Save The Ridge Incorporated v Australian Capital Territory & Anor [2004] ACTSC 13 (31 March 2004)

Last Updated: 23 April 2004

SAVE THE RIDGE INCORPORATED v THE AUSTRALIAN CAPITAL TERRITORY and KENOSS CONTRACTORS PTY LTD [2004] ACTSC 13 (31 March 2004)

ADMINISTRATIVE LAW - application for injunction - locus standi - proposed construction of public road over land some of which was in designated areas under the National Capital Plan - whether approval by the National Capital Authority excluded the need for any approval under Territory legislation - whether regulation under the Land (Planning and Environment) Act (1991) (ACT) effectively exempted land in designated areas from need for approval under that Act - whether development in designated areas undertaken in association with other developments to which the Territory Act applied.

Land (Planning and Environment) Act 1991 (ACT)

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

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

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

Boyce v Paddington Borough Council [1903] 1 Ch 109

North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492

Bateman's Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49

North Queensland Conservation Council Inc v Executive Director Queensland Parks and Wildlife Service [2000] QSC 172 (14 June 2000)

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27

Save Bell Park Group v Kennedy [2002] QSC 174 (29 May 2002)

No SC 204 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 31 March 2004

IN THE SUPREME COURT OF THE )

) No. SC 204 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SAVE THE RIDGE INCORPORATED

Plaintiff

AND: THE AUSTRALIAN CAPITAL TERRITORY

First Defendant

AND: KENOSS CONTRACTORS PTY LTD

Second Defendant

ORDER

Judge: Crispin J

Date: 31 March 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The first defendant be restrained from carrying out any work by way of development within the meaning prescribed by s 222 of the Land (Planning and Environment) Act 1991 upon the "designated area" under the National Capital Plan between O'Connor, Lyneham and Bruce in the ACT and known as "O'Connor Ridge", for so long as the development has not been approved by the ACT Planning and Land Authority under s 230 of the Act or by the Minister under s 229B of the Act.

1. 1. This is an application for an injunction to restrain what is alleged to involve a threatened breach of s 225 of the Land (Planning and Environment) Act 1991 (ACT) ("the Planning and Environment Act") by certain work on an area of land between Lyneham and O'Connor in the Australian Capital Territory, apparently referred to as "O'Connor Ridge". It is common ground that the work to be undertaken by the second defendant on behalf of the first defendant includes removal of trees, construction of fences and a site office as well as the relocation of gas and electrical services. This work is intended to facilitate the later construction of an extension to Gungahlin Drive running from the Barton Highway to the Glenloch Interchange, effectively linking the newer suburbs in the Gungahlin area with the city area and southern suburbs.

2. Some of the land upon which the extension is to be constructed lies within designated areas specified in the National Capital Plan pursuant to s 10 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ("the Planning and Land Management Act"). The work in those areas has been approved by the National Capital Authority as required by s 12 of that Act and the first defendant maintains that no further approval is necessary. Indeed, it maintains that the terms of that Act effectively deny the ACT Legislative Assembly ("Assembly") the power to enact Territory legislation governing the works to which the Commonwealth Act applies. Conversely, the applicant contends that approval under Pt 6 of the Planning and Environment Act is also required for work in designated areas and that, in the absence of such approval, performance of the work is unlawful.

3. It is not disputed that approval under the Planning and Environment Act is required for the work intended to be undertaken on the non designated areas and that such approval was duly granted by the ACT Planning and Land Authority ("ACT PLA") on 29 January 2004. A further development application seeking what is described as a minor amendment to the approved application was lodged on 23 February 2004 and apparently remains undetermined. The plaintiff has applied to have the decision approving the development reviewed by the Administrative Appeals Tribunal ("AAT") and it has been accepted that the approval will not become effective whilst that application remains unresolved. The first defendant has responded by applying to have that application struck out on jurisdictional grounds and that application is due to be heard by the AAT on 30 April 2004.

