Re Section 11a City Area Leases Ordinance 1936 and Re An Application By Atherane Pty Limited To Vary the Provisions of the Crown Lease Relating To Block [1988] ACTSC 57 (20 October 1988)

SUPREME COURT OF THE ACT

IN THE MATTER of SECTION 11A CITY AREA LEASES ORDINANCE 1936
AND IN THE MATTER of an APPLICATION by ATHERANE PTY LIMITED to vary the
provisions of the CROWN LEASE relating to BLOCK 1 SECTION 29 DIVISION of
BRADDON in the AUSTRALIAN CAPITAL TERRITORY
S.C. No. 635 of 1988
Town and Country Planning

COURT

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

CATCHWORDS

Town and Country Planning - City Area Leases Ordinance 1936 - application for variation of purpose clause of lease from Commonwealth under s.11A - whether proposed change from residential to commercial use is reasonable - weight to be given to fact that NCDC policy plans indicate support for a mix of residential and commercial use - weight to be given to incompatibility of appearance of proposed building with that of nearby houses - whether lack of objector lends weight to application - role of Minister in hearing of application.

Morpath Pty. Ltd. v. ACT Youth Accommodation Group Inc and Others (1987) 74 ALR 121

HEARING

CANBERRA
20:10:1988

Counsel for the Applicant: Mr T.J. Higgins

Solicitors for the Aapplicant: Crowley & Chamberlain

Counsel for the Respondent: Mr I. Curlewis

Solicitors for the Respondent: Australian Government Solicitors

ORDER

The applicant pay one quarter of the Minister's costs.

DECISION

On 12 August 1988 I indicated that if further evidence was placed before me which showed that the National Capital Development Commission (NCDC) supported the proposed variation of the purposes clause of the lease of Block 1 Section 29 Braddon from residential to commercial purposes on proper town planning grounds then I might be persuaded that the proposed use is in the public interest. On 26 August 1988 after hearing evidence from Mr. Geoffrey John Campbell, chief planner of the NCDC, and reading a further affidavit sworn by Mr. Henry Paul Street, the valuer whose professional opinion was the subject of previous comment by me, I made an order approving the change of use. I now state my reasons.

2. In his further affidavit, Mr. Street swore that he has no connection with the applicant Atherane Pty Limited and that he believed the reference to himself in an extract from the Canberra Times of 29 May 1988 was a "reporter's error". Accordingly, I no longer hold the view that Mr. Street's opinion evidence might not be that of a disinterested expert.

3. In the further affidavit sworn by Mr. Campbell, he states that the draft Civic Centre Canberra, Policy Plan Implementation Plan published by the NCDC in November 1987 has not yet been adopted by the NCDC and that consequently current NCDC policy for the area in question is contained in the Civic Centre Policy Plan Development Plan 1984. Because both the 1984 Plans and the 1987 Plans state that Section 29 Blocks 1 to 8, 10 and 11 is intended for residential development and small scale office use, I previously concluded that the NCDC intended this area to be used for a mixture of residential and commercial uses. However, Mr. Campbell's evidence has now clarified the policy of the NCDC for this area. He states in his affidavit that "in preparing and approving this policy the Commission was identifying the land use types that would be acceptable. It was not expressing a view that a mixture was required and it did not therefore set criteria for such a mixture. If a mixture has been required then the Commission would prescribe the percentage or location of the elements of such a mixture". He further states that "in the Commission's view the use as applied for is consistent with the NCDC policy for the area". In his oral evidence, Mr. Campbell said that if the application was approved the NCDC would then determine whether the proposed building was of a style compatible with that of other buildings in the section, as required by the NCDC's 1984 Policy Plan.

4. As has been stated by this Court on a number of occasions, the ultimate question to be decided is whether it is in the public interest to approve the proposed change of use. The principles established by the Morpath decision require that the wide discretion conferred upon the Court by s.11A(1) of the City Area Leases Ordinance 1936 should be exercised in the public interest having due regard to society's interest in the fullest use of the land balanced against the interests of local users in nearby amenities. Consideration of the former requires that substantial weight be given to the planning policy of the NCDC for the area in question.

5. Mr. Campbell states in his affidavit that in preparing and approving the 1984 policy for Section 29 Blocks 1 to 8, 10 and 11 the Commission was merely identifying the types of use that would be acceptable and that "the determination of which permitted land use was to be utilised was left for the market to decide".

6. It would appear that, on this approach, so long as any proposed use is one which is included amongst uses approved by the NCDC, then the choice of the particular use to which the land is to be put is to be left to market forces. In this respect the public interest, so it seems, coincides with what the market determines. On the evidence before me, the market for land in the Braddon area has determined that the use of the land in question for small scale office and professional purposes is more appropriate than its use for residential purposes.

7. I do not resile from my previous remarks about the misgivings I have about whether the proposed change of use will contribute to the visual amenity of Torrens Street and Elouera Street or to the amenity enjoyed by the residents of the area and the users of Northbourne Oval. Nor do I express the opinion that in every case the real estate market will be the ultimate determinant for approving the variation of the purposes clause of a lease under s.11A. Nevertheless, I was not convinced, in the end, that the proposed change of use is against the public interest, and in the absence of any objection, I made the order approving the proposed variation of purposes clause in the terms of the Short Minute of Order dated 26 August 1988 granting the application for the purpose clause of the Crown Lease for Block 1 Section 29 Division of Braddon to be varied from residential to office/professional suites/carparking with the provisos as noted.