Helkban Pty Ltd v Commission for Land and Planning & Capital Business Park (Holdings) Pty Ltd [2003] ACTSC 23 (11 April 2003)

Last Updated: 11 April 2003

HELKBAN PTY LIMITED v COMMISSIONER FOR LAND AND PLANNING and CAPITAL BUSINESS PARK (HOLDINGS) PTY LIMITED

[2003] ACTSC 23 (11 April 2003)

LEASE - restrictive clause - variation of provisions - Land (Planning and Environment) Act 1991 (ACT) - development - standing to object to development - Administrative Appeals Tribunal - jurisdiction to review decision of Commissioner for Land and Planning - standing to object to decision of Commissioner - "a person affected" - interests or rights relevant to standing.

Land (Planning and Environment) Act 1991 (ACT), s 2, s 159, s 222, s 223, s 229, s 229A, s 237, s 256, s 276, s 277, s 282

Land (Planning and Environment) Regulations 1992, Reg 2, Reg 43

Therapeutic Goods Act 1989 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5, s 6

Administrative Appeals Tribunal Act 1989 (ACT), s 25

Administrative Decisions (Judicial Review) Act 1989 (ACT), s 5, s 6

Jewel Food Stores Pty Ltd v Minister for the Environment Land and Planning (1995) 122 FLR 269

Manuka Business Association Inc v Australian Capital Territory Executive (1998) 146 FLR 464

Canberra Tradesman's Union Club Incorporated v Commissioner for Land and Planning (1998) 147 FLR 291

Bateman's Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; (1998) 194 CLR 247

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591

Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 75 ALJR 1551

Murragong Nominees v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210

Canberra Tradesman's Union Club Incorporated v Commissioner for Land and Planning [1999] FCA 262; (1999) 102 LGERA 285

Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited [1994] FCA 996; (1994) 49 FCR 250

MBA Land Holdings Pty Limited v Gungahlin Development Authority [2000] ACTSC 89 (18 October 2000)

Big Country Developments Pty Limited v Australian Community Pharmacy Authority (1995) 60 FCR 85

Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1; (1980) 146 CLR 493

The Boots Company (Australia) Pty Limited v Smithkline Beecham Healthcare Pty Ltd (1996) 65 FCR 282

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

No. SCA of 22 of 2002

Judge: Higgins CJ

Supreme Court of the ACT

Date: 11 April 2003

IN THE SUPREME COURT OF THE )

) No. SCA 22 of 2002

AUSTRALIAN CAPITAL TERRITORY )

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

BETWEEN: HELKBAN PTY LIMITED

ACN 008 207 933

Appellant

AND: COMMISSIONER FOR LAND AND PLANNING

First Respondent

AND: CAPITAL BUSINESS PARK (HOLDINGS) PTY LIMITED

ACN 008 652 024

Second Respondent

ORDER

Judge: Higgins CJ

Date: 11 April 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Notice of Contention be upheld.

1. This is an appeal against a decision of the Administrative Appeals Tribunal of the Australian Capital Territory, constituted by the President, Mr M H Peedom.

2. The appellant, Helkban Pty Limited (Helkban) had sought to object to a development application proposed by the second respondent, Capital Business Park (Holdings) Pty Limited (Capital). Capital is the lessee of Block 12 Section 47 Division of Mitchell in the Australian Capital Territory (the land).

3. The lease of the land had contained (relevantly) the following clause (a purpose clause):

"3(e) To use the premises only for the purpose of:

(i) a transport depot limited to parking and storage of heavy vehicles and ancillary thereto office amenities caretakers residence and service workshops; and

(ii) store [sic] including self storage."

4. There was also a restrictive clause as follows:

"3(f) That the total gross floor area for office amenities residence and store including self storage shall not exceed 3400 square metres and the maximum gross floor area for office amenities and residence shall not exceed 400 square metres."

5. Capital proposed to the first respondent, the Commissioner for Land and Planning (the Commissioner), a statutory officer empowered to approve such applications, that the land be sub-divided into two parts. Block A would contain an area of 13,688 square metres. Block B would contain 8,222 square metres.

6. The purpose clause for Block A would be:

"To use the premises only for the purpose of store [sic] including self storage and ancillary thereto office amenities and caretakers residence."

