I & V Builders Pty Limited and Anor v Minister for Environment Land and Planning and Ors [1999] ACTSC 16 (9 March 1999)

Last Updated: 17 June 1999

I & V BUILDERS PTY LIMITED and ANOR v MINISTER FOR ENVIRONMENT LAND AND PLANNING and ORS [1999] ACTSC 16 (9 March 1999)

CATCHWORDS

APPEAL - Administrative Appeals Tribunal - appeal confined to a question of law - how an appellate court should examine Tribunal's reasons for decision.

Administrative Appeals Tribunal Act 1989, s46(1)

Land (Planning and Environment) Act 1991

Australian Trade Commission v Underwood Exports P/L (1997) 49 ALD 411 cited

Henry v Australian and Overseas Telecommunications Corporation (unreported, Federal Court, Beazley J, 8 April 1993) referred to

Comcare v Lees (1997) 151 ALR 647 cited

Kermanioun v Comcare (unreported, Federal Court, Finn J, 20 November 1998) cited

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL OF THE ACT

No. SCA 92 of 1997

Coram: Gallop J

Supreme Court of the ACT

Date: 9 March 1999

IN THE SUPREME COURT OF THE )

) No. SCA 92 of 1997

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL OF THE ACT

BETWEEN: I & V BUILDERS PTY LIMITED and KAPPELLE PTY LIMITED

Appellants

AND: MINISTER FOR ENVIRONMENT LAND AND PLANNING

LIONEL HOLGATE

TURNER RESIDENTS ASSOCIATION

LAPAC AREA 1

N & S MACDONALD

D & F MCDONALD

PETA WAINWRIGHT

ALLAN NEATE

M MACKAY

CAROLYN STUART

JEN HUTSON

EDWARD REID

J M DICKINS

Respondents

ORDER

Judge Making Order: Gallop J

Where Made: Canberra

Date of Order: 9 March 1999

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal against a decision of the Administrative Appeals Tribunal given on 20 October 1997 whereby the Tribunal decided that the approval of development application 963446 be refused. The Tribunal published written reasons for its decision.

2. The appeal is brought pursuant to s 46(1) of the Administrative Appeals Tribunal Act 1989 (the AAT Act) which provides as follows,

"Appeals to Supreme Court from decisions of the Tribunal

46.(1) A party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law from any decision of the Tribunal in that proceeding."

3. The grounds of appeal are expressed in the notice of appeal in the following terms,

"1. The Tribunal misdirected itself as to the meaning and effect of Performance Measure D4.3 of the Territory Plan in that it treated it as a requirement of the Territory Plan which bound the Tribunal to refuse any development proposal which did not comply with it, when the Tribunal was not so bound.

2. The Tribunal misdirected itself as to the meaning of the term "private open space", and consequently

(a) treated the enclosed areas to the south of Units 3, 4, 5 and 6 as the only areas to be regarded as private open space in respect of those Units;

(b) failed to consider the availability and utility of other areas as private open space in respect of those Units;

(c) failed to apply Performance Criterion P4.3 in relation to all areas of private open space;

(d) failed to take into account other objectives of the Plan relevant to multidwelling blocks involving 2 or more storeys.

3. The Tribunal misdirected itself as to the meaning and effect of Performance Measure D5.13 of the Territory Plan in that it treated it as a requirement of the Territory Plan which bound the Tribunal to refuse any development proposal which did not comply with it, when it was not so bound.

4. The Tribunal misdirected itself as to the meaning and effect of Performance Measure D5.13 of the Territory Plan in that it treated it as being concerned with distance from walls of habitable rooms containing windows and not distance from windows to habitable rooms, and in that it treated the term "setback" as a horizontal separation only, and consequently

(a) failed to consider distance as a factor in reducing noise and air pollution;

(b) failed to take into account evidence before it that the extent of vertical separation achieved by the development proposal had the same effect as a 1.5 metre horizontal separation;

(c) and in any event treated the relevant walls as walls of habitable rooms and not walls comprising part of the foundations of the building.

