Argyle Homes Pty Limited and Kaycraft Pty Limited v the Interim Territory Planning Authority [1991] ACTSC 29; (1991) 104 FLR 173 (18 April 1991)

SUPREME COURT OF THE ACT

ARGYLE HOMES PTY LIMITED and KAYCRAFT PTY LIMITED v. THE INTERIM TERRITORY
PLANNING AUTHORITY
S.C. Nos. 619 of 1990 and 82 of 1991
Administrative Review
[1991] ACTSC 29; (1991) 104 FLR 173

COURT

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

CATCHWORDS

Administrative Review - decision of Planning Authority in relation to proposed alteration to draft policy plans - review of "decision and/or conduct" not to hold further consultations with respect to proposed alteration - whether proposed alteration unlawfully prepared.

Requirement to re-advertise draft alteration - s.74(1) and (2) ACT(P and LM)A - whether draft variation is "substantially different" from that originally proposed.

Consultation process - whether a question of natural justice - "legitimate expectation" to be treated fairly - s.75 ACT(PandLM)A - whether legislation excludes legal remedy.

Notice under s.74(1)(b) ACT(P and LM)A mandatory - original notice not defective.

Draft proposal not defective - not "too vague or uncertain" - distinguished from development proposal - alternative future developments sufficiently identified.

Remedy - applicants standing under AD(JR)A - whether there is a "decision" within meaning of Act - consideration of authorities - relief.

Yarralumla Policy Plan 1979

Yarralumla Brickworks South Canberra Policy Plan 1988

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), s.74(1)(2), s.75, s.76, s.77, s.79

City Area Leases Act 1936 (ACT), s.11A

Administrative Decisions (Judicial Review) Act 1989 (ACT), s.3(1)(3), s.4, s.6, s.9(2)

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

IDONZ Pty Ltd v NCDC (1986) 67 ALR 46

Application by Wattle Community Association Inc (unreported; SC 264/90; Higgins J.; ACTSC; 22/8/90)

Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64

Ogle v Strickland (1987) 71 ALR 41

Stammers v Broadbridge (1987) 73 ALR 523

Gourgaud v Lawton (1982) 42 ALR 117

Attorney-General (NT) v Minister for Aboriginal Affairs and Ors (1986) 67 ALR 282

Director-General Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571

Riordan v Parole Board (1981) 34 ALR 322

Duncan v DFRB Authority (1980) 30 ALR 165

Ross v Costigan (1982) 41 ALR 319

Brettingham-Moore v St Leonards Municipality (1969) 121 Ch R 509

Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533

Convery v Ziino (1985) 70 ALR 383

Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41

HEARING

CANBERRA
18:4:1991

Counsel for the Plaintiff: Mr Tamberlin QC with Mr Wilcox

Instructing solicitors: Messrs J.S. O'Connor Harris and Co

Counsel for the Defendant: Mr R. Williams QC

Instructing solicitors: ACT Government Solicitor

Counsel for the Commonwealth: Mr T. Howe

ORDER

The relief sought under the Administrative Decisions (Judicial Review) Act 1989 (ACT) be refused.

The claim for declarations be dismissed.

DECISION

These are two actions, heard together. Argyle Homes Pty Ltd and Kaycraft Pty Ltd (Applicants/Plaintiffs) have sought a review of the "decision and/or conduct" of the Interim Territory Planning Authority and the Commonwealth of Australia in relation to the proposed alteration to a draft variation to the Yarralumla Policy Plan 1979 and the Yarralumla Brickworks South Canberra Policy Plan 1988. Those respondents are defendants to the other action which claims that the proposed alterations and variations have been "unlawfully prepared". It is, of course, apparent that the Commonwealth had no role to play in these proceedings. The action was discontinued against it but it did seek to be, and was, heard.

2. I will refer to the Applicants/Plaintiffs merely as "Argyle". They are the proprietors of two blocks of land at the southern end of Lane Poole Place in Yarralumla. The remaining Respondent/Defendant I will refer to as "ITPA".

