J M Blicharz v Minister for Urban Services and L & I Horvarth [2000] ACTSC 45 (2 June 2000)

Last Updated: 16 October 2000

J M BLICHARZ v MINISTER FOR URBAN SERVICES and L & I HORVARTH [2000] ACTSC 45 (2 June 2000)

CATCHWORDS

LAND AND PLANNING - appeal from AAT - appellant applies for an order under s 256 Land (Planning and Environment) Act 1991 to stop development - delegate refuses to make order - AAT affirms decision - whether a lease variation can be approved after it is deemed refused under s 230(2) Land Act - whether registration of instrument varying lease cures any defects in approval process - whether ACT and Commonwealth laws are inconsistent.

Land (Planning and Environment) Act 1991

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)

Australian Capital Territory (Self-Government) Act 1988 (Cth)

Supreme Court Act 1933 (ACT)

Land Titles Act 1925

City Area Leases Act 1936

Interpretation Act 1967 (ACT)

Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1989 (ACT)

Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376

Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd [1999] HCA 20; (1999) 162 ALR 382, 73 ALJR 720

Attorney-General (Northern Territory) v Hand (1989) 25 FCR 345

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 79 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 2 June 2000

IN THE SUPREME COURT OF THE )

) No. SCA 79 of 1999

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: J M BLICHARZ

Appellant

AND: MINISTER FOR URBAN SERVICES

First Respondent

AND: L & I HORVARTH

Second Respondents

ORDER

Judge: Higgins J

Date: 2 June 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The interlocutory injunction be dissolved.

1. This is an appeal from a decision of the Administrative Appeals Tribunal of the Australian Capital Territory (AAT) constituted by President Michael Peedom. That decision was handed down on 1 September 1999.

2. The decision resulted from a review undertaken by the AAT, at the request of the appellant, of a decision made, on 15 December 1998, by the first respondent.

3. The appellant is the lessee of a residential block of land in O'Malley (2 Terrigal Crescent). The second respondents are the lessees of an adjoining residential block (10 Terrigal Crescent) (the subject block).

4. There had, on the subject block, been erected a two storey residence in accordance with relevant approvals granted on 4 October 1983. The residence was finally approved as having been constructed in accord with those approvals on 7 February 1990. That process had not been the subject of any objection by the first respondent. Indeed, the appellant had provided, in his capacity as a Registered Surveyor, a report indicating the compliance of those works with siting requirements.

5. The appellant's dissatisfaction commenced with a decision to approve a development application to permit construction of a second dwelling, and the carrying out of other works ancillary thereto, on the subject block. That decision was reviewed by the AAT. On 11 August 1998 the AAT confirmed the initial decision of the Commissioner for Land & Planning, subject to some minor amendments, to approve that development. There was a further minor amendment approved by the Commissioner on 8 December 1998, but nothing turns upon that.

6. That development application was not effective without approval being granted to a variation of the terms of the Crown Lease over the subject block permitting both dual occupancy and the proposed works.

7. The appellant (amongst others) had objected to the grant of these approvals.

8. So far as the proposal to vary the lease was concerned (approval granted and memorandum of variation registered 4 April 1993), the appellant has now objected that the decision was invalid and the variation null and void.

9. One suggested irregularity was that, although both the siting and design application and the lease variation application were lodged together, only the former was publicly notified and made available for inspection.

10. At that time Regulation 21(2)(b) had excluded lease variations to permit dual occupancies from the provisions of Part VI of the Land (Planning and Environment) Act 1991 (ACT) (the Land Act). That had the effect of excluding such applications from the public notification requirements otherwise applicable. However, that regulation was repealed with effect from 19 January 1995, that is, after the subject applications had been lodged but before they were approved. Thus the lease variation application then became subject to the public notification provisions. The lease variation application was not, however, publicly notified.

11. The initial approval for the lease variation was granted on 23 March 1995.

12. The siting and design application had a much rockier road. Having been publicly notified, it attracted objectors (including the appellant). Having initially been granted, it was refused, on appeal to the AAT, on 25 October 1995.

13. A fresh siting and design application was lodged on 19 June 1996. It was also duly notified but, not having received approval before 1 October 1996, was deemed to have been refused on that date by operation of s 230(2) of the Land Act.

14. On appeal by the second respondents the deemed refusal of the application was confirmed. A third application was, therefore, lodged on 13 October 1997.

