Jewel Food Stores Pty Limited, Olaseat Pty Limited, J Krnc T/As Hawker Festival Supermarket, P and A Christodoulou T/As Kippax Supabarn and Fadco Pty Limited T/As Festival Charnwood v Bill Wood, Minister of the Environment Land and Planning, Roger Thomso [1994] ACTSC 104 (7 October 1994)

SUPREME COURT OF THE ACT

JEWEL FOOD STORES PTY LIMITED, OLASEAT PTY LIMITED, J KRNC t/as HAWKER
FESTIVAL SUPERMARKET, P and A CHRISTODOULOU t/as KIPPAX SUPABARN and FADCO PTY
LIMITED t/as FESTIVAL CHARNWOOD v. BILL WOOD, MINISTER FOR THE ENVIRONMENT
LAND AND PLANNING, ROGER THOMSON, REGISTRAR PLANNING APPEALS BOARD and CONTIS
INVESTMENTS PTY LIMITED
No. SC806 of 1993
JEWEL FOOD STORES PTY LIMITED, OLASEAT PTY LIMITED, J KRNC t/as HAWKER
FESTIVAL SUPERMARKET, P and A CHRISTODOULOU t/as KIPPAX SUPABARN v. BILL WOOD,
MINISTER FOR THE ENVIRONMENT LAND AND PLANNING and CONTIS INVESTMENTS PTY
LIMITED
No. SCA60 of 1994
Number of pages - 17
Administrative Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Administrative Law - administrative decisions - administrative tribunals - appeal - judicial review - approval of redevelopment application - objection taken - application for review - whether applicants entitled to apply for review - whether any applicant was a "person who may be affected" - consideration of test to be applied - whether any entitlement removed - whether and when right of review accrued - consideration of appropriate body to conduct review.

Land (Planning and Environment) Act 1991 (ACT), s.159, 225, 226, 229, 230, 236, 237, 276, 288, Schedule 4, Pt VIA, Regulation 18
Administrative Decisions (Judicial Review) Act 1989 (ACT), s.5, 6, 12

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)
Territory Plan, s.7
Land (Planning and Environment) (Amendment) Act (No. 3) 1993 (ACT)
Judiciary Act 1903 (Cth)
Excise Act 1901 (Cth)
Interpretation Act 1967 (ACT), s.14(1), 38(c)
Trade Practices Act 1974 (Cth)
Interpretation Act 1889 (UK) (52 and 53 Vict, c63)
Local Government Act 1958 (Vic)
Local Government Act 1989 (Vic)
Local Government (Miscellaneous) Act 1958 (Vic)
Migration Act 1958 (Cth)

Colonial Sugar Refining Co Limited v Irving (1905) AC 369
Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28
Bryant v Foot (1867) LR 2 QB 161
National Trustees Executors and Agency Co of Australasia Ltd v A-G (Vic)

(1973) VR 610

Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
US Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64
Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377
Hamilton Gell v White (1922) 2 KB 422
Director of Public Works v Ho Po Sang (1961) AC 901
Robertson v City of Nunawading (1973) VR 819
Stott v Minister for Immigration and Ethnic Affairs [1985] FCA 125; (1985) 59 ALR 747
Commissioner for Corporate Affairs v X and Y (1987) VR 460
J R Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717
ACI Pet Operations Pty Ltd v Comptroller-General of Customs [1993] FCA 500; (1993) 118 ALR

114
Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430

HEARING

CANBERRA, 15 and 20 July 1994
7:10:1994

Counsel for the Applicants: Mr R J Arthur

Instructing solicitors: Crossin Barker Gosling

Counsel for the First Respondent: Mr P Walker

Instructing solicitors: ACT Government Solicitor

Counsel for the Third Respondent: Mr R Refshauge

Instructing solicitors: Macphillamy Cummins and Gibson

ORDER

THE COURT ORDERS THAT: The declarations sought by the applicants be refused.

DECISION

HIGGINS J On 16 July 1993, Contis Investments Pty Ltd (Contis) and Dinach Holdings Pty Ltd (Dinach) lodged an application pursuant to the Land (Planning and Environment) Act 1991 (ACT) (L(PandE) Act). That application sought approval to redevelop improvements upon Block 5 Section 31 Belconnen, of which the applicants were registered proprietors, so as to increase the Gross Floor Area (GFA) permitted under the Crown Lease in respect of that land by about 25% and to permit the operation of a half case retail outlet from the premises.

2. That proposal was to have been effected by the execution of a variation to the Crown Lease. It was also proposed to consolidate blocks 3 and 5 of Section 31 Belconnen and to issue a new Crown Lease over both, incorporating the variation in question.

