Bonansea v Webb & Ors [2002] ACTSC 96 (23 September 2002)

Last Updated: 24 September 2002

Albert Bonansea v Robert John Webb and Others

[2002] ACTSC 96 (23 September 2002)

CATCHWORDS

ENVIRONMENTAL LAW AND PLANNING - appeal from Administrative Appeals Tribunal - question of law - whether grounds in notice of appeal raised question of law - they did not.

STATUTE LAW - planning law - change in legislative force of guidelines between conclusion of hearing and decision of tribunal - whether tribunal erred in taking guidelines into account - it did not - whether tribunal erred in regarding guidelines as having legislative force - it did.

WORDS AND PHRASES - "relevant two storey building" -"direct visual relationship"

Land (Planning and Environment) Act 1991, s 245

Administrative Appeals Tribunal Act 1989, s 46

Supreme Court Act 1933, s 24

Canberra Cruises and Tours v Minister for Urban Services [1999] ACTAAT 14

Kelly v Apps (2000) 98 FCR 101; [2000] FCA 687

Wilson v Commissioner for Land and Planning [2001] ACTAAT 26

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

No. SCA 24 of 2002

Judge: Miles CJ

Supreme Court of the ACT

Date: 23 September 2002

IN THE SUPREME COURT OF THE )

) No. SCA 24 of 2002

AUSTRALIAN CAPITAL TERRITORY )

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

BETWEEN: ALBERT BONANSEA

Appellant

AND: ROBERT JOHN WEBB

Respondent

AND: COMMISSIONER FOR LAND AND PLANNING

Second Respondent

AND: ALLAN AND SUE THOMPSON

Third Respondents

AND: ANTHONY SLATYER

Fourth Respondent

AND: JUNE EY

Fifth Respondent

AND: MARGARET KELLY

Sixth Respondent

ORDER

Judge: Miles CJ

Date: 23 September 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The case be remitted to the Administrative Appeals Tribunal for further hearing according to law and in accordance with these remarks.

1. As the supply ships Golden Grove and Fishburn made their way into the unknown harbour, the startled onlooker on the shore might have seen them riding side by side. The two salubrious streets so named in suburban Red Hill, Canberra run appropriately parallel. What a person in one street can see of the houses in the other street is at the heart of this appeal.

2. On 19 September 2001 the second respondent (the Commissioner) acting under s 245 of the Land (Planning and Environment) Act 1991 (the Land Planning Act) approved an application made by the present appellant for the development of Block 6 Section 20 Division of Red Hill by the demolition of a detached house and the erection of two double storey attached houses with associated landscaping and parking. The block is at No 28 Golden Grove, Red Hill. Immediately to its rear, on the western side, is Block 18. There is a house on Block 18 with its frontage on Fishburn Street.

3. The first respondent applied to the Administrative Appeals Tribunal (the AAT) for a review of the Commissioner's decision. On 18 April 2002 the AAT set aside the decision of the Commissioner and substituted for it a decision that the development application be refused approval. The appellant appeals to this Court pursuant to s 46 of the Administrative Appeals Tribunal Act 1989 (the AAT Act). Appeals to this Court from the AAT are confined to questions of law.

4. The notice of appeal is lamb dressed up as mutton. Most if not all of the grounds set out clearly raise questions of fact and not of law. Mr Flint for the appellant sensibly confined his submissions accordingly.

5. All respondents filed or purported to file notices of appearance submitting to whatever order the Court might make on the appeal, save as to costs. The Commissioner filed a notice of appearance through the Australian Capital Territory Government Solicitor. The first respondent filed an appearance in person. He also purported to file appearances on behalf of the other respondents. The first respondent is not a legal practitioner and has no authority to act on behalf of others in matters in the Court without leave of the Court. No leave was sought or granted.

6. All respondents were given notice of the hearing of the appeal. The only respondent represented at the appeal was the Commissioner who appeared by Dr Jarvis of counsel. There was no answer to the calling of the names of the other respondents.

7. The questions of law, which, it is submitted on behalf of the appellant, arise out of the decision of the AAT relate to the construction of certain planning guidelines made in pursuance or in purported pursuance of the Land Planning Act. In particular the appeal is concerned with par 7.0 of what are known as the "Draft Guidelines for Multi-Unit Redevelopment Including Dual Occupancy in Residential Areas" (the Draft Guidelines). It provides as follows:

"7.0 BUILDING HEIGHT

Existing buildings in residential areas are predominantly single storey. The height of new buildings should be similar to the height of adjacent and nearby buildings and a two storey development will only be permissible if a direct visual relationship to a relevant adjacent two storey building can be demonstrated."

8. The appellant's case as revealed in the notice of appeal is that the AAT misconstrued the terms "relevant adjacent two storey building" and "direct visual relationship".