15. Despite objection from the appellant, that application was finally granted on 12 January 1998, subject to some minor conditions.

16. In none of the objections, and in none of the reviews by the AAT of the siting and design applications before 12 January 1998, was any reference made to the decision previously made to vary the Crown Lease.

17. However, that matter did become the subject of attention during the hearing of the objections to the siting and design application No. 3. On 6 April 1998, the AAT ruled that it had no jurisdiction to review the Minister's decision to vary the Crown Lease.

18. Notwithstanding this, the appellant (amongst others) sought to assert, by a statement to the AAT made on 16 April 1998, that the lease variation was invalid, on the stated grounds that:

"(1) the lease variation was executed prior to the time the lease variation approval should have taken effect under s 249 of the Land Act; and

(2) the lease variation was obtained by fraud or misrepresentation."

19. That contention was rejected. On 24 April 1998, the AAT "ruled" that the lease variation had been processed correctly.

20. The siting and design proposal emerged in its current form on 8 December 1998. It is not contended that it is in any way inconsistent with the terms of the Crown Lease as purportedly varied.

21. The current matter arises out of an application by the appellant dated 25 November 1998 seeking that the first respondent prevent the implementation of the currently approved development insofar as it would lead to the construction of a second dwelling unit on the subject land.

22. The Minister, by his delegate, on 15 December 1998, refused that application. A statement of reasons pursuant to s 37(2) of the Administrative Appeals Tribunal Act 1989 (ACT) was made and delivered on 28 January 1999.

Reasons for Refusal

23. Mr Kwiatkowski (the delegate refusing the appellant's application) noted that the principal concerns expressed by the appellant related to the propriety of the approval given to the siting and design of the proposed works. The development application for the carrying out of those works had already been approved. The delegate commented:

"...the [appellant] therefore appears to be seeking an order which either ignores these approvals or effectively declares them inoperative. Section 256 [Land Act] does not provide the power to enable this type of action."

24. Section 256, as at December 1998, permitted applications to the Minister to prevent the carrying out of a "controlled activity" on a place such as the subject block.

25. The delegate noted that the "controlled activity" apparently referred to was the carrying out of the approved works. The decision to approve those works had been the subject of review by the AAT. Thus, even if there was power to review that approval, the delegate considered that the power should not be exercised favourably to the appellant.

26. That decision was reviewed by President Peedom. On 1 September 1999 he gave his reasons for supporting the delegate's refusal to make an order under s 256 of the Land Act.

27. The argument advanced on behalf of the appellant before President Peedom was somewhat different (it seems) from that which had been considered by the delegate.

28. It was contended before the AAT that the failure to notify the public of the application for lease variation rendered it invalid. Hence the approval to carry out the dual occupancy works was ineffectual until the lease was validly varied.

29. If the variation of the lease was invalid, of course, that argument would find support in s 230(4) of the Land Act. That subsection prevents the undertaking of the development until "the lease is varied so as to permit the activity". There is no bar to a subsequent application to vary the lease. Thus a favourable finding for the appellant might well be of only temporary benefit.

30. However, it was also contended that there was a continuing impediment to the approval of such a variation by virtue of s 29(2) of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (ACT (PALM) Act).

31. That subsection provides:

"The Executive shall perform its functions under subsection (1) subject to enactment and in accordance with the principles:

(a) that new estates in Territory Land shall be granted only in accordance with procedures that are notified to the public; and

(b) that appropriate classes of decisions relating to the administration of estates in Territory Land shall be subject to just and timely review without unnecessary formality."

32. It was submitted that the forgoing provision prevailed over any inconsistent Territory "enactment" or "subordinate law". That argument was founded upon s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (ACT Self-Government Act):

"(1) A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.

(2) In this section:

"law" means:

(a) a law in force in the Territory (other than an enactment or a subordinate law); or

(b) an award, order or determination, or any other instrument of a legislative character, made under a law falling within paragraph (a)."

The definition of "enactment" is (per s 3):

(a) a law (however described or entitled) made by the Assembly [ie. the Legislative Assembly of the Australian Capital Territory] under this Act; or

(b) a law or part of a law, that is an enactment because of section 34".

33. Section 34 of the ACT Self-Government Act converts most of the statute law then in force in the Territory, whether Territory Ordinances, New South Wales or Imperial (UK) Acts, to "enactments". Some enactments of the Commonwealth Parliament are similarly declared to be "enactments" (eg. Supreme Court Act 1933 (ACT)).