3. The premises in question incorporated the Belconnen Fruit Markets (the Markets) and a block of land adjacent thereto.

4. The applicants in these proceedings are proprietors of various businesses in the Belconnen area, being supermarkets which retail goods including the kind of goods sold at the Markets. They fear that the increased retail area of, and range of goods likely to be sold at, the Markets will increase competition against them and reduce their profits.

5. By letter dated 12 November 1993 to the applicants' solicitors, the Acting Manager, Lease Practices Section of the Department of the Environment, Land and Planning (DELP), Mr Gary Richards, advised the applicants of the nature of the application and offered it for inspection.

6. The letter also stated that:

Since the introduction of the Territory Plan some applications for
control (sic) activities are exempt from public notification and third
party appeals and this is such an application.

7. Nevertheless, Mr Richards advised the applicants that their comments, if they chose to make them, would be taken into account.

8. On 26 November 1993, the applicants' solicitors replied. They disputed the assertion that the application was exempt from public notification and third party appeals. They claimed that changes to the law effected after 18 October 1993 could not, as a matter of law, be construed so as to have retrospectively removed the right to objection and appeal previously conferred. They asked that their letter be construed as a formal objection under the L(PandE) Act rather than merely "comments".

9. On 6 December 1993, Mr David Snell, Manager, Lease Practices Section of DELP replied. He rejected the contention that the applicants' submissions, whether treated as an objection or as comment, would give rise to any right of review but undertook that they would be considered by the Minister.

10. The applicants remained dissatisfied and commenced proceedings by Originating Summons on 10 December 1993 seeking declarations as to their rights in the following terms:

1. Declaration that the coming into force of the variation to the
Territory Plan on 18 October 1993 did not preclude any right of the
Applicants
(a) to lodge an objection on 26 November 1993 pursuant to Section 237
Land (Planning and Environment) Act 1991 in respect of a grant of
approval of Application No. 934346 lodged on 16 July 1993;
(b) to be notified of an approval of Application No. 934346 pursuant
to Section 243(1)(b)(iii) Land (Planning and Environment) Act 1991;
(c) to make application pursuant to Section 276(1)(d) for a review of
a decision of the Minister to approve Application No. 934346 or a
decision of a concurring authority not to object to the approval of
Application No. 934346 or a decision of the Executive to approve
Application No. 934346.
2. Declaration that, for the purposes of Section 237(1) Land Planning
and Environment) Act 1991, the Applicants are persons who may be
affected by the approval of Application No. 934346.

11. The applicants also sought:

3. Such other orders as to the Court may seem appropriate consequent
upon the declarations.
4. Costs.

12. On 17 May 1994, the application of Contis and Dinach was approved subject to nine stated conditions. The notification of that decision was received by the applicants' solicitors on 24 May 1994. The conditions were expressed as follows:

1. the boundary of the block shall not be altered to include Block 3.
2. the gross floor area used for the retail sale of fruit and
vegetables shall remain at not less than 825 square metres;
3. the proposed clause 3(e)(vii), which restricts the gross floor area
dedicated to the sale of goods by half-case lots, shall also include
the words "groceries and beverages";
4. the storage area associated with the half-case retail shall be
divided from any adjacent retail area by a partition of concrete or
masonry construction. Any openings in the partition are to be
provided with self-closing doors which shall be kept closed at all
times, except when goods are to be moved to the retail area;
5. public access to the storage area shall not be permitted;
6. the lessee shall provide a parking assessment based on surveys of
current use and demonstrate that the additional demands can be
accommodated, prior to the Planning Authority agreeing to specific
parking requirements;
7. that the landscaping and paving clause of the lease be amended to
delete all references to carparking and a new carparking clause be
inserted to say "that the lessee shall provide and maintain an
approved drained and sealed carparking area in accordance with the ACT
Planning Authority requirements";
8. that if any betterment levy is payable, the lessee will pay it
within 28 days of being notified of the amount; and
9. that the lessee will do all that is necessary to ensure that the
Instrument giving effect to this approval is registered at the
Registrar-General's Office within 14 days of being notified that the
Instrument is available for registration. This includes, but is not
limited to, the production of the lessee's copy of the lease and the
payment of all of the Registrar-General's fees.

13. The first condition amounted to a substantial amendment of the application but Contis and Dinach had previously indicated their consent to that and the other conditions.

14. An application for review of that decision was filed with the Registrar, Land and Planning Appeals Board (the Board) on behalf of the applicants on 14 June 1994. By letter dated 30 June 1994 the Registrar advised that, in his view, the applicants had no right of appeal to the Board in respect of that decision.

