ADMINISTRATIVE

REVIEW COUNCIL

REPORT TO THE

ATTORNEY-GENERAL

LAND USE

IN THE A.C.T.

Report No. 14


Australian Government Publishing Service

Canberra 1982

© Commonwealth of Australia 1982

ISBN 0 644 01777 5

Printed by Watson Ferguson Ft Co., Brisbane

ADMINISTRATIVE REVIEW COUNCIL

G.P.0 Box 9955

Canberra, A.C.T. 2600

AMPBuilding

Hobart Place

CanberraCity

Tel. (062) 47 5100

16 November 1981

My dear Attorney,

On 12 February 1980 you wrote to Council seeking its views on the most appropriate avenue of appeals in respect of land use and development control decisions made under A.C.T. legislation.

The Council has now completed its consideration of this matter and I enclose a copy of its Report, together with an appendix.

The Council recommends that the Report be published.

Yours sincerely,

E. J. L. TUCKER

Chairman

Senator the Hon. P. D. Durack, Q.C.

Attorney-General

Parliament House

Canberra. A.C.T. 2600

CONTENTS

Paragraphs / Page Nos
SUMMARY OF RECOMMENDATIONS / 5
INTRODUCTION / 1-5 / 7
PART 1 – DECISION MAKING BY COURTS & TRIBUNALS / 6-20 / 9
Design & Siting Review Committee
Building Review Committee
Valuation Review Board
A.C.T. Supreme Court
Court of Petty Sessions / 8
9-10
11-12
13-16
17-20 / 9
9
10
10
11
PART 2 – ONE REVIEW TRIBUNAL? / 21-27 / 13
PART 3 – JURISDICTION TO BE CONFERRED ON THE ADMINISTRATIVE APPEALS TRIBUNAL / 28-66 / 15
Transfer of existing review jurisdictions of specialist tribunals
Transfer of functions of the A.C.T. Supreme Court & Court of
Petty Sessions
Decisions in respect of which new review rights are proposed:
  • Building Ordinance 1972
  • City Area Leases Ordinance 1936
Decisions pursuant to a building covenant in a Crown lease:
  • Third Parties
  • Notice
/ 30-35
36-43
44-52
45-47
48-52
53-66
54-64
65-66 / 15
16
18
18
18
19
19
22
PART 4 – THE ADMINISTRATIVE APPEALS TRIBUNAL / 67-94 / 24
Additional appointments to the Tribunal
Standing of parties
Costs
The roles of the Department & the Tribunal in the
interpretation of the National Capital Development
Commission policy with respect to the planning &
development of the City of Canberra
Appeals on questions of law / 69-71
72-79
80-85
86-90
91-94 / 24
25
27
28
30
PART 5 – ADMINISTRATIVE PROCEDURES WITH RESPECT TO APPLICATIONS UNDER SECTION 10 & 11A OF CITY AREA LEASES ORDINANCE 1936 / 95-100 / 31
The role of the National Capital Development Commission in
the decision-making process / 95-100 / 31
APPENDIX: SUMMARY OF DECISIONS TO BE REVIEWED / 33

SUMMARY OF RECOMMENDATIONS

RECOMMENDATION 1

There should be conferred upon the Administrative Appeals Tribunal jurisdiction to perform the review functions presently exercised by the Design and Siting Review Committee; the Building Review Committee; and the Valuation Review Board.

RECOMMENDATION 2

Section 13 of the Buildings (Design and Siting) Ordinance 1964 should be amended to ensure that the Administrative Appeals Tribunal can review:

(i)the grant of an application for approval under the Ordinance;

(ii)the refusal of an application for approval under the Ordinance; and

(iii)the grant of approval subject to conditions.

RECOMMENDATION 3

There should be transferred to the Administrative Appeals Tribunal that jurisdiction of the Supreme Court of the Australian Capital Territory presently existing as an appellate jurisdiction under s.28(4) of the City Area Leases Ordinance 1936.

RECOMMENDATION 4

(a)Applications for permission under s.9E(1) of the City Area Leases Ordinance 1936 should henceforth be made to the Department of Capital Territory.

(b)Both the grant of permission and the refusal of permission by the Department under s.9E(1) of the City Area Leases Ordinance 1936 should be subject to review by the Administrative Appeals Tribunal.

RECOMMENDATION 5

There should be conferred upon the Administrative Appeals Tribunal jurisdiction to review decisions made under ss.35, 39 and 53 of the Building Ordinance 1972.

RECOMMENDATION 6

There should be conferred upon the Administrative Appeals Tribunal jurisdiction to review decisions made under ss.10, 22 and 28B of the City Area Leases Ordinance 1936.

