the Tradesmen's Union Club and Raymel Holdings Pty Ltd and the Licensed Clubs Association ACT Inc v Minister of the Environment, Land & Planning and Rebenta Pty Ltd [1997] ACTSC 105 (18 December 1997)

SUPREME COURT OF THE ACT

THE TRADESMEN'S UNION CLUB and RAYMEL HOLDINGS PTY LTD and THE LICENSED CLUBS ASSOCIATION ACT INC v MINISTER FOR THE ENVIRONMENT, LAND & PLANNING and REBENTA PTY LTD
Nos. SC 47 of 1997 and SC 48 of 1997
Number of pages - 10
Administrative law
(1997) 131 ACTR 1

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRISPIN J

CATCHWORDS

ADMINISTRATIVE LAW - Whether a provisional decision of the Administrative Appeals Tribunal a "decision" from which an appeal lies - Review of approval to vary purpose clause in lease - whether s.44(1) in Administrative Appeals Tribunal Act 1989 enables the Administrative Appeals Tribunal to review an antecedent decision of relevance to the reviewable decision.

Administrative Appeals Tribunal Act 1989, s.44, s.46, s.46(1)

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

Land (Planning and Environment) Act 1991, s.113, s.114, s. 222, s. 230, s.237, s.276, s.284

ACT Draft Territory (Territory Plan), Appendix II, para. II.1

Alcoa of Australia Ltd & Others v The Swiss Aluminium Australia & Others (1986) 64 ALR 317

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Australian Postal Commission v Hayes [1989] FCA 176; (1989) 87 ALR 283

Australian Postal Corp v Nguyen (1996) 142 ALR 170

Civil Aviation Safety Authority v Coburn (1996) 24 AAR 389

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

Drake v The Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Fletcher v Commissioner of Taxation [1991] HCA 42; (1988) 19 FCR 442

Secretary. Department of Social Security v Riley (1987) 17 FCR 99

HEARING

CANBERRA, 26, 27 and 28 November 1997 (hearing), 18 December 1997 (decision)

18:12:1997

Appearances

Counsel for the first Appellant: Mr M Einfeld QC

Instructing solicitors: Gary Robb & Associates

Counsel for the second Appellant: Mr M Einfield QC

Instructing solicitors: Gary Robb & Associates

Counsel for the third Appellant: Mr M Einfeld QC

Instructing solicitors: Gary Robb & Associates

Counsel for the first Respondent: Mr P A Walker

Instructing solicitors: ACT Government Solicitors

Counsel for the second Respondent: Mr J Purnell SC with Mr R Thomas

Instructing solicitors: Rudi Vandenberg

ORDER

Order: Appeal dismissed

DECISION

CRISPIN J

This is an appeal against a decision of the Administrative Appeals Tribunal concerning a proposal to vary the purpose clause of the lease of Block 1, Section 8 Braddon to permit a club to be operated on that land. The land is presently occupied by the Canberra Rex Hotel and it is proposed that that building be retained. New premises would be constructed on other areas of the land including that presently consumed by a passenger coach terminal. The proposed variation was approved by the Delegate of the Minister subject to the following conditions:

"a) "that the words 'the purpose of a residential hotel' be deleted from the habendum of the Crown lease where they appear immediately following the words 'to be used by the Lessee for' and the words 'any or all of the purposes permitted in sub-clause 1(g)' be inserted in substitution;

b) that sub-clause 1(g) of the Crown lease be deleted and the following form of words substituted:

'1(g) To use the said land for living accommodation in the form of a hotel or motel or serviced rooms for either temporary or permanent accommodation; and for

(i) a shop or shops; (ii) a bar; (iii) a restaurant; (iv) a conference facility/place of assembly; (v) a passenger terminal which may include ancillary office; (vi) a gymnasium/fitness centre; (vii) a carpark or coach park; and (viii) a club;

PROVIDED ALWAYS THAT:

