"J t cy w 4 F a Pe ea a - _ 6 tee erm oie moment - — -_— ae ree reer apt ererrnnn CATCHWORDS Hd { Administrative Law - Judicial review - Decision of National Capital Development Commission approving proposals with respect to the external design and siting of a proposed building in the Civic Centre of the City of Canberra - Approval not to be refused unless necessary for the purpose of securing the carrying out or observance of the policies of the Commission with respect to the planning and development of the City of Canberra - Policies set forth in Civic Centre Policy Pian - Whether Commission bound to give notice of the application for approval to lessee of adjoining property and afford it an 6 opportunity to make submissions - Whether Commission bound to < observe the procedures approved under the Environment a woe oe Protection (Impact of Proposals) Act 1974 (Cth} - Whether te decision-making responsibility had been abrogated - Whether relevant considerations not taken into account - Whether irrelevant considerations taken into account. tee Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 National Capital Development Commission Act 1957 (Cth), ss.3, 11, 12 Buildings (Design and Siting) Ordinance 1964 (A.C.T.), ss.6, 7, 10, 13 Building Ordinance 1972 (A.C.T.), s.8 Environment Protection (Impaét of Proposals) Act 1974 (Cth), ss.5, 6, 9 . IDONZ PTY. LIMITED v. NATIONAL CAPITAL DEVELOPMENT COMMISSION . AND ORS. re No. ACT G 66 of 1985 7 Neaves J. 11 December 1985 Canberra Dates of hearing: 14, 15. 16, 17. 22, 24 and 29 October 1985 Counsel for Idonz Pty. Limited Mr R.V. Gyles. Q.C. and Mr S.F.C. Wilcox Solicitors for Idonz Pty.Limited Worth & Co. Counsel for National Capital Mr T. Simos, Q.C. and Development Commission Mr I.A. Curlewis Solicitor for National Capital Australian Government Solicitor Development Commission Counsel for Serton Pty. Limited Mr B. Rayment, Q.C., Mr S.L. and A.D.C. Properties (Vic) Walmsley and Mr N.C. Hutley Pty. Limited Solicitors for Serton Pty. Gallens Limited and A.D.C. Properties), (Vic) Pty. Limited a YS oe te ed ee ee a ee ee IN THE FEDEPZET COURT OF AUSTRALIZ ) ) AUSTRALIAN CBRETITAL TERRITORY ) ) -No. ACT G 66 of 1985 DISTRICT REGTSTRY ) \ GENERAL DIVISTON ) BETWEEN: IDONZ PTY. LIMITED Applicant AND: WATTONAL CAPITAL DEVELOPMENT COMMISSION First Responéent SERTON PTY. LIMITED Second Respondent A.D.C. PROPERTIES (VIC) PTY. LIMITED Third Respondent ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER > Ll December 1985 WHERE MADE : Canberra THE COURT ORDEPS THAT: 1. The application be dismissed. 2 The applicant pay the respondents' costs or the application. Note: Settlement and entry cf orders is dealt with in Order 36 of the Federal Court Rules. "e moe oer: opttet sy i etme em lee al add _ IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G 66 of 1985 wee we yew wr we BETWEEN : IDONZ PTY. LIMITED Applicant AND: NATIONAL CAPITAL DEVELOPMENT COMMISSION First Respondent SERTON PTY. LIMITED Second Respondent A.D.C. PROPERTIES (VIC) PTY. LIMITED Third Respondent CORAM: Neaves J. DATE: 11 December 1985 REASONS FOR JUDGMENT This 15 an application by Idonz Pty. Limited ("the applicant") "under the Administrative Decisions tJudicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of a decision of the first respondent, the National Capital Development Commission ("the Commission"), made on 19 November 1984. By that decision the Commission, - aera otalieiie at tel Ge' easaeaenadh gaan ties eeetoneed pee oe ee ee en ee Ww pursuant to the provisions of the Buildings (Desian and Siting) Ordinance 1964 (A.C.T.) ("the Desian and Siting Ordinance), appravec proposals with respect to the external design and siting of a building which is at present under construction on certain land within what 1s known as the Civic Centre of Canberra. The land is more particularly described as Block 14, Section 23, Division of City in the Australian Capital Territory. Section 23 is an area of land bounded on the north by an arterial road known as Barry Drive. on the east by Moore Street, on the south by Rudd Street and on the west by Marcus Clarke Street. It is divided into a number of blocks. The applicant is the lessee under a lease, granted to it by the Commonwealth of Australia ("the Commonwealth") pursuant to the City Area Leases Ordinance 1936 (A.C.T.) ("the City Area Leases Ordinance"), of Block 13 in that section. That block is situate at the corner of Barry Drive and Marcus Clarke Street and on it is erected the Town House Motel. The motel, which was constructed in 1961, has been described as a pavilion building, all of its external walls being some distance from the nearest boundary of the block. It consists of a ground floor and two upper floors. Each of the upper floors comprises a number of rooms for the accommodation of patrons of the motel. Each of those floors has a continuous -open balcony providing access to the residential accommodation. cr re oe > met en rp a ees 2 fy ee ee a "yen ls 3. In March 1984 the applicant received from the Commission development approval for the addition of three storeys to the