3. At the time the blocks of land referred to above were developed, there were in place the abovementioned Policy Plans. Those Plans referred to a road reservation between Dudley Street and the Royal Canberra Golf Club passing in an arc to the west of the Brickworks. It was intended to provide access to the Brickworks. It linked with a second planned road linking those areas to the lake (the "Tourist Road").

4. Lane Poole Place is a development which utilizes part of the original Brickworks' land area. It is, accordingly, the residential area most affected if the "Tourist Road" referred to in the 1979 Plan proceeds.

5. The facts of the matter seem reasonably clear. In February 1990, the ITPA issued for public comment a proposal for varying the existing Yarralumla Policy Plans.

6. A notice informed the public that there were proposed variations to the above Plans, summarised them and offered copies "free of charge from The Authority's Offices...(address supplied)". That notice was published in the Canberra Times on 23 February 1990 and in the Australian Capital Territory Gazette on 28 February 1990. It invited "written representations" about the draft variation "by 23 March 1990".

7. Mr O'Brien, an officer of the ITPA, deposed that the draft variation was submitted "in March or early April 1990" to the National Capital Planning Authority (NCPA). Consultations took place with the NCPA. (The NCPA and the ITPA are the successors to the National Capital Development Commission - NCDC.)

8. Forty-one public representations were received. Mr O'Brien says that they were "considered".

9. He deposed that discussions were held with representatives of the Royal Canberra Golf Club. Whilst not objecting to the new road, the Club did not approve of the closure proposed of the access to it from Bentham Street, Yarralumla.

10. In March 1990, there was also a meeting with the residents of Lane Poole Place. They opposed the road. This opposition was related to the proposal that its route would be, in part, further to the east than the gazetted road reservation. Mr O'Brien says a further meeting was held with residents of Lane Poole Place on 23 May 1990. They also opposed the Bentham Street closure and continued to oppose the road from Dudley Street to the Golf Club.

11. Argyle objected particularly to the portion of the proposed road between the Brickworks' site and the Golf Club. That was closest to their blocks of land.

12. After stating that objection and making representations opposing the road (including reasons for so doing), Mr Winnel for Argyle, wrote to Mr Campbell (ITPA) requesting that he (Winnel) be informed of any intention to finalise the proposed variation "so that I will have the opportunity to pursue my own remedies".

13. Following these discussions, the ITPA drafted a report to the ACT Executive. This was a step towards compliance with s.75 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (ACT(P and LM)A). Part of that report recommended certain alterations from the original draft proposal which had been exposed for public comment.

14. These changes can be summarised as follows (as noted in exhibit 3):-
"1. Golf Course gates remain open.

2. Consequential intersection between Bentham Street and
the new road.
3. New road takes a different route.
4. Misdescription - RSGC instead of RCGC.
5. Set back in Section (2) increased 20 metres to 35
metres on south side of Dunrossil.
6. Plan is an implementation plan, not a draft
implementation plan.
7. Continue pedestrian access Denman Street to Dudley
Street west of Uniting Church. This is not shown on
either plan.
8. Re-forming of the junction Bentham Street/Lane Poole Street
(sic) has been deleted.
9. No designated areas shown anywhere on plan 4."

15. One proposed change which would have affected the residents of Lane Poole Place and Argyle in particular was that which would place the route of the proposed access road further east than the original draft variation suggested. Deletion of the proposed "reforming" of the Bentham Street/Lane Poole Place intersection may have also had some effect.

16. The purpose of the proposal to route the new road further to the east was to utilise the currently disused car park area of the Brickworks, thus minimising the number of trees which might need to be felled to make way for the road. The result would be that the road when made would swing even closer to the end of Lane Poole Place.