7. The purpose clause for Block B would be:

"To use the premises only for the purpose of a transport depot limited to parking and storage of heavy vehicles and ancillary thereto office amenities caretakers residence and service workshops."

8. The gross floor area restrictions were to be:

"Block A

That the total gross floor area for office amenities residence and store including self storage shall not exceed 5 900 square metres and the maximum gross floor area for office amenities and caretakers residence shall not exceed 120 square metres.

Block B

That the total gross floor area for office amenities and caretakers residence shall not exceed 280 square metres."

9. Although the proposal was only that lease provisions be amended and did not propose that any works be carried out, it is a "development" for the purposes of the Land (Planning and Environment) Act 1991 (ACT) (the Land Act).

10. Section 222(1) (now s 222) defines a development as including:

"... 1 or more of the following activities:

(h) a variation of a lease of the land;"

11. Further, "variation" is defined to include (s222(3), now s 223(1)):

"(a) the surrender of a lease and the granting of a new lease subject to different provisions to the same lessee over all or part of the land comprised in the surrendered lease; and

...

(c) a subdivision."

12. The term "subdivision" is defined by s 159(1) (now s 159) of the Land Act so as to include Capital's proposal.

13. Pursuant to s 229A of the Land Act, the proposal was required to be referred to the Commissioner for decision.

14. Pursuant to s 229 of the Land Act, Notice of the proposal was published on 11 December 2000. One objection was received in which a number of competitors of Capital joined. The grounds of the objection (in summary) were:

"· There was no justification for the subdivision of the block as the Crown Lease was granted for a specific purpose in support of government policy to eliminate the parking of heavy vehicles in residential areas.

· Inconsistency of the proposal with the Territory Plan.

· That the proposal would result in an abuse of the leasehold system."

15. The Commissioner, on 29 March 2001, rejected that objection and approved the proposal with some conditions of no particular current significance.

16. In his reasons for approving the proposal, the Commissioner found that the proposal would not adversely affect the availability of parking for heavy vehicles in non-residential areas. The proposal was not, in the Commissioner's opinion, inconsistent with the Territory Plan. Nor was it clear in what way it might be.

17. The fact that the change of purpose would be of some commercial advantage to Capital was not regarded as relevant, irrespective of whether or not the change might be characterised as "an abuse of the leasehold system", because the lessee, having gained a concessional lease on the promise of providing heavy vehicle parking, would now have a diminished obligation.

18. Helkban (and another) on, 1 May 2001, applied to the Tribunal for a review of the decision. The grounds they relied upon restated the substance of the original objection.

19. The Commissioner submitted that the application should be dismissed on the ground that no jurisdiction was conferred upon the Tribunal to review his decision.

20. On 9 April 2002, President Peedom upheld that submission.

21. The President noted that the right to object to a proposed development was conferred by s 237 (1) of the Land Act upon:

"Any person who may be affected by the approval of an application ...."

22. Accepting that Helkban was the owner of a business competing with Capital in the self-storage market, the President nevertheless concluded that neither its commercial interests in preventing further competition, nor the public interest in holding Capital to its original leasehold obligations, gave rise to a sufficient interest to satisfy the requirement as to standing imposed by s 237 (1) of the Land Act.

23. On 7 May 2002, Helkban appealed from that decision, on the grounds that:

"(a) the Tribunal erred in law in holding that, in the circumstances of this case, there was not the necessary coincidence between the interests of the applicants and the statutory purpose which the respondent was required to observe in arriving at a decision in relation to the development application;

(b) the Tribunal erred in law in holding that the issue of protection of public assets was not relevant to a consideration of the development application;

(c) the Tribunal erred in law in holding that the development application was concerned only with the subdivision of land, when he ought to have held that the application also concerned the variation of the building and development covenant and the purpose clause of the lease;

(d) the Tribunal erred in law in appearing to hold that considerations other than planning issues as they affect public amenity and the manner in which land is used are not relevant to a development application for the subdivision of land."

24. There is a Notice of Contention on the part of the Commissioner. The Commissioner contends that the Tribunal had no jurisdiction to deal with the decision in any event by reason of the provisions of Regulation 24(1) (now Regulation 43(1)) and items 6 and 16 (now items 7 and 17, respectively) of Schedule 7 of the Land (Planning and Environment) Regulations 1992 (the Regulations).

