Christopher Scott and Michael Scott, Scott Brothers Pty Limited v Robert Sly and Others [1996] ACTSC 63 (14 June 1996)

SUPREME COURT OF THE ACT

CHRISTOPHER SCOTT and MICHAEL SCOTT, SCOTT BROTHERS PTY LIMITED v. ROBERT SLY
and OTHERS
No. SCA5 of 1995
CHRISTOPHER SCOTT and MICHAEL SCOTT, SCOTT BROTHERS PTY LIMITED v. TULLA
BROWN
No. SCA11 of 1995
Number of pages - 11
Building and Construction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Building and Construction - town planning - Land (Planning and Environment) Act 1991 - application for approval of variation of purposes clause of lease - approval by Minister's delegate of application subject to condition after reference to ACT Planning Authority as concurring authority - condition specifying minimum distance of set back of building - application for review by Land and Planning Appeals Board - amendment of condition relating to set back - amended conditions requiring further set back than that specified by Minister - appeal to Supreme Court on questions of law - whether Appeals Board may take siting factors into account - it may - whether condition as amended by Appeals Board inconsistent with condition specified by Planning Authority - it was not - whether Appeals Board denied natural justice to appellant - it did not.

Land (Planning and Environment) Act 1991

Nowicki v. Martyn and Another (unreported, 29 March 1996)

Byfield and Another v. Daly and Another (unreported, 1 December 1995)
Building (Design and Siting) Act 1964
Kioa v. West [1985] HCA 81; (1985) 159 CLR 550
Dosen v. Baxter (unreported, 14 June 1996)

HEARING

CANBERRA, 7 and 8 February 1996
14:6:1996

Counsel for the appellants: Mr. T. Johnstone

Solicitors for the appellants: J.S. O'Connor Harris and Co.

Counsel for the respondents: Mr. R. Refshauge

Solicitors for the respondents: Deacons Graham and James
(formerly Sly and Weigall)

ORDER

THE COURT ORDERS THAT:
The appeals be dismissed.

DECISION

MILES CJ These are appeals under s.282ZI of the Land (Planning and Environment) Act 1991 (the Land Act) from decisions of the Land and Planning Appeals Board (the Appeals Board) established under s.282B of the Land Act. Sub-section 282ZI(1) of the Land Act authorises appeals to this Court from a decision of the Planning Board only "on a question of law". The decisions under appeal were made by the Appeals Board on 23 December 1994.

2. The decisions of the Appeals Board were made by way of a review under Division 4 of Part VIA of the Land Act of a decision of Mr. David Snell, the primary decision maker, acting as delegate of the Minister under s.40 of the Land Act (the delegate). The delegate by that decision on 11 November 1994 approved an application to vary the provisions of a lease of land at Block 6 Section 46 Forrest situated at the corner of Tennyson Crescent and Arthur Circle and known as No. 4 Tennyson Crescent, Forrest.

3. The delegate, in his decision, did not identify the precise variation that it was decided was allowed. The decision referred to the application of Messrs C and M Scott and of Scott Brothers Pty Limited, dated 14 June 1994 "to vary the lease to allow multi-dwellings on the site". The decision stated that the application was approved subject to a number of conditions. One condition was that the existing lease be surrendered in favour of a new lease incorporating standard conditions for multi-unit developments. A copy of a draft lease contains the conditions which accompanied the written decision. A statement of reasons also accompanied the written decision in accordance with sub-s. 275(6). Those reasons contained a separate section setting out the reasons for the conditions.

4. On 7 December 1994 Ms. Tulla Marie Brown lodged an application for review by the Appeals Board of the decision of the delegate (Application No. AAO107). On 8 December 1994 a group called the Forrest Heritage Action Group, headed by Mr. Robert Sly and Mr. Steven Bates, lodged a similar application for review.

5. It appears that a separate application for review of the delegate's decision was made by Scott Brothers Pty Limited against what was called the "Design and Siting" aspects of the delegate's decision, but again that application did not proceed.

6. The Appeals Board heard the appeal on 19 December 1994. By what appears to have been a preliminary decision before determining the application for review, the Board ordered on 19 December 1994 that on application by Scott Brothers Pty Limited under s.280 of the Land Act, "they be made a party to the above proceedings".