4. By letter dated 22 March 2004, Mr Tony Gill, Director, Roads A.C.T., confirmed that no land clearing work would take place on land subject to a development application approval by the ACT Planning Authority pending the resolution of proceedings in the AAT. He stated that work would, however, proceed on land subject to works approval from the National Capital Authority "subject to all legal approvals remaining in place".

5. The present proceedings were commenced on 23 March 2004 after work had commenced within a designated area in the ACT and an application for an interlocutory injunction was made late in the day. After hearing Mr Crowe SC, who appeared for the plaintiff, and Dr Jarvis, who appeared for the first defendant, I made an order restraining the defendants from carrying out any further work until the argument could be completed the following day.

6. On 24 March 2004, Mr Harris SC sought and obtained leave to appear for the ACT PLA. Further argument then ensued. Dr Jarvis pointed out that the only issues between the parties involved questions of law rather than fact and argued that, whilst the plaintiff had initially sought interlocutory relief, it would be more appropriate to finally resolve the issues. After some initial hesitation, Mr Crowe conceded that this would be an appropriate course whilst Mr Harris maintained a tactful agnosticism on the point. Since there seemed to be an urgent need for a final resolution of the issues rather than a mere finding as to whether the plaintiff could demonstrate a sufficiently arguable case to warrant an interlocutory injunction, I agreed to resolve the issues between the plaintiff and the first defendant on the application for final relief and made a further order with a view to preserving the status quo until I could do so. However, since there was no evidence that the second defendant had been served with the originating application or given notice that the issues might be resolved in this manner, it would, in any event, be inappropriate to make final orders against it at this stage.

7. It is not, of course, my role to express any opinion as to the merits of the proposed extension to Gungahlin Drive. I am required only to rule upon the issues of law raised by the plaintiff's claim.

8. The arguments advanced on behalf of the parties essentially raise three questions. Does the plaintiff have standing to maintain the action? Does the Planning and Land Management Act cover the field or otherwise have the effect of ensuring that development proposals for work on land in designated areas need only be approved by the National Capital Authority? If not, does the requirement for approval under Pt 6 of the Planning and Environment Act apply to such proposals?

Standing

9. The law governing standing to maintain proceedings of this nature has been the subject of considerable debate in Australia and there seems to have been a recent swing towards a more liberal approach.

10. In Australian Conservation Foundation Inc v Commonwealth & Ors [1979] HCA 1; (1980) 146 CLR 493 the High Court of Australia found that an ordinary member of the public with no special interest in upholding the law had no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty unless, of course, there was some statutory provision permitting him or her to do so. Gibbs J said (at 530):

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.

11. Stephen J, who agreed with Gibbs J that the appeal should be dismissed, observed that the concern of the Australian Conservation Foundation ("the ACF") had not been to protect or advance its own interests but rather, it was a disinterested body concerned to protect the environment from insult, doing so in what it regarded as the interests of the community at large. His Honour referred to the early case of Boyce v Paddington Borough Council [1903] 1 Ch 109 in which it was held that the infringement must be one which might cause "special damage peculiar to [the plaintiff]" but suggested two possible bases upon which this requirement might be satisfied; namely, the concern which the ACF had for Australia's environment and the particular threat apparently posed by the development in question. However, his Honour stated at 539, that for it to succeed upon this particular ground the law would have to recognise that any person with genuinely held convictions upon a topic of public concern thereby acquired standing to enforce the public right. His Honour rejected this contention.

12. Mason J, who also agreed with Gibbs J that the appeal should be dismissed, said at 548 -

In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration. . . . Nowhere in the common law world is authority to be found for the appellant's wide ranging proposition.