34. No reference is made in s 28 of the ACT Self-Government Act to the common law in force in the Territory as at the date upon which self-government took effect (ie, 11 May 1989). It is not expressed to be open to amendment by the ACT Legislative Assembly. However, nothing turns on that in respect of the present matter.

35. "Subordinate law" is defined to mean:

"an instrument of a legislative nature (including a regulation, rule or by-law made under an enactment)."

36. Whilst there is no express provision that a subordinate law will have no effect if inconsistent with a "law" as defined, it is necessarily implied, in my view, that no subordinate law can have effect if it is relevantly inconsistent with a "law" as defined by s 28(2) of the ACT Self-Government Act. To deny effect to an enactment which is relevantly inconsistent but not to do so in respect of a subordinate law would, in any event, be patently absurd.

37. There was also advanced by the appellant a contention that s 57 of the Land Titles Act 1925 (ACT) (LTA) (a former Ordinance now deemed an enactment), was inconsistent with s 29(2) of the ACT (PALM) Act.

38. It was also contended that the proposed development was inconsistent with the Territory Plan (made and approved under the Land Act) in that the siting and design approval had been given by reference to the "Residential Design and Siting code for Single Dwellings" rather than the "Residential Design and Siting code for Multi-Dwelling Development".

The review by the AAT

39. The learned President dealt first with the latter submission. President Peedom correctly noted that s 8 of the Land Act would preclude the approval of any act or thing if the doing of it would be inconsistent with the Territory Plan (the Plan).

40. However, the particular matters of inconsistency relied on were, under the Territory Plan, "performance measures". The terms of the Plan do not mandate refusal of a proposal which fails to meet a "performance measure". Such a proposal might still be approved, consistently with the terms of the Plan, if the relevant "objectives" and "performance criteria" specified in the Plan were met.

41. That issue had, on 11 August 1998, been the subject of an AAT decision. It had determined that there was no inconsistency. There had been no appeal from that decision. Hence, the AAT determined, that issue ought not to be re-agitated.

42. The remaining issue was whether the lease variation had been validly made and effectively registered.

43. Before the AAT, the argument against the validity of the lease variation was based on the absence of notification of the lease variation application. That obligation arose before the lease variation application had been approved but after it was lodged. To counter the argument that registration of the lease variation was accorded indefeasibility by virtue of s 58 of the LTA, the appellant contended that that provision was inconsistent with s 29 of the ACT (PALM) Act and, to that extent, denied effect by virtue of s 28(1) of the ACT Self-Government Act.

44. President Peedom rejected that latter contention. In his opinion, because the lease variation was not the grant of "a new estate" in Territory Land, s  29(2)(a) of the ACT (PALM) Act had no application.

45. No argument was addressed to whether the regulation which had exempted lease variation applications from the public notification process offended s 29(2)(b) of the ACT (PALM) Act.

46. It could be argued that unless a decision to approve a lease variation was preceded by public notification (or at least notice to interested parties), then "just and timely review" of such a decision might be denied.

47. As to the impact of the assumed lack of notification, the learned President took the view that the lease had been effectively varied once the variation was registered pursuant to the provisions of the LTA even if there had been a failure to comply with the public notification provisions.

48. As to the argument that if s 58 LTA had that effect it was inconsistent with s 29 ACT (PALM) Act, President Peedom concluded:

"...there is no direct inconsistency between section 58 of the Land Titles Act and section 29 of the Planning and Land Management Act. This is not a case in which a provision of a Commonwealth statute is in direct conflict with an ACT enactment in a way that makes it impossible to comply with both laws..."

The appeal to this Court

49. The Notice of Appeal dated 28 September 1999 contended that the decision appealed from was defective in that the AAT had erred in holding that:

"1. ... the Lease [of the subject block] was effectively varied upon registration of the variation to the Lease under Section 58 Land Titles Act.

2. ... Section 58 Land Titles Act was not inconsistent with Section 29 Australian Capital Territory (Planning and Land Management) Act 1989 (sic) (Cth) in the circumstances of the case.

3. ... the functions of the Australian Capital Executive (sic) under Section 29 Australian Capital Territory (Planning and Land Management Act 1989 (sic) (Cth) are subject to Section 58 Land Titles Act.

4. ... Land Act and regulations made under it were intended to operate in conjunction with the Land Titles Act and in failing to hold that, relevantly, the Land Titles Act was subject to the Land Act.