(ix) the maximum number of rooms to be used for living accommodation shall be one hundred and fifty eight (158);

(x) the total gross floor area of the shop or shops mentioned in paragraph (i) of this sub-clause shall not exceed 30 square metres;

(xi) the total gross floor area of the uses mentioned in paragraphs (ii),(iii) and (iv) of this sub-clause shall not exceed 800 square metres;

(xii) the total gross floor area of the use mentioned in paragraph (v) of this sub-clause shall not exceed 500 square metres;

(xiii) the total gross floor area of the use mentioned in paragraph (vi) of this sub-clause shall not exceed 250 square metres;

(xiv) that the total gross floor area of the use mentioned in paragraph (viii) of this sub- clause shall not exceed 1100 square metres and that the location of that use on the land shall be subject to the approval of the Territory;

(xv) vehicle parking spaces shall be provided in a form approved by the Territory and maintained to a standard acceptable to the Territory as follows -

(a) for a residential hotel or motel or serviced rooms to a maximum of one hundred and fifty eight (158) rooms for living accommodation - eighty (80) carparking spaces;

(b) for a passenger terminal - four (4) coach parking spaces;

(c) for a club with a total floor area not exceeding 10000 square metres - twenty two (22) carparking spaces;

(xvi) the maximum gross floor area of the building or buildings on the said land shall not exceed 10000 square metres - 'gross floor area' being the sum of the areas of all floors of the building or buildings measured from the external walls excluding only basement areas used solely for carparking and housing mechanical plant and equipment and the area of rooftop plant rooms;

(xvii) the building or buildings on the said land shall not exceed five (5) storeys in height';

(c) that the Lessee will pay betterment, if applicable, within 28 days of being notified of the amount; and

(d) that the Lessee will do all that is necessary to ensure that the Instrument giving effect to this approval is submitted for registration at the Registrar-General's Office within 14 days of being notified that the Instrument is available for registration. (That may include, but is not limited to, the production of the Lessee's copy of the existing lease and the payment of all Registrar-General's fees.)"

During the proceedings before the Administrative Appeals Tribunal there was some debate as to whether the then existing purpose clause had been effectively varied by an order under s.11(A) of the City Area Leases Act 1936 and the Tribunal ultimately proceeded upon the basis that it had been so varied. However, having regard to the view which I have formed of the basic propositions raised in this appeal, nothing turns on this issue.

The Tribunal considered as one of the more fundamental grounds of objection, the proposition that the proposal should have been the subject of a preliminary assessment. Section 113 of the Land (Planning and Environment) Act 1991 ("Land Act") authorizes "the relevant Minister" to direct by written notice the proponent of a defined decision to prepare a preliminary assessment of the environmental impact of the relevant proposal. Where a defined decision is of a class prescribed by the ACT Draft Territory (Territory Plan), s.114 requires the relevant Minister to issue such a notice. It is clear that the proposal for a club on the land in question falls within the classes of defined decision to which s.114 applies. However paragraph II.1 of Appendix II of the Territory Plan provides that a preliminary assessment is not required where the proposal "is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation". The Tribunal referred to the fact that "the Department" had taken the view that the proposal to add a club to the hotel premises did not constitute a significant change in the existing situation and accordingly concluded that a preliminary assessment was not required. This view was challenged and the Tribunal ultimately found that "the Department" had made a serious error of judgment in not acceding to the requests for a preliminary assessment. It then purported to deal with the consequences of that failure by foreshadowing an order under s.284 of the Land Act dispensing with the requirement for a preliminary assessment.

The Tribunal then proceeded to consider other objections which related primarily to the need for adequate parking facilities. In particular, it dealt with contentions that adequate parking could not be provided unless Blocks 21-23, Section 13 Braddon, and Block 1, Section 13 Braddon, continued to be available for that purpose. Blocks 21-23 were leased to the second respondent but were subject to separate leases. The objectors maintained that the Tribunal could not be satisfied that they would remain in the same hands as Block 1, Section 8 and hence continue to be available to provide adequate car parking for patrons of the proposed club. They maintained that the position was even less secure in relation to Block 1, Section 13 which had been made available by the Commonwealth for car parking for some 35 years but was not leased to the second respondent and was zoned for residential purposes.