motel building. Work on that addition has not yet commenced. The term of the applicant's current lease commenced on 14 September 1984 and terminates on 16 July 2074. Under the terms of the lease the land may be used only for the purposes of a Adjoining part "of " the eastern boundary of Block 13 is Block 14, that block having frontages to Barry Drive and Moore Street. Prior to the events with which this proceeding is concerned, the Country Women's Association of New South Wales was the lessee of certain land that included the land at present known as Block 14. The land was then known as Block 3 and included an area of land which has since been excised from that block for the purpose of the future widening of Moore Street. Under a lease granted to that Association by the Commonwealth pursuant to the Leases (Special Purposes) Ordinance 1925 {(A.C.T.) ("the Leases (Special Purposes) Ordinance") for a term of $9 years commencing on 20 March 1953, the land might be used only for the purposes of the Country Women's Association of New South Wales or for such other purpose as might be consented to by the Commonwealth or the relevant Minister. The lease did not permit any trading or commercial purpose. A, single storey brick building covering a small part only of the site and containing meeting rooms and offices had been erected on the block. 8 ye terse 5 Pa L ne ck ATE Mention should be made of the other blocks forming part of Section 23. To the south of Block 14 1s Block 2 which 1s at present vacant land, the building which was formerly erected on that land and housed the Polish Ex-servicemen's Club havinae been demolished. Approval has been given for the erection of a six storey commercial office building on that site fronting Moore Street. From Block 2 has been excised an area of land for road widening purposes. To the south of that block is Block 7 and- south of that again and having frontages to the re-aligned Moore Street and to Rudd Street is Block 10. The land comprising Blocks 7 and 10, together with areas which were taken for the widening of Moore Street, was formerly described as Block 1. On Blocks 7 and 10 a commercial office building has been constructed which is of eight storeys on Block 10 but of two storeys only on Block 7. The part of the building erected on Block 7 and having a frontage to Moore Street of 18.25 metres 15 occupied by the Canberra R.S.L. Club. To the west of Blocks 7 and 10 is Block 4 which is sometimes referred to as the Canberra Squash Bowl site reflecting the purpose for which that land was formerly used. That site has been redeveloped and a six storey commercial office building has recently been completed thereon. The remainder of Section 23 was orfiginally known as Block 5 with frontages to Rudd Street, Marcus Clarke Street and Barry Drive. This was the block on which the Town House Motel was constructed. the area at the corner of Rudd Street and Marcus Clarke Street having we rae . af pair ainda ales Stent ae eee apne Aree ivy erected on it a single storey building used as a restaurant. The block was subsequently subdivided into Blocks 12 and 13 and the applicant's interest in an area of land fronting Rudd Street and Marcus Clarke Street (Block 12) was sold to a purchaser for the purpose of the erection" thereon of a commercial building. The construction of that building, which is of eight storévs over the part of the site adjacent to the motel and of two storeys on the Rudd Street frontage, is nearing completion. As already mentioned, the land on which the motel stands is now known as Block 13. . It should also be mentioned that Block 13 is of irregular shape and the point at which its northern boundary meets its eastern boundary (which is also the western boundary of Block 14) is some 6 metres south of the north western corner of Block 14. Leqislation Before referring to the events which culminated in the building construction work which is at present being carried out on Block 14, some reference should be made to relevant legislation. The Commission is established by the National Capital Development Commission Act 1957 (Cth) ("the National Capital Development Commission Act"), 5.3. The functions of the_ ee ee ee ee a aoc ee we Ly wee wwe wo TL er Qa ay 6. Coumiszion are to undertake and carry out planning, development and construction of the City of Canberra as the National Capital of the Commonwealth (sub-s.11(1)). For that purpose, the Commission is empowered to provide, or arrange for the provisién of, within the Australian Capital Territory, buildings, roads, bridges, works for the supply of water or electricity, sewerage or drainage works and other matters or things for. or incidental to, that purpose (sub-s.11(2)). It has power to do all things necessary or convenient to be done for or in connexion with, or incidental to, the performance of its functions and the exercise of its powers (sub-s.11(3)), including such powers in relation to matters affecting, or connected with, the planning, development and construction of the City of Canberra as are expressed to be exercisable by the Commission by, or