13. In the subsequent case of North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 at 504 Sackville J expressed the opinion that there had been some force in counsel's submission that the decision in the ACF case must be understood as a response by the majority to the breadth of the arguments put by the appellant to the High Court. His Honour observed that Gibbs J, while rejecting the appellant's broad argument, had expressly acknowledged that a person could have a "special interest" in the preservation of a particular environment. His Honour added the obvious caveat that viewing the decision in this light did not mean that it was devoid of binding effect. It was clear from the High Court's decision that a plaintiff must demonstrate a "special interest" in the subject matter of the action, "mere intellectual or emotional concerns" for the preservation of the environment are insufficient. The asserted interest must go beyond that of members of the public in seeking to uphold the law and must involve more than genuinely held convictions. An allegation of non-compliance with a relevant statute is not enough of itself to confer standing on a plaintiff. Similarly, the fact that a person makes comments on an environment impact statement does not confer standing on that person to challenge or complain of a decision resulting from the environmental assessment process. Furthermore, an organisation does not demonstrate a special interest in the environment, sufficient to establish standing, simply by formulating objects of association that demonstrate an interest in and commitment to the preservation of the physical environment.

14. His Honour proceeded to find that the North Coast Environment Council Inc had demonstrated more than a "mere intellectual or emotional" concern. It had been recognised by both the Commonwealth and State as a responsible environmental organisation, deserving of financial support and participation in government decision-making processes. It had been recognised by the State as a body with a particular concern in the management of forests, including State forests and private lands. Its opposition to the operation of saw millers over a long period of time had illustrated a strong commitment to the values it regarded, whether rightly or wrongly, as under threat by the licence in question. The fact that its activities were regional rather than national was not a disqualifying factor. Indeed, a regional organisation may well be able to demonstrate a closer concern with a particular decision affecting or potentially affecting the environment than a national organisation with a broad and diverse range of interests. The fact that its activities were on a smaller scale than those pursued by the ACF was a relevant but not a crucial distinction and nothing had been said to cast doubt on its capacity to represent effectively, "in a forensic sense", the interests it sought to promote. It was no mere busy body but was well placed to put forward a conservation viewpoint as a counter to the economic activities proposed and undertaken by the defendant and, on the evidence, there was no other conservation body with a greater interest or commitment to the issue.

15. The issue was again considered by the High Court in Bateman's Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 with Gaudron, Gummow and Kirby JJ stating, at [34] that:

The evolution of the . . . doctrine of "sufficient special interest" represents an attempt to alleviate that state of affairs [that the Attorney-General is the only proper plaintiff] whilst keeping at bay "the phantom busybody or ghostly intermeddler". The result is an unsatisfactory weighting of the scales in favour of defendant public bodies. Not only must the plaintiff show the abuse or threatened abuse of public administration . . . but the plaintiff must also show some special interest of the subject matter of the action in which it is sought to restrain that abuse.

16. Their Honours returned to the theme at [46] pointing out that the rule requiring special interest is flexible and that the nature and subject matter of the litigation dictates what amounts to a special interest. Their Honours continued -

This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest . . . where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. . . . It will be recalled that, in Onus . . . Brennan J warned that to deny standing may be to "deny to an important category of modern public statutory duties an effective procedure for curial enforcement".

17. In North Queensland Conservation Council Inc v Executive Director Queensland Parks and Wildlife Service [2000] QSC 172 (14 June 2000) Chesterman J referred to the judgments of Gibbs J in the ACF case and Gibbs CJ, as he then was, in the subsequent case of Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 and suggested a solution to what his Honour perceived as a problem in articulating any more than vague statements about what may constitute a sufficient interest to warrant standing. His Honour suggested that the plaintiff should have standing "if it can be seen that his connection with the subject matter of the suit is such that it is not an abuse of process", adding that "If the plaintiff is not motivated by malice, is not a busy body or crank and the action will not put another citizen to great cost or inconvenience his standing should be sufficient". His Honour observed that, whether this approach was helpful or not, it appeared now to be established, that courts should not be too strict in their assessment of what constitutes special interest given the decision of Sackville J in The North Coast Environment Council case and what his Honour suggested was an endorsement of the "liberalising tendency" in the Bateman's Bay Local Aboriginal Land Council case. The North Queensland Conservation Council Inc was found to have a sufficient special interest to warrant standing both on the basis of the principle suggested by Chesterman J and on what his Honour described as the more orthodox basis. See also Save Bell Park Group v Kennedy [2002] QSC 174 (29 May 2002).