7. Applications for adjournment of the hearing were made by various objectors to the application for variation of the lease. The applications for adjournment were refused and the Board proceeded to hear and determine the applications for review. Messrs C and M Scott were present. So were Mr. Robert Sly, possibly other members of the Forrest Heritage Action Group, a person representing the Australian Capital Territory Planning Authority and others. Ms. Tulla was not present. The delegate, Mr. Snell, was present in person.

8. A transcript of the hearing was taken and relied upon in the appeal to this Court.

9. The Board published its decisions on 29 December 1994. Under the heading "Findings" it stated that it determined "that the decision be varied to include the following amendments and additions". The conditions of approval so amended are set out as follows:

"The conditions of approval are to be amended as follows:
a) Storm Water Drainage. The lessee will ensure that arrangements
made for disposal of all stormwater and other above ground flows are
adequate and that overland drainage is not directed towards
significant vegetation.
b) Compliance with Appendix III.2 of the Territory Plan. The lessee
must ensure that the 35% open space requirement does not include
driveways or vehicular parking and that there is strict compliance
with Performance Criteria relating to private open space.
c) Setback from Front Boundary. The minimum setback from the front
boundary of 10 metres is to be amended to read "the setback from the
front boundary is to vary and be no less than the average setback of
all other houses along the same side of Tennyson Crescent or
17 metres, whichever is the greater".

10. The conditions of approval to be added to those to which the appeal of the delegate was subject are also set out.

11. Under the heading "Claims by parties" the written decision of the Appeals Board sets out various arguments and submissions put on behalf of the ACT Lease Administration Branch (seeking to uphold the delegate's decision), by the applicants for review and by Scott Brothers Pty Limited.

12. Under the further heading "Statement of reasons" are stated "the reasons for the above findings including those on material questions of fact".

13. Whether or not they were findings on material questions of fact paragraphs (a) to (f) of these reasons may be disregarded. Paragraph (g) states that "the conditions imposed by the delegate of the Minister substantially address the concerns of the appellant, although the Board feels that additional conditions should be imposed with the lessee to ensure that the development proceeds in accordance with undertakings given during the hearing of proceedings, and to better address the strong concerns of neighbours and other objectors".

14. The written decision of the Board concludes with a number of matters noted under the heading "Other matters noted".

15. By some process of which I am ignorant, the record in this Court was amended so that the initial appellant, Mr. David Snell, ceased to be a party and was replaced by Messrs S and M Scott and Scott Brothers Pty Limited as the appellant in each appeal. At the hearing of the appeals Mr. Refshauge, who appeared for all respondents, sought and was granted an amendment of the title in proceedings SCA 5 of 1995 whereby Mr. Steven Bates became a second respondent.

16. The notices of appeal are lengthy, but it is necessary to set out the questions of law. They are identical in each appeal.

"(a) Whether the Board breached the rules of natural justice in
connection with the making of the decision.
(b) Whether the making of the decision was an improper exercise of the
power conferred by the enactment in pursuance of which it was
purported to be made in that
(i) it took an irrelevant consideration into account in the exercise
of the power.
(ii) it failed to take a relevant consideration into account in the
exercise of the power, or
(iii) it was an exercise of power that is so unreasonable that no
reasonable person could have so exercised the power.
(c) Whether there was any evidence or other material to justify the
making of the decision in that:
(i) the persons who made the decision were required by law to reach
that decision only if a particular matter was established and there
was no evidence or other material (including facts of which they were
entitled to take notice) from which they could reasonably be satisfied
that the matter was established; or
(ii) the persons who made the decision based the decision on the
existence of a particular fact and that fact did not exist.
(d) Whether the decision of the Land Planning and Appeals Board
(approving the decision of the Minister) to require the Crown Lessee
to surrender the Crown Lease the subject of the application was a
decision which did not relate to a controlled activity (namely, the
execution of a variation of a lease of Territory Land) and therefore
beyond power.
(e) Whether in all the circumstances the proper performance if its
functions required the Land Planning and Appeals Board to notify the
Appellant at or during the hearing of any or all of the following:
(i) the fact that the Board intended to place the importance which it
did on evidence adduced by the objectors as to setback.
(ii) the fact that the evidence as to setback had not been traversed
or tested by the Appellant; and
(iii) the availability of an adjournment to afford an opportunity to
the Appellant to deal with matters in relation to setback which the
Appellant did not address or have any evidence on.
(f) Whether in all the circumstances the proper performance of its
functions required the Land Planning and Appeals Board to inform
itself in relation to setback in a full and proper manner."