25. That contention had been put to the Tribunal. On 1 August 2001, President Peedom rejected it. The learned President ruled that, whilst Schedule 7 items 6 and 16 (now items 7 and 17, respectively) would exclude any appeal if a "development" on the relevant land falling within them was approved, the variation of the lease by surrender and re-grant of separate leases, albeit stipulatively defined as "development", should not be regarded as a "development on land" for the purposes of Schedule 7.

Submissions of Counsel

26. Mr Arthur, for Helkban, submitted that Helkban (and presumably the associated entities) should be regarded as having had standing to challenge the Commissioner's decision. That submission was put as a combination of:

"· the public interest in protection of public assets

· the private interests of Helkban as a competitor with Capital in the provision of storage services."

27. The "public interest" was engaged, it was submitted, because the lease was granted to Helkban on concessional terms by reason of its agreement to use the land to provide 100 heavy vehicle parking spaces. The effect of the decision was not only to separate the area able to be used for such parking from the area able to be used for storage services, but also to reduce the heavy vehicle parking spaces to 38 and, correspondingly, increase the more commercially rewarding storage facilities.

28. Further, the process of surrender and re-grant of leases would, Helkban contended, avoid breach by Helkban of its obligations to expend not less than $0.5m in developing the parking facilities. That breach would be a "controlled activity" (see the Land Act s 4 Schedule 5 item 2 (now s 2 Schedule 5 item 2). "A person" may apply to the Minister for an order that the lease conditions be complied with (see s 256 of the Land Act). The Minister may refuse to make such an order (s 256 (4B) of the Land Act). Failure to make an order within the prescribed time is a refusal (s 256 (6) of the Land Act). Section 277 permits the Tribunal to review such a refusal.

29. The contention is, therefore, that if Helkban had standing under s 256 of the Land Act to seek an order for enforcement of the terms of the original lease, it should, by analogy, be regarded as "affected" by the decision made to vary that lease so as to remove any breach that otherwise would have existed.

30. Mr Mossop of counsel, for the Commissioner, relied on Jewel Food Stores Pty Ltd v Minister for the Environment Land and Planning (1995) 122 FLR 269, Manuka Business Association Inc v Australian Capital Territory Executive (1998) 146 FLR 464 and Canberra Tradesman's Union Club Incorporated v Commissioner for Land and Planning (1998) 147 FLR 291, for the proposition that presumed adverse economic effect is insufficient, by itself, to found standing under s 237 of the Land Act.

31. He sought to distinguish Bateman's Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; (1998) 194 CLR 247 on the basis that that case concerned expenditure of public funds contrary to law.

32. The prior competitive advantage gained by the concessional grant of the original lease had, Mr Mossop contended, no current relevance and the Tribunal had been correct to regard it as irrelevant. There was no waiver of revenue receivable entailed by the decision to subdivide the land as sought by Capital.

33. As to the Notice of Contention, Mr Mossop argued that "development" is defined by s 222 of the Land Act to include a number of activities "in relation to land". One such "activity" is "a variation of a lease of the land" (s 222 (1)(h), (now s 222(h)). That, in turn, is defined to include a subdivision (s 222(3)(c), (now s 223(1)(c)).

34. Section 276 enables objectors to apply to the Tribunal to review the Commissioner's decisions under the Land Act. Helkban was an objector. However, s 282 (now s 282(1)) permits regulations to be made, including regulations:

"(da) exempting a development of a kind specified in the regulations, either absolutely or subject to conditions, from the application of this part or any provision of this part; ..."

35. The Regulations generally expressly adopt, per Regulation 2(1) (now Regulation 2), the definition of "development" in subsection 222(1) (now s 222) of the Land Act.

36. Regulation 24 (now Regulation 43) then relevantly excludes certain appeals by objectors, namely, those listed in Schedule 7 to the regulations.

