Canberra Tradesmen's Union Club Incorporated and Anor v The Minister for Environment Land and Planning and Anor and The Licensed Clubs Association ACT Inc v The Minister for Environment Land and Planning and Anor [1999] ACTSC 80 (23 July 1999)

Last Updated: 6 October 1999

CANBERRA TRADESMEN'S UNION CLUB INCORPORATED and ANOR v THE MINISTER FOR ENVIRONMENT LAND AND PLANNING and ANOR

AND

THE LICENSED CLUBS ASSOCIATION ACT INC v THE MINISTER FOR ENVIRONMENT LAND AND PLANNING and ANOR

[1999] ACTSC 80 (23 July 1999)

CATCHWORDS

APPEALS FROM ADMINISTRATIVE AUTHORITIES - Administrative Appeals Tribunal (ACT) - decision to approve development application - whether error of law - whether decision permitting use of hotel as licensed club breached s 34(4A), Liquor Act 1975 (ACT) and Gaming Machine Act 1987 (ACT) - Tribunal's mere authorisation or approval to use premises as a club not unlawful - relevance of public policy factors - no error of law.

APPEALS FROM ADMINISTRATIVE AUTHORITIES - Administrative Appeals Tribunal (ACT) - decision to approve development application - whether error of law - whether ministerial decision not to require mandatory preliminary assessment of development proposal was reviewable by Tribunal - whether ministerial decision was a `step along the way' or final decision - Tribunal entitled to consider `steps along the way' in reviewing final decisions - Tribunal empowered to dispense with statutory requirements overlooked by original decision-maker - no error of law in exercise of dispensing power - ss 113, 114, 284, Land (Planning and Environment) Act 1991 (ACT).

Liquor Act 1975 (ACT), s 34(4A)

Land (Planning & Environment) Act 1991 (ACT), ss 113, 114, 284

Gaming Machine Act 1987 (ACT)

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Administrative Appeals Tribunal Act 1989 (ACT), s 44

Canberra Tradesmen's Union Club Inc and Anor v Minister for the Environment, Land and Planning and Anor (unreported, Full Court, Federal Court of Australia, Higgins, Heerey and Mansfield JJ, 18 September 1998), discussed

Canberra Tradesman's [sic] Union Club Inc and Anor v Commissioner for Land and Planning and Ors, (unreported, Supreme Court of the ACT, Crispin J, 23 June 1998), applied

Canberra Tradesmen's Union Club Inc and Anor v Commissioner for Land and Planning and Ors (unreported, Full Court, Federal Court of Australia, Miles, Mathews and Lehane JJ, 25 March 1999), applied

Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 170 CLR 321 at 338, discussed

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

Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32, discussed

The Territory Plan (ACT)

Nos. SCA 94 and 98 of 1998

Coram: Higgins J

Supreme Court of the ACT

Date: 23 July 1999

IN THE SUPREME COURT OF THE )

) No. SCA 94 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CANBERRA TRADESMEN'S UNION CLUB INCORPORATED

First Appellant

AND: RAYMEL HOLDINGS PTY LIMITED (ACN 071 324 851)

Second Appellant

AND: THE MINISTER FOR ENVIRONMENT LAND AND PLANNING

First Respondent

AND: REBENTA PTY LIMITED

Second Respondent

IN THE SUPREME COURT OF THE )

) No. SCA 98 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE LICENSED CLUBS ASSOCIATION ACT INC

Appellant

AND: THE MINISTER FOR ENVIRONMENT LAND AND PLANNING

First Respondent

AND: REBENTA PTY LIMITED

Second Respondent

ORDER

Judge: Higgins J

Date: 23 July 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal from the Administrative Appeals Tribunal be dismissed.

1. This is an appeal from a decision made by the Administrative Appeals Tribunal of the Australian Capital Territory (AAT) on 30 September 1998. The AAT was constituted by Professor L J Curtis, Dr E McKenzie and Mr E Dunn. The decision was to approve a development application made by the second respondent (Rebenta) in respect of land the subject of a Crown lease over Block 1 Section 8 Braddon upon which is erected the Canberra Rex Hotel (the hotel land). That decision set aside a determination made by a delegate of the first respondent (the Minister). That determination had approved Rebenta's proposal to vary the purposes clause of the Crown lease so as to add to the approved purposes for which the hotel land might be used, "a club". A proviso was added that the total gross floor area of any "club" should not exceed 1,100 square metres and that its location upon the hotel land was "subject to the approval of the Territory".