5. The Tribunal denied the appellants' natural justice in that, notwithstanding compliance with the relevant Performance Measure D8.2, it treated safety aspects in relation to the location of the garbage hoppers as a ground for refusal of the application without giving the appellants the opportunity to provide further evidence of performance."

4. A further ground was added by leave, namely,

"6. The Tribunal failed to give adequate reasons for its decision in that if rejection of certain areas as private open space was a basis for its decision, it failed to make such a finding explicit."

5. Counsel for the second respondent relied upon the following authorities in relation to a required content of a statement of reasons by an administrative tribunal. I cite the relevant passages from those relevant authorities as relied upon by the second respondent.

6. In Australian Trade Commission v Underwood Exports P/L (1997) 49 ALD 411 Mansfield J in the Federal Court had the following to say concerning the issue:

"... It is up to the tribunal to decide what weight it gives to particular evidence before it. It is not obliged in its reasons to refer in detail to every piece of evidence presented to it or to explain why it gives weight or greater weight to one particular piece of evidence. For the reasons given earlier, it is not appropriate for the court on a review such as the present to parse and analyse the tribunal's reasons minutely with a view to finding some apparent flaw in the reasons, and in the face of the import of its reasons when viewed sensibly as a whole and in a restrained and balanced way (p423). See generally Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620 at 621; Blackwood Hodge (Australia) P/L v Collector of Customs (NSW) (No 2) [1980] FCA 96; (1980) 3 ALD 38; 47 FLR 131; Politis v FCT (1988) 16 ALD 707; 20 ATR 108."

7. In Henry v Australian and Overseas Telecommunications Corporation (unreported, Federal Court, Beazley J, 8 April 1993) the court limited the duty to consider "submissions worthy of serious consideration". In Comcare v Lees (1997) 151 ALR 647 Finkelstein J in the Federal Court said:

"In determining whether the obligation to give reasons has been discharged a number of principles must be borne in mind. First as Sheppard J said in Bisley Investments Corporation Ltd v ABT (1982) 59 FLR 132 at 157 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood ... The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusion arrived at (Our Town FM P/L v ABT (No.1) (1987) 77 ALR 577). Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through "with a fine appellate toothcomb to find error" (Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 ...)"

8. Finn J in Kermanioun v Comcare (unreported, Federal Court, Finn J, 20 November 1998) had the following to say:

"There is now a considerable body of case law dealing with the burden imposed on decision-makers by s43(2B) and by its mirror images in other statutes ... The courts have emphasised variously (i) the importance to the parties, to the public and to review bodies of adequate reasons for decision; (ii) the understanding and restraint that courts should demonstrate when reviewing and construing reasons for administrative decisions; and (iii) the appropriate content in terms of findings and recitation of evidence that properly and reasonably can be expected of administrative decision-makers. Many of the authorities are collected and considered in Comcare v Lees (1997) 151 ALR 647 at 655ff and in Muralidhararan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 at 94ff. I will not reiterate here what was said there. I should, though, add to it the later admonition given by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 at 491 that:

"the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

For the purposes of the present application it is sufficient if I note the following propositions concerning the s43(2B) obligation.

(i) A breach of that provision is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned (Commissioner of Taxation v Osborne [1990] FCA 362; (1990) 26 FCR 63 at 65); the Tribunal member, no less than a judge, is not required to deal expressly with "every consideration which passes through his mind (Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621; Misfud v Campbell (1991) 21 NSWLR 725 at 728).

(ii) The Tribunal's Reasons should expose the logic of its decision and should contain findings on those matters that are essential to that logic ... where a matter significant to the decision is in issue and material is advanced by a party to support his or her version of it, that party is entitled to know whether it has been accepted or rejected by the Tribunal ..."

9. The powers of the court upon finding a statement of reasons to be inadequate were succinctly described by Finkelstein J in Comcare v Lees (supra) as follows:

"What are the consequences if the obligation to provide adequate reasons has not been satisfied? There are a number of possibilities. One is that the Tribunal can be compelled to provide reasons by the issue of a writ of mandamus. Another possibility is that a deficiency in the reasons may be such as to lead to the inference that the Tribunal erred in law in arriving at its decision in which case the decision is liable to be set aside. The third possibility is that a failure to give adequate reasons is itself an error of law that enables the decision of the Tribunal to be set aside."