17. On 22 August 1990 the draft report was submitted to the Government Service Planning Committee "for its consideration and support". This step had no legislative significance. It simply gave other interested senior bureaucrats the opportunity to make suggestions if they chose. The draft report was, in fact, supported by the Committee.

18. However, the report has yet to be submitted to the Executive. The reason for it being withheld is that a report is awaited from the Joint Parliamentary Committee on the ACT as to the "set-back" from Dunrossil Drive, Yarralumla of the proposed area to be leased for a Brickworks development. It is agreed that once that issue (which has no impact one way or the other on Argyle) is resolved, the report will be submitted to the Executive for approval of the amended draft variation.

19. If the Executive approves the amended draft variation it may effect the proposed changes to the relevant Plans by notifying them in the ACT Gazette (s.79, ACT(P and LM)A).

20. The Executive is not obliged to approve the proposal. Pursuant to s.76, the Executive is empowered to refer the draft variation back to the ITPA, directing or suggesting further consultations or alterations.

21. The ITPA (s.77) is then required to hold the further consultations (if any) and consider the suggested amendments (if any). Having then reconsidered the draft alteration the ITPA may, but is not obliged to, further alter the draft variation. The Executive may, if necessary, continue to return the proposed draft variation back to the ITPA for so long as it is minded not to approve such a draft variation.

22. It is against this legislative background that Argyle submits that it is entitled to relief, either by quashing the "decision" not to hold further consultations, including consultations with Argyle, or to declarations that no such draft variation can lawfully be approved without such consultations.

23. These submissions raise some substantive questions for determination.
1. Does the "draft alteration" need to be readvertised?

24. Essentially, this submission commences with the proposition that the purpose of s.74(1) (ACT(PandLM)A) is to provide the ITPA with representations from the public concerning a draft variation. It follows, it is said, that the power of amendment following the public exposure of the draft variation is circumscribed. That power is contained in s.74(2). It is exercisable only after consultations with the NCPA and regard being had to representations from the public.

25. In this case, the amendments proposed to the draft variation did follow such consultations and representations. The evidence clearly indicates that "regard" was had to those consultations and representations. A consideration of the content of the draft report to the Executive satisfies me, if I need so to be satisfied, that the "regard" had was, in fact both careful and comprehensive. Indeed, Mr Tamberlin QC for the applicant, did not submit that the consultation process was or had been a sham or even insufficient in the sense that "regard" was not had to each issue raised by the public representations received.

26. His submission really is that the consultation process was flawed because the amended draft variation following that process is, whether as a result of it or not, "substantially" different from the draft variation originally proposed. Consequently, he submits, it is really a "new" draft variation and must be submitted and dealt with in accordance with s.74(1) as if it were a new proposal.

27. It may be noted that s.74(2) does not expressly state that if alterations are made, s.74(1) should apply again whether absolutely or conditionally.

28. Mr Williams QC and Mr Howe (for the ITPA and the Commonwealth intervening, respectively) submit that there is no requirement to re-advertise. The decision as to whether amendments are so extensive as to require a further consultative process and the extent of that requirement is, they say, a matter for the Executive. That is the legislative scheme. In any event, they say, the proposed amendments are not so extensive as to change the character of the proposal and take the amendments out of the category of those within the authority of the Executive to deal with. It is not, in substance, so substantially amended as to be a new or different draft variation.

29. I agree with this latter submission. Unless alterations made pursuant to s.74(2) are so extensive that the character of that draft variation is altered, so that, in substance, it becomes a new draft variation, the need for further consultation is a matter for the Executive to determine pursuant to s.76. That point is not reached in this case. The proposed alterations to the draft variation have not been so extensive as to cause me to conclude that the draft variation has lost its original identity or character.
2. Is there a requirement further to consult Argyle as a matter of "natural justice"?

30. Mr Tamberlin QC puts this argument as an alternative to the previous argument. He says that, for example, if representations by A suggest an amendment, which would adversely affect B, then before adopting that suggestion as an alteration to the draft variation, the ITPA should give B an opportunity to make representations concerning A's suggestion.

