Glover v Minister for Planning & Harris [2002] ACTSC 42 (3 June 2003)

Last Updated: 5 June 2003

KAREN GLOVER v MINISTER FOR PLANNING and ALICE HARRIS

[2003] ACTSC 42 (3 JUNE 2003)

LAND (PLANNING AND ENVIRONMENT) ACT 1991 - Administrative Appeals Tribunal - Approval for second dwelling unit - effect of Draft Variation to the Territory Plan - effect of Crown Lease - validity and commencement of Draft Variation - power to approve development application.

Land (Planning and Environment) Act 1991 (ACT), ss 8, 9, 9(2)(a), 9(3), 9(5), 11, 19(1)(a), 19(1)(d), 19(5), 22, 27, 230

ACT (Self-Government) Act 1988 (Cth), s 23

Conveyancing Act 1919 (NSW), s 133B

Spence, Cecilia v Minister for Urban Services [2000] ACT AAT 37 (24 October 2000)

In re Greater London Properties Ltd's Lease [1959] 1 WLR 503; 1 A11ER 728

Hyman v Rose [1973] HCA 54; [1912] AC 623

Perry v Davis (1858) 3 CBNS 769; (1859) 140 ER 945

Doe v Jackson (1817) 2 Stark 293

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 54 of 2002

Judge: Higgins CJ

Supreme Court of the ACT

Date: 3 June 2003

IN THE SUPREME COURT OF THE )

) No. SCA 54 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: KAREN GLOVER

Appellant

AND: MINISTER FOR PLANNING

First Respondent

AND: ALICE HARRIS

Second Respondent

ORDER

Judge: Higgins CJ

Date: 3 June 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The parties may be heard as to costs.

1. This is an appeal from a decision, made on 30 July 2002, by the ACT Administrative Appeals Tribunal (AAT), constituted by the President Mr M H Peedom, affirming a decision of the first respondent (the Minister) not to approve the erection of a second dwelling unit on Block 41 Section 29 O'Malley, on the ground that it was prohibited by the terms of the Crown Lease (the Lease) in respect of that block of land.

2. At issue is the construction of cl 1 and cl 3 of the Lease. Clause 1 provides (relevantly):

"THE Lessee covenants with the Commonwealth as follows:-

... ... ... ....

(b) That the Lessee will within twelve months from the date of the commencement of the lease or within such further time as may be approved in writing by the Territory for that purpose commence to erect one private single dwelling house building (with necessary and usual outbuildings and fences) on the said land at a cost not less than the sum of ten thousand dollars and in accordance with plans and specifications prepared by the Lessee and previously submitted to and approved in writing by the Territory;

(c) That the Lessee will within twenty four months from the date of the commencement of the lease or within such further time as may be approved in writing by the Territory complete the erection of the said building in accordance with the said plans and specifications and in accordance with every Statute Ordinance or Regulation applicable thereto;

... ... ...

(f) That the Lessee will not without the previous approval in writing of the Territory erect any building on the said land or make any structural alterations in any buildings erected on the said land;

(g) To use the said land for residential purposes only;

(h) That the building erected on the said land will be used only as a single unit private dwelling house and any outbuildings erected on the said land shall not be used as a habitation.

Clause 3(a) is also relevant:

"IT IS MUTUALLY COVENANTED AND AGREED as follows:-

(a) That if -

(i) a building in accordance with sub-clause (b) of clause 1 of this lease is not commenced within the period specified in the said sub-clause; or

(ii) a building in accordance with sub-clause (b) of clause 1 of this lease is not completed within the period specified in subclause (c) of the said clause; or

(iii) services in accordance with sub-clause (d) of clause 1 of this lease are not completed within the period specified in the said sub-clause; or

(iv) after completion of a building as aforesaid the said land is at any time not used for a period of one year for the purpose for which this lease is granted

the Territory may determine this lease but without prejudice to any claim which the Territory or the Commonwealth may have against the Lessee in respect of any breach of the covenants on the part of the Lessee to be observed or performed;"

3. As yet no dwelling has been erected.

4. The learned President considered the effect of the above provisions to be inconsistent with the erection on the land of more than one dwelling unit. Hence the appellant's development application was precluded as being inconsistent with the terms of the Lease. That did not determine the matter. The appellant could have sought a variation of the Lease to permit a second dwelling unit. That was not sought however. The second dwelling unit was, therefore, part of the application for development approval submitted by the appellant.

