Westfield Limited v Commissioner for Land Planning & Ors [2004] ACTSC 49 (23 June 2004)

Last Updated: 31 January 2005

WESTFIELD LIMITED v COMMISSIONER FOR LAND PLANNING & ORS

[2004] ACTSC 49 (23 June 2004)

APPEAL - standing to join as party to proceedings - Land (Planning and Environment) Act 1991 - development application - Administrative Appeals Tribunal - "a person affected" - economic interests insufficient - interest in integrity of Territory Plan must be more than financial.

Land (Planning) and Environment Act 1991, ss 229, 237, 237(1), 243(4), 275, 278, 278(1) and (3)

Administrative Appeals Tribunal Act 1989 (ACT), ss 28(2) and (3), 46(2)

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

Manuka Business Association Inc. & Ors v ACT Executive & Anor (1998) 146 FLR 464

Jewel Food Stores Pty Ltd v Minister for the Environment Land & Planning & Ors (1994) 122 FLR 269

Canberra Tradesman's Union Club Inc & Anor v Commissioner for Land and Planning & Ors (1998) 147 FLR 291

Helkban Pty Limited v Commissioner for Land and Planning & Anor [2003] ACTSC 23 (11 April 2003)

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

No. SCA 54 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 23 June 2004

IN THE SUPREME COURT OF THE )

) No. SCA 54 of 2003

AUSTRALIAN CAPITAL TERRITORY )

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

BETWEEN: WESTFIELD LIMITED

Appellant

AND: COMMISSIONER FOR LAND AND PLANNING

First Respondent

AND: EFKAR PTY LIMITED AND PONTIANS PTY LIMITED

Second Respondent

AND: PEDDLE THORPE & WALKER PTY LIMITED

Third Respondent

ORDER

Judge: Higgins CJ

Date: 23 June 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

1. This was an appeal from a decision of the President of the ACT Administrative Appeals Tribunal (`ACT AAT') refusing the appellant's application to be joined as a party to proceedings before the ACT AAT. The second and third respondents had objected to a decision of the Commissioner for Land and Planning (`the Commissioner') which had rejected their application to permit construction of an Aldi Supermarket at premises known as Belconnen Markets.

2. The learned President's decision was delivered on 8 August 2003. It is, on the present application, unnecessary to comment upon the Commissioner's decision.

3. The original application had been notified purportedly pursuant to s 229 of the Land (Planning) and Environment Act 1991 (ACT) (`the Land Act').

4. The appellant Westfield Limited (`Westfield') had lodged an objection to the application pursuant to that notification. It was, by letter dated 19 May 2003 given notice that the second and third respondents had sought review by the ACT AAT of the Commissioner's decision and, on 10 June 2003, Westfield lodged an application to be joined as a party, purportedly pursuant to s 28(3) of the Administrative Appeals Tribunal Act 1989 (ACT) (`the AAT Act'). In the alternative, Westfield invoked s 28(2) of the AAT Act.

5. It is clear that whatever merit its objections may have, Westfield's economic interests would be well-served by the Commissioner's decision. Its business includes management of the nearby located Belconnen Mall. Many tenants thereof, particularly the larger ones, would be in competition with an Aldi store.

6. As the President noted, at the date of the making by the Commissioner of his decision, s 278 of the Land Act required that notice of the s 275 application should be given to `each person who objected under section 237'. Section 237 entitles `any person who may be affected by the approval' to make an objection to the development.

7. The Commissioner did not object to Westfield being made a party but the second and third respondents did. The President considered that Westfield's stated desire to ensure compliance with the Territory Plan and its unhappiness with the visual impact of the proposed development did not provide a sufficient basis to conclude that it `may be affected by the proposal'.

8. Relying upon Australian Conservation Foundation v The Commonwealth [1979] HCA 1; (1980) 146 CLR 493; Manuka Business Association Inc. & Ors v ACT Executive & Anor (1998) 146 FLR 464; Jewel Food Stores Pty Ltd v Minister for the Environment Land & Planning & Ors (1994) 122 FLR 269; Canberra Tradesman's Union Club Inc & Anor v Commissioner for Land and Planning & Ors (1998) 147 FLR 291, the President concluded that a fear of financial detriment by reason of further competition was not sufficient to create a relevant interest, though, of course, other factors, such as geographic proximity, and effect on traffic flows, might be sufficient, alone or in combination, to create such an interest.