31. It is said that the consultation process gave rise to a "legitimate expectation" that those who responded to the advertisement of the draft variation would be treated fairly before the draft for submission to the Executive was settled. (See Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 per Mason J.)

32. It is said that such a "legitimate expectation" may arise, either from the legislative provisions in question or from the manner in which the relevant authority has conducted itself previously. However, the nature and extent of the duty to act fairly may well be quite circumscribed as a result of those considerations (see, for example, IDONZ v NCDC (1986) 67 ALR 46).

33. An important part of defining the nature and extent of the relevant duty is a proper construction of the legislation itself.

34. This legislation provides, first, for the obtaining and consideration of (inter alia) public "representations". There is no express duty to consult those who have made representations. However, because a variation to an NCDC policy is not to be effected lightly, it is reasonable to infer a duty to consult at least for the purpose of understanding and, hence, having a real "regard" to, those representations.

35. In my opinion, this view is strengthened by the terms of s.75 (ACT(P and LM)A). That section requires the "draft variation", whether or not altered pursuant to s.74(2), to be submitted to the Executive together with "a written report" on its consultations under s.74. Of course, on one view, the reference to "consultations" could be regarded as excluding from the report the "regard to any representations" referred to in s.74(2). This is not how Mr Campbell regarded it, and in my opinion, he was correct in so doing. The "written report" on "consultations" should include a report as to the "regard" had to the public representations referred to in s.74(2).

36. If the report is so comprised, the Territory Executive will have before it a full report on the relevant "consultations". Mr Campbell's draft report (Annexure A - affidavit 12/11/90) is a good example of the "written report" contemplated by s.75.

37. It is important to note that the purpose of the report is to advise the ACT Executive on a matter of planning policy. Draft variations can range from overall suburban plans to quite specific proposals. Nevertheless, the ultimate result, from the ITPA viewpoint, is advice to the ACT Government Ministers (that is, the "Executive").

38. The ACT Executive is then empowered either to approve the draft variation without further alteration or refer it back to the ITPA suggesting either or both of further consultation or alteration. It seems to me that the Executive has (inter alia) a duty to consider whether the consultation process has been sufficient. If the report is, as it is undoubtedly intended it should be, an accurate and full report, it is a matter for the judgment of the Executive whether the consultation process has failed to fairly represent the views and objections (if any) of interested persons or bodies who have made representations or have been otherwise "consulted".

39. It seems to me that Argyle has a right to have its representations concerning the draft variation properly and fairly conveyed to the Executive, but no more than that. If, for example, the draft variation was originally exposed with no change to the proposed access road at all (that is, leaving it as originally gazetted), it would be unfair to nearby residents substantially to alter its proposed course or upgrade it to a major highway. That would cause adverse consequences for nearby residents not entailed by the original draft variation. It would deny a fair opportunity for representations to be made with respect thereto. This would follow even if the essential character of the draft variation was not substantially changed.

40. In such a case, however, two questions would still remain. The first is whether the process required by ss.77 to 79 evinces an intention to exclude any legal remedy. That would leave it to the Executive alone to decide whether fairness or any other relevant consideration required further consultation. The second is whether there has been shown to be any unfairness in the present case even if the Executive's discretion is limited by considerations of fairness to those who have a right for their representations to be considered by the ITPA.

41. As to the first question, it seems to me that what is unfair is relative to the fact that an "alteration", not a changed proposal, is being considered. It is also not a situation where the rights of persons are directly in issue. There was no prior right to be heard on planning issues such as exists in the case of particular proposed redevelopments involving change of purpose clauses in existing Crown Leases (see s.11A City Area Leases Act 1936 (ACT) (CALA)). It is true that the NCDC, before the present legislation was passed, had a policy of community consultation on planning decisions. Nevertheless, there was no "right" or "legitimate expectation" of consultation which was more extensive than the right (or expectation) conferred by the ACT(P and LM)A for representations made by interested persons or bodies to be properly considered and fairly reported to the Executive. This, in fact, goes further than the previous "practice" in any event. It does not follow that the ITPA is under a duty to disclose to interested parties what it intends to recommend to the Executive following the "regard" had by it to such consultations or representations.