5. An issue was also raised as to whether, even if the Lease did permit multi-unit housing, the proposed development would be excluded by the provisions of cl 3.1 of a Draft Variation to the Territory Plan no. 200 (DV200), notified on 30 May 2002.

6. That Draft Variation, if validly notified (and the appellant had disputed this) provided, relevantly for present purposes -

"Where a residential lease is expressed to require the erection of a single dwelling, a development approval which has the effect of allowing multi-unit housing on the land shall not be granted unless a period of 5 years has elapsed since the original dwelling was certified as completed in accordance with the requirements of the Territory."

7. That question did not need to be resolved by the AAT in the light of its finding that the terms of the Lease precluded the proposed development. The appellant contends that DV200 ought to have been regarded as inapplicable in any event. So to find would have then required the AAT to have considered the refusal of the proposal on its merits. The Minister (through his delegate), had in any event, determined that the proposal should be rejected for non-compliance with the relevant standards, even if not precluded by the Lease or DV200, albeit that the matters of non-compliance so identified were capable of being remedied by amendment of the proposal. No doubt, but for those issues, that possibility would have been further explored.

SUBMISSIONS OF COUNSEL

8. It is the appellant's submission that the Lease requires one dwelling unit to be constructed on the subject land but does not forbid the construction of more than one such dwelling unit. That conclusion, it is further submitted, is supported by the learned President's own prior decision in Spence, Cecilia v Minister for Urban Services [2000] ACT AAT 37 (24 October 2000).

9. The policy objective of preventing or limiting multi-unit developments on such blocks of land, the appellant contends, is the province of the Territory Plan and of the processes mandated by the Land (Planning and Environment) Act 1991 (ACT) (the Land Act). It is not to be read into the terms of the Lease. The Lessee contends that refusal of her application is therefore discretionary, not mandatory - (see Control 2.10 Territory Plan - use of term "may not" approve). Thus she submits that she is entitled to have the application considered on its merits.

10. The terms of DV200 would, for five years following the fulfilment by the appellant (or her successor in title as Crown Lessee) of her obligations under cl 1(b) and (c) of the Lease, forbid approval for multi-unit development on the land.

11. The appellant submits that the Draft Variation has no effect because, in terms, the period prescribed for it to take effect (pursuant to s 9(5) of the Land Act) has not commenced, and is so confusingly stated as to be unascertainable. Further, it is submitted, there is no evidence of the notification required by s 19(1)(a) of the Land Act nor of publication as required by s 19(5) of that Act.

12. The appellant further contends that she has a vested right to have her development application, made in December 1991, considered according to the then Territory Plan which did not, in terms, forbid such a development.

13. Thus, insofar as DV200 now appears to have a contrary effect, it is submitted that it should be construed to apply only to applications lodged after May 2002, when it purportedly took effect.

14. In any event, it is contended that such a purported retrospective effect would involve a partial acquisition, otherwise than on just terms, of the appellant's rights under the Lease, in that it has the effect of conferring a benefit on adjacent lessees. This, it is contended, would contravene s 23 of the ACT (Self-Government) Act 1988 (and s 51(xxxi) of the Constitution).

15. Mr Kennett, for the Minister, contended that on its true construction, the Lease did prohibit more than one dwelling unit being constructed upon the land, as the learned President had found.

16. In any event, it was submitted the proposed development was precluded because it was contrary to the Territory Plan (see s 8 of the Land Act).

17. In addition, Mr Kennett contended that the situation was, in any event, overtaken by DV200.

18. Section 9 of the Land Act refers to the effect of a draft plan variation.

"9 Effect of draft plan variation

(1) This section applies to a draft plan variation if a consultation notice states that it applies.