9. However, the President concluded, there was no evidentiary basis for such a finding in the instant case. The application was, therefore, rejected.

10. In its submissions to this Court, Westfield contends it has a right of appeal pursuant to s 46(2) of the ACT AAT Act. It further contends that the decision to refuse joinder was itself attended by error because the interests of Westfield were relevantly affected.

11. Further, even if its appeal right was limited to errors of law, Westfield contended that its direct involvement and association with Belconnen Mall gave it an interest distinct from an ordinary member of the public. Further, it contended the status of Belconnen Mall as a precinct recognised by the Territory Plan gave it an interest in upholding restrictions on the Belconnen Market precinct.

12. The second and third respondents contended that the interest of Westfield in preserving the current use of the Belconnen Markets, excluding a large retailer, such as Aldi, was not sufficient to give it standing. Nor was the fact that Westfield had responded to the s 278 notice under the Land Act sufficient to confer an entitlement to be joined.

STATUTORY ENTITLEMENT

13. Section 237 of the Land Act provides:

`(1) Any person who may be affected by the approval of an application may, within the prescribed period (or that period as extended under this section), object to the grant of the approval.'

14. Westfield lodged what purported to be an objection pursuant to s 237. As the application was, in fact, refused, s 243(4) is applicable. It provides:

`(4) If an application is refused, the planning and land authority must give written notice of the refusal to the applicant and each person who objected under section 237(1).'

15. A notice was sent to Westfield. Whilst that might appear to reflect a view of the Commissioner that Westfield appeared to be a person `who may be affected by the approval' of the development application the notice was expressed more ambiguously. It was sent to Westfield, not as an objection but as a person who had commented on the proposal. However, nothing turns on that. If in truth Westfield was `a person who objected under section 237(1)' then, pursuant to s 278, such an objector is to be informed (per s 278(3)) that that person `is entitled, on application to the administrative appeals tribunal, to be made a party to the proceedings for the review'. Whilst the ACT AAT is not directly instructed by virtue of the Land Act to make such an objector a party, if they so apply that is the necessary implication of s 278(3). In any event, s 28(3) of the AAT Act does oblige the ACT AAT to make such a person a party.

16. The question whether Westfield was an objector within s 278(1) in my view depends on whether Westfield was a person who `may be affected' by the development.

17. The respondent submits that Westfield did not demonstrate any relevant interest in the Belconnen Mall from which it might be inferred that the Belconnen Markets redevelopment proposal would adversely impact even on its economic interests.

18. It is sufficient for me to observe that the effect claimed by Westfield on its interests did not rise beyond the economic. Its interest in the integrity of the Territory Plan was no more or less than any other person in the Territory. There is no suggestion that an alteration of the uses to be permitted at Precinct (c), the Belconnen Markets, would cause any change to or affect the amenity of Precinct (a), the Belconnen Mall.

19. In those circumstances the only relevant effect I can perceive is purely economic. In my view, for the reasons I expressed in Helkban Pty Limited v Commissioner for Land and Planning & Anor [2003] ACTSC 23 (11 April 2003) and in accordance with the authorities cited therein, Westfield can demonstrate no `effect' within the meaning of the abovementioned provisions.

20. It follows that, in my view, the decision appealed from is correct. The appeal is dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 23 June 2004

Counsel for the Appellant: Mr Griffiths

Solicitor for the Appellant: Mallesons Stephen Jaques

Counsel for the first Respondent: No appearance

Solicitor for the first Respondent: ACT Government Solicitor

Counsel for the second & third Respondents: Mr D Mossop and Mr MLD Einfeld QC

Solicitor for the second & third Respondents: Bradley Allen

Date of hearing: 5 April 2004

Date of judgment: 23 June 2004