18. As tempting as the approach suggested by Chesterman J may be, I must say, with respect, that it appears to go far beyond that adopted in any of the earlier authorities. I am unable to accept that a person may demonstrate a "special interest" in the subject matter of a dispute sufficient to provide locus standi merely by establishing that the intervention has not been motivated by malice, that he or she could not fairly be described as a busy body or crank and that the action would not put another citizen to great cost or inconvenience. In my opinion, neither a noble purpose nor an admirable character and temperament will be sufficient to constitute a special interest. Similarly, I am unable to accept that a special interest can be established by demonstrating that his or her intervention is unlikely to cause others significant expense.

19. However, I do accept that in recent years a more liberal approach has been taken to the question of standing. Most notably, in the Bateman's Bay Local Aboriginal Land Council case Gaudron, Gummow and Kirby JJ said at [22] that the circumstances which had given rise to the litigation in that case had illustrated deficiencies in the Boyce model which might have lingered to constrain the application of the criterion which had been settled upon in the High Court. In the Boyce case, insufficient attention had been given to the basis upon which equity intervenes in public law matters, particularly to restrain apprehended ultra vires activities of statutory authorities involving recourse to public monies. Their Honours referred to the view in Boyce that the fiat of the Attorney-General was normally required but concluded at [50] that -

Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence in modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation.

20. In the present case the evidence establishes that the plaintiff association was incorporated on 28 October 1999 and has since engaged in a series of activities directed toward ensuring the protection of the environment in the vicinity of O'Connor Ridge. It has several hundred financial members and a much larger number of supporters from across Canberra, including people from the suburbs adjacent to or near the proposed works. The plaintiff is a member organisation of the Conservation Council of Canberra and the South East Region, which has been described as the umbrella body of conservation organisations in the ACT. There is unchallenged evidence to the effect that it has been one of the main bodies concerned with the conservation of the natural environment of both the O'Connor and Bruce Ridge nature reserves within the Territory, as component parts of the larger Canberra Nature Park. It has participated in a large number of community consultation committees and community consultation exercises conducted by government agencies. There is evidence that it has appeared before various forums and enquiries concerned with planning and development in particular areas of the Australian Capital Territory with which it is concerned. Its views have been sought by agencies of the ACT Government and on occasions by Ministers and other members of the Assembly. Indeed, there is evidence that some years ago its Chairperson was contacted by the then Chief Minister who sought the opinion of the plaintiff in relation to the proposed Gungahlin Drive extension.

21. Finally, Dr Jarvis pointed out that the originating application suggests that the present relief is sought in reliance upon what is, in essence, an action to restrain the breach of a criminal act and that a more strict approach has normally been adopted in cases of that nature. It is true that s 225 forbids the carrying out of development works without the necessary approval however, in the absence of a detailed statement of claim, I would not have characterised the plaintiff's claim in the manner suggested. Furthermore, however characterised, it still involved an application for relief intended to restrain apprehended ultra vires activities entailing recourse to public monies as in the Bateman's Bay Local Aboriginal Land Council case.

22. In these circumstances, I am satisfied that the applicant has demonstrated a special interest in the proceedings and has standing to maintain them.

The Commonwealth legislation

23. Section 12 of the Planning and Land Management Act does not expressly exclude proposed developments in designated areas from any requirement for approval that might otherwise arise under Territory enactments. Therefore it is necessary to consider the contention that it has such an effect in the context of other provisions.