37. Listed in Schedule 7 is item 6 (now item 7):

"6. Development on land within an industrial area or a municipal services area -

(a) where, if the development is approved, the land would be no less than 50m away from any residential area at its nearest point; and

(b) where the development would not result in any of the following uses of the land being permitted:

(i) hazardous industry;

(ii) hazardous waste industry;

(iii) incineration facility;

(iv) land fill;

(v) liquid fuel depot;

(vi) offensive industry;

(c) where the development would not increase the gross floor area of any buildings on the land beyond a plot ratio of 1:1, calculated by reference to the area of the land as at the time of the application; and

(d) where the development does not consist of -

(i) the erection of a building or structure on the land with a height greater than 10m; or

(ii) the alteration of any building or structure on the land at the time of the application so as to increase its height, where that height would exceed 10m after the alteration."

38. The fresh leases do not require the performance of any works, nor is the land so situated as to fall within any of the stated exceptions from the general prohibition in the opening provision of item 6 (now item 7). It is accepted that the land is within an "industrial area".

39. Item 16 (now item 17) then provides exemption from review for:

"Variation of a lease solely to permit a development mentioned in another item of this Schedule."

40. Thus, Mr Mossop argued, "development" in item 6 (now item 7) should not be read so as to exclude a lease variation. Nor is there support for a contrary view in item 6 (now item 7) itself or any other items in Schedule 7. In any event, it would be included by reference to item 16 (now item 17).

41. For example, a "development" permitting the various uses referred to in item 6(b), (now item 7(b)), assuming they were not previously permitted, could only be a result of a lease variation.

42. Mr Erskine, for Capital, supported Mr Mossop's submissions. He added an argument that Bateman's Bay did not apply, as it related more to standing in equity than under a specific statutory provision. More applicable, Mr Erskine argued, was Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591 and Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 75 ALJR 1551. There was no effect, such as in Manuka Business Association (supra) where, in addition to adverse economic effect, there was an effect on the amenity of the neighbourhood.

43. In reply, Mr Arthur, on the standing issue, referred to Murragong Nominees Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210 and submitted that Bateman's Bay supported his contentions.

44. By leave, the Notice of Contention was addressed by Mr Arthur in written submissions dated 5 August 2002. The Notice of Contention had only been given on 19 July 2002. Mr Arthur argued that Schedule 7 does not use "development" to include a lease "variation" unless that term is expressly used - see item 6 (now item 7) and item 16 (now item 17). In para 23(a) the term "minor development" clearly does not include a lease variation. Item 29 in Schedule 1 of the Regulations refers to particular parts of the definition of "development". If it had been intended to embrace lease variations, the Schedule could simply have said so.

45. Insofar as Canberra Tradesman's Union Club Incorporated v Commissioner for Land and Planning [1999] FCA 262; (1999) 102 LGERA 285 might be regarded as contrary to that submission, Mr Arthur submitted that it was decided per incuriam.

The "effect" on the interests of the appellant

46. Much depends on the terms in which, if at all, the relevant statute confers standing on persons desiring to object to the making of a statutory decision.

47. The fact that legislation confers a right to object to a decision (or proposed decision) on a person will favour the view that such a person has standing to have the decision reviewed.

48. In Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited [1994] FCA 996; (1994) 49 FCR 250, the respondent, a drug company, sought to object to the grant to the appellant of permission to market a generic drug in competition with one of the respondent's products. The Therapeutic Goods Act 1989 (Cth) did not address the issue of the right of a competitor to be heard. Thus the class of persons entitled to review was defined by the Administrative Decisions (Judicial Review) Act 1977 (Cth). That refers (ss 5 and 6) to a "person who is aggrieved".

49. Gummow J pointed out, at 272:

"Like the expression `a person aggrieved', the phrase `a person whose interests are affected by the decision' and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the `interests' concerned must be proprietary or even legal or equitable in nature, or that the affection be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms `affect' and `interest' are to be seen in the light of the scope and purpose of the particular statute in question."

50. Davies J considered that the nature and scope of the "interest" required depends on the subject matter and content of the decision and the enactment under which it is made. The Act in question made no provision for competitors to be heard before approval was granted to a generic drug. The contention that competitors should be heard conflicted with the interests promoted by the Act. It would be wrong to recognise or support (at 261) an:

"... interest which a competitor may have in delaying or hindering the introduction of the drug on to the market."

51. The right conferred on a person to object to a decision may, per Burchett J, at 266:

"... in itself, demonstrate a sufficient interest to maintain an action aimed at ensuring the legality of the conduct of the inquiry or proceeding."