And in failing to consider and hold that

5. ... the application to vary the Lease has been refused under Section 230(4) Land Act, and the purported approval subsequently given was necessarily invalid."

50. There was a notice of contention filed on behalf of the first respondent. The sole contention thereby pressed was that s 29(2) of the ACT (PALM) Act was "facultative only". It is not clear to me what was intended to be conveyed by this contention, but it does raise the question as to the scope of the power of the Executive to approve or refuse permission to engage in activity affecting the administration of "estates" in Territory Land.

51. The express inconsistency provisions both of the ACT Self-Government Act and the ACT (PALM) Act, echoing as they do the inconsistency provision between the Commonwealth and the States (s 109 Constitution), are, in my view, entirely mandatory and intended to limit the legislative power conferred on the Assembly and the administrative powers conferred (or conferrable) on the ACT Executive or any other body or agency exercising administrative power in the Territory.

52. The Second Reading Speech of the relevant Minister concerning the ACT (PALM) Act supports this view. Referring to s 29 (in Part VI of the Bill), the Minister (Mr Holding) said (Hansard 19 October 1988 HR p 1929-30):

"Importantly, this part requires the Assembly to make laws for the procedure to make the [Territory] plan, as well as requirements for public notification, consideration of representations, and consultations between the Commonwealth and ACT governments before the plan is brought into effect. The Assembly is also required to ensure by law that there are just and timely processes in place to review appropriate planning, design and development decisions. These reviews will be conducted without unnecessary formality." [emphasis added]

53. The imperative nature of the obligation cast upon the Assembly and the Executive was further confirmed by the Explanatory Memorandum.

54. It stated:

"Sub-clause 29(2) requires the Executive to observe certain principles in undertaking its land management responsibilities and makes it clear that the Assembly may make laws governing the manner in which the Executive may perform its functions." [emphasis added]

55. Pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth) those materials may be used to assist to ascertain the legislatively intended effect of a statutory provision which might otherwise be unclear or even ambiguous.

56. It might be thought that the phrase "administration of estates" in s 29(2)(b) of the ACT (PALM) Act had to do only with the creation, registration and dealing with interests in land rather than with the physical management and development of land. However, the materials cited above make it clear that the phrase "administration of estates" is used not only in the legal or conceptual sense but also in the physical sense.

57. It therefore follows that the "principles" expressed in s 29(2) of the ACT (PALM) Act apply to limit the powers of the Assembly and the Executive in relation, not only to matters relating to interests in land, but also to the planning and land management issues covered by the Land Act.

58. However, those "principles" are broadly expressed. They leave considerable scope for discretionary judgments. What is an "appropriate" class of decision or "just and timely" review thereof is a matter of policy and judgment on which minds might reasonably differ. It would, therefore, be unlikely that a decision by the Assembly or the Executive to exempt some classes of decision from review would, in itself, offend the principles contained in s 29(2)(b) ACT (PALM) Act. It might be otherwise if the exemption was, for example, only for a particular developer or development (not relevantly distinguishable from any other) or if no meaningful notification was required for any proposal. It is possible to conceive of provisions which unquestionably would offend those principles. It does not seem to me that exemption of lease variation applications, whilst requiring notification of the physical development proposal the facilitate, offends s 29(2)(b).

59. Further, whilst the review process exemplified by the present proceedings has not operated in a timely fashion - a period of nearly six years to approve a dual occupancy proposal is nothing short of disgraceful - that does not mean that the Legislature and the Executive have therefore failed to put in place a process validly directed towards the carrying out of the principles in s 29(2) ACT (PALM) Act. The fact that some litigants may either fumble or abuse the process provided for does not affect the validity of the enactments, regulations or administrative procedures setting up that process.

60. In my view, there is no substance in the contention that the Land Act and Regulations (or the administrative processes pursuant thereto), referred to in these proceedings, are in conflict with s 29(2) of the ACT (PALM) Act.

The power to vary the Crown Lease

61. Absent contrary legislation, the terms of a lease will be as agreed between lessor and lessee. Section 29(3) ACT (PALM) Act clearly affects the length of the term of a Crown Lease. The now-repealed City Area Leases Act 1936 (ACT) had provided limits on the power otherwise enjoyed by the lessor and lessee to vary the "purposes" clause of a Crown Lease.