15. Accordingly, although still asserting their entitlement to an appeal to the Board, the applicants applied on 13 July 1994 for a review of the Minister's decision pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act). That application was out of time, but there is also an application for extension of time to enable that application to be made. These applications will need to be considered only if the current application is unsuccessful. The present case concerns only whether the declarations sought by the applicants should be made.

Right of Appeal to the Board
16. Section 225(1) of the L(PandE) Act provides that a person who, without reasonable excuse, conducts a "controlled activity":

... other than in accordance with an approval, is guilty of an
offence.

17. "Controlled activities" are specified in Schedule 4 to the L(PandE) Act. Both the execution of a variation of a lease of Territory land and the execution of a new lease entered into for the purpose of affecting the subdivision or consolidation of Territory land, are controlled activities contained in Schedule 4. "Territory land" is defined by s.159 of the L(PandE) Act to have the same meaning as in the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). Section 31 Belconnen is, it is conceded, Territory land.

18. Section 226 of the L(PandE) Act prescribes the procedure for making an application to the Minister for approval to "conduct a controlled activity".

19. It is relevant to notice particularly the terms of s.226(3) of the L(PandE) Act :

The Minister may, before giving notice under section 229 -
(a) at the request of the applicant - make an alteration to an
application or correct a formal error; or
(b) of his or her own motion - correct a formal error in an
application.

20. Section 229(1)(b) of the L(PandE) Act requires the Minister to publish notice of the making of an application to conduct a controlled activity in a daily newspaper. That paragraph does not apply if the "Plan" specifies circumstances in which persons are not entitled to apply for review of certain decisions to approve the conducting of a controlled activity: L(PandE) Act, s.229(2)(b).

21. The "Plan" referred to is the Territory Plan in force pursuant to the L(PandE) Act: s.4(a).

22. The right to a review of a decision of the Minister, granted to third parties, is conferred by s.276 of the L(PandE) Act. Originally, the power to review decisions was vested in the Australian Capital Territory Administrative Appeals Tribunal (AAT). That power was removed from the AAT pursuant to the Land (Planning and Environment) (Amendment) Act (No. 3) 1993 (ACT). The amendment took effect as from 1 December 1993. It vested the power of review in the Board. The Board was constituted under new provisions inserted into Part VIA of the L(PandE) Act by the amending enactment.

23. The class of persons who could apply for review of a decision was confined to the following, L(PandE) Act, s.276(1):

(d) ... a person who objected under section 237; or (a person who)
(e) the Appeals Board has reasonable grounds for believing ... was, in
the circumstances, unable to object to the making of the decision
within the prescribed period.

24. Section 237 of the L(PandE) Act deals generally with the making of objections and in s.237(1) provides:

Any person who may be affected by the approval of an application may,
within the prescribed period, object to the grant of the approval.

25. There is a further relevant limitation on the class of persons who can apply for review by virtue of s.276(5)(b) of the L(PandE) Act. That section provides:

A person is not entitled to make an application under this section
if -
...
(b) circumstances are specified in the Plan pursuant to paragraph
7(3)(c).

26. The reference to paragraph 7(3)(c) of the L(PandE) Act is a reference to a power conferred under that provision to specify those "circumstances" in the Plan.

27. On 18 October 1993, a variation to the Plan came into effect. In relation to the controlled activity of executing a variation of a lease of Territory land or of executing a new lease for the purpose of effecting the subdivision or consolidation of Territory land, it declared in Part B2B, clause 3.2 that public notification is not required and third parties are not entitled to apply for a review of a decision where the application, relevantly:

...does not involve a change from a land use listed under the defined
term COMMUNITY USE to another use outside this definition.

28. The only change of land use proposed by Contis and Dinach was to expand the range of land uses to include sale of foodstuffs, groceries, beverages and domestic household goods in half case lots. Neither the application made nor the decision to approve that application involved a change of land use from "community use" to a use outside of that use. The application was, therefore, within the "circumstances" so specified.

29. The second "circumstance" specified in Part B2B, clause 3.2 of the Plan referred only to applications in respect of a service station where less than 50m2 non-automotive related retail GFA is to be provided for. That circumstance was not relevant to the application in question.

30. Section 276(5)(b) is drafted ambiguously. Read literally, once any "circumstances" are specified in the Plan, no person would be entitled to apply to the Board in respect of any decision. However, in context, it seems that the lack of entitlement is only in respect of those applications which are within the circumstances so specified. That seems to be the clear intention of the legislature and I construe the relevant provisions so as to conform to that intention.