42. It follows that an amendment proposed to a draft variation could only qualify as disappointing a "legitimate expectation" if, whilst not going so far as to render it a different proposal, it nevertheless raises an issue that had not been the subject of proper consultation or representation, and adversely affects the position of some person having a right to be heard under the Act.

43. In this case, the proposals affecting Lane Poole Place and Bentham Street were sufficiently exposed so as to enable all relevant representations to be made. It seems to me that the representations, including those from Argyle, addressed the issues raised by the proposed alterations to the draft variation just as much as they addressed the draft alteration as originally proposed.

44. In particular, a road was always planned. Argyle would prefer no road although they accept that they cannot fairly object to the originally gazetted proposal. The closer the road to Argyle's land, the greater is their opposition, the greater the likely impact on them. The proposal not to close Bentham Street rather than otherwise has no deleterious affect on Argyle's interests. Quite the contrary. The alteration or not of the Bentham Street/Lane Poole Place intersection seems to me to be quite peripheral. The representations of or supported by Argyle had, in fact, raised issues some of which persuaded the ITPA in their favour and some of which did not. If on balance, Argyle will be worse off if the Executive implements the draft report (and it may be), that is not a matter which the ITPA is obliged to draw to Argyle's attention.

45. It is enough that the ITPA had proper regard to Argyle's representations and it consulted sufficiently to understand them and the impact the proposed amendments to the draft variation would have on Argyle's interests. I have concluded that such proper regard was in fact, given.
3. Was the original notice defective?

46. I have no doubt that the giving of notice as required by s.74(1)(b) forms a mandatory part of the consultation process. Indeed, it is a necessary precondition to the ITPA being able to fulfil its duty under s.75.

47. The ACT(P and LM)A does not prescribe a precise time limit or minimum period between advertisement and the closing time for representations. Nevertheless, consistently with Application by Wattle Community Association Inc (No. S.C. 264/90; Higgins J.; ACTSC; 22/8/90), I accept that compliance with s.74(1)(b) is mandatory for a notice referred to therein to be valid. A valid notice is, in turn, a necessary and important part of the consultation process.

48. However, nothing in s.74(1)(b) requires notices which in their form comply with s.74(1)(b) to be published simultaneously. Nor does it matter that the draft variation was available for perusal before that fact was so notified. It is enough that in each case, the notice referred to allows "a reasonable period", as specified in the notice, for representations to be made.

49. The notice was published in the Canberra Times on 23 February 1990. It was also published in the Gazette on 28 February 1990. In each case, the public was invited to make written submissions by 23 March 1990. Certainly, a reader of the Gazette who did not read the Canberra Times would have five days less to react to the notice than a reader of the Canberra Times. However, the lesser period of 23 days' notice still seems to me to be a "reasonable period".

50. I conclude, therefore, that the original notice was not defective.
4. Was the "draft proposal" too vague and uncertain to be properly characterised as a "draft proposal"?

51. The vagueness and uncertainty pointed to is the lack of specificity so far as the new road is concerned.

52. The notice says it is proposed:-

"2. To delete the proposed (gazetted but not constructed)
Western Tourist Road and designate the land Restricted Access
Open Space. This road is to be replaced by a requirement
for the developer of the brickworks site to extend the
new access road north to provide access to the Royal
Canberra Golf Club. When this road is constructed it
is proposed to sever access to the club from Bentham
Street."

53. The "Draft Proposal for Public Comment", February 1990, does identify the gazetted road area of which deletion is proposed. A "Draft Implementation Plan, Plan 4" identifies the "approximate location of new access road".

