remaining part of the suburb. Also, the visual quality in respect of both the height and colouring of the commercial developments would not be compatible with existing residences in the area. With regard to the ameliorating effect of landscaping, he said that depending upon the stage of growth under consideration, the proposed trees would not screen out the proposed commercial development completely and would still expose the residences in Moore Street to observation from commercial development in Northbourne Avenue. He said that he uses his backyard for gardening and other normal pursuits.

69. With regard to garbage facilities at the rear of any redevelopment, he referred to the garbage collection which takes place around 4.00 am in the morning on Northbourne Avenue at the NRMA building and which has woken him up several times. He says that the noise is excessive, especially in summer when his windows are open. He is concerned about what such activities would be like so much closer to his own house. He also said he was concerned about loss of natural light and the shadowing effect upon his property. He said the loss of that sunlight would concern him, and in winter it would have an effect on the heating of the house as well as the loss of natural light.

70. With regard to car parking, he said that at his end of Moore Street there are cars parked consistently during office hours and week days and quite a few times he has had great difficulty getting into his own drive because of parked cars. He is fearful that this development will further add to the parking problem and traffic risks. This sort of problem created by long term car parking has been accumulating for the last 3-4 years and is progressively getting worse.

71. The establishment of a 24 hour medical service at his back fence would greatly reduce his desire to use his own backyard and would make it impossible for him to enjoy himself there because of being looked upon and the noise likely to be generated by the use of the commercial premises.

72. Mr Hopner was cross-examined about his grounds of objection but he was not shaken on the concerns which he expressed and the grounds for them. So far as security is concerned, he has been broken into twice in the last few years. He believes that, because his neighbours have been able to monitor the front of his house, access has been gained through the back at times when Blocks 8 and 9 were unoccupied.

73. The next private objector was Mrs Katherine Thornton, who lives at Block 21, Section 43, Turner, also known as 38 Moore Street, Turner. She too relied upon the grounds set out in her Notice of Intention to Oppose the application, which were in the following terms:

1. Upholding of the application by Morpath Pty
Limited would represent a partial but
none-the-less significant reduction of the rights,
privileges and entitlement to the full enjoyment
of the property inherent under the terms of the
original leasehold granted to her late husband and
to herself. It is her contention that any
reduction or annulment of these rights and
privileges would infringe on and be contrary to
her own leasehold agreement.

2. Proposed development would result in spiralling of
rates of neighbouring and adjoining properties, in
my case beyond my capacity to pay. In turn
greatly increased rates would seriously detract
from the saleable value of the property as a
domestic residence. Other points listed in this
objection also contribute to this diminution of
saleable value.

3. Erection of a medium rise building would cause
significant loss of light and sunshine for the
propagation of flowers, vegetables, shrubs and
lawns. Additionally it would detract from the
esthetic value and outlook of the property.

4. Elevated observation points from within corridors
and rooms overlooking her property will constitute
an invasion of the privacy she feels entitled to
expect under the terms of her leasehold
agreement. At all times one would need to be
respectably dressed before venturing into the back
garden to pick flowers or vegetables. Even then
one's activities are subject to the prying gaze of
people temporarily or more permanently occupying
elevated observation points. Opportunities for
sunbaking will no longer exist. In effect there
will be a complete loss of privacy necessary for
the proper enjoyment by her family and guests, of
the garden environment.

5. Movements to and from the house of family members
will similarly be subject to consistent scrutiny
from people located at elevated observation
points. This poses a serious threat to household
security, if their comings and goings can so
easily be covertly observed and timed.

6. With Northbourne Avenue maintained as a Clearway,
parking facilities for professional and commercial
staff of the proposed building and their clients
will have to be sought in neighbouring streets.
Of these, Moore Street is the one most adjacent.
Parking congestion in the street, already bad,
will become seriously aggravated. Traffic flow
will present an increasing hazard of particular
concern. Necessary acquisition by developers of
easements from Moore Street to permit servicing of
developed premises will compound the problem, when
entry and egress of vehicles through easements
impedes and congests traffic flow. Frequent
blocking of driveway access can be expected.
Constructed to meet the needs and requirements of
a purely residential community, Moore Street will
immediately become quite unsuitable and inadequate
for combined residential and commercial traffic
activity. Traffic movements, garbage accumulation
and disposal will cause heightened noise and air
pollution beyond acceptable limits for a
residential area.