31. The next question is whether, given this application is within "'circumstances" specified in the Plan, the removal of the entitlement to review qualifies the general right to seek review of a decision permitted under s.230 of the L(PandE) Act. It seems to me that no other interpretation of s.276(5) would give effect to the apparent intention of the legislature. Therefore, as a matter of construction, the amendment to the Plan has the effect of restricting the rights of review conferred under s.230 of the L(PandE) Act.

32. Accordingly, in my view, even if the applicants were persons entitled to apply for a review of the decision to approve the application of Contis and Dinach, that entitlement was removed by s.276(5). The applicants did not dispute that s.276(5) was to be so interpreted.

33. However, the applicants, whilst accepting that they would be excluded by s.276(5) in respect of decisions made in relation to applications made after 18 October 1993, contend that, as at 18 October 1993, they had an accrued right of review. The applicants therefore submit that the amendment to the Plan effected on 18 October 1993 should be interpreted as applying only to applications made after that date. The application of Dinach and Contis, they contend, should be regarded as having been made on 16 July 1993.

34. In Colonial Sugar Refining Co Limited v Irving (1905) AC 369, the Privy Council considered a provision of the Judiciary Act 1903 (Cth), which purported to remove an appeal as of right to the Privy Council in respect of a matter arising under the Excise Act 1901 (Cth). The claim was made by writ issued before the enactment of the Judiciary Act, but the judgment from which the appeal was made was given after that event. The advice of the Privy Council, delivered by Lord Macnaghten, at 372-373, construed the Judiciary Act according to the following principle of construction:

To deprive a suitor in a pending action of an appeal to a superior
tribunal which belonged to him as of right is a very different thing
from regulating procedure. In principle, their Lordships see no
difference between abolishing an appeal altogether and transferring
the appeal to a new tribunal. In either case there is an interference
with existing rights contrary to the well-known general principle that
statutes are not to be held to act retrospectively unless a clear
intention to that effect is manifested.

35. This general principle was approved by the High Court in the case of Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28. However, Barton, Isaacs and Rich JJ pointed out that the general rule is merely an aid to statutory construction. It may be displaced either expressly or by necessary intendment. In Worrall's case (supra), the regulation in question was construed so as to be intended to remove a right of appeal in respect of any pending application to which it applied at whatever stage the application was.

36. The principle is also enshrined in s.38(c) of the Interpretation Act 1967 (ACT),

38. Where an Act repeals an Act or part of an Act, then, unless the
contrary intention appears, the repeal does not -
...
(c) affect a right, privilege, obligation or liability acquired,
accrued or incurred under the Act or the part of the Act so repealed,
or an investigation, legal proceeding or remedy in respect of that
right, privilege, obligation or liability;
...

37. Two amendments affected appeal rights to which the applicants wish to exercise. The first was the amendment to the Plan already referred to. The second was an amendment to the L(PandE) Act which transferred the right of review in respect of a decision under s.230 of the Act from the AAT to the Board, which was created for the purpose of conducting such a review.

38. A question was raised as to whether the applicants would, but for the amendment to the Plan, have had a right of review of the decision made in respect of the application of Contis and Dinach. The respondents contend that the applicants were, in any event, out of time to object and would have had no right of review even if the amendments had not been made. A question was also raised as to whether the applicants were within the class of persons who could object pursuant to s.237 of the L(PandE) Act.

39. I will consider that question first.

"Person who may be affected" , 40. The only persons who may apply for a review under s.276 of the L(PandE) Act are persons who have objected under s.237. Section 276(1)(e) also refers to a person, in respect of whom the AAT or the Board, as the case may be:

... has reasonable grounds for believing ... was, in the
circumstances, unable to object to the making of the decision within
the prescribed period.

41. The "prescribed period" is a reference to the period fixed by Regulation 18 made on 8 May 1992 pursuant to s.288 of the L(PandE) Act.

42. Section 276(1)(e) does not expressly state that it includes only persons who, had they objected within the prescribed period, would have been persons entitled to object under s.237(1). However, such a limitation is necessarily implied. Any other interpretation would render meaningless the limitation upon the class of persons who are entitled to object within the prescribed period.

43. The evidence discloses that the relevant application was lodged on 16 July 1993. It was lodged with the Lease Practices Section, DELP. DELP is administered by the first respondent who is, it is agreed, the "Minister" referred to in the L(PandE) Act. The powers of the Minister include the power to approve the conduct of "controlled activities": see also Interpretation Act 1967 (ACT), s.14(1). It was not disputed therefore that the receipt of the application in the manner disclosed by the evidence amounted to lodgement thereof "with the Minister" within the meaning of s.226(1)(d).