by regulations under, an Ordinance in force under the Seat of Government (Administration) Act 1910 (Cth) (sub-s.11(4)). The Commission is obliged, by sub-s.12(1), to keep the appropriate Minister informed of the decisions of the Commission with respect to matters of policy in relation to the performance of its functions and provision is made for the resolution of any difference of opinion between the Minister and the Commission as to the policy which should be followed by the Commission. The Design and Siting Ordinance applies to and in relation to land within the area that is the City Area for the purposes of the City Area Leases Ordinance. Section 23, Division of City, 1s within that area. Sections 6 and 7 of the Design and Siting Ordinance, so far as material for present 7. - purposes, provide - The expression "external design", in relation to a building, is defined to include any matters | "6. (1) Subject to this Ordinance. the Commission is authorized - {a} to grant (either absolutely or subject to conditions) or refuse approval of proposals with respect to the external design and the siting of buildings and of proposals with respect to alterations - affecting' the external design and the siting of buildings; (bp)... (c) (2) The Commission shall not refuse an approval under this Ordinance unless the Commission is ' satisfied that it is necessary to do so for the purpose of securing the carrying out or observance of the policies of the Commission with respect to the planning and development of the City of Canberra. 7, The erection or alteration of a building shall not ke commenced, carried on or completed except in conformity with proposals approved in writing by the Commission with respect to the external desiaqn and the siting of the building, or of the building as proposed to be altered, and with any conditions subject to which the approval has been given." the exterior of the building. the The Ordinance establishes a Committee to be known as Desian and Siting Review Committee (5,10). Where the affecting the appearance of oy 7 grnapess y + ee -0F toa en ee - a a ris Soteeeee Sania sarane auineryvaediaarame 7d roam ns Coumilasion has refused an application for approval under the Ordinance, or has granted such an approval subject to conditions, the person who lodged the application may, within the prescribed time, lodge an application in writing fora review by the Committee of the Commission's decision (sub-s.13{(1)). The Committee is to hear and determine the application (sub-s.13(2)). If the Committee is satisfied that it is necessary to secure the carrying out or observance of the policies of the Commission with respect to the planning and development of the City of Canberra that effect be given to the Commission's decision, it 1s to dismiss the application. If not so satisfied the Committee is to direct the Commission to grant approval or -to vary the conditions subject to which approval was granted (sub-s.13(3)). The Building Ordinance 1972 (A.C.T.) ("the Building Ordinance") provides for the appointment of a "Building Controller and makes detailed provisions with respect to the erection, alteration and demolition of buildings. In particular, the Ordinance provides for the plans and specifications relating to the carrying out of building work for the erection or alteration of a building to be submitted to, and to be considered by, the Building Controller and for the grant, in appropriate circumstances, of building permits for building work. Section 8 of the Design and Siting Ordinance provides, inter alia, that the Building Controller is not to approve the desiaqn of a proposed building, or issue a pe pte cr ae my fe Ne ce wee rn a a ee ee ee ere 9. permit in respect of a proposed building, under the Building Ordinance unless proposals with respect to the external design and siting of the proposed building have been approved by the Commission and the building to which the approval or permit relates 15 to be in accordance with those proposals. Policy Plan for Civic Centre A plan for the Civic Centre of Canberra entitled "Canberra City Centre Development 1970-80" was prepared by the Commission in 1970 following the adoption of what was called the Metropolitan Strategy Plan (Y-Plan) in 1969. For reasons into which it is unnecessary to inquire, the Commission carried out a review of its policies for Civic Centre and in February 1982 published for discussion a draft report. The draft report included a draft Policy Plan, comprising broad statements of planning policy together with specific policies on land use, transport and townscape, drawn up to indicate the location of future development in Civic Centre and a draft Development Plan showing how the more significant policies might be implemented by both the public and private sectors. That draft report was circulated to representative community and business groups and to government agencies for comments and suggestions. That procedure was followed by more widespread public consultation. Following the public consultation programme, the Commission prepared a final report dated