62. Similarly, the Land Act places limits on the power of lessor and lessee to agree upon or vary the terms of a Crown Lease. It defines "a variation of a lease of the land" as a "development" for the purposes of Part 6 (see s 222(1) Land Act).

63. Section 225 Land Act prohibits a "development" from being carried out otherwise than in accordance with "an approval".

64. The latter is defined as "an approval under section 230" (Land Act).

65. That section has some significance in the present case. Mr Arthur, counsel for the appellant, contends that no valid variation of the lease occurred, not only because the notification process was not undertaken but also because the application for it had been deemed to have been refused by virtue of s 230(2) Land Act. That subsection provides:

"The relevant authority is to be taken to have refused to approve an application if he or she fails to make a decision in relation to the application before the expiration of the prescribed period."

66. Regulation 8 prescribed forty-two days as the relevant period.

67. There were successive applications for Design and Siting approval. There was only one application made in accordance (or apparent accordance) with s 226 Land Act for approval of a variation to the Crown Lease to permit dual occupancy. That application was lodged on 19 August 1994.

68. The prescribed period therefore expired on 28 August 1994. From that time the application was "taken" to have been refused, subject to s 230(3)(b) Land Act.

69. The lease variation application was not, in fact, refused. It had been deferred pending further consideration of the related application for approval of the siting and design of the proposed dual residences.

70. Approval to vary the lease was purportedly given on 23 March 1995.

71. Absent any application to review the deemed refusal, after 28 August 1994, pursuant to s 230(3)(b) Land Act, the "relevant authority" had "6 months after the date of the application" within which to approve, though it could not refuse, the application.

72. However, even allowing for that provision, that additional power to approve the application for lease variation expired by effluxion of time on 19 February 1995.

73. Unless and until the lease is varied so as to permit it, the siting and design approval "shall not take effect in relation to that activity until the lease is varied so as to permit the activity" (s 230(4) Land Act).

74. That provision is subject to s 230(5) Land Act. That subsection permits the carrying on of approved activities, even if they are not permitted by the lease, insofar as they comprise activity being:

* work that would affect the landscape of the land (s 222(1)(c) Land Act);

* that permitted by regulations made pursuant to s 175(3)(a) or (b) Land Act.

75. Although some landscaping forms part of the siting and design development, the main purpose of the development is to create two dwelling units on the land. Insofar, therefore, as the development would have required a variation of the lease for that purpose, the application to do so remained deemed to have been refused as at 19 February 1995. That part of the approved activity going beyond affecting the landscape is, therefore, not saved by s 230(5) Land Act.

Is the relevant authority able to approve a lease variation after it is deemed to have been refused?

76. The first respondent submits that the lease variation was effectively approved notwithstanding the deemed refusal. If that is correct, then the issue of any curative effect following from registration under the LTA does not need to be considered.

77. Absent any defect in the approval process, the appellant can have no complaint about the effect of the registration of the lease variation.

78. It is, of course, inevitable that, once the siting and design application was approved, there would be a consequential approval for the lease variation to permit it to proceed. Indeed, the ongoing consideration of that siting and design application seems to have been the reason that the lease variation had not been earlier approved.

79. The Executive is empowered to grant leases over Territory Land. It may do so (inter alia) by "a direct grant" (s 161(1)(d) Land Act). Subsection 161(3) Land Act permits the Executive, by agreement with the proposed lessee, to grant leases subject to agreed provisions. However, the criteria for the grant of such leases may be specified by instrument (s 161(4) and (5) Land Act).

80. In any event, whatever was the process by virtue of which the second respondents acquired their Crown Lease originally, the Executive, subject to any other law to the contrary, retained the power to agree to vary the terms of the lease (see s 26A - Interpretation Act 1967 (ACT)). One such restraint is the law of contract. Another is the Territory Plan. Yet another is the Land Act.

81. The Executive is empowered by s 185 Land Act to agree to the variation of a lease under which rent is payable.

82. Further, under s 215(1)(b) (Land Act), the Executive is also empowered to grant relief to a lessee:

"(b) ... from compliance, wholly or in part, with any provision to which his or her lease ... is subject;

and thereupon the liability or obligation of the lessee ... under the lease ... shall, in respect of that period, be discharged to the extent of the ... grant of relief approved."

83. That "grant of relief" would include relief against action for breach of the lease by reason of the carrying out of works on the land contrary to the terms of the lease.

84. It may be that the undertaking of "a development" without prior approval would be subject to penalty under s 225(1), of the Land Act, though the existence of an apparently valid approval might well be a "reasonable excuse" relieving a leaseholder holding such approval from criminal liability.