The Tribunal "provisionally decided" that the application for variation of the purpose clause should be approved subject to two conditions, one involving the deletion of the reference to use of the land for a passenger coach terminal and the other relating to the provision of car parking spaces. The latter condition contemplated tying the leasehold interest in Blocks 21-23, Section 13 to the leasehold interest in Block 1, Section 8. Possible mechanisms by which this might be achieved were suggested, but the parties were invited to propose appropriate orders. The Tribunal concluded that the land comprising Block 1, Section 13 would be needed only for overflow parking on Friday and Saturday 'peaks' and it questioned the wisdom of requiring a substantial area of land in or adjacent to a prime commercial corridor to be left vacant during the week. Accordingly, it imposed no further condition in relation to the continued availability of this land.

On the hearing of the appeal it was submitted on behalf of the appellant that having found that it had been a serious error not to require a preliminary assessment, the Tribunal had erred in purporting to dispense with that requirement. Mr Einfeld QC who appeared for the appellants, submitted that s.284 did not extend to requirements of that kind. He maintained that the section merely conferred a power to waive strict compliance with requirements of a procedural nature. The requirement for a preliminary assessment was of a substantive nature or, was nonetheless a procedural requirement of such fundamental importance as to fall outside the scope of s.284.

Mr Einfeld QC also submitted that the Tribunal had erred in the manner in which it dealt with the issue of parking requirements. He maintained that it had been erroneous to decide that there should be a conditional approval when it was not possible for compliance with the conditions to be ensured. It had not been shown that Blocks 21-23, Section 13 could be tied to Block 1, Section 8 in any effective manner and it was clear that Block 1 Section 13 could not be so tied.

On the other hand, it was submitted on behalf of both respondents that the appeal was incompetent in that decision appealed from was only a "provisional decision" and hence not a decision of the kind referred to in s.46(1) of the Administrative Appeals Tribunal Act 1989 (AAT Act). That section is cast in apparently wide terms, referring to "any decision of the Tribunal" in the relevant proceedings. However in Director General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 Deane J, with whose reasons Fisher J expressed agreement, held, at 593, that subject to certain qualifications an appeal lies under the corresponding Commonwealth enactment "only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review". His Honour commented that ordinarily such a decision would be the final decision formulated in accordance with the relevant provisions of the equivalent Commonwealth Act. The qualifications to which his Honour adverted related to appeals from a decision where the interests of a person were not affected by a particular decision and cases in which the proceedings before the Tribunal could be divided into two or more separate parts in respect of which independent "decisions" could properly be given. The decision in Chaney was followed by Bowen CJ , Fox and Jackson JJ in Alcoa of Australia Ltd & Others v Swiss Aluminium Australia & Others (1986) 64 ALR 317 and more recently by Jenkinson J in Australian Postal Corp v Nguyen (1996) 142 ALR 170.

Mr Einfeld QC submitted that appeals against interlocutory or interim decisions of the Tribunal are heard "all the time". In support of this contention he cited Australian Postal Commission v Hayes [1989] FCA 176; (1989) 87 ALR 283 at 286 where Wilcox J dealt with the discretionary nature of the power to review a decision under the Administrative Decisions (Judicial Review) Act (Cth) 1977. In that case the decision under review was an evidentiary ruling made during the course of proceedings which had not been concluded. He also cited the decision of the High Court of Australia in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 in which Mason CJ said at 335 that the word 'decision' could refer to a determination "whether final or intermediate". In the context of the Commonwealth Administrative Decisions (Judicial Review) Act 1977, His Honour held that the concept of a reviewable decision was not limited to a final decision disposing of the controversy between the parties.