24. Section 5 establishes the National Capital Authority and s 6 provides that the functions of the Authority are as follows -

(a) to prepare and administer a National Capital Plan:

(b) to keep the Plan under constant review of the propose amendments to it when necessary;

(c) on behalf of the Commonwealth, to commission works to be carried out in Designated Areas in accordance with the Plan where neither a Department of State of the Commonwealth nor any Commonwealth authority has the responsibility to commission those works;

(d) to recommend to the Minister the carrying out of works that it considers desirable to maintain or enhance the character of the National Capital;

(e) to foster an awareness of Canberra as the National Capital;

(f) with the approval of the Minister, to perform planning services for any person or body, whether within Australia or overseas; and

(g) with the Minister's approval, on behalf of the Commonwealth, to manage National Land designated in writing by the Minister as land required for the special purposes of Canberra as the National Capital.

25. Section 7 provides that the Minister may give the Authority general directions, in writing, as to the performance of its functions; whilst s 8 provides that, subject to the Act, the Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

26. Section 9 provides that the object of the National Capital Plan is to ensure that Canberra and the Territory are planned and developed in accordance with their national significance.

27. Section 10(1) provides that the National Capital Plan may specify areas of land that have special the characteristics of the National Capital to be "Designated Areas". Section 4 contains a terse definition of the latter term to mean "an area of land specified in the Plan under section 10".

28. Section 10(2) provides that the National Capital Plan:

(a) shall define the planning principles and policies for giving effect to the object of the Plan and, in particular, shall set standards for the maintenance and enhancement of the character of the National Capital and set general standards and aesthetic principles to be adhered to in the development of the National Capital;

(b) shall set out the general policies to be implemented throughout the Territory, being policies of:

(i) land use (including the range and nature of permitted land use) and

(ii) the planning of national and arterial road systems;

(c) may set out the detailed conditions of planning, design and development in Designated Areas and the priorities in carrying out such planning, design and development; and

(d) may set out special requirements for the development of any area (not being a Designated Area), being requirements that are desirable in the interests of the National Capital.

29. It may be noted that, whilst par (c) authorises the inclusion of detailed conditions of planning, design and development in designated areas, it is clear from the use of the word "may", in contradistinction to the word "shall", which appears in pars (a) and (b), that this is not mandatory and that the Authority is free to exercise a discretion as to whether and to what extent it should include such conditions in the Plan.

30. Section 11 provides that:

(1) An enactment that is inconsistent with the Plan has no effect to the extent of the inconsistency, but an enactment shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan.

(2) The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the Plan.

31. The term "enactment" is defined to have the same meaning as in the Australian Capital Territory (Self Government) Act 1988 ("the Self Government Act"). That Act defines the term to mean a law made by the Assembly under the Self Government Act or a law, or part of a law, that is an enactment because of s 34 of that Act (which converted certain laws into enactments).

32. Section 12 provides as follows:

(1) No works shall be performed in a Designated Area unless:

(a) the proposal to perform the works has been submitted to the Authority together with such plans and specifications as are required by the Authority;

(b) the Authority has approved the works in writing; and

(c) the works are in accordance with the Plan.

(2) Subsection (1) does not affect section 5 of the Parliament Act 1974.

33. On its face, this section appears to merely forbid works in a designated area unless the stipulated conditions have been fulfilled. Whilst approval by the Authority must be obtained if the performance of the works is not to be unlawful, it does not follow that the approval effectively authorises the performance of the works. Indeed, performance of the approved works will be unlawful if the works do not accord with the Plan. There is nothing in the section to evince an intention to "cover the field" or to otherwise override any other statutory requirement that may apply to the works in question, whether arising under Commonwealth or Territory legislation.

34. Both Dr Jarvis and Mr Harris submitted, however, that even if s 12 did not, of itself, demonstrate an intention to "cover the field", such an intention could be discerned from the legislative scheme evident in that section and s 25.