74. Her property backs on to both blocks which are the subject of the present application. She said that the residence constructed on Block 9 was built at the same time as she and her late husband built their house on Block 21. It was a well maintained house and garden. She said that around about 1982 or 1983 when Block 9 was sold, the trees around the house on Block 9 were removed and the premises have fallen into such a state of disrepair that they are not now capable of being occupied as a residence. She gave details of the partial demolition which has taken place.

75. She adhered to all the grounds of objection raised in her application, but said that her main objection is the probable increase in rates. As a widow and pensioner, she would not be able to pay the rates to live at that address. She has a fully maintained vegetable and rose garden in her backyard which she maintains herself with pleasure. She lives there on her own. She is concerned about the loss of sunlight from the redevelopment and possible sewerage problems. She too referred to the parking problem in Moore Street and the difficulties experienced in getting into and out of her own property. She has experienced those difficulties for the last 4-5 years in Moore Street, used for instance by employees of the NRMA building, which is on the other side of Northbourne Avenue. She is also concerned about garbage noise. She said that she would prefer some form of residential flat development in the area as the lesser of two evils.

76. Lady Lois Una Hicks, another private objector, did not give evidence but as she was represented by counsel along with the other private objectors I think it is appropriate to take account of the grounds of objection set out in her Notice of Intention to Oppose the application. The notice was filed on 12 April 1985 and recites that Block 9, Section 39, Turner, has been her family home for over 44 years. I interpolate here that Block 9, Section 39, is on the western side of Moore Street and is not immediately adjacent to the blocks to which this application relates. Over that period of 44 years a lot of effort and money has been put into home improvements and the garden. No amount of compensation or money can replace those improvements and Lady Hicks states that she should not have to move to a foreign environment to gain residential amenities which she has enjoyed for so many years in that area. Otherwise her grounds of opposition do not raise any new aspects of loss of amenities by reason of the redevelopment of Section 43.

77. Before dealing with the various submissions put on behalf of the applicant and the objectors, I paraphrase the terms upon which the court may approve an application for variation pursuant to s.11A. Sub-section (2) requires the court to make two findings:

(a) is the proposed user a "reasonable user of the
land"; and

(b) is the court satisfied "that there are such
circumstances existing as in the opinion of the
court make it desirable to vary the provision".

78. I omit a submission made on behalf of the applicant that the National Capital Development Commission Act 1957 gives the Commission the sole planning power within the Territory and that therefore this court on an application under s.11A should pay no regard to town planning principles, because that submission has already been dealt with by this court in Axiom.

79. It was submitted on behalf of the applicant that the proposed user is a reasonable user and that that user is currently impeded by the current purpose clause. The reasonableness of the proposed use is demonstrated by the fact that it has been extensively considered by the professional staff of the Commission, adequately published and broadcast, and a decision made after proper and adequate consideration of the various objections raised. It was stressed on behalf of the applicant that the applicant undertakes to abide by the terms and conditions of the Policy Plan and Development Plan of the Commission. So far as the amenities of the residents are concerned, they have been properly considered by the Commission and no other safeguards are necessary.

80. With regard to the objection of A.C.T. Youth Accommodation, it was submitted that Blocks 8 and 9 are not and, never would become available for low cost accommodation and, however commendable and proper the objections of A.C.T. Youth Accommodation may be in regard to low cost accommodation, the demolition of the two dilapidated house structures on Blocks 8 and 9 and the development of a medical health centre could not be said to amount to a diminution of low cost housing.

81. On behalf of A.C.T. Youth Accommodation there were two basic submissions. The first was that a change of purpose to commercial would reduce the supply of housing and increase the supply of office space in Canberra at a time when there is an inadequate supply of the former and an excess of the latter. Counsel referred to the evidence in support of that submission. It was submitted that the implementation of the Commission's plan for Section 43 is inconsistent with its own Metropolitan Policy Plan. Again counsel referred to the evidence in support of that submission.

82. Counsel for A.C.T. Youth Accommodation then criticised the conduct of the applicant and referred to the alleged deliberate breach of its obligations under the leases of Blocks 8 and 9. I do not need to deal further with those submissions.

83. Counsel for the private objectors made a submission, which he restated at the hearing subsequent to the decision in Axiom, that the effect of the Policy Plan is to make permissible with the consent of the court either the use set forth in the lease or the use set forth in the Policy Plan. The Policy Plan is no more than a guideline for approach to future development. It is not a rigid framework within which the planning of the Capital, whether public or private, is to be conducted. That is not to say that one disregards the Policy Plan, but it does not have any stronger effect or meaning by reason of its adoption and its submission to the Minister.