44. There is no evidence that the making of the application was notified in a daily newspaper as required by s.229(1)(b) of the L(PandE) Act. Section 229(1)(a) also requires notice to be given to the lessees of "adjoining" places. However, none of these applicants is alleged to be such a person. There is no evidence that any such notice was given.

45. Curiously, the obligation to comply with s.229(1)(a) and (b) is inapplicable if, per s.229(2):

(a) in the opinion of the Minister, the number of places adjoining the
place to which the application relates is such that it would be
impractical to give notice by post to the lessee of each place; or
(b) the Plan specifies circumstances in which persons are not entitled
to review of decisions referred to in this Part.

46. It would be anomalous if the impracticality of posting notices to adjoining lessees should affect the obligation to publish a notice in a daily newspaper. It seems to me that s.229(2)(a) was intended to apply only to the obligation to give notice under s.229(1)(a). Section 229(2)(b) was clearly intended, for obvious reasons, to apply to both s.229(1)(a) and (b). However, in this case it is unnecessary to express a concluded view as to the meaning of s.229(2)(a). It is not suggested that it would be applicable to the application in question.

47. "Circumstances" were not specified in the Plan until 18 October 1993. No notice under s.229(1) notifying the making of the application was published between 16 July 1993 and that date. The reason stated by Mr Snell for that omission was that, in his opinion, the application was not one which would have been approved in its original form. It was necessary, in his view, for the application to be amended at the request of the applicants before the Minister made a decision.

48. The Minister has power, under s.226(3) of the L(PandE) Act to:

... before giving notice under section 229 -
(a) at the request of the applicant - make an alteration to an
application ...

49. It would not seem to matter, for the purposes of s.226(3) whether "'the request of the applicant" is a request suggested by the Minister or his or her officers or is made at the initiative of an applicant. It may, therefore, be accepted that the obligation to publish a notice pursuant to s.229 did not arise until the Minister had decided whether or not to amend the application pursuant to s.226(3).

50. When that was decided is not clear from the evidence. It seems amendment was still in contemplation as at 10 September 1993, according to annexure B to Mr Snell's affidavit. The applicants were notified of the application in its amended form by the letter from Mr Richards dated 12 November 1993.

51. It seems probable that amendment of the application was not requested until after the Plan had been amended on 16 October 1993. The view seems then to have been taken that, as the amended application came within the "circumstances" referred to in s.229(2)(b), notice was no longer required to be given pursuant to s.229(1)(a) or (b).

52. The effect of the construction of Regulation 18 contended by the respondents is that, if a notice is published of an application in an amended form, an objector has 21 days to lodge objection whether or not 42 days has elapsed from the date of lodgement, whereas, if the obligation to publish does not arise, an objector would have only 42 days from lodgement of the application to lodge objection even though the amended application might be different from the original application.

53. It may be, of course, that lodgement pursuant to s.226(1)(d) of the L(PandE) Act should be read down so as to be complete only when an amendment pursuant to an applicant's request for amendment has been made. Whether or not that date should be the date the request is received or the date the amendment is made is not clear. However, there is, probably, little difference between the two dates. It seems unlikely that the Regulation is intended to encourage pre-emptive objections. It is reasonable for a prospective objector to await amendments which might either remove or enhance grounds for objection before putting the process of objection into motion. It seems to me, therefore, that the preferable construction of the term "lodged" in relation to an application would include the date of receipt by the Minister of a request for amendment pursuant to s.226(3).

54. In any event, the fact that an application was not in final form until after the "prescribed period" had expired would, no doubt, provide "reasonable grounds" for a belief to be formed by the AAT or the Board, as the case may be, pursuant to s.276(1)(e), that the applicants were, relevantly, unable to object within the prescribed period.

55. It follows that any one of the applicants who or which was a "person who may be affected" by the approval of the application by Contis and Dinach as at 26 November 1993 would be entitled to apply for review pursuant to s.276(1) of the L(PandE) Act. That right would be qualified by the need to satisfy s.276(1)(e) if the "prescribed period" had, in fact, expired.

56. The applicants contended that the prospect of increased economic competition as a result of the carrying out of the proposed improvements to the Markets was a relevant "effect" upon them.

57. The applicants sought to tender evidence from Mr Robert Louis Purdon which purported to estimate the economic impact of the planned improvements on retailers such as the applicants. I was not satisfied that Mr Purdon possessed the necessary expertise to express an opinion as to the level of impact which the proposed development was likely to have on the applicants and others in a similar situation.

58. However, the Court is entitled to have regard to such laws of economics as are matters of common knowledge: Bryant v Foot (1867) LR 2 QB 161; National Trustees Executors and Agency Co of Australasia Ltd v A-G (Vic) (1973) VR 610; Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402.