35. Section 25 is in the following terms:

(1) The Assembly shall, as soon as practicable, make laws providing for:

(a) establishing a Territory planning authority; and

(b) conferring functions on the authority, including the functions of:

(i) preparing and administering a plan in respect of land, not inconsistent with the National Capital Plan; and

(ii) keeping the plan under constant review and proposing amendments to it when necessary.

(2) The object of the plan is to ensure, in a manner not inconsistent with the National Capital Plan, the planning and development of the Territory to provide the people of the Territory with an attractive, safe and efficient environment in which to live and work and have their recreation.

(3) The plan:

(a) shall define the planning principles and policies for giving effect to the object of the plan; and

(b) may include the detailed conditions of planning, design and development of land and the priorities in carrying out such planning, design and development.

(4) The laws shall include provision for:

(a) the procedure for making the plan and amendments of the plan, including a procedure for ascertaining and considering the views of the public;

(b) public notification of any directions given to the Territory planning authority by the Executive;

(c) the procedures for just and timely review, without unnecessary formality, of appropriate classes of decisions on planning, design and development of land; and

(d) requiring the authority to:

(i) consult with the Authority about making the plan and any amendments; and

(ii) report in writing to the Executive of such consultations and the views expressed by the Authority.

(5) This section does not limit the power of the Assembly to make laws otherwise than under this section.

(6) In this section:

land does not include Designated Areas.

36. It is clear from subs (6) that the provisions of subss (1), (2), (3) and (4) do not authorise the Assembly to confer functions on a Territory planning authority in respect of land in designated areas. Dr Jarvis and Mr Harris argued, in essence, that ss 12 and 25 should be construed as complementary provisions; with the former providing that any works in designated areas must be approved by the National Capital Authority and the latter providing that any works in other areas must be approved by a Territory planning authority. The Planning and Land Management Act was enacted shortly after the Self Government Act and the Commonwealth Parliament had clearly chosen to ensure that Commonwealth authorities retained sole responsibility for planning decisions in designated areas whilst devolving to the Assembly the power to regulate planning and development in other areas of the Territory.

37. These submissions were cogently argued but I have ultimately concluded that the provisions cannot be construed in this manner. Section 25 does not merely confer power upon the Assembly to make laws of the kind specified; it requires the Assembly to make such laws and to do so as soon as practicable. Furthermore, subs (5) expressly provides that s 25 does not limit the power of the Assembly to make laws otherwise than under the section.

38. The legislative power provided by s 22 of the Self Government Act is limited by the provisions of s 23 of that Act but that section does not refer to planning laws. Section 28 provides that a provision of an enactment has no effect to the extent that it is inconsistent with a Commonwealth law, but that 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". Hence, a Territory enactment could not authorise works in a designated area without the approval of the National Capital Authority but the fact that such approval is required by a Commonwealth law does not, of itself, exclude the possibility that a provision of a Territory enactment requiring further approval by the ACT PLA might operate concurrently with that law.

39. In my opinion, the provisions of ss 12 and 25 of the Planning and Land Management Act must be understood in the context of ss 9 and 10 of that Act. Section 9 makes it clear that the object of the National Capital Plan is to ensure that Canberra and the Territory are planned and developed in accordance with their national significance, and s 10 requires the Plan to set standards for the maintenance and enhancement of the character of the National Capital. The Plan may set out detailed conditions of planning, design and development in designated areas but is not required to contain such conditions and it would be, at least theoretically, possible for the National Capital Authority to maintain a National Capital Plan which omitted any reference to such detailed conditions and required only conformity to the principles, policies and standards referred to in sub pars (a) and (b). In contrast to these provisions, (essentially concerned with the national significance of Canberra and its environs), s 22 of the Self Government Act authorises the Assembly to make laws for the peace, order and good government of the Territory. This is obviously a much broader concept and, even within the context of planning laws, there are matters of municipal concern that may be quite unrelated to the national significance of Canberra and its environs. It was entirely understandable that legislative power to regulate these matters should have been devolved to the Legislative Assembly.