10. Finkelstein J then proceeded to outline an argument why the third alternative was, in his view, not good law. He nevertheless acknowledged the force of the decision of the Full Federal Court in Dornan v Riordan (1990) 95 ALR 451 to the contrary. Whatever the final outcome of this debate, in the respondent's submission there is this much to be said for the views expressed by Finkelstein J, that in order to avoid the mischief identified by his Honour in setting aside administrative decision for inadequacy of reasons, this power ought to be sparingly exercised. The respondent urged the approach taken, for example, by the Full Federal Court in Statham v FCT (1988) 16 ALD 723 where the court held, at 725,

"It would obviously be wasteful of time and costs, and oppressive to witnesses, to order a rehearing if that can be avoided. It would not be appropriate to ask the Deputy President who heard the matter to reconsider an opinion he has expressed so emphatically. It would clearly be far better if this court could properly dispose of the matter finally provided such course is within this court's powers. In our view it is permissible and right that we adopt this course in the present case. The facts are largely undisputed and the Tribunal did make some findings of fact on material issues ..."

11. The appellants argued first, grounds 2 and 5 set out above. The appeal to the Tribunal related to an application for design and siting approval of a proposed development on the western side of Macleay Street in the suburb of Turner. The proposed development was for the construction of sixteen two and three bedroom units on a block of land formed by the amalgamation of three residential leases. Each unit is to be a two storey unit. Carparking for all of the units is to be in an undercroft carpark.

12. The application for design and siting approval was approved by a delegate of the ACT Planning Authority subject to a number of conditions. When public notification of the proposed development was given in accordance with the Land (Planning and Environment) Act 1991, a large number of objections were made.

13. Before the appeal to the Tribunal came on for hearing, the developer had lodged amended plans incorporating all the conditions imposed upon the approval of the development other than that relating to street lighting.

14. It is unnecessary to detail the case against the proposed development. It was based on a number of grounds.

15. One of the objections was based on overshadowing of the private open spaces of some of the units on the southern side of the development. The Tribunal expressed its reasons for judgment on this aspect in the following terms,

"The private open spaces of units 3, 4, 5 and 6 are on the southern side of those units and will be in shadow for a substantial part of the day during the period around the winter solstice. Performance measure D4.3 of the multidwelling code in the Territory Plan requires that the private open space for a dwelling not be located to the south, south-east or south-west of the dwelling. The relevant performance criterion, P4.3, provides that the location of the private open space is to provide for "maximum year round use". The relevant objective is to provide each dwelling with private open space "that meets the reasonable, recreational, service and storage needs of residents". The location of the private open space of units 3, 4, 5 and 6 clearly does not meet the performance measure. Nor do we think that it meets the performance criterion of providing for maximum year round use."

16. Grounds 2 and 6 of the appeal to this court are directed to that part of the Tribunal's decision. It was submitted on behalf of the appellants that the Tribunal considered only the courtyards of units 3, 4, 5 and 6 on the southern side of those units as private open space and failed to take account of the private open space to the north of those units. It was submitted that the Tribunal fell into error in that respect as detailed in ground 2.

17. The term "private open space" is defined in The Territory Plan, Appendix VI to mean "an outdoor area within a block usable for outdoor living activities ..."

18. Consideration having been given to the courtyards only as private open space, the Tribunal found that they did not meet

(a) Performance Measure D4.3 because they were located to the south, and

(b) Performance criterion P4.3 because they did not provide for maximum year round use.

19. It was submitted on behalf of the second respondent that it is evident from the transcript that the Tribunal considered whether certain communal open space may be constituted as private open space and that the Tribunal discounted this possibility because by definition communal open space does not constitute private open space and therefore does not satisfy the objectives and performance criteria. The Tribunal raised this issue near the beginning of the proceedings on 3 July 1997,

"THE PRESIDENT: I have invited Mr Mills specifically to tell us how they interpret both the definition of private open space and the application of the performance measures that are in the design and siting code. I mean at the end of the day it is going to be a matter of interpretation whether part 4 ...of the multi unit development design and siting code which deals with private open space to be aggregated so that you can treat the whole of that space as being available to each dwelling or whether what is required is that there should be the minimum dimensions of private open space separately available to each dwelling."