59. I am, therefore, prepared to accept that there would be some adverse economic effect likely to be created by the expansion of the Markets proposed by Contis and Dinach which would be felt by some persons who supplied similar goods and services in the region. That would include persons such as the applicants. It is not possible to conclude that the effect would be adverse to any of the applicants in particular.

60. If increased competition from merchants of similar goods and services relevantly "affects" a person competing with those merchants, it is not necessary to conclude that the effect must be shown to be adverse to a particular applicant or that the prospect of such competition would, as a matter of law, support an objection made to protect such a person resulting from the decision objected to.

61. If the term "affect" is narrowly construed, of course, the execution of the lease variation as sought by the application of Contis and Dinach, would not "affect" any of the applicants. It is the carrying out of the works thereby permitted and the operation of the premises in consequence which will or might affect the applicants. However, I do not believe such a narrow construction is warranted. In determining whether the applicants are persons who "may be affected" by the approval of the Contis and Dinach application it is, I think, permissible to have regard to the consequences which that approval authorises. That must include the prospect that the redevelopment thereby permitted will be carried out.

62. Section 237(1) does not contain any other words of limitation on the class of persons who may be affected by the approval. It does not limit or confine the nature or source of the "effect". It seems to me unlikely that the legislature intended narrowly to confine the class of objectors to persons whose enjoyment of property rights may be affected by the relevant "controlled activity". It would seem unlikely that the class would be narrower than that referred to in s.12 of the ADJR Act. That Act enables "a person interested in a decision" or, pursuant to s.5 and 6, "a person aggrieved by a decision" to apply for review.

63. In US Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79, 86 a Full Court of the Federal Court construed the words "interest" and "interested" as requiring, 86:

... an involvement with a case greater than the concern of a person
who is a mere intermeddler or busybody. Nevertheless, the criterion
for standing prescribed by the Act is not a restrictive one. The
broadest of technical terms has been selected. The necessary interest
need not be a legal, proprietary, financial or other tangible
interest. Neither need it be peculiar to the particular person.

64. In Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64, Ellicott J included at 79, in a list of examples of a relevant interest "an affect ... in the conduct of a business".

65. In order to be affected, however, the prospective consequences of the approval of the proposal must be such that the success of an objection would give an objector a benefit or advantage which is of discernible consequence or significance: see, for example, Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377.

66. In the latter case, Pincus J denied standing under the ADJR Act to persons who complained that in consequence of the decision they sought to challenge, their employment prospects would be lessened. That effect was said to follow from the prospect that the competitiveness of a rival employer would be enhanced so that the latter would gain trade at the expense of the applicants' employers.

67. His Honour at 379, did not deny that:

a sufficient economic effect, caused by the decision attacked is a
satisfactory basis for an application under the Administrative
Decisions (Judicial Review) Act ...

68. Even if the report of Mr Purdon had been admitted, it was purely speculative as to the level of economic impact on the applicants or any of them. It did not address the likelihood that if Contis and Dinach decided to invest in activity directly competitive with them, the applicants might alter their competitive behaviour so that demand would not divert to the enhanced Markets. Such variables as trading hours and cost structures were not considered. If the cost structure of the enhanced Markets was greater than that of the applicants, a directly competing business would not necessarily have an adverse effect on the applicants.

69. It need hardly be added that neither the applicants nor any of their customers have any legitimate expectation that competition will be restricted so as to protect their economic interests. Indeed such an expectation might well be considered to be contrary to the public interest as embodied in the Trade Practices Act 1974 (Cth).

70. Thus, although the applicants have shown that the proposal could cause an economic impact upon them and that it is possible that that impact might be adverse, such an effect is not, in my view, sufficient to be a satisfactory basis for an application. They have merely shown, as in Crone's case, that their economic prospects have become less favourable.

71. I do not consider that effect to be "sufficient". Indeed, it seems to me to be contrary to the public interest in increased competition to accept the contrary opinion. The applicants were, therefore not persons who were, or could be, objectors.

Did the amendment to the Plan bar the appeal rights of any persons who were then objectors?
72. Under s.276(1) the right of review granted is in respect of a "decision to approve an application". The right to have such a review is conferred only upon persons who have qualified to be objectors.

73. Assuming, contrary to my opinion, that the applicants were persons "who may be affected" and thus persons who have "objected", a question arises as to whether and when the right to object arose for the purpose of construing whether the amendment of the Plan or the transfer of the jurisdiction of the AAT to the Board took effect so as to bar appeal rights the applicants would otherwise have had.