9. In addition to the grounds set out in the notice of appeal, Mr Flint raises a threshold question not otherwise raised. It is a question of law. The question is whether the Draft Guidelines were in force or otherwise effective at the date of the decision of the AAT. This was a question that could not have been raised at the hearing before the AAT. It arises only because, so it is said, between the conclusion of the hearing on 4 March 2002 and the decision of the AAT on 18 April 2002, changes to the Territory Plan made pursuant to the Land Planning and Environment Act became effective. Whatever force the Draft Guidelines have or had derives from the Territory Plan.

10. The changes were summarised, as far as I understand, accurately, in the written submission made on behalf of the appellant as follows:

"2. Changes to the Territory Plan

2.1 On 22 February 2002 the Territory Plan was amended by Variation to the Territory Plan No. 155.

2.2 It deleted Part A3 (Implementation Policies) and Appendix 1. It substituted a new Part A3 now titled `Plan Administration Policies'.

2.3 The Tribunal proceeded on the basis of the Territory Plan as it existed prior to the amendments.

...

3. The Status of the Multi Unit Guidelines

3.1 Under the Territory Plan as it existed prior to 22 February 2002 planning guidelines or published guidelines or standards were to be taken into account in determining development applications:

* Part A3 (Implementation Policies), para 2.2

* Appendix 1, para 1.1(t)

3.2 Under the amended Territory Plan the Tribunal was required to consider any relevant planning guideline `contained in the Register of Planning Guidelines' (para 9.2, Part A3).

3.3 The Authority was required to establish a Register of Planning Guidelines which had been formally adopted (para 8.1, Par A3).

3.4 Before formally adopting a guideline the Authority was required to `undertake appropriate community consultation' (para 8.2, Part A3).

3.5 Entry of the Register shall be notified as soon as practicable in the Gazette and in a daily newspaper (para 8.3, Part A3).

3.6 The requirements for public consultation and publication are mandatory:

* Sections 5,6 and 146 Legislation Act

However, notification in the Gazette and publication would not be necessary if there is notification in the ACT Legislation Register.

3.7 The guideline does not take effect until the day it is notified:

* Section 73 Legislation Act

3.8 There is a Register of Planning Guidelines and the Draft Guidelines are presently on it. It is unclear when they were registered. There was no evidence in these proceedings that the draft guideline had been the subject of public consultation, publication or registration on the Register. Nor was there any evidence of notification under the ACT Legislation Register.

3.9 The Draft Multi Unit Guidelines have no formal status, other than a draft guideline that the Territory has applied to development applications."

11. It is submitted that the Draft Guidelines are not to be given any or any substantial weight since the requirements for registration have not been met. On the other hand, it is conceded on behalf of the appellant that government policy can be taken into account as a relevant consideration in planning decisions: Canberra Cruises and Tours v Minister for Urban Services [1999] ACTAAT 14 at [44-46]. It may be assumed that the Draft Guidelines represent such policy.

12. I note that the extract from the written submissions treats 22 February 2002 as the date of relevant amendment of the Territory Plan, whereas according to the oral submission, the amendment was not effective until a date between 4 March and 18 April 2002. Nothing appears to turn on that.

13. A tribunal of original jurisdiction or power is bound to apply the law as it stands at the date of its decision notwithstanding when the law changed. The hearing by the AAT was in exercise of original power, although by way of review of the decision of the Commissioner. The AAT was bound to apply the law as it existed on the date of its decision, 18 April 2002. By way of contrast, the appeal to this Court, being on questions of law only, is more like an appeal in the strict sense. The power given to the Court by s 46(5) of the AAT Act to make "such other order as the Court, in its discretion thinks appropriate, having regard to its decision" does not seem to me to be enough to confer a power to re-hear the case. There is no express power to receive fresh evidence. I leave aside the question of appeal under the "unlimited" jurisdiction granted by s 24 of the Supreme Court Act 1933: See Kelly v Apps (2000) 98 FCR 101; [2000] FCA 687. Accordingly this Court applies the law as it was at the date of the decision appealed against.

14. Therefore, Mr Flint submits, the AAT was in error in applying or considering that it was bound to apply the Draft Guidelines, since it could not be shown that they had been notified in the Gazette or that they were made after the necessary public consultation and publication. As a proposition of law the submission is impeccable. The result is that the case must be remitted to the AAT to be decided according to law and in accordance with any directions this Court might give. Dr Jarvis for the Commissioner was not able to offer any contrary submission.