85. Those provisions and considerations seem to me to indicate that the carrying out of an unapproved "development" is capable of being rendered lawful by Executive approval. That "approval", of course, could not be inconsistent with other laws then in force in the Territory.

86. A fortiori, where the "development" is a lease variation to enable an approved building development to occur, action taken to vary the lease so as to permit that development could not result in a variation which was a nullity even if the process leading to it was affected by a deemed refusal or, indeed, lack of notice of intention to apply for it. It may render such a decision open to administrative review or even to be set aside by the grant of prerogative relief. Until, however, it is set aside, it is not a nullity.

87. In any event, given that the substantive objection was to the use of the proposed buildings for dual occupancy, which objection has been heard (after objection and in great detail over many years) and finally determined adversely to the appellant, there seems to me every reason to exercise the power under s 284 of the Land Act to dispense with compliance of those requirements, assuming that it is necessary so to do.

Was the lease variation effective even absent full compliance with the provisions of the Land Act?

88. The first respondent argues that, in any event, the lease variation took effect upon registration, pursuant to s 72A LTA, of the registrable instrument, issued pursuant to s 250 of the Land Act, evidencing the lease variation. The Registrar-General has endorsed the relevant certificate of title accordingly, pursuant to s 72A(2) LTA, with a memorial of that variation.

89. The first respondent contends that the Register is, pursuant to s 53(1A) LTA, conclusive evidence of the terms of the lease as varied whatever may have been the defects in the process leading to the issue of the s 250 Land Act instrument.

90. The appellant, however, makes two submissions in response. The first is that, as there has been no evidence of any person taking any interest in the land acting in reliance on the registration of the instrument of variation of lease, s 59 LTA does not apply so as to confer indefeasibility. The only parties affected are those who agreed to the variation as purportedly approved by the "relevant authority". Thus, if the variation is defective, it is argued, it can be set aside and the Register corrected without causing uncertainty or prejudice to persons dealing or proposing to deal with the registered proprietor of the Crown Lease.

91. The second submission is that, insofar as s 58 LTA may operate to protect the validity of the registered lease variation, it is inconsistent with s 29(2) of the ACT (PALM) Act.

92. For the purposes of these submissions it may be assumed that the approval process was defective both for lack of notice to the public of the application and for lack of a then current application (following the deemed refusal). Does registration, then, cure those defects as the first respondent submits?

93. Notwithstanding the defective process leading to its issue, there was produced a registrable instrument purportedly made pursuant to s 250 Land Act. It was registered pursuant to s 72A LTA.

94. Neither the ACT (PALM) Act or the Land Act prohibit the variation of this lease so as to permit a dual occupancy.

95. At worst, the decision, be it the deemed refusal or the purported approval of the variation to the lease, became vulnerable to review by the AAT under s 275 Land Act. The appellant was a person entitled to have been heard on that review (see s 276(1)(a)(ii)). That is a merits as well as a process review.

96. That circumstance, however, the review period having long since expired, does not mean that the variation of lease thereby effected is rendered void. It does not deprive the instrument varying the lease of its purported effect, even if it was, prior to registration, voidable.

97. Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376 referred to the registration of an interest by virtue of a void or voidable instrument. At 385-6 Barwick CJ referred to the effect of registration of such an instrument:

"So long as the certificate [of title] is unamended it is conclusive and of course when amended it is conclusive of the new particulars it contains ... That which the certificate of title describes is ... the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void."

98. Indefeasibility is absolute, even in the case of fraud, as against a bona fide purchaser for value without notice of the fraud tainting the validity of the registered instrument.

99. It is not absolute as between the grantor and grantee of the new interest but is only defeasible by virtue of some equitable or other cause entitling relief as between them.

100. In the present case, neither the grantor (the Executive on behalf of the Commonwealth) nor the grantee (the second respondents) seek to set aside the instrument purporting to vary the terms of the Crown Lease.

101. Only insofar as he is entitled to be heard (and to relief) within the review provisions of the Land Act is the appellant entitled to challenge the process leading to the issue of the instrument of variation of the lease.

102. The survival of personal equities burdening a registered interest was the subject of the decision in Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd [1999] HCA 20; (1999) 162 ALR 382. By no stretch of the principles explained in that decision could an expired right to object to and seek review of a decision to produce a registrable instrument vest any right in the appellant to challenge or set aside an interest registered under the LTA, nor, indeed, even the instrument prepared and presented for registration of that interest.