54. Mr Tamberlin QC points also to the oral evidence which indicates that the road in question is intended to be constructed by the private developer who obtains the lease of the Brickworks site. It is conceded that the precise size, including numbers of trafficable lanes and of trees to be affected, has not been determined. The proposed route is indicative only. The precise alignment of the road has not been determined.

55. However, with due respect, this submission seems to me to confuse a policy plan with a development proposal. The latter would, of course, be expected to be precise. Although the draft variation in question here is designed to accommodate a future development proposal, it is not itself such a proposal. The matters which should be taken into account in formulating a variation to a policy plan are to be identified, in part, by the consultation process. If the authorities choose to ignore the concerns of residents, albeit aware of them through the consultation process, it will ultimately be the Executive which bears the political cost if it adopts the proposal. Whether there is also a legal remedy depends on the legal effect of the particular consultation process undertaken. Policy Plans need not precisely identify which of various possible future developments are to be viewed with favour. Some flexibility or ambit for variation is inevitable. The Policy Plan, conceivably, could propose no limitations on future developments.

56. It seems to me that it is sufficient that this draft proposal identifies the various alternative future developments which are to be regarded as permissible. It does so in a manner sufficient to raise all relevant issues. It seems to me no more can reasonably be required.
5. What is the proper remedy, if any?

57. If I am wrong in my conclusion that the process adopted so far has not resulted in unfairly disappointing any "legitimate expectation" of Argyle, a real question remains as to whether any remedy should be granted.

58. The initial application was made pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (AD(JR)A).

59. I do not have difficulty with the notion that Argyle (collectively and individually) is a "person interested" in or a "person aggrieved" by the proposed variation or its alteration. Argyle is entitled to make representations pursuant to a statutory right to do so, and to have "regard" accorded to those representations. It is (or they are) a nearby resident (or residents) whose interests will be affected by the ultimate form of the proposed variation.

60. The concept of "a person aggrieved" under the AD(JR)A is a flexible one and not to be considered in a narrow sense. (See Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64, 79 per Ellicott J.; Ogle v Strickland (1987) 71 ALR 41; Stammers v Broadbridge (1987) 73 ALR 523.) The interests asserted by Argyle, at least in combination, are sufficient to found standing under AD(JR)A.

61. The next question is whether there is a "decision" within the meaning of AD(JR)A.

62. Section 3(1) AD(JR)A defines a "decision" as:-

"...a decision of an administrative character made,
proposed to be made or required to be made (whether in the
exercise of a discretion or not) under an enactment..."

63. Also relevant, in the present matter is s.3(3):-

"Where provision is made by an enactment for the making of
a report or recommendation before a decision is made in the
exercise of a power under that enactment or another law,
the making of such a report or recommendation shall be
taken, for the purposes of this Act, to be the making of a
decision."

64. Section 4 permits review of such "a decision" on various grounds set out therein. Section 6 goes further. It permits review, where:-

"(1) ...a person has engaged, is engaging, or proposes to
engage in conduct for the purpose of making a decision
to which this Act applies..."

65. The ultimate decision, of course, is the approval of a draft variation to the gazetted policies of the NCDC, whereupon that variation will take effect. That enables a specific development proposal to be approved by way of grant of a Crown Lease (inter alia) which would, but for the variation, be contrary to such a policy, and therefore legally impermissible.

66. The written report on consultations is a legislative requirement. It is a condition precedent to a decision to approve a draft variation. It follows that the making of such a report to the Executive is to be taken as the making of a decision.

67. The undertaking of the consultation process is said to be conduct engaged in "for the purpose of making a decision" within the meaning of s.6 (AD(JR)A). That "conduct" would then be reviewable.

68. The present case is distinguishable from Gourgaud v Lawton (1982) 42 ALR 117. In that case the report or recommendation was not mandated by the legislation. In this case, the written report is required by the legislation itself. (See, for example, Attorney-General (NT) v Minister (1986) 67 ALR 282.)