RECOMMENDATION 7

Jurisdiction to approve lease purpose applications under s.11A of the City Area Leases Ordinance 1936 should be transferred from the Supreme Court to the Department of the CapitalTerritory and provision should be made for a right of appeal from a decision of the Department to the Administrative Appeals Tribunal.

RECOMMENDATION 8

A decision of the Department of the Capital Territory either granting or refusing approval to construct or alter a building pursuant to a covenant in a Crown lease should be reviewable by the Administrative Appeals Tribunal. Decisions granting approval should only be reviewable in so far as they relate to the external design and siting of premises.

RECOMMENDATION 9

(a)An 'owner' of land within the meaning of s.5(1) of the Building Ordinance 1972 should give notice to adjoining owners of all proposals for building development where those proposals involve de novo developments or otherwise affect the external design and siting of existing improvements.

(b)With respect to proposals for commercial or industrial or high or medium density residential development, an 'owner' should give the same notice as is prescribed by Rec. 9(a) but should, in addition, give notice of a proposed development by advertisement in a local newspaper.

(c)Objections to proposed developments should be lodged with the Department of the CapitalTerritory and served on the person seeking development approval within fourteen days of notice being given.

RECOMMENDATION 10

The standing of parties to lodge an application for review with the Administrative Appeals Tribunal in respect of all the jurisdictions recommended for conferral upon it by this Report and the standing to be joined to proceedings before that Tribunal should be regulated by the existing provisions in ss.27 and 30 of the Administrative Appeals Tribunal Act 1975.

RECOMMENDATION 11

When reviewing applications under the jurisdictions now recommended for conferral upon the Administrative Appeals Tribunal, the Tribunal should have power to review discretionary decisions except where approval of a proposed variation in the use of land will conflict with those policies of the National Capital Development Commission which are the result of a statutory process involving public participation and which are publicly available.

RECOMMENDATION 12

So long as the present statutory framework exists, decision making with respect to applications under ss.10 and 11A of the City Area Leases Ordinance 1936 should remain with the Department of the Capital Territory, but the present statutory role of the National Capital Development Commission in connection with town planning should be recognised by a statutory requirement of consultation by the Department with the Commission in respect of such applications.

INTRODUCTION

1.On 12 February 1980 the Attorney-General requested the views of the Administrative Review Council on the most appropriate avenue of appeal in respect of decisions made under certain Australian Capital Territory Ordinances with respect to land use and development control in the Territory. The Parliamentary Joint Committee on Planning in the Australian Capital Territory had recommended the establishment of a Land Use Tribunal (AGPS 1979). One question upon which the Attorney-General invited the Council's consideration was whether some or all of the proposed jurisdiction should be exercised by the Administrative Appeals Tribunal either directly or on appeal from a specialised tribunal.

2.The particular decisions which the Attorney-General indicated were to be subject to review were as follows:

  • decisions of officers of the Department of the CapitalTerritory ('D.C.T.') in respect of applications made by bona fide residents under s.10 of the City Area Leases Ordinance 1936 for approval to conduct a profession, trade or occupation from a dwelling;
  • decisions of officers of D.C.T. in respect of applications for a variation of purpose of lease (see s.11A of the City Area Leases Ordinance 1936);
  • decisions of officers of D.C.T. in cases where using the powers contained in a covenant of lease, approval to construct or alter a building was withheld;
  • decisions of the National Capital Development Commission ('N.C.D.C.') to refuse to grant approval of proposals with respect to the external design and siting of buildings and decisions granting approval subject to the imposition of conditions (see s.6 of the Buildings (Design and Siting) Ordinance 1964);
  • decisions of the Building Controller under the Building Ordinance 1972 related to:

-refusal to approve building plans and specifications (see ss.33, 33A and compare 34); refusal to grant or cancellation of a builder's licence (see ss.17 and 18);

-issue of a stop work or demolition order (see ss.43, 44 and compare 46).

3.The Council received submissions both from the Department of the CapitalTerritory and from the National Capital Development Commission on the matters referred by the Attorney-General and, except on one important issue of procedure (referred to in Part 5 of this Report), there was a substantial measure of agreement reflected in these submissions.

4.A Working Party comprising Mr R. V. Gyles, Q.C., Mr M. Wilcox, Q.C.,
Mr A. N. Hall (a Senior Member of the Administrative Appeals Tribunal), and
Dr G. A. Flick (Director of Research) was established to assist the Council in its consideration of the matters referred by the Attorney-General. The Working Party conferred with senior officers of the Department of the CapitalTerritory and the National Capital Development Commission before submitting its Report to the Council.