40. Whilst acknowledging the validity of this consideration, Mr Harris argued that it was reflected in the limited definition of "works" in the Planning and Land Management Act which excludes anything done inside buildings or structures. He maintained that it was entirely consistent with a legislative intention to ensure that externally visible structures or works within designated areas must be constructed in accordance with Commonwealth planning laws and whilst permitting works in areas not publicly visible and hence having no impact upon the character or aesthetic standard of the National Capital to be regulated by Territory planning laws.

41. That may be so, but I see no reason to infer that in enacting s 12 the Commonwealth Parliament not only intended to confer power on the National Capital Authority to ensure that developments in designated areas were compatible with the national significance of the area but to abrogate any power that might otherwise have been conferred upon the Assembly to make planning laws capable of operating concurrently with s 12 in respect of the same developments.

42. Had that been intended, one would have expected that the Planning and Land Management Act would have required the National Capital Authority to accept responsibility for all aspects of planning and development in designated areas. It is true that any development on designated areas must be approved by the National Capital Authority to ensure that the national significance of Canberra is maintained and developed, but it remains for the National Capital Authority to determine whether, and to what extent, it should address other more general planning considerations in relation to such developments. Hence, to take a simple example, it would be necessary for anyone wishing to construct a building on a designated Area of land to obtain approval from the National Capital Authority and, in determining whether to grant such approval, the National Capital Authority would, no doubt, take into account such factors as the size, shape and appearance of the building, its location and the impact which its appearance and use may have upon the character or aesthetic standard of the area as part of the nation's capital. However, unless the National Capital Authority chose to insert into the National Capital Plan provisions dealing with such mundane matters as the size, shape and configurations of the footings and foundations then those matters would not be covered by Commonwealth legislation. If that legislation were to be construed as abrogating any power for the Assembly to enact laws in relation to such developments, those matters could effectively remain unregulated save, perhaps, by general laws directed to industrial or public safety. I do not accept that this was intended.

43. Whilst the object of the National Capital Plan is to ensure development in Canberra and the Territory in accordance with national significance, the object of the Territory plan is to provide the people of the Territory with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation. It is true that the Assembly is not required by the terms of s 25 to make planning laws with those objectives in relation to land in designated areas, but the section does not appear to deny it power to make laws to achieve those objectives even in designated areas.

44. In my opinion s 12 does not, of itself, cover the field or otherwise limit the legislative power devolved to the Assembly by s 22 of the Self Government Act. Any argument that s 25 does so, either of itself or in combination with s 12, is unsustainable given the unequivocal provision in subs (5) that "this section does not limit the power of the Assembly to make laws otherwise than under this section". I am satisfied that the Assembly is competent to enact laws in relation to the planning and development of land in designated areas capable of operating concurrently with relevant Commonwealth laws.

45. Since neither the Territory enactments nor the Territory Plan may be inconsistent with the National Capital Plan, the scope for Territory regulation of planning and development in designated areas will plainly be limited and, even in addressing issues not specifically covered by the National Capital Plan it would be bound to apply any relevant principles or policies set out in that plan. Furthermore, it would be open to the National Capital Authority to include in the National Capital Plan provisions which effectively covered the field in relation to all developments or developments of particular kinds on designated areas which effectively covered the field and simply left no scope for any Territory planning decisions save, perhaps, for a decision as to whether the development should be permitted at all.

46. However, for present purposes I am required only to determine whether the Commonwealth legislation has the effect of permitting works to be undertaken in designated areas with the approval of the National Capital Authority and without any further approval otherwise required under Territory legislation. In my opinion, it does not.