52. And Gummow J pointed out (at 272), that:

"... there is no `general principle' that a decision under an enactment which favours one corporation cannot relevantly affect the interests of a competitor."

53. Indeed, one such example would be that of tenderers competing for the grant of a lease - see MBA Land Holdings Pty Limited v Gungahlin Development Authority [2000] ACTSC 89 (18 October 2000).

54. It is also permissible, in considering who is or may be affected, to have regard to the effect of the proposed development if carried out - see Jewel Food Stores (supra).

55. In the latter case, I decided that, even so, a mere effect of lessening the objector's economic prospects by reason of a general increase in competition did not qualify to enable standing. As in Alphapharm (supra), it could not be contended that increasing competition in the relevant market was injurious to the public interest. Indeed, quite the contrary.

56. To similar effect was the decision of Lindgren J in Big Country Developments Pty Limited v Australian Community Pharmacy Authority (1995) 60 FCR 85. In that case, the respondent, a statutory authority, had approved an application by a tenant of the applicant to relocate a pharmacy to the premises of a competing shopping complex. The effect of that approval was to prevent the applicant from letting its premises to any other pharmacy.

57. Lindgren J noted that it was important to look at the scope and purposes of the relevant statutes (at 93B). The relevant statute demonstrated a legislative intent to reduce the proliferation of pharmacies. The mere fact that the applicant had an "interest" in seeing its competitor hindered, frustrated or delayed was not, in that context, a relevant interest. Nor did it become so because the respondent had entertained, though it had not invited, submissions from the applicant.

58. Even with the "more flexible" approach discernible since Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1; (1980) 146 CLR 493, Lehane J declined to find standing where one drug company sought to complain that a competing company had engaged in misleading or deceptive advertising, even allowing that a substantial commercial or financial interest would suffice - see The Boots Company (Australia) Pty Limited v Smithkline Beecham Healthcare Pty Ltd (1996) 65 FCR 282, at 286, 289.

59. There is some similarity with the case of Canberra Tradesman's Union Club (1998) (supra). The Club sought relief in respect of a decision to approve an amendment to the lease of land held by the Canberra Casino. The effect of the amendment would have enabled the land to be used for the purposes of a licensed club.

60. As in the present matter, it was contended that the Club's "rights" (or "interests") were not relevantly affected and that Regulation 24 (now Regulation 43), Schedule 7 item 8 (now item 9) (similar in form and content to item 6 (now item 7)), excluded review.

61. The Tribunal had found that the Club lacked standing. It appealed to this Court, not only purportedly under the Land Act, but also under the Administrative Appeals Tribunal Act 1989 (ACT), the Administrative Decisions (Judicial Review) Act 1989 (ACT), as well as seeking prerogative relief.

62. Crispin J had concluded that "mere economic competition" did not give standing to the Club. He rejected a contention that the charitable donations of licensed clubs created a relevant public interest and that the "community purpose" of licensed clubs gave any particular club standing. Nor did the Licensed Clubs Association have any greater standing.

63. In any event, the central argument advanced by the applicants, that to approve a club on the Casino premises would lead to a breach of the relevant legislation controlling poker machines (and the Casino) was found to be misconceived. His Honour also held that Regulation 24 (now Regulation 43) removed any right of review by the Tribunal. Implicit in that finding is that "development" in Schedule 7 item 8 (now item 9) included a "lease variation".

64. On appeal, Miles, Matthews and Lehane JJ confirmed the views expressed by Crispin J. Their Honours acknowledged that their comments on standing were obiter, as the appellant had shown no substantive ground for review in any event.

65. Nevertheless, their Honours agreed that Regulation 24 (now Regulation 43) excluded review by the Tribunal even if plans were later proposed to increase the height of a building (at 301):

"It is irrelevant that the long term consequences of further developments might be to increase the height of a building .... If that were to be the case, then further development applications would need to be made ..."

66. (The exclusion from appeals provided for by item 8 (now item 9) did not apply, inter alia, if the height of any building would, if carried out, increase the height of any building on the land to more than 2 storeys.)

67. Their Honours went on to comment (at 301-2):

"... we agree with both the Tribunal and the primary judge that the fact that the Commissioner's decision might have adverse financial consequences for existing clubs by increasing their competition does not mean that either the `rights' or `interests' of those clubs were `substantially and adversely affected' by the development."