February 1984 entitled Te en 10. "Civic Centre Canberra - Policy Plan, Development Plan". Upon the formal adoption of the report by the Commission, the Minister for Territories and Local Government was informed in accordance with 5.12 of the National Capital Development Commission Act. The Minister on 15 May 1984 noted the submission forwarded to him. There appears to have been no difference of opinion between the Minister and the Commission as to the matters of policy set out in the report so as to require the machinery provided by sub-ss.12(2) and (3) to be brought into operation. Bhs much attention was paid during the course of the hearing to that report and, in particular, to the Policy Plan forming part of it, it is desirable that I refer to it in some detail. The introduction to the report records that the Commission's role is to formulate planning policies and to carry out development which meets the social and economic needs of the resident and business community and that its aim is to have policies and development which are complementary to private enterprise investment. "Policy Plans" are said to comprise broad statements of planning policy as a basis for making decisions about urban development by both the public and the private sectors. "Development Plans" are described as showing development intentions and proposals for works by the Commission as well as possible development by the private £ eon on, ee ee ener Paneraarsy arr Ae re ae, ways eg ee eee : rane ae ae sector. The point is made that, in Canberra, land use and development control policies are implemented not by statutory zoning schemes but through the leasehold system. The report continues: "Because of the leasehold system, it is possible for the Commission, in conjunction with the Department of Territories and Local Government Las the relevant department was then known], to determine criteria for new development and re-development ina manner which is sensitive to the needs of the particular site and the current social and economic climate. This is a more sophisticated and responsive mechanism than that provided by a zoning system and one which is advantageous to the planning authority and to the prospective developer, in that neither are EsicJ bound by a rigid set of detailed permissions and prohibitions. It is increasingly being recognised by planners and administrators that single-use zoning is too inflexible, in the case of city centres where a complex inter-mixture of land uses is the norm. In this report, the Commission has adopted a concept of 'preferred uses' to indicate the pattern of land uses considered most appropriate for Civic." After reference to the existing land-use pattern in Civic Centre, described as consisting of a number of discrete activity areas e.g. retail, offices, government administration. set within a formal pattern of streets radiating from City Hill, the Policy Plan is set out in Chapter 3. That plan u should, according to its terms, pe understood as a composite statement of objectives, land use policies, development standards and performance criteria". The specific policies for Civic Centre are formulated under the three principal headings of -- ~ att, hk Policy Plan (Land Use) Policy Plan (Transport) Policy Plan (Townscape). In order, as the Plan says, to obtain a coherent land use structure, Civic Centre is classified into several land-use policy areas. In respect of each land-use category a Land Use Policy Schedule forms part of the Plan. Each schedule specifies the purposes for which a proposal for development or change of use in the relevant land use policy area would normally be supported by the Commission and the, purposes for which a proposal f6r development or change of use would be assessed on individual merit. Where a proposal is made for any purpose not so specified, the Commission, it is said, would normally oppose the development or change of use. One of the land use policy areas is known as Commerical Office Area 1 and it is within that area that Section 23 is situate. The objectives of the Commission's policy for that area are stated in the Plan to be: ", to group commercial activities in close proximity to retailing facilities to ensure that Civic retains its ability to attract commercial office development . to encourage the 'consolidation of - _ established tourist-oriented services and facilities in close proximity to the Retail Core." ~ L-~~~--—- a ee rn ee ee ee 13. The preferred uses in that area are stated as offices/professional suites, to be developed predominantly by private enterprise, and hotels, motels, banks, co-operative societies and health centres. The Plan envisages that significant complementary uses. that is uses that would be considered on individual merit, would be indoor recreation facilities, public-sector services and any activity that tends to complement commercial and business functions. The Plan then contains a section headed Policy Plan (Transport) but as no reliance was placed by the parties on any of the provisions contained therein it is unnecessary to refer to that section. The third