103. Thus the defects in the process do not, in my view, vest in the appellant any right to set aside the lease variation. Thus, in my view, the lease was validly varied whatever may have been the situation had the proposal to do so been the subject of objection, review and appeal as allowed by the Land Act. The learned President correctly so ruled.

Is there inconsistency with Commonwealth law?

104. This issue was relatively briefly dealt with by the learned President.

105. The principle was correctly stated, both in submissions and in the decision appealed from.

106. Attorney-General (Northern Territory) v Hand (1989) 25 FCR 345 is authority for the view that if there was inconsistency between the effect of a Territory law and that of a Commonwealth law, then the latter will prevail. In Attorney-General (Northern Territory) v Hand (supra), inconsistency was found and led to the setting aside of a title to land registered under the Northern Territory equivalent of the LTA. It would otherwise have been a valid, indefeasible title. Thus, if the variation of the lease to the second respondents was inconsistent with a Commonwealth law (or the Plan), it would have no effect.

107. Section 28 of the ACT (Self-Government) Act expressly provides for the paramountcy of Commonwealth law. That would extend to interests purportedly granted by the Executive contrary to Commonwealth law. An obvious example would be the purported grant of a lease for more than ninety-nine years despite s 29(3) ACT (PALM) Act.

108. The inconsistency suggested cannot, of course, be between two Territory enactments. That would be dealt with by the doctrine of implied repeal (see Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1; Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268). In any event, the Land Act merely enables the creation of an interest capable of registration under the LTA. I have already noted that the right to object to that process is a creature of the Land Act and subsists only so long as that Act is complied with. The effect is that an approval is not able to be challenged, save as authorised by that Act. That remains the case even if, had the Act been availed of, it might have been successfully so challenged. The approval remains effective unless set aside. It is too late now to challenge it.

109. That is so even if the defect in the approval process had operated so as to deprive a would-be objector of the opportunity to object. The inconsistency is said to be with s 29 of the ACT (PALM) Act. The lease variation was not, however, a "new estate" in Territory Land. It was merely a variation of the covenants and conditions attached to a previous grant.

110. The only provision which was suggested as a possible source of inconsistency was s 29(2)(b) ie. that:

"(2) The Executive shall perform its functions under subsection (1) subject to enactment and in accordance with the principles:

...

(b) that appropriate classes of decisions relating to the administration of estates in Territory Land shall be subject to just and timely review without unnecessary formality."

111. It would be difficult to describe the process of decision making attending upon the second respondents' development proposal as having been "just and timely". Any process commencing in August 1994 not finalised until 1 October 1998 can hardly fall comfortably within a description of "timely review". It may be doubted whether the creation of two levels of review of objections leads to "timely" resolution of objections. Nevertheless, it may add to the "just" attribute of the review process. The process prescribed by and under the Land Act may not have been the best vehicle to deliver "just and timely review" but it is an apparent attempt to do so. It is not "inconsistent" with the objective prescribed in s 29(2)(b) of the ACT (PALM) Act.

112. As I noted previously, it would not be envisaged that, because a persistent, even vexatious, objector is able to delay the final implementation of, or completion of a decision making process, the entire process then becomes ineffectual by reason of inconsistency with s 29 ACT (PALM) Act.

113. That latter provision lays down ideals or objectives. It refers to them as "principles". It is "subject to enactment". An enactment, the Land Act, provides for a review process. The Executive (and its agencies) have attempted, by regulation and administrative processes, to give effect to those principles within the bounds of the relevant enactments. The possibility of failure in a particular case to give an applicant and objector "timely" or even "just" review does not bespeak inconsistency between the process and the Commonwealth Act.

114. In this respect also I agree with the learned President.

115. The appeal is dismissed. I will hear the parties as to costs. The interlocutory injunction is dissolved. I give leave to the second respondents to bring forward for assessment any claim for damages against the appellant arising therefrom.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 2 June 2000

Counsel for the Appellant: Mr R J Arthur

Solicitor for the Appellant: Rudi Vandenberg

Counsel for the First Respondent: Mr P A Walker

Solicitor for the First Respondent: ACT Government Solicitor

Counsel for the Second Respondent: N/A

Solicitor for the Second Respondent: N/A

Date of hearing: 9 February 2000

Date of judgment: 2 June 2000