And on 6 August 1997,

"THE PRESIDENT: ... Would it depend on where the communal open space was located?

Mr ARTHUR: Well, yes ...

THE PRESIDENT: Yes. Well to illustrate what I mean by location, if one were looking at 1 and 2 or 15 and 16 where the units are immediately adjacent to the communal open space, you might make a very different judgment to say what you would do with block 6 which is perhaps the furthest away from the communal open space in the front of the building.

Mr ARTHUR: Yes, I think that's basically it, Mr President."

20. Further, in the course of the proceedings, the appellants proposed that the area to the north of units 3, 4, 5 and 6 inclusive could qualify as private open space. These areas were the subject of evidence concerning the degree of overshadowing caused by unit 7, the fact that the areas were not screened for privacy and were not enclosed.

21. Having perused the relevant portions of the transcript, I do not accept the submission on behalf of the appellants that the Tribunal failed to consider whether the open spaces on the northern side of units 3, 4, 5 and 6 were "private open space" as defined. In my opinion, it would have been preferable for the Tribunal to have referred to the submission put on behalf of the appellants in respect of the areas on the northern side of the units. However, the Tribunal did not fail to consider all the contentions put on behalf of the appellants regarding those areas and, in particular, their overshadowing and their failure to meet a minimum dimension of six metres, to be adjoining the main living room of a dwelling and to be directly accessible from it as required by Performance Measure D4.3. Accordingly, ground 2 in the notice of appeal fails.

22. The rejection of the unenclosed communal areas as private open space sufficiently appears in the informal conduct of the appeal to the Tribunal. Ground 6 also fails.

23. The next ground of appeal argued was ground 5. It was alleged by the appellants that the location of the waste management area or garbage hoppers was found by the Tribunal to comply with Performance Measure D8.2 but the Tribunal refused the proposal on the ground of safety considerations, thus not allowing the appellants to be heard on the point. The relevant paragraph of the Tribunal's decision reads,

"27. The location of the garbage hoppers requires a resident putting material in the hoppers to cross the exit driveway from the undercroft carpark and enter the hopper area from the driveway. The objectors expressed concern for the safety of residents, and particularly of children, when putting out their garbage. The relevant objective in the Territory Plan, O8.1, requires the provision of site facilities "to be convenient and visually attractive". Performance measure D8.2 requires garbage handling to meet the requirements of Waste Management, Department of Urban Services. The location of the garbage facilities does not in fact meet the requirements of the Waste Management guidelines, in that a garbage truck must reverse off the site. Nevertheless, the location has been approved by the Waste Management as sufficiently meeting their requirements. With regard to the safety aspect raised by the objectors, the question is whether the location of the hoppers can be said to be "convenient". We think that the need to cross the driveway and to enter the hopper area from the driveway does not meet the objective in the Plan of convenient facilities. The point is a small one, but it is indicative of the problems arising from the extent to which the proposed development has taken up so much of the site area."

24. It was submitted on behalf of the appellants that the issue of safety concerning the location of the garbage hoppers was not raised at all until day four and then only in passing. It was not mentioned again except in final submissions of the second respondent in which all aspects of the garbage arrangements were presented not as a reason for refusal but as a condition to be attached to an approval. Performance Measure D8.2 was met and the Tribunal so found.

25. It was submitted that the Performance Measure having been met, the Tribunal was obliged as a matter of procedural fairness to give the appellants an opportunity to present further evidence of performance before proceeding to a finding adverse to the appellants on the issue. The Tribunal proceeded to find that the safety aspect did not meet the relevant objective without informing the appellants of its intention and affording it an opportunity to present further evidence of performance. It was submitted that this was a denial of natural justice. I reject the submission. Perusal of the transcript discloses that the safety concerning the location of the hopper was raised by the solicitor for the second respondent on 3 July 1997 in an exchange with the President. It was raised again in the cross-examination of the appellants' architect on 5 August 1997. Admittedly, in the informality of the proceedings, the solicitor made statements expressing her client's concern about it being "a dangerous thing to ask, say, children to take the garbage out with the kind of design ...". The matter was taken up by another one of the respondents in cross-examination of the appellants' architect on 5 August 1997 and again on 11 August 1997.

