Dowrick & Mitchell v Commissioner for Land and Planning, Oztal Architects Pty Ltd & Sarak Nominees Pty Ltd [2003] ACTSC 86 (16 October 2003)

Last Updated: 24 November 2003

STEPHEN DOWRICK & DEBORAH MITCHELL v COMMISSIONER FOR LAND AND PLANNING, OZTAL ARCHITECTS PTY LTD & SARAK NOMINEES PTY LTD [2003] ACTSC 86 (16 October 2003)

EX TEMPORE JUDGMENT

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

No. SCA 52 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 16 October 2003

IN THE SUPREME COURT OF THE )

) No. SCA 52 of 2003

AUSTRALIAN CAPITAL TERRITORY )

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

BETWEEN: STEPHEN DOWRICK & DEBORAH MITCHELL

Appellants

AND: COMMISSIONER FOR LAND AND PLANNING

First Respondent

AND: OZTAL ARCHITECTS PTY LTD

Second Respondent

AND: SARAK NOMINEES PTY LTD

Third Respondent

ORDER

Judge: Higgins CJ

Date: 16 October 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs of, and incidental to, these proceedings.

1. This is an appeal from a decision of the Senior Member of the Administrative Appeals Tribunal (the Tribunal), Mr Harper, made on 27 May 2003. That decision reviewed a previous decision by the Commissioner for Land and Planning, which was a consideration of a recommendation made by PALM officers.

2. As I understand it, this appeal relies effectively on two propositions. The first is that in paragraphs 24 and 25 of the decision of the Senior Member, the history of the matter is incorrectly stated. It is argued that those paragraphs are incorrect to the extent that paragraph 24 does not mention that the Commissioner had in fact varied the recommendation that had been made to him by PALM officers and, in particular, that neither was there any statement that certain conditions, which were of course before the Senior Member, had been prescribed by the Commissioner as a condition of approval. Those conditions required, inter alia of course, provision of amended plans.

3. The operative part of the Senior Member's decision is that the various encroachments which were mentioned, being non-compliances with the performance measures, were not such as to render the proposal that was made inconsistent with the Territory Plan - particularly given the conditions that were prescribed. Had the Commissioner formed the view that the proposal was inconsistent with the Territory Plan, of course he would have been obliged to reject the application, as, indeed, would the Senior Member, on the merits review before him.

4. The question of consistency or otherwise is not determined merely by the non-compliances that were detailed. As Mr Harris conceded, Appendix 3(2) of the Territory Plan allows for approval notwithstanding inconsistency with performance measures. In effect, the performance measures are not mandatory, and a judgment must be made as to whether or not the development is consistent with the Territory Plan overall, and notwithstanding those inconsistencies.

5. That is obviously a matter of opinion. I accept that it is plainly a matter upon which minds might vary. However, it does not seem to me that it was an error for the Senior Member to have come to the conclusion that none of the encroachments, either individually or collectively, was inconsistent with the objectives and performance criteria set out in the code. I do not think, in all the circumstances, that the Senior Member was unaware of the conditions. They were before him, they were expressly stated, and I do not think, therefore, that I should read what he said in paragraphs 24 and 25 as being statements made in ignorance of the conditions which had been prescribed by the Commissioner.

6. Even if he had been in ignorance of those conditions, their effect was, of course, to render the plans more, rather than less, compliant with the Territory Plan. Thus, the error, if there was one, would not have had any operative effect upon the decision itself - indeed, it would only have made it far more likely that the same decision would have been reached.

7. The second error relied upon is the proposition that the amended plans, filed pursuant to the Commissioner's decision, were not themselves before the Tribunal. In the sense that those particular plans may not have been reproduced in the T-documents, that is so. However, Mr.Erskine pointed out, by way of interjection, that a plan which substantially portrays the effect of the modification decreed by the Commissioner is part of the appeal book and was before the Tribunal.

8. In any event it was, in my view, not mandatory that it be so included, because the plans before the Commissioner, and upon which he made his decision, were the original plans as filed by the developer. Reading those with the conditions imposed by the Commissioner would, I think, have conveyed all that needed to be conveyed by way of a representation of that which was under review before the Tribunal.

9. Again, if there was an error in the plans not being reproduced in full, that was not an error which, in my view, had any effect on the decision itself. It follows that there is no question of law which comes to be determined. In any event, there does not seem to have been any substantial error affecting the decision in any way which would lead to any different decision than that which both the Commissioner and, upon review, the Tribunal came to. I note that there was a minor modification imposed by the Tribunal, but that seemed to have been by agreement so I make no comment on that.

10. It is unnecessary in these proceedings, therefore, to go into the question of whether or not s 48A of the ACT Self-Government Act 1988 (Cth) applies, or whether only s 46 of the Administrative Appeals Tribunal Act 1989 applies. As far as the question of fresh evidence is concerned, it follows from what I have said that, given that there is no error identified in the Tribunal decision, fresh evidence would not be relevant. I therefore formally decline leave to read the affidavit of Mr Alastair MacCallum, dated 15 October 2003.

11. It further follows that the appeal must be dismissed and I direct that the appeal be dismissed accordingly.

12. As to costs, an element of costs is, of course, discretionary, but the usual order is that the costs follow the event. There does not seem to be any reason why they should not do so in this case. So it is directed that the appellants pay the respondent's costs of, and incidental to, these proceedings.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 16 October 2003

Counsel for the Appellant: Mr John Harris SC

Solicitor for the Appellant: Nicholas Dibb Solicitors

Counsel for the first Respondent: Mr D R Jarus

Solicitor for the first Respondent: ACT Government Solicitor

Counsel for the second Respondent: Mr C Erskine

Solicitor for the second and

third Respondents: Clayton Utz

Date of hearing: 16 October 2003

Date of judgment: 16 October 2003