2. The original decision-maker accepted that if the additional use was made of the hotel land, demand for an additional twenty-two car parking spaces would be generated. He noted, also, that s 34(4A) of the Liquor Act 1975 (ACT) (Liquor Act) would forbid the issue of a club licence in respect of the hotel land so long as there was a general (or hotel) licence in force in respect of any part of the land.

3. As to car parking, there was no condition imposed by the delegate, though not all car parking needs could be met on site. However, Rebenta did own Crown leases over blocks 21, 22 and 23, section 13, Braddon, adjacent to the hotel land (hotel car parking land). There was, additionally, a vacant block of land adjacent to Rebenta's car parking land which, though zoned residential under the Territory Plan, was used for car parking (Territory car parking land). It was not in dispute that all those areas would need to be available for car parking if the projected demand was to be met.

4. The development proposal was objected to by the appellants. The third-named appellant (Licensed Clubs Association) (LCA) objected upon a number of grounds. Its solicitors wrote on 15 October 1996, complaining that a decision to approve an application to vary the usage clause in relation to the hotel land would:

* be in breach of s 114 of the Land (Planning and Environment) Act 1991 (ACT) (Land Act) in that no preliminary assessment of the proposal had been made;

* create parking and noise problems for nearby residents and hotel guests; and

* potentially, be in breach of the Gaming Machine Act 1987 (ACT) (Gaming Machine Act).

5. That was not the only objection. Mr Peter Hunt, a property consultant, also on 15 October 1996, made similar objections on behalf of the first and second-named appellants but added others, including inconsistency with the Liquor Act as well as the Gaming Machine Act. The first appellant (Tradesmen's Club) is a licensed club situated in the next suburb. The second appellant (Raymel) is a corporation associated with the Tradesmen's Club.

6. On 13 November 1996, Rebenta's solicitors were advised that its development application was approved subject to certain conditions.

7. The objectors sought review of that decision by the Land and Planning Appeals Board by notice dated 13 December 1996. The grounds for review did not include the reference to the Liquor Act or the Gaming Machine Act. That review became one to be undertaken by the AAT (see Act No. 71 of 1996). It came before the AAT on 20 March 1997. The hearing concluded on 24 March 1997.

8. The AAT handed down reasons on 21 May 1997, for what was described as a "provisional decision". In that decision, the AAT indicated that approval for the development proposal would be given if certain conditions could be met. Those conditions were, first, that the permitted use of the hotel land for a passenger coach terminal should be deleted. The second was that there should be an assurance of continued common ownership of the hotel land and the hotel car parking land (blocks 21-23, section 13, Braddon). The concern was that, though Rebenta owned the leases of all that land, as they were separate leases they could be sold separately from the hotel land. The AAT assumed that the Territory car parking land would continue to be available for that purpose.

9. It was not then apparent to the AAT that these conditions could be met. Thus, no final decision was made.

10. In the course of its reasons, the AAT noted the absence of a preliminary assessment of the environmental impact of the proposal. The original decision-maker had considered a preliminary assessment to be optional.

11. Such an assessment is not mandatory unless the approval of the application would be a "defined decision" for the purposes of s 114 of the Land Act. A proposal such as the present would call for a "defined decision" unless it 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".

12. The view that the additional use of the hotel land for the purpose of "a club" was not a "significant change" was severely criticised by the AAT. It pointed out that a proposal for a club within 150 metres of a Residential Land Use Policy area would, in itself, be a "defined decision" and, therefore, subject to a mandatory preliminary assessment.

13. However, having regard to the course the proceedings had by then taken, the AAT concluded that no useful purpose remained to be served by a preliminary assessment then being undertaken, notwithstanding that it was a breach of the provisions of s 114 for the delegate not to have given notice requiring the assessment. There had, therefore, been a failure to comply with that provision of the Land Act in connection with the approval process. The AAT concluded that such a failure was one which could, effectively, be cured by the application of s 284 of the Land Act.

14. That section provides, relevantly:

"Where a person appeals, or purports to appeal, under this Act -

(a) to the Administrative Appeals Tribunal ....

and it appears to the Tribunal ...

(c) that ... the decision, or the purported decision, against which the appeal, or purported appeal, has been brought is affected by a failure to comply with a requirement of this Act; and

(d) that to exercise the powers conferred by this section would not be unjust or inequitable;

the Tribunal ... may order that, subject to any specified conditions, the requirement concerned be dispensed with to the necessary extent."

15. The AAT took the view that, in the circumstances, it should, by order, dispense with the requirement for a mandatory assessment, assuming the failure to require one might otherwise have affected the decision to approve Rebenta's application.