In answer to these submissions Mr Walker, who appeared for the first respondent, pointed out that there are circumstances in which appeals against interlocutory or interim decisions are expressly authorized by statute. For example, s.6 of the Administrative Decisions (Judicial Review) Act 1989 enables an application to be made to the Supreme Court for review of conduct engaged in for the purpose of making a decision under that Act. There are other circumstances in which the Tribunal is empowered to hear appeals from decisions which are themselves of an interlocutory nature. Mr Walker cited as an example a decision to suspend a medical practitioner pending a final decision by the Disciplinary Tribunal. The decision to suspend it would itself be subject to review by the Administrative Appeals Tribunal and the decision made in relation to that appeal would then be subject to appeal to the Supreme Court since it would be the "effective decision" of the Tribunal. However, there is nothing in the Land Act to authorize appeals from interlocutory decisions of the Tribunal in matters of this kind.

Both Australian Postal Commission v Hayes and Australian Broadcasting Tribunal v Bond were cases in which the power to review was derived from the Administrative Decision (Judicial Review) Act (Cth) 1977. In the former case it was apparently not in dispute that the Act authorized review of the decision. Rather, it was contended that such a review should be refused on discretionary grounds. In the latter case Mason CJ made it plain that the word "decision" should be interpreted in the context of the legislation in which it was contained. Even in the context of the Administrative Decisions (Judicial Review) Act (Cth) 1977 His Honour at 336 said that a number of considerations pointed to the word having a relatively limited field of operation. A reviewable decision is one for which provision is made under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. It must be a substantive rather than a procedural determination. That statute is quite different in character from AAT Act and there is no reason to suppose that the word 'decision' has a co-extensive meaning. His Honour did not suggest that Chaney was wrongly decided.

In Australian Postal Corporation v Nguyen, Jenkinson J referred to both of these cases but expressed the view that reasoning upon provisions of the Administrative Appeals (Judicial Review) Act (Cth) 1977 could not automatically be applied to the Administrative Appeals Tribunal Act (Cth) 1975. His Honour concluded that in relation to reviewable decisions under the latter Act he was bound by the decision in Chaney. In my view the present appeal must be approached on the same basis. Accordingly the competency of the appeal falls to be determined according to whether or not the judgment appealed from can be regarded as the "effective decision" of the Tribunal.

Alternatively, Mr Einfeld submitted that I should regard the document dated 21 May 1997 and described as "Reasons for Decision" as reflecting the effective decision of the Tribunal for the purposes of s.46 of the AAT Act. He submitted that the fallacy in the argument advanced on behalf of the respondents was that it elided the distinction between decisions and orders. The decision was provisional only in the sense the Tribunal had invited the parties to submit draft orders and foreshadowed a further hearing if the parties were unable to agree. This was no different from any other situation in which a Court determines the substance of the dispute between the parties but directs them to bring in short Minutes of Orders reflecting the findings already made. He submitted that there were two important decisions which were final in their effect, namely a decision to dispense with the preliminary assessment and a decision to approve the development subject to conditions. These decisions were not of a preliminary or interim nature of the kind referred to in Chaney but were determinative of the issues subject only to the formulation of the final orders.

In answer to this contention Mr Walker and Mr Purnell SC, who appeared for the second respondent, submitted that the "effective decision" was the decision which had legal effect. In the example posited, the judgment would have legal effect because it would be a final judgment subject only to the resolution of details concerning the form of the orders. On the other hand the judgment appealed from does not purport to be a final judgment. This is clear from the terms of paragraph 55 which states that the Tribunal "provisionally decides" that the development application be approved subject to certain conditions. It is clear that a provisional finding of this nature would not have the legal effect of allowing the second respondent to obtain a fresh or amended lease over the land in question. Furthermore, the issues left unresolved were not merely matters of arithmetic calculation or precise drafting but were of critical importance to the resolution of the issues between the parties.