26. It is unnecessary to set out precisely what was said. It is sufficient to observe that the appellants had every opportunity to address the safety issue and did not do so. It may be that the appellants did not realise the importance which the Tribunal would attach to the safety issue. But the other parties made it apparent that they were opposing the development, inter alia, on the ground of the location of the waste management area from a safety point of view. There was no denial of natural justice in this respect. Accordingly, ground 5 fails.

27. The next ground argued, ground 4, was that the tribunal misdirected itself as to the meaning and effect of Performance Measure D5.13 of the Territory Plan and its application to the driveway into the undercroft carpark. The driveway was to be located immediately adjacent to a wall of unit 15. The Tribunal expressed its conclusions about the driveway as follows,

"28. The driveway into the undercroft carpark is immediately adjacent to a wall of unit 15. That wall contains, on the ground floor, a kitchen window overlooking the driveway and, on the upper floor, the windows of bedrooms 2 and 3 overlooking the driveway. Performance measure D5.13 requires a shared driveway to be set back a minimum of 1.5 metres from windows to habitable rooms of dwellings. It was submitted on behalf of the developer that this measure was satisfied because there was a vertical separation of more than 1.5 metres of the windows from the surface of the driveway. The term "setback" is defined in the Code in relation to setback from a boundary, and it is there defined in terms of a "minimum horizontal distance". In our view, the concept of "setback" refers to a horizontal separation and not a vertical separation. Objective 5.4 seeks to ensure that "access ways provide safe and convenient vehicle access to dwellings". This is not immediately in point. What performance measure D5.3 seems to be aimed at is the amenity of persons living in a dwelling, so that they do not have shared driveways hard up against walls of habitable rooms containing windows. In the present case, the problem is not only vehicle movement immediately below windows, but also the problem of noise and air pollution emanating from vehicles coming up the incline from the undercroft carpark. In this respect we consider that the location of the driveway does not adequately protect the amenity of the residents of unit 15. We think it is unacceptable to present a design in which the residents of a unit have the common driveway used by the residents of 15 other units in the development hard up against a wall containing bedroom and kitchen windows."

28. It is apparent from that passage that the Tribunal limited its consideration of the actual distance between the driveway and the kitchen window by reference to the horizontal distance. It took no account of the actual distance to the windows. It was submitted that the Tribunal failed to consider the actual vertical distance between the windows and the driveway.

29. I do not agree with that submission although there is some force in the criticism of the Tribunal's reasons. In considering the term "setback" as defined in the Territory Plan, the Tribunal clearly concentrated on horizontal distance and rejected vertical distance. However, on a reasonable reading of the Tribunal's reasons, the location of the driveway was not solely rejected on the basis of the failure to achieve appropriate horizontal setback but also on the ground of the effect of having the common drive hard up against the external wall of the habitable rooms of unit 15. The rationale of the Tribunal's decision, in my opinion, is to be found in the penultimate sentence of paragraph 28 above where the Tribunal makes it clear that it considered vehicle movement and the problem of noise and/or pollution emanating from vehicles going up the incline from the carpark. It was on those grounds that the Tribunal considered that the location of the driveway did not adequately protect the amenity of the residents of unit 15. Accordingly, ground 4 fails.

30. I am not satisfied that any other ground of appeal has been established. There being no error of law, the appeal must be dismissed.

31. I shall hear counsel on the question of costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gallop.

Associate:

Date: 9 March 1999

Counsel for the Appellants: Mr R Arthur

Solicitors for the Appellants: Barker & Barker

Counsel for the Respondents: Mr A Anforth

Solicitors for the Respondents: Carolyn Stuart

Dates of hearing: 3, 4 March 1999

Date of judgment: 9 March 1999