17. Question (d) was not pressed. Strictly speaking it may not be within power for the Minister or the Planning Board to require the surrender of a lease but administrative and other practical reasons may well indicate that the surrender of the lease and the execution of a new lease incorporating the approved variations is preferable to the execution of a variation simpliciter. It is not necessary to pursue this aspect.

18. It is important to have particular regard to how it is that the decision gives rise to the questions of law raised on the appeal.

19. From the foregoing it may be stated that the precise matter raised by the appeal is concerned with that part of the Appeal Board's decision which amended a condition to the approval requiring the set back for the front boundary of any building on the land to be no less than the average set back of all other houses along the same side of Tennyson Crescent or 17 metres, whichever is the greater. The submission is made that the Board had no power to amend that condition.

20. It cannot be emphasised too strongly that the appeal to this Court is not an appeal on the merits of the decision of the Appeals Board. Nor is it possible for an appellant to seek to dress up what are questions of fact to make them look like questions of law. These were matters to which I drew attention in Nowicki v. Martyn and Another (unreported, 29 March 1996). I do not propose to repeat in detail what I said. It is sufficient to observe that this Court has not been given the power under the Land Act to set aside a decision of the Appeals Board on the ground that the decision is unreasonable or even on the ground that the decision was not reasonably open. The Court, in looking to see whether the Appeals Board made an error of law, should not scrutinise the decision, or anything said during the course of the proceedings under consideration, as if it were the product of lawyers or another court.

21. Apart from ground (d), the questions of law raised by the notice of appeal are all questions of the sort often raised in judicial review of administrative decisions and are concerned primarily with the rules of natural justice, or, more simply, with the question whether the party complaining received a fair hearing or was otherwise fairly treated by the tribunal or person making the decision. The concept of fairness in this context is not fixed and is primarily to be understood by having regard to the nature and functions and powers of the decision maker which in turn are to be ascertained from the legislation which creates the tribunal.

22. Why it was thought necessary to vary the lease for the purpose set out in the condition to which the delegate's approval was subject, is not clear. The lease as it existed was in a conventional form, entered into between the Commonwealth and the original lessee on 29 January 1937 for a term of ninety-nine years. It contained a so-called purpose clause, namely:

"(e) To use the said land for Residential purposes."

23. There was nothing in the purpose clause or anything else in the lease to which my attention has been directed, which was inconsistent with the use of the land for the purpose of multiple dwellings. Whether there is something in the Land Act which required the variation of the purpose clause in order to allow the land to be used for the purpose of multiple dwellings was again something to which my attention was not directed.

24. The Land Act establishes a regime for the control of variation of purpose clauses of leases of Territory land. The Land Act does not appear to be concerned with the question whether a proposed use of land is in accordance with or in conflict with the provisions of a purpose clause of a lease. Irrespective of the answer to that question, the regime laid down in the Lands Act as to variation of a purpose clause is to be followed. That regime may be summarised as follows.

25. Section 225 prohibits a person or a Territorial authority from conducting a "controlled activity" without reasonable excuse and other than in accordance with an approval. Schedule 4 includes "the execution of a variation of a lease of Territory land" amongst several specified controlled activities. Section 230 gives the Minister power to approve an application to conduct a controlled activity but only after obtaining the approval of any relevant concurring authority, and after considering the comments of other persons and bodies as required by s.231. For the purposes of an application for variation of a lease the relevant concurring authority is, by virtue of Schedule 4, the Australian Capital Territory Planning Authority (the Planning Authority). By s.245 the Minister's approval may be given subject to certain conditions which must include any condition required by the Territory Plan or by a concurring authority but which must not include any condition inconsistent with a condition required by the Territory Plan or a concurring authority.