(2) The Territory, the Executive, a Minister or a Territory authority must not, during the defined period or a period stated in the consultation notice, whichever is shorter, do or approve the doing of anything that--

(a) would be inconsistent with the plan if it were varied in accordance with the draft variation; or

(b) is inconsistent with the plan.

(3) Subsection (2) is subject to section 11 (Draft heritage places register and variations--lack of effect).

(4) Where a draft plan variation to which this section applies is deferred under section 22 (1) (b) or 27 (a), this section does not apply in relation to that draft variation during the period of its deferral.

(5) In this section:

defined period means the period beginning on the day when the draft plan variation is notified under the Legislation Act 2001 (see section 19 (Public consultation--notification)) and ending at the end of the day before--

(a) the date the draft variation comes into effect; or

(b) the date the corresponding plan variation is rejected by the Legislative Assembly; or

(d) the date the draft variation, or the corresponding plan variation, is withdrawn under section 22 (1) (c), 27 (a) or 29 (10) (b);

as the case requires.

19. DV200 was notified, for the purposes of s 9(2)(a) on 30 May 2002. It would, during the "defined period", prohibit approval of an application to carry out an inconsistent development. (Section 11, referred to in s 9(3) above, relates only to heritage protection). Thus, it is submitted, as at 30 July 2002, the date of the AAT decision, DV200 was in force. That is notwithstanding that the original decision was deemed to have been made, refusing the application (pursuant to s 230), on 25 March 2002.

20. The Minister contended that, as the Lease "required" the building of one dwelling unit, DV200 was applicable. It took effect when it was made and notified, and bound the AAT not to make a decision contrary to its terms.

21. Further, the Minister contended, that whilst the lease required one dwelling unit, no other was permitted save with the consent of the Lessor. The Land Act permits a variation of the Lease to erect more than one dwelling unit, but confers no right to such a variation. If the Lease does not itself preclude the building of a second (or more) dwelling unit, then DV200 would, after five years, permit such an additional unit if it was otherwise consistent with the Territory Plan to approve such a development and if it was so approved. It was submitted for the Minister that there was no prior vested right to erect a second (or further) dwelling that was or would be restricted by DV200. DV200 conferred only the limited right to seek approval of a development which would have that effect. Otherwise, there would have been only the right, if it be such, to ask the Lessor to approve a variation of the Lease to permit a second or further dwelling unit. There was no vested right to have such an approval given. Thus there could be no acquisition or even diminution of any prior vested right.

CONSTRUCTION OF THE LEASE

22. The issue as to whether the Lease forbids the erection of a second dwelling unit was, as counsel for the appellant submitted, addressed in the matter of Spence, Cecilia v Minister for Urban Services (supra).

23. In that matter, the applicant had applied to erect a second dwelling unit on land at Turner. The Crown lease was similar in terms to the Lease in this case. There had been a variation of the Crown lease approved which, in terms, permitted that course. The issue was not whether the lessee had permission to erect two dwelling units, but rather whether the variation of the lease expressly to permit those two dwelling units had altered the value of the lease, by conferring on the lessee a new and more valuable right. The applicant's case was put on the basis that it had not been necessary to have altered the Crown lease in question, so as to permit the erection of a second dwelling unit, and thus there was no such added value. She contended that the erection of a second dwelling unit was not forbidden by the Crown lease though, of course, the lessor could refuse consent to it.

24. The learned President noted that, at the date when the lease was granted, there was a dwelling already erected on the land. The only reference to the dwelling and further buildings which might be added were the usual terms in cl 1 of the Crown lease, namely, that all buildings would be kept in good condition (cl 1(b)), that no other building and no structural alteration could be erected or made without the lessor's approval (through the relevant Minister) (cl 1(c)), that the land be used for residential purposes only (cl 1(d)) and that "the building erected on the land be used only as a single unit private dwelling house" (cl 1(e)).

25. The learned President noted, correctly in my respectful opinion, that cl 1(d) did not forbid the erection of a second dwelling on the land. Further, to have done so would not alter or be inconsistent with the restriction on the use of the land. That use would still be "residential"