As mentioned earlier, the Tribunal made it plain that the approval of the application should be subjected to conditions including the provision of some mechanism to secure the continued ownership of Blocks 21-23, Section 13 Braddon in the same ownership as the hotel site. One of the issues raised on appeal is whether the Tribunal erred in failing to take into account the fact that the second respondent did not and could not establish that the land in question would continue to be available for the provision of car parking facilities. Yet the Tribunal had invited the parties to propose an order to deal with this very matter and foreshadowed a further hearing in the event they were unable to agree. It is true that the further hearing was intended to be "on the form of the order", but in the event of disagreement the Tribunal presumably contemplated ruling on whether the relevant condition could be fulfilled in the manner proposed. If during the course of argument it had become apparent that the condition could not be fulfilled, then the Tribunal would no doubt have revisited the tentative conclusion it had reached. No doubt that was one of the reasons it described its decision as a provisional one. In any event, in the context of the Tribunal's findings the form of the of the order was intended to define the precise nature of the condition. That was itself an important matter and not a mere matter of form.

I see no reason to doubt the accuracy of the Tribunals own description of its decision as provisional. It follows that I do not regard it as an effective decision for the purposes of s.46 of the AAT Act. Consequently, in my opinion the appeal is incompetent and must be dismissed.

However since there has been extensive argument as to the grounds of appeal and the matter may need to be further considered by the Tribunal, it may be appropriate to address the merits of the two short points on which Mr Einfeld QC indicated the appeal was dependent.

So far as the preliminary assessment is concerned, it was submitted by Mr Walker and Mr Purnell SC that the Tribunal had in fact fallen into error by embarking upon any consideration of this issue. Section 237 confers a right of objection only upon any person who may be affected by the approval of an application. The term "approval" was defined at the relevant time by s.222 to mean:

"(a) an approval under s.230, 240 or 241 (b) a decision under another Act that is declared by that Act to be an approval for this path"

The approval of the variation of the purpose clause in the lease of Block 1, Section 8 Braddon was made under s.230. Such an approval may be reviewed by the Tribunal pursuant to s.276. However, neither that section nor any other section in the Land Act provides any entitlement to object to a decision under s.113 or any failure to comply with s.114 or to seek any review in respect of any such a decision.

Mr Einfeld suggested that s44(1) of the AAT Act authorized the Tribunal to review the earlier decision since the approval which it was entitled to review was in effect tainted by it. That section is in the following terms:

"For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretion that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -

(a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and - (I) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."

It is true that this section enables the Tribunal to exercise "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision." However, in my view, that does not authorize the Tribunal to review the correctness of any antecedent decisions which might be thought to be of relevance to the decision under review. In Civil Aviation Safety Authority v Coburn (1996) 24 AAR 389 Branson J considered a decision of the Administrative Appeals Tribunal setting aside a decision made by the applicant to vary the respondent's aircraft maintenance license by removing an endorsement relating to the entitlement to service wooden airframes. The respondent had refused to undertake a "group 3 wooden airframe structures examination" pursuant to a requirement made upon him under Regulation 33 of the Civil Aviation Regulations (Cth) (1988). The decision to vary his license was based upon that refusal. The Tribunal had determined the matter on the basis that the decision to require the examination had not been a valid exercise of the discretion conferred by the regulation. However Branson J held that this had not been a reviewable decision. He commented, at 397, that in his view "it was not open to the AAT to embark on a review of a decision which was not a reviewable decision under the guise of reviewing a reviewable decision." His Honour also held that it was not open to the Tribunal "to seek to exercise a discretion vested in the respondent at a time earlier than the time of the making of the decision in fact under review". See also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419; Secretary, Department of Social Security v Riley (1987) 17 FCR 99 per Northrop J at 103 and Fletcher v Commissioner of Taxation [1991] HCA 42; (1988) 19 FCR 442 per Lockhart, Wilcox and Burchett JJ at 452.