26. In contrast to the provisions of the Land Act relating to the review by the Appeals Board of a decision of the Minister, whereby the Appeals Board is given the powers and discretions of the Minister (s.282ZG), the appeal to this Court is confined to questions of law. It is to be borne in mind that an appeal to this Court provides a third level of hearing for the parties following previous determination at two levels, each of which is provided in order to give the parties full opportunity to present their cases on the merits and to be heard. Accordingly, any party to the appeal needs to show reason why any of the material that was before the Appeals Board needs to be reconsidered at this third level. Unless cause is shown, the Court will not be concerned to consider the evidentiary material that was before the Appeals Board, whether documentary or oral, nor to acquaint itself with any record of what was said at the hearing by the Appeals Board. Nevertheless, I was referred to a transcript and to the documentary material before the Appeals Board and I have taken them into consideration.

27. The decision of the Appeals Board, or that part of it which is under challenge, was concerned with the merits or otherwise of an application to vary a lease for the purpose of allowing multiple dwellings on a block of land when the existing provisions of the lease were believed to restrict the purpose to that of a single dwelling.

28. Having the advantage of considering the decision and reason of the delegate (presumably a person with experience if not expertise in the matter of environmental control and planning) and the material that was before the delegate, and having heard the case for the appellant, the applicant for the variation of the lease, the questions whether or not to interfere with the Appeals Board's approval of the application for variation with or without conditions and what, if any, conditions should be attached to any approval were very much matters for the Appeals Board, composed as it was by persons of a variety of backgrounds and occupations. As Higgins J pointed out in Byfield and Another v. Daly and Another (unreported, 1 December 1995), decisions of this nature are very much an exercise in value judgment. Whilst the Appeals Board could not approach its task in such a way as to exceed its powers and jurisdiction, it is obvious that reasonable minds might differ greatly as to the precise outcome of such an application as that which the Board had before it. So much is indicated by the dissenting decision of one member of the Appeals Board, who appears to have taken the view that the variation should not be permitted because its effect was such as to prevent a maximum number of six dwellings being constructed on the land.

29. As I understand the submissions put by Mr. Johnstone of counsel on behalf of the appellants, there are two major arguments in support of the appeal. First, it is submitted that the Appeals Board went beyond its powers and decided matters relating to design and siting. The other submission was that the Appeals Board denied a fair hearing to the appellants by causing them to believe that matters of design and siting would not be taken into consideration for the purpose of the decision.

30. It is not immediately apparent how the first of these arguments answers any questions of law set out in the notice of appeal, but assuming that it does, it needs to be considered by a closer examination of the provisions of the Land Act which established the scheme outlined above.

31. Some of the particular statutory provisions that need to be considered are the following:

"Approvals
230.(1) The Minister may approve or refuse to approve an application
to conduct a controlled activity.
(2) The Minister shall not give an approval in terms inconsistent
with the lease of the land to which the application relates.
(3) The Minister shall not approve an application without first
obtaining the concurrence of each concurring authority in respect of
the controlled activity to which the application relates.
.....
Matters to be considered
231.(1) Before approving or refusing to approve an application, the
Minister shall -
(a) consider -
(i) any comments of a person or body to which the application has
been referred for comment;
(ii) each objection or other submission the Minister has received in
relation to the application which has not been withdrawn;
.....
Duties of concurring authorities
235.(1) A concurring authority to which an application is referred by
the Minister shall, within the prescribed period, give notice in
writing to the Minister that the concurring authority -
(a) does not object to the approval of the application;
(b) does not object to the approval of the application if the approval
is given subject to conditions specified by the concurring authority
in the notice; or
(c) objects to the approval of the application.
(2) The Authority shall, before giving notice under subsection (1) in
relation to a controlled activity specified in item 2 or 3 of
Schedule 4, consider whether or not the controlled activity proposed
to be conducted would be inconsistent with -
(a) the planning principles set out in the Plan; or
(b) any directions of the Executive in force under section 37.