74. In Hamilton Gell v White (1922) 2 KB 422 a tenant of an agricultural holding was given notice to quit. That occurrence gave rise to a right to compensation conferred by legislation, subject to the tenant giving notice of intention to claim compensation within two months and making the claim within three months after quitting. The tenant gave the notice in question but, before the tenancy expired in accordance with the notice to quit, the section giving rise to the right to compensation was repealed without any express transitional provision.

75. The Court of Appeal concluded that the tenant had retained the right to claim compensation. However, the event which triggered that right was not the existence of the tenancy which was liable to be terminated by notice to quit but the delivery of such a notice.

76. As Atkin LJ expressed it, citing the relevant portion of the Interpretation Act 1889 (UK), at 431:

It is obvious that that provision was not intended to preserve the
abstract rights conferred by the repealed Act, such for instance as
the right of compensation for disturbance conferred upon tenants
generally ... It only applies to the specific rights given to an
individual upon the happening of one or other of the events specified
in the statute. Here the necessary event has happened, because the
landlord has ... given the tenant notice to quit. Under those
circumstances the tenant has "acquired a right", which would "accrue"
when he has quitted his holding, to receive compensation.

77. In Director of Public Works v Ho Po Sang (1961) AC 901, one of the appellants was a Crown lessee of premises in Hong Kong. He had applied to the first appellant, pursuant to the relevant legislation, for a "rebuilding certificate". The grant of the certificate would have entitled him to give notice to quit to his subtenants. After the lessee had been informed that a certificate would issue, but before the Governor had determined an appeal against that proposed decision to do so, the relevant Ordinance was repealed. A certificate was thereafter issued. The subtenants challenged its validity.

78. The Judicial Committee of the Privy Council dismissed an appeal against a decision upholding the subtenants' contentions. The issue was whether, by applying for the rebuilding certificate, the Crown Lessee had an accrued right to its issue or, at least, to a decision relating to its issue. Their Lordships took the view that there was no accrued right to a rebuilding certificate. It was a discretionary matter. The Crown Lessee had only a "hope" that there would be a rebuilding certificate issued as at the date of the repeal. The question whether there was an accrued right, at least to a decision concerning the issue of a certificate, depended on whether there was a prior right depending for its efficacy on an investigation or proceeding to declare or enforce it. That issue was resolved by the characterisation of the process in the present case as one designed to determine whether a right should be created and conferred rather than a process for ascertaining and enforcing a pre-existing right.

79. The latter approach was held applicable in the case of Robertson v City of Nunawading (1973) VR 819. A developer wished to subdivide land. He gave notice to the local council pursuant to the Local Government Act 1958 (Vic). The council was then required to determine his application in accordance with that Act. Before that process could be completed, a provision was inserted into the Act enabling the council to impose a payment of security before approval of a subdivision. The council requested such security. The developer contended that the new provision should not be construed so as to apply to applications already pending at the date of the amendment.

80. The Full Court, Winnecke CJ, Gowans and Starke JJ, rejected the developer's contention. Their Honours regarded the situation as one in which the developer had acquired no vested right to have his application determined on the basis of the legislation as it was before the amendment even though the amendment did not expressly purport to be retrospective.

81. The following examples are illustrative of the same principle.

82. In Stott v Minister for Immigration and Ethnic Affairs [1985] FCA 125; (1985) 59 ALR 747, Toohey J found no accrued right conferred by the making of an application for permanent residence pursuant to the Migration Act 1958 (Cth).

83. In Commissioner for Corporate Affairs v X and Y (1987) VR 460, Marks J with Murphy and McGarvie JJ concurring, held that creation of a liability to be examined in respect of prior events, is merely the use of past acts as a foundation for future action. No accrued right not to be so examined.

84. Fox and Sheppard JJ, Beaumont J dissenting, decided in J R Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717 that the right asserted must be something in the nature of a cause of action arising before the repeal or amendment rather than a right to claim an indulgence. The majority considered that this case was one properly characterised as an application for an indulgence. The application was for an export grant.

85. The case of ACI Pet Operations Pty Ltd v Comptroller-General of Customs [1993] FCA 500; (1993) 118 ALR 114 involved an application for tariff concession on imported resin. There was objection by local manufacturers. The application was refused. A review was sought under the ADJR Act. It was remitted for reconsideration but again refused. Further reconsideration was ordered under the ADJR Act. It was again refused and review sought. At that point the legislation enabling concession orders to be made was repealed. It was held by Foster J to confer a conditional right rather than mere hope of a favourable exercise of discretion.