15. Such a result is no doubt inconvenient to the parties and productive of delay and cost to the parties and the public. However if, as is the case, the Draft Guidelines had no statutory force at the time of the decision of the AAT, it was wrong in law for the AAT to regard them as if they had that force. On the other hand, despite the lack of statutory force, it was still permissible for the AAT to have regard to the Draft Guidelines as representing official policy and further, for the AAT to have found them persuasive and even decisive. It may be unlikely in the extreme that the AAT would have come to any decision other than to set aside the decision of the Commissioner and to refuse approval of the development application, but it cannot be denied that it was lawfully open to the AAT to consider that a contrary decision was appropriate in the event that it had been aware that the Draft Guidelines no longer had statutory force.

16. In the hope that it may be of some convenience to the parties and having regard to the power of the Court to give directions under s 46 of the AAT Act, I consider that I should rule on the other points raised.

17. Paragraph 7.0 of the Draft Guidelines should be read as a whole. But it may be broken up into distinct propositions. The initial proposition is that most buildings in residential areas are single storey. That proposition allows that there may be existing buildings in residential areas which are not single storey. The next proposition is concerned with the height of new buildings which, in context, are to be residential buildings. The height of those new buildings should be "similar to" the height of buildings which are either "adjacent" (that is to say on an adjacent block of land), or "nearby" (that is to say, not necessarily on an adjoining block of land, but so close as to matter). The paragraph says nothing about multi-storey buildings, but it defines the circumstances in which development by way of construction of a two storey building will be permissible. Those circumstances are defined in terms of a single exhaustive condition, which for present purposes contains two elements. The first is that there must be a direct visual relationship between the building proposed and a two storey building on an adjacent block of land, and the other element is that the adjacent building must be "relevant".

18. The AAT clearly recognised that there were these two elements. It took care to describe what the appellant claimed was the relevant two storey building:

"66. The house on Block 18 Section 20, which Mr Oshyer identified as the relevant house, is located in Fishburn Street. It is a single storey house at its street frontage. The land on which it is located, however, slopes towards the block and its rear elevation presents an upper floor level of a residence above a lower floor level containing windows and glass wooden framed doors. At a site inspection only the upper floor level was able to be observed from the rear yard of the block where not obscured by vegetation. The Tribunal's attention was drawn to the visibility of part of the house on Block 18 from a position on the grass verge on the eastern side of Golden Grove opposite the block. From other positions in Golden Grove the house on Block 18 was obscured from view by the house on the block, vegetation and other houses."

19. At para 73 of its decision, the AAT stated:

"73. The evidence before the Tribunal in this case is not sufficient in my view to enable the conclusion to be drawn that it has been demonstrated that the house on Block 18 is a relevant two storey building for the purpose of clause 7.0 of the Guidelines or that any direct visual relationship with it exists. I therefore conclude that the decision of the respondent should be set aside and substituted by a decision that the development application be refused approval."

20. I think it convenient to deal first with the matter of "direct visual relationship". At the outset, I find it difficult to accept that the ground challenging the AAT's finding on this matter raises a question of law. A consideration of direct visual relationship between one building and another seems to me to involve a question of fact only. The words are common words that are not defined (as I understand it) in any statute or any statutory instrument. The AAT however considered it was desirable to say something about what it thought the words mean. After referring to some of the evidence, including that given by an expert witness, Mr Oshyer, the AAT said:

"68. Those factors suggested to Mr Oshyer and accepted by him as relevant to a consideration of the issue as to whether a direct visual relationship to a relevant two storey building had been demonstrated (see paragraph 55 above) were identified by Mr A Powell, a former Commissioner of the National Capital Development Commission in Wilson and Commissioner for Land & Planning & Ors [2001] ACTAAT 26 (28 September 2001). The mere co-existence of two 2 storey houses was, in his opinion, insufficient."

21. Mr Flint submitted that this paragraph illustrates double error on the part of the AAT. The first suggested error is taking into account for the purpose of the present application evidence given at the hearing of a previous application. The other suggested error is treating evidence of a witness as evidence of the meaning of words in a statutory instrument (although, as it has turned out, the Draft Guidelines were not a valid statutory instrument at the time of the decision of the AAT).

22. On analysis of the whole of the AAT's reasons however I do not think that either error has been demonstrated. The AAT applied its own construction of the words in question. The reference to the evidence of Mr Oshyer and to Wilson's case was not made in order to rely upon the evidence given in the earlier case, but to refer to the AAT's own interpretation of the words in question in the earlier decision and to confirm that Mr Oshyer's evidence in the present matter was given in the context of that interpretation.