68. Whilst those comments were obiter and, so, possibly, were those of Crispin J, it is impossible not to give the considered opinions of four superior court judges proper weight. In any event, I agree with those opinions.

69. To those opinions may be added, by way of an ultimately binding opinion, the views of the High Court in Allan v Transurban City Link Ltd (supra).

70. In that matter, a Commonwealth authority, the Development Allowance Authority, had power to grant borrowing certificates permitting capital raising for infrastructure works. It granted certificates to Transurban for the widening of a freeway. The appellant claimed standing to challenge the decisions to grant certificates by reason of an injurious affect on his property and, on environmental grounds, as a member of the Australian Conservation Foundation (ACF). Mansfield J rejected the challenge. The affect on the appellant's property was not great but a Full Federal Court, on appeal, found that the affect was real enough to support standing.

71. By the time the matter was reheard, the appellant had sold his property and moved away. Merkel J found that ACF membership sufficed to support standing. On appeal, a second Full Federal Court disagreed, not only with Merkel J, but also with the first Full Federal Court. Hence, the High Court was called upon by the appellant to adjudicate.

72. Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ (Kirby J dissenting) rejected the appeal. In doing so, they made the point that the test for standing to challenge a statutory decision will depend on the subject, scope and purpose of the relevant legislation. At [16] - [17]:

"A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute.

...

Transurban correctly submitted that the phrase in s 119(1) of the Authority Act `who is affected by a reviewable decision' has an ambulatory operation. What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself." (footnotes omitted)

73. In the opinion of the majority the nature of a decision to grant a borrowing certificate precluded review at the instance of a person not party, in any sense, to the original decision. A proposed lender might have been "affected" by a decision to refuse a certificate but the appellant was not "affected" by the decisions in question.

74. The case of Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (supra) was referred to, but it is merely an illustration of the proposition that Parliament may confer standing on a person whether or not that person had an "interest" affected by the decision.

75. It follows that to determine if this appellant has standing to challenge the decision in question, the relevant legislation must be considered.

76. The mere fact that the appellant was an objector in fact to the original decision does not, of itself, grant a right to apply for review to the Tribunal.

77. Section 237 (1) of the Land Act provides:

"Any person who may be affected by the approval of an application may ... object to the grant of the approval."

78. That should be contrasted with s 256 of the Land Act which enables "a person" to apply for a lease enforcement order. However, that order may be made or refused by the Minister. No right to have such a decision reviewed is granted to persons generally.

79. If the review of a decision to make or refuse an order is to be undertaken under the Administrative Appeals Tribunal Act 1989 (ACT), the applicant must be a person "whose interests are affected by the decision" (s 25(1)). Under the Administrative Decisions (Judicial Review) Act 1989, the applicant must be "a person aggrieved" by the decision (see s 5(1), s 6(1)).

80. Section 276 of the Land Act permits objectors to apply to the Tribunal where the "development" to which they objected was approved. The provision was substantially amended on 20 April 2000 (Act No 15, 2000) and 20 July 2000 (Act No 37, 2000). Since those dates, and at the time the decision was made, the requirement that the interests of the objector be "seriously and adversely" affected had been removed. The qualification necessary to be "an objector" was not removed.

81. That an individual, to be granted a right of review by the Tribunal, must be "a person affected" by the decision is confirmed by the terms of s 276 (9). It grants standing to:

"... an organisation or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association."

82. It seems to me that the Tribunal was not in error in finding that trade rivalry, even if leading to adverse economic effect if the application is granted, is not an interest entitling the appellant to object to the proposed development. That, of course, could be otherwise if the relevant statute required or permitted it. Further, the claim to be the protector of a "public asset", without any statutory authority to do so (compare s 256), will only give rise to an affected interest if the Bateman's Bay case had application. It is not here suggested that the appellant is seeking to restrain an illegal act. Rather it is seeking to have a discretionary decision reviewed on its merits by the Tribunal.

83. The fact that the appellant had been heard by the Commissioner as if it had been an objector does not give it an interest. It is in no better position than the objector in Big Country Developments. The fact that Helkban was, albeit not specifically, invited by public notice to offer objections, did not establish that it had an entitlement to object. Absent that entitlement, it had no legitimate expectation that it could invoke the Tribunal's jurisdiction to review the Commissioner's decision. Nor does the fact that it could, under s 256, have sought to remedy a breach of Helkban's lease obligations provide any relevant affectation. That is a separate regime.