86. The High Court considered the retrospectivity issue in Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430. In that case, the appellant had, under 1971 legislation, a right to apply to redeem weekly payments of compensation. He applied to do so. The application was refused. The appellant applied, out of time, to the AAT for a review of that decision. Time was extended, but before the hearing, the 1971 legislation was repealed. New legislation was passed, but it denied any right of redemption. The majority was of the view that the appellant, on the date of the repeal, had a right to have his claim determined in his favour assuming that the decision maker had erroneously rejected it. That was a different entitlement to that conferred pursuant to a power to take advantage of an enactment. It was not a merely procedural entitlement but one which involved a substantive right albeit that it might be viewed as inchoate or contingent.

87. It follows that the appeal rights of persons who had objected at the time the amendment to the Plan took effect will be barred unless those rights had vested at that time. The further question then is as to the character of the expectation objectors had at that time.

How should the rights of the objectors be characterised in the present case?
88. There is, as a starting point, nothing in s.230 of the L(PandE) Act to confer upon any person the right, subject to the establishment of any relevant fact, to conduct a controlled activity. If the Minister approves an application, rights will be conferred upon the applicant as a result of that approval. Those rights may be subject to review but will constitute a "substantive right" nevertheless. That conclusion seems to me to follow from the authorities referred to above.

89. Conversely, it seems to me that an unsuccessful applicant for approval to conduct a controlled activity is in a position analogous to the applicants in Stott (supra) and J R Exports (supra) rather than that of the applicants for relief in ACI Pet Operations (supra) and Esber (supra). By its very nature, a "controlled activity", particularly of the kind referred to in the present case, is one which an applicant would have no right to conduct or expectation to conduct without the concurrence of the lessor under the Crown Lease or as a result of some indulgence granted by some statutory authority. The lessor would, usually, have a complete discretion whether or not to grant the indulgence requested. It follows that the right of review conferred on such an unsuccessful applicant is to be characterised similarly. A substantive right would accrue to such an applicant only if the review was successful.

90. The controlled activities referred to in Schedule 4 to the L(PandE) Act each relate to matters arising between a lessee of Territory land and the Territory. Other lessors of Territory land and, a fortiori, other persons in the Territory whether affected by the proposal or not would, but for the provisions of L(PandE) Act, have no right to prevent the approval of "controlled activity". The only power they might enjoy, assuming nuisance or other cause of action not to be available, would be that of undertaking a political or public relations campaign to persuade the relevant legislature or executive not to approve the "controlled activity" in question. That would include the making of representations such as the applicants made in this case to the Minister. However, even if they are "affected" by the proposed redevelopment, it is clear that no opponent of the proposed "controlled activity" would have any "right" to do more than make representations in the hope that the "controlled activity" would be approved. That would be the case at the review stage as well as at the stage when the original proposal was considered.

91. Accordingly, had the Plan prohibited review of refusal of such an application, an applicant for approval would have had no vested right to approval, or to a review of a refusal to approve, a "controlled activity".

92. It follows, therefore, that there is no presumption that the prohibition on third party review did not affect pending applications as well as those yet to be made.

93. In this case, there is the further consideration that no application for consideration of an objection was made by the applicants until after the restriction on review had taken effect. That was because the application to conduct the "controlled activity" was not in final form. It seems to me that the right of review, even if it be regarded as an accrued right cognisable for the purposes of s.38(c) of the Interpretation Act, would vest no earlier than the date upon which the application to conduct the controlled activity was notified pursuant to s.229 or, if no notification was required, the date upon which the application, as finally amended, was lodged. It follows that, even if the right of review was an accrued right, the applicants have not demonstrated that it had accrued before its repeal by the amendment to the Plan.

Review by what body
94. If I am wrong about the availability of a right of review and if it vested as at the date of the original application prior to its amendment rather than later, Colonial Sugar Refinery Company v Irving (supra) would suggest that the AAT would retain jurisdiction to conduct that review rather than the Board unless the contrary intention is demonstrated in the amending legislation.

95. There does not appear to be any such contrary intention in the L (PandE) Amendment Act. It follows that the Registrar of the Board was, in any event, correct to refuse to entertain the application for review on that ground as well.

96. The application is, as it happens, for a review of a decision made by Mr Snell. Mr Snell purported to have been acting as a delegate of the Minister. No issue was raised as to the validity of that delegation for the purposes of this application.

97. There are issues of law raised by the objectors in their objection and by their application for review under the ADJR Act. I express no view concerning them. That will be a matter either for the AAT or on review by this Court under the ADJR Act. The applicants are out of time in relation to either application. There is also an application for extension of time in respect of the latter but not yet as to the former application.

98. It is unnecessary to express a view as to whether or not an extension of time should be granted.

99. At this time, I merely order that the declarations sought by the applicants be refused.

100. I will hear the parties as to costs and consequential orders or directions.