16. As to the parking requirements, the AAT concluded that the expert evidence which had been relied upon by the original decision-maker should be accepted as "basically correct". The only continuing relevance of the parking issue is that it is, and remains, accepted by all parties that, to provide sufficient parking, it is essential that all of the off-site parking areas then in use remain available for that purpose.

17. Before the AAT, the appellants had contended that the Territory car parking land should be disregarded in considering whether the parking demand generated by the hotel land had been met.

18. It was conceded by Rebenta that the Territory car parking land was in a residential land use area. It was not designated for use as a car park.

19. However, it was common ground that the land in question had been used, with the consent of the relevant authorities, as a car park since 1959. It had been considered, even then, to be an amenity required for the use of hotel patrons. Indeed, the then hotel owner paid £5,780 to the Commonwealth for improvements to the land which enabled it to be used as a properly constructed car park. The hotel owner agreed, however, that it would not, as a result, acquire or assert any proprietary interest in the land whether legal or equitable.

20. The AAT nevertheless concluded that it was reasonable to assume that the Territory car parking land would continue to be available as a car park. The AAT therefore accepted that the parking demands of the proposed development were met.

21. The appellants had also objected to the proposal on the ground that a licensed club was neither permitted nor appropriate within a licensed hotel facility. However, the AAT did not consider it necessary to determine that question. That was, it considered, a matter for other authorities if a liquor or gaming machine licence was applied for by any "club" established on the hotel land.

22. Notwithstanding that no final order was made approving Rebenta's application, the present appellants appealed to this court against the provisional decision.

23. Those appeals were determined by Crispin J on 18 December 1997. They were dismissed. The appellants further appealed to the Federal Court. On 18 September 1998, those appeals were also dismissed. I was a member of that court.

24. In the reasons given for that latter decision, I agreed with the view, which had been taken by Crispin J at first instance, that the appeals had been incompetent. Heerey and Mansfield JJ also agreed.

25. The order of the Federal Court was that the matter be remitted to the AAT to complete its deliberations.

26. That was done with the handing down of a final decision on 30 September 1998. The AAT approved Rebenta's application subject to the four separate leases over the hotel land and the hotel car parking land being consolidated into a single lease containing a use condition permitting the development on the hotel land of a licensed club.

27. From that decision the appellants appeal to this court.

The appeal - submissions of appellants

28. Mr Martin Einfeld QC, for the appellants, raised a number of issues. Some of those had already been determined, albeit obiter, by Crispin J. The Full Federal Court had refrained from expressing any concluded view on any issue other than the competence of the appeal. I did, however, note that the view expressed by Crispin J that the decision of the original decision-maker to dispense with a preliminary assessment was not open to review, might be open to argument.

29. The submissions advanced by Mr Einfeld may be summarised as follows:

(1) that to approve the establishment of a licensed club upon hotel premises was to approve an unlawful activity;

(2) that the failure to require a preliminary assessment was a breach of a mandatory requirement of the Land Act which could not or, at least, should not, have been dispensed with under s 284 of the Land Act; and

(3) that the decision was flawed because the AAT wrongly assumed that the Territory car parking land was legally secured for the use of hotel land patrons.

30. I will consider each of these submissions.

Unlawful use of the hotel land

31. It is correct to say, as Mr Einfeld did, that it would not, on the basis of the law as it then stood and, indeed, remains, be lawfully open to grant a liquor or, consequently, a gaming machine licence to a club situated anywhere upon the hotel land or, indeed, on any land joined with it under the same Crown lease. That follows from s 34(4A) of the Liquor Act. Without a club licence under that Act, the proprietor of the club premises could not obtain a licence to operate gaming machines under the Gaming Machine Act.

32. A similar objection was raised by the LCA in relation to the approval by the Commissioner for Land and Planning of a development application which would have permitted Casino Canberra to allow a club to use of part of its premises for gaming machines, a use prohibited by the Gaming Machine Act. So far as this objection was concerned, Crispin J (Canberra Tradesman's [sic] Union Club Inc and Anor v Commissioner for Land and Planning and Ors (unreported, Supreme Court of the ACT, 23 June 1998), observed that the use in question might lawfully be approved by the relevant authorities, even if that required some change to the designation of the existing use of the premises for the purpose of a casino.

33. There was, in that case, no objection based on the proposition, if it was so, that the land upon which the casino, or the proposed club, was situated contained some area included within a general licence. To that extent, the point decided was a different one. However, it seems to me that the underlying principle is the same.