(3) For the purposes of paragraph (1)(b), a concurring authority may
include a condition that a controlled activity to which the
application relates is to be done to the satisfaction of the
concurring authority or a person or body specified by the concurring
authority in the notice.
(4) If a concurring authority to which an application is referred
fails to give notice to the Minister within the prescribed period the
concurring authority is to be taken to have given notice to the
Minister that it does not object to the approval of the application.
Objections - general
237.(1) Any person who may be affected by the approval of an
application may, within the prescribed period, object to the grant of
the approval.
(2) An objection shall be made to the Minister in writing and shall
set out the grounds of the objection.
(3) The Minister shall give an applicant for approval to conduct a
controlled activity a copy of each objection to the application, and
any other submission received by the Minister in relation to the
application, which has not been withdrawn.
Conditional approvals
245.(1) Subject to this section and sections 240, 241 and 246, the
Minister may approve an application subject to such conditions as are
specified by the Minister, after taking into consideration the matters
referred to in paragraph 231(1)(a).
(2) The Minister -
(a) shall include in an approval any condition which is required to be
included by the Plan or by a concurring authority; and
(b) shall not include in an approval a condition inconsistent with a
condition included under paragraph (a).
....."

32. Schedule 4 to the Land Act, headed "Controlled Activities: Concurring Authorities: Penalties" consists of a number of columns, which include a column headed "Controlled Activity" and another column headed "Concurring Authority". Alongside the controlled activity described as "the execution of a variation of a lease of Territory land" the concurring authority is nominated as the Minister and the Planning Authority.

33. Mr. Johnstone submitted that these provisions give rise to what could be called a dichotomy of functions between the Minister and the concurring authority, in this case the Planning Authority. Any such dichotomy extends to the division of functions between the Appeals Board and the Planning Authority when there is an application for review of the Minister's decision. It was further submitted that matters of design and siting are exclusively the province of the Planning Authority pursuant to the provisions of the Building (Design and Siting) Act 1964, and it was not within the power of the Minister, his delegate or the Appeals Board to approve an application subject to a condition relating to design and siting, unless that condition was required to be included by the Planning Authority. The additional condition imposed by the Appeals Board that there be a particular minimum set back for any building on the land was a decision relating to siting of such building.

34. As a matter of statutory construction I think that the submission must be rejected. Where there is an application for variation of a lease, the Minister, delegate or the Appeals Board, as the case may be, is required to give notice to the Planning Authority and must include in any approval any condition required by the Planning Authority and must not include a condition inconsistent with a condition required by the Planning Authority. However, those obligations do not deprive the Minister of a discretionary power to approve the application subject to conditions which are not required by the Planning Authority so long as such conditions are not inconsistent with any condition required by the Planning Authority (or the Territory Plan, which is not relevant in this case). The fact that a condition specified by the Minister may be concerned with the siting of a building does not affect its validity, so long as it is not inconsistent with a condition required by the Planning Authority, or required by the Territory Plan, in relation to the siting of that building.

35. As I understand it, there was an alternative approach to support this first submission. It was that the condition which the Appeals Board required by virtue of its decision was inconsistent with a condition that was required by the Planning Authority. This aspect of the case requires elucidation by further reference to the facts of the case.

36. Mr. Johnstone's submission, as I understand it, was that the Planning Authority had, as a concurring authority and pursuant to sub-s.235(1), given notice to the Minister that it did not object to the approval of the application for variation of the lease if the approval was given subject to conditions specified by the Planning Authority in its notice, and, further, that the amended condition as to set back imposed by the Appeals Board was inconsistent with the condition specified by the Planning Authority and hence in contravention of para.245(2)(b).

37. The delegate's decision of 11 November 1994 was a decision to approve the application for variation of the lease subject to several conditions including the following, which has been specified by the Planning Authority in its notice to the Minister under sub-s.235(1):

"That all development is to comply with Appendix iii-2 of the
'Territory Plan' 'Residential Design and Siting Code for
Multi-Dwelling Developments in the ACT', the Guidelines for
residential development Forrest/Red Hill/Deakin/Griffith Historic
Areas and the following:
The front building line shall be set back a minimum of 10 metres from
the street boundary .....".

38. In my view, there is no inconsistency between the above condition specified by the Planning Authority and condition (c) by which the Appeals Board amended the conditions to which the approval of the delegate was subject. The Planning Authority specified a set back of a minimum of 10 metres. The Appeals Board amended the required set back to the average set back of all other houses on the same side of Tennyson Crescent or 17 metres, whichever is the greater. There is no inconsistency here. If the Planning Authority had specified a set back of exactly 10 metres, then any other distance fixed for set back whether greater or lesser than 10 metres would have been inconsistent with the specification of 10 metres by the Planning Authority. However, the specification by the Planning Authority of a minimum distance left it open to the Minister, and ultimately the Appeals Board, to specify a distance of greater than 10 metres.