Format of Report
  1. This Report is divided into the following five Parts:

Part 1:Decision Making by Courts and Tribunals

Part 2:One Review Tribunal?

Part 3:Jurisdiction to be Conferred upon the Administrative Appeals Tribunal

Part 4:The Administrative Appeals Tribunal

Part 5:Administrative Procedures with respect to Applications under Sections 10 and 11A of City Area Leases Ordinance 1936

An Appendix summarises those decisions which in the opinion of Council should be reviewable.

PART 1: DECISION MAKING BY COURTS AND TRIBUNALS

6.The present position with respect to the review of decisions affecting land use in the Australian Capital Territory is that some decisions are subject to review by specialist administrative tribunals and some by the Supreme Court of the Territory. Some decisions are not subject to any review at all. The Supreme Court, together with the Court of Petty Sessions, also exercises limited original jurisdiction to make what are essentially administrative decisions affecting land use.

6.This Part of the Report outlines the existing jurisdiction of:

  • the specialist review tribunals;
  • the Supreme Court; and
  • the Court of Petty Sessions.

The three existing specialist review tribunals are the Design and Siting Review Committee, the Building Review Committee and the Valuation Review Board.

Design and Siting Review Committee

8.The Design and Siting Review Committee is established by s.10(1) of the Building (Design and Siting) Ordinance 1964 and consists of a chairman; a member of the National Capital Planning committee; and a person representing the Royal Australian Institute of Architects (s.10(2)). The jurisdiction of this Committee pursuant to s.13(2) of the Ordinance is to hear and determine applications for the review of decisions of the N.C. D.C.:

  • refusing approval with respect to the external design and siting of buildings and with respect to alterations affecting the external design and siting of buildings
  • granting such approval subject to conditions.

Review may be sought by the person who lodged the application with the N.C.D.C. If the Committee is satisfied that it is necessary, in order to secure the carrying out or observance of the policies of the N.C.D.C. with respect to the planning and development of the City of Canberra, that effect be given to the Commission's decision, the Committee is directed to dismiss the application; if not satisfied, the Committee is to direct the Commission to grant approval or to vary the conditions subject to which the approval was granted (s.13(3)). Effect is to be given by the Commission to the directions of the Committee (s.13(5)).

Building Review Committee

9.The Building Review Committee is established by s.10(1) of the Building Ordinance 1972 and consists of a Chairman; an officer of the Department of the Capital Territory; an elected member of the House of Assembly; a person representing the Australian Capital Territory Chapter of The Royal Australian Institute of Architects; a person representing The Institution of Engineers of Australia; and a person representing The Australian Institute of Building (s.10(3)). Its jurisdiction is to hear and determine:

  • applications to review decisions refusing to approve plans and specifications;
  • appeals against the cancellation of, or the refusal to grant, a builder's licence (ss.17, 18);
  • objections to stop notices for the demolition or alteration of buildings given under Part IV of the Ordinance;
  • other applications for review made under the Ordinance or the Regulations (see, for example, s.54A(5). Compare reg. 14 of Building Regulations).

10.Against some of the decisions of the Committee an appeal may be taken to the Supreme Court of the Australian Capital Territory. Section 19 states that where the Committee on an appeal under s.17 confirms the decision of the Building Controller with respect to the grant or refusal of a builder's licence, or cancels or suspends a builder's licence, the appellant or the holder of the licence may, within 21 days after the date of the decision, appeal to the Supreme Court against the decision of the Review Committee. Similarly, s.48 provides that where the Committee has under s.47 dismissed an objection to a notice requiring the demolition of a building or has given directions that require the person who lodged the objection to demolish a building, the person who lodged the objection may, within 21 days after the giving of the order, appeal to the Supreme Court against the order. On an appeal under s.48 the Supreme Court may confirm the order of the Review Committee or revoke the order and make such other order, including the giving of directions to be complied with by the appellant, as in the circumstances it considers to be just and reasonable.

Valuation Review Board

11.The Valuation Review Board is established by s.30(1) of the Rates Ordinance 1926 and consists of a Chairman and two other members. Its jurisdiction under s.11B of the City Area Leases Ordinance 1936 is to hear appeals against a determination of the premium payable in respect of a variation of use under s.11A; its jurisdiction under s.18B of the Ordinance is to hear and determine an application for a variation in the rent payable under a Crown lease where there is no provision in the lease for submission to arbitration of differences between the parties (i.e. the Commonwealth and the Crown lessee).

12.Where the Board has reviewed either a determination of the premium payable or a variation in rent payable under a lease, the Minister or the lessee may appeal to the Supreme Court (ss.11B(6), 18C).