34. The view so taken by Crispin J received the approval of a Full Court on appeal (see Canberra Tradesmen's Union Club Inc and Anor v Commissioner for Land and Planning and Ors (unreported, Full Court, Federal Court of Australia, Miles, Mathews and Lehane JJ, 25 March 1999)).

35. At par 32 of that decision, the Full Court rejected the view that a mere authorisation to use the premises for a licensed club, additionally to other permitted uses, involved an illegality.

36. With respect to Mr Einfeld's strenuous arguments to the contrary, I find this reasoning is necessarily applicable to the issue before me. Indeed, the case is stronger. With the Casino it was possible that some legislative amendment could have been required to enable the proposed club to obtain necessary licences to operate with gaming machines. In the present case, the surrender of the general licence by its holder would, subject to other conditions being satisfied, at least make it lawful for a club licence to be granted. If the conditions for grant of a club licence are not met, then that use will simply not occur.

37. In so far as the objection was based on public policy, it is not clear to me what public policy would forbid the establishment of a club on the hotel land provided all applicable legal preconditions were complied with. Such a club would, of course, have to meet the description of a club in Appendix 6 of The Territory Plan (ACT), that is:

"... a meeting place for persons associated, or ...a body incorporated, for a social, sporting, athletic, literary, political or other like purpose, and which is a licensed premise under the Liquor Act 1975."

38. Whether or not any "club" established on the hotel land will comply with that definition is a matter which the Liquor Licensing Board has the authority to consider and determine.

39. It may be concluded, however, that, as the relevant Minister did not oppose Rebenta's application, the Government and its relevantly interested agencies see no public policy objection. In any event, even if there were some public policy objections to a subversion of the licensed club - poker machine nexus, it is not clear to me how that consideration gives rise to an error of law on the part of the AAT if it fails to forbid the possibility of such a subversion arising.

40. There was, in any event, no legal error in the conclusion by the AAT or the original decision-maker that to approve the application was not unlawful. It was not inconsistent with the relevant legislation or, indeed, the Territory Plan.

The lack of a preliminary assessment

41. The finding of the AAT that s 114 of the Land Act mandated a request for a preliminary assessment under s 113 was not the subject of any notice of contention by the respondents. In any event, in my view, the AAT was clearly right. The error in the original decision seems to have been the adoption of an unnecessarily narrow view of what change in the current situation was "significant". The reasons advanced by the AAT seem to me very persuasive. In any event, as was pointed out by the Full Federal Court, at par 30 in Canberra Tradesmen's Union Club Inc and Anor v Commissioner for Land and Planning and Ors (supra) , such a decision is largely a question of fact open to review by this court only if the finding bespeaks error on a question of law.

42. The respondents also contend that the decision not to require the assessment was not reviewable by the AAT under s 44 of the Administrative Appeals Tribunal Act 1989 (ACT) (AAT Act).

43. A decision that s 114 does not mandate an assessment is not a decision referred to in ss 275, 276, 277 or 282A of the Land Act as a reviewable decision.

44. As I noted in Canberra Tradesmen's Union Club Inc and Anor v Minister for the Environment, Land and Planning and Anor (unreported, Full Court, Federal Court of Australia, Higgins, Heerey and Mansfield JJ, 18 September 1998), the decisions which are declared by the Land Act to be reviewable by the AAT are in the nature of final decisions rather than steps along the way to a final decision.

45. However, that does not mean that a failure to comply with such a "step along the way" will be irrelevant to the validity of a final and reviewable decision which is the end of the process of which it forms part.

46. I respectfully refer to the remarks of Mason CJ in Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 170 CLR 321 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."

47. It seems to me that Mr Einfeld was correct to point to the important role which a preliminary assessment could be expected to play in the decision-making process. It is available for public inspection (s 117, Land Act). It provides detailed information concerning the project and its environmental impact (see s 115 and Schedule 3, Land Act).

48. Nevertheless, the original decision-maker proceeded without it. The various objectors, including the appellants, had a full opportunity, at least by the time the AAT had conducted its review of that decision, to explore all of the matters which would have been covered by a preliminary assessment. It was certainly open to the AAT to conclude, as it did, that no useful purpose would have been served in sending the matter back to the original decision-maker with a direction that a preliminary assessment be required.

49. The AAT recognised, correctly in my view, that it was entitled to take cognisance of the erroneous decision not to require the preliminary assessment and had a discretion to set aside the decision under review in consequence of that error.

50. It did not, however, do so, concluding that the error was one the consequence of which might be overlooked by virtue of s 284 of the Land Act.