39. Mr. Johnstone's second major submission was that the Appeals Board conducted the proceedings in a manner that was unfair to the appellants. It used to be the law that a ground of this nature relied on what was called a denial of "natural justice" by some identifiable procedural unfairness such as refusing a party the opportunity to be heard or conducting a hearing when the decision maker was disqualified for real or apparent bias. However, since Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, the test is whether fairness was done to the party complaining that it was not. The test is subject to some constraints. In particular, it is the statute which creates the tribunal and the nature of the decision making process within the framework of the statute to which regard must primarily be had. It is unnecessary to consider the suggestion that it is outside the constitutional power of a legislature in Australia to purport to create a tribunal which is authorised to conduct itself without procedural fairness to those appearing before it or likely to be affected by its decision.

40. The legislature itself has laid down a framework for procedural fairness by which the Appeals Board is constrained. Otherwise (and subject to the regulations and any other enactments) the procedure of the Appeals Board is entirely within its discretion: sub-s.282X(1). Directions as to the procedure to be followed are to be given before or during the hearing: sub-s.282X(2). The Appeals Board shall ensure that every party to a proceeding is given a reasonable opportunity to present a case and in particular to inspect any documents to which the Board proposes to have regard and to make submissions in relation to those documents. There are other provisions of this nature to which reference need not be made.

41. In Nowicki v. Martyn I decided that procedural fairness in the circumstances of that case required that the Appeals Board not refuse an application where the applicant had complied with all performance measures set by the Territory Plan without informing the appellant that something more than compliance with the performance measures was required. The case turned on the words of the design and siting code, which provided that generally or in most cases that where there was compliance with the performance measures no further evidence was required. Consideration of the design and siting code by the Court is not relevant in the present appeal.

42. It was submitted in the present appeal that the conduct of the hearing by the Appeals Board was such that the appellant had been led to believe that design and siting considerations would not be taken into account when deciding the application for review of the delegate's decision to approve the application for variation of the lease. It was submitted that the Chairperson of the Appeals Board at the commencement of the hearing stated that design and siting considerations would be postponed until later in the day and after consideration of the matter of the variation of the lease. On several occasions during the hearing, according to a transcript which was produced for the purpose of the appeal, one or other of the persons present referred to the considerations relating to the variation of the lease as being distinct from design and siting considerations. Towards the end of the hearing the Chairperson spoke in terms consistent with adjourning consideration of design and siting to another date, which could be arranged by any of those present approaching the Registrar the following day. I was told that no such approach to the Registrar was made.

43. It is difficult to know exactly what was meant by all this. Clarification was not assisted by my being told that another application for review of the delegate's decision (or the Planning Authority's decision) not to object to the application to vary the lease if given subject to the conditions which it specified had been made to the Appeals Board and was either withdrawn or adjourned generally.

44. However, there is no question that the matter of the conditions specified by the Planning Authority and included in the conditions on which the Minister approved the application to vary the lease, namely, the condition that there be a minimum building set back of 10 metres was a live issue before the Board. There was no application by the appellant to adjourn the proceedings so that that particular issue could be further addressed. A map or plan before the Board and presented by one or other of the objectors showed the area in question with buildings outlined and the various set back distances marked. Allied issues of streetscape, bulk of buildings and the like were well ventilated during the course of the hearing. There was never anything from the appellants to indicate to the Board that the appellants needed more time to present further evidentiary material or further argument on the issue of set back and it has not been made apparent in the appeal how further evidentiary material or further opportunity to prevent the appellant's case on this issue might have made some difference to the decision of the Appeals Board. In my view there was no denial of natural justice.

45. Nor has it been shown that the Appeals Board misinformed itself or failed to inform itself on any material matter in such a way as to vitiate its decision. I have adverted to these sorts of matters in Dosen v. Baxter (unreported, 14 June 1996) and what I said there applies here.

46. The appeals are dismissed. Unless the parties wish to be heard, I propose to order that the appellants pay the costs of the respondent in each appeal.