84. In my view, the Tribunal correctly rejected the appellant's contention that it had standing as a "person affected" (or a "person aggrieved").

The Notice of Contention

85. The decision of the Tribunal declining to rule that the subject matter of the application for review was not within its jurisdiction by reason of Regulation 24 (now Regulation 43) was challenged on behalf of the Commissioner (and Capital).

86. There was no challenge to the proposition that the Legislative Assembly could empower the Executive to make regulations for the purposes of the Land Act. That power was conferred by s 288. Section 282 sets out the subject matter which might be covered by such regulations.

87. As already noted, subsection 282(1)(da) (formerly subsection 228(da)) provides:

"The regulations may make provision for -

...

(da) exempting a development of a kind specified in the regulations, either absolutely or subject to conditions, from the application of this part or any provision of this part; ..."

88. That includes the range of decisions referred to in s 275. The term "development" is itself defined in Part 6 (see s 222(1), (now s 222)) in terms that include within its meaning, "(h) a variation of a lease of the land". "Subdivision" is also defined so as to be included within that definition by s 222 (3)(c), (now s 223(1)(c)).

89. In the Regulations the definition of "development" referred to in the Land Act is expressly adopted (see Regulation 2(1), (now Regulation 2)).

90. Regulation 24 (now Regulation 43) is expressly directed to excluding certain development decisions, even if an objector had been entitled to object to them, from review by the Tribunal.

91. That Regulation states:

"(1) For the purposes of paragraph 282(da) of the Act, section 276 of the Act does not apply in relation to a decision of the relevant authority about a development listed in Schedule 7 to these regulations."

92. Item 6 (now item 7) of Schedule 7 provides:

"Development on land within an industrial area or a municipal services area -

(a) where, if the development is approved, the land would be no less than 50m away from any residential area at its nearest point; and

(b) where the development would not result in any of the following uses of the land being permitted:

(i) hazardous industry;

(ii) hazardous waste industry;

(iii) incineration facility;

(iv) land fill;

(v) liquid fuel depot;

(vi) offensive industry;

(c) where the development would not increase the gross floor area of any buildings on the land beyond a plot ratio of 1:1, calculated by reference to the area of the land as at the time of the application; and

(d) where the development does not consist of -

(i) the erection of a building or structure on the land with a height greater than 10m; or

(ii) the alteration of any building or structure on the land at the time of the application so as to increase its height, where that height would exceed 10m after the alteration."

93. Item 16 (now item 17) of Schedule 7 refers to a "variation of a lease solely to permit a development mentioned in another item of this Schedule".

94. Some of the "developments" referred to in Schedule 7 would involve no lease variation. Others would require a lease variation in order to proceed lawfully. Yet others would themselves be effected by a lease variation.

95. Item 6(c) (now item 7(c)) is an example (usually) of the first category. Item 6(b) (now item 7(b)) would only be able to be effected by a proposed lease variation.

96. The same observation may be made in relation to some of the "developments" referred to in Schedule 7 of the Regulations (for example item 1), which also are proposals that would require or comprise a lease variation. Items 7, 8 and 9 of Schedule 7 (now items 8, 9 and 10, respectively) are similarly expressed. For example, in item 9(e) "... where the development would not have the effect of prohibiting a community use of the land".

97. Thus, in my view, Mr Mossop's submission, that the Tribunal erred in rejecting the further ground for denial of jurisdiction to the Tribunal, is sound. The decision, whether or not the appellant otherwise had standing, was not a reviewable decision.

98.

99. It follows that the appeal should be dismissed but the Notice of Contention is upheld.

100. I will hear the parties as to costs.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 11 April 2003

Counsel for the appellant: Mr R Arthur

Solicitor for the appellant: Snedden Hall & Gallop, Solicitors

Counsel for the first respondent: Mr D J C Mossop

Solicitor for the first respondent: ACT Government Solicitor

Counsel for the second respondent: Mr C Erskine

Solicitor for the second respondent: Vandenberg Reid Lawyers

Date of hearing: 24 July 2002

Date of judgment: 11 April 2003