69. Nevertheless, whether the report or recommendation in fact is "a decision" depends on the legislative intent with respect to that report or recommendation. The word "decision" in s.3(3) conveys the same meaning in the AD(JR)A as it does in other legislative enactments. It refers to a final resolution or determination of "the matter" (see Director-General Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571; Riordan v Parole Board (1981) 34 ALR 322).

70. Thus a report, for example, of a Royal Commission would (unless expressly excluded) be a final resolution of "the matter" under enquiry. It therefore can be deemed to be "a decision", whether pursuant to s.3(3) or not. However, a report which simply provided information, for example, a probation and parole report, which was to be subject to scrutiny and debate before the issue to which it was directed was decided, would not, in my view, constitute a "decision", even with the aid of s.3(3). The same test applies to the case of a "recommendation". In that context, I accept that a duty to "report" includes a power to make a "recommendation".

71. The question, therefore, is whether the "report" in the present case "disposes of the final issue". That issue, of course, is the variation. The existence of a power in the ultimate decision-maker to reject, accept or require reconsideration of the report's recommendation before the decision of the ultimate issue takes effect is not decisive of the issue. Indeed, the report need not have an effect of itself on the ultimate decision. (See Duncan v DFRB Authority (1980) 30 ALR 165; Ross v Costigan (1982) 41 ALR 319, 331-2 per Ellicott J.)

72. The "report" in this case is a condition precedent to an Executive decision under s.76 of ACT(P and LM)A. It bears a real relationship to the decision of the ultimate issue. There is no right for those who made representations to be heard before it is implemented, though, if the Executive thinks fit, they could be afforded that privilege. In my opinion, the decision to report does fall within the AD(JR)A as a reviewable decision. The consultation process is accordingly, "conduct" engaged in for the purpose of that decision being made, and is therefore also reviewable.

73. As noted in Brettingham-Moore v St Leonards Municipality (1969) 121 Ch R 509, a "person aggrieved" by such a proposed report also has standing to seek appropriate declarations.
6. Would relief be granted?

74. The ACT(P and LM)A permits persons to make known their views and put forward any supporting material as to proposed draft variations to gazetted Policy Plans. That is the extent to which there is a right for members of the public to be heard on a proposed variation to such a Plan.

75. Even if Argyle had made out a case that they had been prevented from exercising that right to the full extent permitted, it is apparent that:-

(i) Argyle could have addressed a request to the Executive
for access to the final report of the ITPA; and
(ii) Argyle could then have addressed further
representations to either or both of the ITPA or the
Executive.

76. In some cases that course might not be effective because no such access is in fact sought, or if sought, is refused. The option of seeking such access might not be appreciated. A party may not be aware of the likelihood of an adverse recommendation. However, if following such a request, access was unreasonably denied, the ITPA or the Executive would risk a finding that the report had failed fairly "to have regard to" representations from persons who had exercised their rights to make representations and had a legitimate interest affected by the proposed report. That is, however, not the present situation.

77. In this case Argyle has remedied any deficiency in their previous representations. They have obtained access to the draft Report and have addressed the issues raised by it. This may not bring the case within s.9(2) (AD(JR)A) but it certainly raises a matter of discretion under s.16 (AD(JR)A). (See Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533.) I am satisfied that, even if there had been a reviewable defect in the process of preparation of the report, that deficiency has been remedied in the course of these proceedings (see Convery v Ziino (1985) 70 ALR 383).

78. A similar discretion exists in proceedings seeking a declaration (see Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41).

79. It seems to me that no useful purpose would be served by the grant of any of the orders sought, even if it was open to grant any of them.
The result of the Proceedings

80. In the result, relief sought under the AD(JR)A is refused and the claim for declarations is dismissed.

81. I will hear the parties as to the question of costs.