84. As I have already intimated, I think this is the correct approach to the consideration of an application for variation which is consistent with a Policy Plan devised by the Commission. I adopt with respect the dicta of Dunphy J. in In Re City Area Leases Ordinance (1963) 9 LGRA 190 at p 206, which is the earliest reported case on the operation of s.11A Dunphy J. said:

"Despite the foregoing it should be noted that
because of the provisions of s.11A aforesaid each
lessee has been given the statutory right to make
application for variation of the 'purposes' provision
of his lease and one major and significant result of
this right is that no lessee is entitled to believe
that the character of his neighbours occupancy of his
lease is to remain permanent and unchangeable. He
takes his own lease subject to that right and with the
knowledge, express or implied, that his neighbour has
an identical right. A lessee has the additional and
most valuable right, conferred by s.11A, to apply for
leave to oppose any application his neighbour may make
to change the purpose of his (i.e. his neighbour's)
lease.

In short, therefore, no lessee can obtain
variation of the purposes clause of his lease except by
application made to the Supreme Court in proper form
which application may be vetoed by the Minister or, if
not vetoed, may be opposed by any person who obtains
leave of the Supreme Court to do so."

85. Dunphy J. went on to say that the Ordinance gives no direct guidance in regard to the principles which are to be applied by the court when considering an application for variation. In that regard the private objectors submitted that they, as lessees in the immediate vicinity, are persons having rights in respect of the purpose clause similar to those rights which the dominant tenements in a building scheme would have, in respect of which s.89 of the Conveyancing Act 1919 (NSW) would apply.

86. It would thus follow, so the argument ran, that the onus which the applicant bears is not merely to show that the proposed user is a reasonable user of the land but rather that no reasonable user of the land is possible unless the restriction is modified (Heaton v. Loblay (1960) SR(NSW) 332; Re Roseblade; Re Foenander (1964-65) NSWR 2044 and Re Alexandra (1980) VR 55. An alternative way of expressing the appropriate approach is that "the continuance of the unmodified covenant hinders to a real, sensible degree the land being reasonably used, having regard to the situation it occupies, to the surrounding property, and to the purpose of the covenant" (Re Ghey and Galton's Application (1957) 2 QB 650 at 663).

87. Such an approach would be contrary to that adopted by Kerr J. in In the Matter of an Application by Warmac Dickson Pty Limited (unreported, 10 October 1969) where his Honour concluded that the proper approach to an application under s.11A was as follows:

1. It is not necessary for the applicant to prove or
for the Court to be satisfied that the existing
use of the land is not a reasonable one.

2. The applicant must prove and the Court must be
satisfied that the proposed user as expressed in
the proposed varied purpose is a reasonable one
and that that use would be impeded if the purpose
clause were not varied.

3. If the Court is satisfied of this then it must go
on to consider whether there are such
circumstances existing as in the opinion of the
Court make it desirable to vary the provision in
the lease so that the reasonable use proposed
should not be impeded.

This approach was adopted by Miles C.J. in An application by Atherane Pty Limited (unreported decision delivered 23 August 1985).

88. In my view the terms of s.11A(2) impose a much heavier degree of satisfaction that there are such circumstances existing as in the opinion of the court make it desirable to vary the provision etc. in order that the reasonable user of the land should not be impeded. It follows, in my judgment, that the contention of the private objectors is correct. It is not sufficient merely to show that the proposed user is a reasonable user of the land. It is necessary to show that no reasonable user of the land is possible unless the change of purpose is granted, and thereby the reasonable user of the land not impeded.

89. In the present case there can be no doubt that the present purpose clause for Blocks 8 and 9 does not prevent a reasonable user of those blocks. Admittedly, the domestic residences have been allowed to fall into a state of dilapidation but the land can be used quite well for residential purposes. Furthermore, I am of the view that the loss of amenities to the adjoining neighbours is such as to amount to circumstances which make it undesirable to vary the purposes clause.

90. I am conscious of the orders made by Kelly J. changing the purpose clause in respect of Blocks 5 and 6, Section 43, in earlier proceedings. Whilst that is a factor to be taken into account, in my view it should not determine the fate of the present application. There was no evidence before me of the planning considerations which were considered by his Honour in making those orders.

91. In my view the adjoining neighbours to Blocks 8 and 9, and in particular the private objectors who have opposed the application, would suffer substantial injury if the change of purpose clause were approved. I refuse the application for variation.