23. In Wilson's case the AAT said:

"38. Clause 7.0 of the Guidelines requires that, as a general rule, any new development in a relevant area should involve building to a height which is similar to that of adjacent and nearby buildings. The evidence, as I have noted above, establishes that with the exception of the building on Block 16 Section 48 Griffith all of the houses in Section 48 and all of the houses in Lockyer Street are of single storey. Reliance was placed by the applicants upon that part of clause 7.0 which permits a 2 storey development if a direct visual relationship to a relevant adjacent 2 storey building can be demonstrated. In his evidence Mr Butt expressed the opinion that the development proposed for Unit 2 had a direct visual relationship with the building on Block 16 Section 48 Griffith. His evidence did not establish what the nature of the relationship of Unit 2 with that building would be other than that they were both of two storey construction. Further, his opinion was based upon an interpretation of clause 7.0 which enabled it to be satisfied if a two storey house could be seen from another two storey house and he accepted that, if constructed, Unit 2 would obscure the building on Block 16 from view in Lockyer Street.

39. I accept the submission made on behalf of the respondent that a visual relationship requires that the relevant adjacent buildings be capable of being seen by third parties in the sense described by Mr Powell in his evidence. The objectives of the Guidelines are, in my opinion, of a public nature. Little advantage of a public nature would be provided by requiring a person wishing to build a two storey house merely being required to demonstrate that he or she could see another two storey house from his or her own dwelling.

40. Facts described by Mr Powell in his evidence as relevant in determining the existence of a direct visual relationship include balance, focus, closure, historical style or association, traditional building form and conformity with existing urban design/architectural composition. No suggestion emerged from the evidence that the proposed Unit 2 would in any way achieve symmetry, balance or otherwise complement or be compatible with the form or style of the two storey building on Block 16."

24. In my view, no error of law is displayed here. The AAT, whilst perhaps not an expert tribunal in the same sense as some other administrative tribunals, must nevertheless be recognised as having experience in matters of land planning and management. The understanding of such a tribunal of what common words mean, when used in a somewhat specialised context in which the tribunal is experienced, should be accepted unless the Court considers it to be clearly wrong. Indeed, there is good reason to allow the AAT to interpret words in documents like planning guidelines for itself, unless the meaning put on them is one that is not capable of being reasonably held. Documents like planning guidelines are not to be interpreted like wills or federal constitutions. They are to provide practical guidance to decision makers, who are not lawyers, in the running of the affairs in which they have experience and expertise. In this case, as in Wilson's case, the AAT considered that it had a choice between an interpretation confining the meaning on the one hand to a relationship in which one building can be seen directly from the other, and an interpretation which would extend the meaning to a situation where somebody, somewhere, can see both buildings at the same time.

25. In my view, the AAT was correct to approach the matter on the latter basis. The restricted meaning does not make sense, bearing in mind that any planning guidelines must import an element of public interest. The public interest is not the only interest, but it cannot be excluded. On the other hand, the latter interpretation, if applied sensibly in the circumstances, can be utilised to assess development applications according to the interests of the party who wishes to develop, persons who occupy or live in premises in the neighbourhood, and the general public who use the streets and other public places in the neighbourhood. In applying this correct interpretation, the AAT was simply deciding a question of fact, a decision which was embodied in its conclusion that the evidence did not demonstrate that there was any direct visual relationship between the proposed two storey building in Golden Grove and the building in Fishburn Street at the rear of the block to be developed.

26. The remaining question is whether the existing two storey building on the adjacent block was a "relevant" adjacent building. It is somewhat difficult to see how an adjacent building, which must mean a building on an adjacent block of land, could be anything other than relevant. However, there may be circumstances in which a two storey building on an adjacent block is outside the residential area and not itself a residence. For instance, a house may be on a block of land which is adjacent to a row of shops or a school or some other two storey building. Whether a building in the latter category is a "relevant" two storey building may be open to question, but it is not a matter needing decision in the present case. What the AAT seems to have found in this respect is that the building on Fishburn Street, backing towards Block 20 in Golden Grove, was a two storey building only in the sense that the rear portion of the building had, underneath the living areas, a laundry and other facilities. It was not a two storey building from the viewpoint of a person in Fishburn Street, and it could hardly be seen at all by a person in Golden Grove. The evidence did not allow any real assessment for planning purposes of a visual relationship between the proposed development and the building at the rear. Whether this was or was not a "relevant two storey building" was a question of fact and it was for the AAT to decide whether it was so satisfied. It was not satisfied and that, it seems to me, is the end of the matter.

27. However, for the reasons already given, the case must be remitted to the AAT for further hearing according to law and in accordance with these remarks. I so order. Unless anybody wishes to say anything I propose to order that all parties pay their own costs of the appeal.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 23 September 2002

Counsel for the Appellant: Mr M Flint

Solicitor for the Appellant: Bradley Allen

Counsel for the second Respondent: Dr D R Jarvis

Solicitor for the second Respondent: ACT Government Solicitor

Date of hearing: 20 August 2002

Date of judgment: 23 September 2002