A.C.T. Supreme Court

13.In addition to the jurisdiction of the A.C.T. Supreme Court to hear appeals from certain decisions of the Building Review Committee under ss.19 and 48 of the Building Ordinance 1972 (see para. 10) and from decisions of the Valuation Review Board under s.11B(6) and s.18C of the City Area Leases Ordinance 1936 (see para. 12), other jurisdiction relevant to land use in the A.C.T. includes that conferred on that Court by the City Area Leases Ordinance 1936; the Agents Ordinance 1968; and the Building and Services Ordinance 1924.

14.The other relevant jurisdiction conferred on the Court by the City Area Leases Ordinance 1936 is:

(a)Original jurisdiction:

  • to restrain the use of land for a purpose not authorised by the Crown lease (s.9A);
  • to declare a sub-lease void if it is for a purpose not authorised by the Crown lease (s.9CC);
  • to vary any provision, covenant or condition of a Crown lease in relation to the purpose for which the land subject to the lease may be used (s.11A);

(b)Jurisdiction on appeal:

  • to hear appeals against a refusal of the Minister to grant a certificate that a building and development covenant in a Crown lease has been complied with (s.28(2A)); against a refusal by the Minister to consent to a mortgage of a Crown lease or of an interest in a lease before such a certificate is granted (s.28(2C)); and against a refusal by' the Minister to consent to a transfer or assignment of a Crown lease (s.28(3)) (see ss.28(4) and (5)).

15. The jurisdiction at present conferred on the Supreme Court by the Agents Ordinance 1968 relating to land use is:

  • to declare that the carrying on of the business of a licensed real estate agent, stock and station agent or business agent is not prohibited at the place at which the business is proposed to be conducted (ss.48(1)(e)(ii); 49(1)(i)(ii)) (see Perryman St Clair Pty Ltd v. Commonwealth of Australia, (1973) 1 ACTR 155).

This Ordinance will be repealed by the coming into operation of the Commonwealth Functions (Statutes Review) Act 1981 (s.3).

16.The jurisdiction conferred on the Supreme Court by the Building and Services Ordinance 1924 is to determine, in the absence of agreement, the amount of compensation payable to an owner of land who has suffered loss or damage by reason of the construction of certain works or by the entry upon land authorised by the Ordinance (s.3E).

Court of Petty Sessions

17.Section 9E(1) of the City Areas Leases Ordinance 1936 provides that a person may apply to the Court of Petty Sessions for an order permitting him to keep more than one caravan on a parcel of land which is the subject of a Crown lease for residential purposes only. Both the applicant and the Minister are entitled to be heard on an application and to examine and cross-examine witnesses (s.9E(4)).

18.Upon such an application, the Court of Petty Sessions is not to make an order if the keeping of two or more caravans is either:

(i)likely to constitute a nuisance or annoyance to lessees and sub-lessees of adjoining land; or

(ii)inappropriate, having regard to the nature of the locality (s.9E(5)(a)).

Nor is approval to be granted if either or any of the caravans is to be let or hired for occupation on the land (s.9E(5)(b)).

19.A penalty of $100 is prescribed for any person who has obtained an order but who fails to comply with the terms of the order or keeps, or permits the keeping of more caravans on the parcel of land than is permitted by the order. A further penalty of $100 is prescribed for every day during which the offence continues (s.9E(7)).

20.Comparable to the power conferred on the Supreme Court (para. 16), s.3E of the Building and Services Ordinance 1924 confers on the Court of Petty Sessions a power to determine compensation not exceeding the amount of its jurisdiction to determine actions for the recovery of debts.

PART 2: ONE REVIEW TRIBUNAL?

21.The Council has considered whether the jurisdictions presently vested in the Design and Siting Review Committee, the Building Review Committee, the Valuation Review Board, the Supreme Court of the A.C.T., and the Court of Petty Sessions should:

(a)be left as separate jurisdictions, as at present;

(b)be consolidated in a single body; or

(c)be subject to some consolidation in a single body, with certain jurisdictions remaining as at present.

As will become apparent (para. 31), Council has adopted paragraph (c) of these options as it is of the opinion that, as far as possible, review of decisions relating to land use and building control in the A.C.T. should be conducted by a single body.

22.There would appear to be no good reason for review of decisions affecting the same subject matter to be made in separate jurisdictions. Other reasons also point in favour of a consolidation. Members of the public should not be unnecessarily confronted with the difficulty of deciding which jurisdiction should be invoked with respect to their particular grievance. Moreover, the members of a single review body could accumulate an expertise in land use matters, an expertise which at present is spread amongst the bodies mentioned.