51. It would, as Mr Einfeld submitted, be strange if a mandatory requirement imposed by s 114 could simply be dispensed with because compliance does not seem likely to serve a useful purpose. There is considerable force in that submission. However, it seems to me that it is necessary to consider on whom the mandatory requirement falls and who has the dispensing power, if any.

52. The Minister has no dispensing power. It is only the AAT, or on appeal from it, this court, which does. In the case of s 114 in particular, this seems entirely reasonable. By the time the decision has been made, albeit without s 114 compliance, and then reviewed, compliance may have become otiose. So it was here. Indeed, if s 284 confers a dispensing power on the AAT which extends to the requirements imposed by s 114, it seems to me to have been correctly exercised.

53. Does it extend so far ? On its face, it is a wide discretion. If the planning appeals process is to be flexible and "user-friendly", the fewer technicalities developers or objectors have to face, the better.

54. That does not mean that decision-makers are free to ignore the Act. They are not free to ignore the Territory Plan. That is given primacy by the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). It does mean that if they do fail to comply with a provision of the Land Act in the course of making a reviewable decision, the AAT will be able to consider such a question from the viewpoint of justice and equity, and if, as here, persuaded that it would not be unjust or inequitable to dispense with an otherwise mandatory requirement, may do so.

55. I reject the view that s 114 does not provide such a "requirement". It is not limited to merely procedural matters.

56. In so deciding, I have not overlooked Mr Walker's persuasive argument that the decision to dispense with the preliminary assessment was not an antecedent decision of a kind made open to review by the appellant's application to the AAT. It was a merits review, not a review under the Administrative Decisions (Judicial Review) Act 1989 (ACT). The decision under review was not the decision to waive the requirements of ss 113 and 114.

57. However, though Mr Walker cited Fletcher v Commissioner of Taxation [1991] HCA 42; (1988) 19 FCR 442 and Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32, as supporting this view, they do so only partly. They affirm the view that the AAT, if it sets aside or affirms the decision under review, may make such further decision - for example, to waive an overpayment - as the original decision-maker could have done. That would not, in my view, preclude the AAT from concluding that the decision under review was tainted by a relevant error of law. Nor is it clear to me that if it was to make the "preferable decision", absent a dispensing power, it could disregard the limits placed on the original decision-maker's powers to approve the application. However, the AAT does have the power, by virtue of s 284, to dispense with a relevant requirement which has been erroneously overlooked, even if the original decision-maker could not do so. It is, therefore, unnecessary to further consider that submission.

58. It follows that the AAT was not in error in deciding to approve the application, notwithstanding the failure of the original decision-maker to comply with s 114.

The role of the Territory car parking land (block 1, section 13, Braddon)

59. It is necessary to point to the limited nature of this appeal. It is not a merits review. It is limited to correction of the decision made only if, and in so far as, it is rendered voidable by an error of law. Thus, I am not in a position to reconsider the factual conclusion accepted by the AAT in relation to the parking requirements which would be generated by the proposed development of the hotel land including that generated by existing uses. Indeed, it is not suggested that I should.

60. The AAT considered not only "on-site" parking, but also the public car parking available on the Territory car parking land. The AAT did not misconceive the legal effect of the status of that land. It recognised that Rebenta neither had, nor was likely to be granted, any legal or equitable interest in the land. The only issue was as to whether, because it had no such interest, it was reasonable to expect that the land would remain available for public car parking.

61. In my view, that question was one of fact for the AAT to determine. Given that it would be, at least initially, a matter for the government of the ACT to decide if the land remained in use as a car park, the continued support by the Minister for the development in question would support the AAT's conclusion. Further, even if a future government decided otherwise, the proprietor of the hotel land, one would think, would have a legitimate interest in objecting to a proposal which would prevent a change from its current usage.

62. It does not seem to me that the conclusion reached on this point by the AAT was so insupportable that no reasonable decision-maker could have made it. Indeed, I see no reason to doubt its correctness.

General

63. It follows that no relevant error of law appears in the decision of the AAT to approve the development application subject to the specified conditions. It does not follow, of course, that the hotel land will, inevitably, have a licensed club situated within it.

64. The appeal from the AAT is dismissed. I will hear the parties as to costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 23 July 1999

Counsel for the Appellants: Mr M L Einfeld QC

Solicitors for Appellants: Clayton Utz

Counsel for the First Respondent: Mr P Walker

Solicitors for First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr F J Purnell SC with Mr D J C Mossop

Solicitors for the Second Respondent: Meyer Clapham

Date of Hearing: 17 May 1999

Date of Judgment: 23 July 1999