In answer to this contention Mr Einfeld returned to Australian Broadcasting Tribunal v Bond. In that case Mason CJ said at 338,

"To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made."

However, this was not a case in which the decision made under s.114 could properly be regarded falling within the concept of conclusions or findings forming part of the reasons for the making of the subsequent decision under s.230. It was a different decision made under a different statutory power. Indeed the scheme of the Land Act is such that it is at least possible for a decision under that section to be made by a different minister that charged with the responsibility for making decisions under s.230. As Mason CJ pointed out, at 337, a reviewable decision is one for which provision is made by or under a statute. The Land Act provided a right to review decisions made under s.230 but provided no such right in relation to decisions made under s.114.

In the present case the Tribunal was called upon to review the decision made under s 230. It was neither required nor authorized to review the earlier decision made in relation to the need for a preliminary assessment. It should have proceeded upon the basis that that decision could not be challenged in the proceedings before it. Hence any error which could be shown to exist in relation to the Tribunal's decision to dispense with such an assessment could not offer any basis for impugning the provisional decision or, perhaps more relevantly, any final decision which it may make concerning the approval under s.230. Accordingly, even if I had not been of the opinion that the appeal was incompetent, those grounds dependent upon impugning the Tribunal's approach to this issue would have failed.

Two issues arise for consideration in relation to the provision for adequate parking. So far as Blocks 21-23, Section 13 are concerned, Mr Einfeld submitted that it was no answer to say that this was the very matter deferred for further consideration. He contended that the purpose clause may not be maintained "subject to defeasance and that there was no evidence to enable the Tribunal to conclude that there was any adequate security of tenure for those blocks. I am unable to agree with this approach. As noted earlier, the Tribunal expressed the view that the tenure of these blocks could be secured, suggested certain mechanisms for tying them to Block 1, Section 8, invited the parties to submit an agreed proposal and foreshadowed a further hearing if necessary. One of those parties was the Minister for the Environment, Land and Planning. This appeal was brought before any such proposal was put forward and considered by the Tribunal. Hence it would be incumbent upon the appellant to demonstrate that the condition was incapable of being fulfilled no matter what proposal was put forward and no matter what co-operation was offered by the Minister. The speculative nature of the exercise required merely tends to confirm the provisional nature of the decision appealed from. In my view, it should not be assumed that no means could have been found to tie the tenure of those blocks to the tenure of Block 1, Section 8.

So far as Block 1, Section 13 Braddon is concerned, Mr Einfeld's submissions seem to be predicated upon the assumption that when the Tribunal referred to parking requirements it meant that the approval under s.230 could only be considered acceptable if the provision of such parking facilities could be ensured. I do not accept that the Tribunal determined that Block 1, Section 13 was required in that sense. It did speak of the 'overflow requirement' but in my view that meant no more than that more vehicles were likely to be driven to the club on the nights in question than could be accommodated on the other blocks. Nor do I accept that it failed to take into account the fact that the second respondent could not secure tenure to the land in question. It seems to me, that as a matter of law, the Tribunal was entitled to take into account the likelihood that the land would continue to be available to provide overflow parking for some time in the future notwithstanding the absence of any tenure on the part of the second respondent. Similarly, it was open to the Tribunal to come to the view that the public interest in having that land available for future development outweighed the public interest in ensuring the continued provision of that overflow parking. Finally, it was open to the Tribunal to take the view that the lease variation should be approved notwithstanding some risk that overflow parking might cease to be available in the future. Of course, I express no view as to whether the Tribunal should have come to these views or should during the course of any further consideration of this application adhere to such views. The point is simply that the Tribunal has not been shown to have fallen into any error of law. Consequently, even if I had not been of the opinion that the appeal was incompetent, those grounds relating to parking requirements would also have failed.

The appeal must be dismissed.