The Territory legislation

47. If then it was within the power of the Assembly to enact laws consistent with and capable of operating concurrently with the Commonwealth legislation and the National Capital Plan, were the provisions of Pt 6 of the Planning and Environment Act intended to apply to developments in designated areas?

48. There is nothing in the terms of s 225 of the Act that suggests that the offence created by that section can not be committed by a body undertaking a development in a designated area that has not been approved under s 230 of the Act. However, s 282 authorises the making of regulations exempting a development of a kind specified in the regulations, either absolutely or subject to conditions, from the application of Pt 6 of the Act or any provision of that Part. Regulation 40 provides that Pt 6 of the Act does not apply to a development listed in Sch 1. Item 29 of Sch 1 refers to a "development referred to in the Act, s 222, definition of development, paragraph (a), (b), (c) or (g) within a Designated Area within the meaning of the national capital plan". Consequently, in my opinion, reg 40 generally excludes development on designated areas from Pt 6 of the operation of the Act.

49. However, as Mr Crowe pointed out, reg 40(4) provides that reg 40(1) does not apply in relation to a development, other than a development listed at Sch 1, item 1 if, inter alia, the development is part of or is carried out in association with a development to which the Act, Pt 6 applies.

50. As I have mentioned, the road is intended to run through both designated and non designated areas of land and it is common ground that the Planning and Environment Act applies to any development on non designated areas. It is true that work on the non designated areas has not yet commenced but the works on the designated areas clearly form an integral part of an overall project involving the construction of an arterial road covering the whole of the relevant distance between the Barton Highway and the Glenloch Interchange and it is, in my opinion, inescapable that the developments in the designated areas are associated with those proposed for the non designated areas. Accordingly, the development in the designated areas is not exempted from the application of Pt 6 of the Act by the operation of reg 40.

Conclusion

51. In my opinion, the applicants have demonstrated an entitlement to the relief claimed.

52. I am conscious of the potential cost to the community that will arise as a consequence of a contractual clause apparently requiring the first defendant to pay the second defendant $23,000 per week during any period in which the works cannot be undertaken. However, whilst an interlocutory injunction may be refused on the ground that the balance of convenience favours one or more defendants, final relief cannot be refused on that ground. Similarly, I am conscious of Dr Jarvis' observation that any undertaking as to damages might prove ineffectual but whilst such undertakings may be required upon the grant of interlocutory injunctions, they may not be required upon the grant of final relief.

53. I accept Dr Jarvis' submission as to the general nature of the order that should be made. However, the order should be limited to that necessary to ensure compliance with the law and is by no means certain that approval by the ACT PLA will ultimately be required. Section 229A of the Planning and Environment Act authorises the Minister to direct that any undecided applications be referred to him or her and s 229B provides that if, inter alia, the Minister is of the opinion that the approval or refusal of the application would provide a substantial public benefit, he or she may proceed to consider and determine the application.

54. Accordingly, I order that the first defendant be restrained from carrying out any work by way of development (within the meaning prescribed by s 222 of the Land (Planning and Environment) Act 1991 upon the designated area under the National Capital Plan between O'Connor, Lyneham and Bruce in the ACT and known as "O'Connor Ridge", for so long as the development has not been approved by the ACT Planning and Land Authority under s 230 of the Act or by the Minister under s 229B of the Act.

55. I will hear counsel as to whether any interlocutory order should be made against the second defendant and as to any other outstanding issues including costs.

I certify that the preceding fifty five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 31 March 2004

Counsel for the plaintiff: Mr R Crowe SC

Solicitor for the plaintiff: Pamela Coward & Associates

Counsel for the first defendant: Dr D Jarvis

Solicitor for the first defendant: ACT Government Solicitor

Counsel for the second defendant: Unrepresented

Solicitor for the second defendant: Unrepresented

Counsel for the intervener: Mr J Harris SC

Solicitor for the intervener: Mr T Thew

Date of hearing: 23, 24 March 2004

Date of judgment: 31 March 2004