principal heading under which specific policies for Civie Centre are formulated in the Plan is Policy Plan (Townscape). The objectives of Townscape Policy in Civic Centre as stated in the Plan are to - ". achieve harmony of buildings and landscape and, thus, give effect to Griffin's concept of a garden city, which is the foundation of design in Canberra - within Civic achieve a cohesive arrangement of buildings and spaces which are functionally and architecturally pleasing recognise that while Civic is a part of the National Area, it is also the ST epee re nn er ere . z . pon Sete , 4 ——— . aay to ey oe Solari aalenah teal dite Geen a at. te ee ge o ne oe ee ewe eer ere way Lee -% 14, commercial centre of Canberra and should be allowed to express its commercial character." The Plan records that development controls in Canberra have increasingly favoured the more uniform application of modest building intensities, in a form which allows for the incremental development of sections, and which avoids breaks in the street facade line. It further records that the development of a concentration of building in Civic has been accompanied by the limitation of building heights, the effect of which has been to create a group of buildings of fairly even scale and colour. The building fabric of Civic Centre is described as being manifested in designs which provide facades in scale with the streét and in which colonnades provide continuous weather protection at ground level. Under the heading "Building Form and Development Intensity" the Plan states that the purpose of having guidelines for development 1s to achieve the development or any particular site in accordance with the policies of the centre as a whole and market needs. The Plan recognises that wide variations of building form are possible when a full section is developed while limited variation is possible when only one block is developed within a section. It is further stated that the basis for development approval in Canberra is a system ad re re ee et ere eras -_¢ rae aa aren Sytem ere eee wee + TI 7 tole wave which 15. ta recognise the varied needs of developers and which secures the public interest of good townscape design. This, it i. says, Plan continues: important policy, _in commercial and retail areas of Civic Centre, is that all buildings must abut the front property boundary of the streets in order to achieve "streetscapes" which are said to be of the essence of successful design in urban areas. It also states that, at a detailed level, the functional requirements of the street are to be met by is 'achieved by a process of negotiated approval. The Seated -¥ "Within the main retail and commercial areas, where diversity of form and character is sought, development intensity will be determined on the basis of the individual circumstances of the particular block or section, and considerations such as building height, relationship with other £ buildings and the environmental quality of adjacent - streets and spaces."": Se ecadl adietrtenliineteaieiiaeeteee ines The Plan goes on to state that the first and most renee oe ° - ae Jo providing for sheltered pedestrian areas oon all masor frontages. It is, therefore, a requirement that colonnades be i provided wherever feasible. ty Buildine Bulk" and the sub-heading "Environment", the Plan states - - Ff , i t Under the heading "Policies of Building Height and core em ", Buildings muet be limited in height to SS ensure that main pedestrian areas remain t substantially sunlit throughout the day, i 16. particularly in the winter months. In some instances, this could result ina maximum building height of two storeys azn practice, the standard applied is sun penetration to substantial areas of 'pedestrian streets and spaces between 12 noon and 2 pm on June 22 - to avoid ground level wind turbulence, tall buildings should be sited and designed to ensure that down draft conditions and turbulence do not make pedestrian spaces uncomfortable. Assessment of wind turbulence is a complex -issue and the Commission may require model wind tests, prior to approving development proposals." Under the sub-heading "Urban Design", a mandatory upper limit to building height in Civic is prescribed at RL 617m. It appears from the evidence before me that that height limit would accommodate a building of 13 or 14 storeys. The Plan also. states that, where whole sections are comprehensively planned, tall buildings up to a maximum height of RL 617m can be located in a manner which provides harmonious relationships between buildings within the section and with buildings on adjacent sites. It goes on: in many City sections, earlier sub-division has resulted in a number of contiquous small blocks forming the street frontages. Where blocks have frontages of 30m or less re-development will usually result in contiguous buildings, or close to contiguous buildings. In these circumstances, a uniform building height would be the most desirable. A height of 6 storeys results in a satisfactory urban design solution while permitting a scale of development which has proved to be appropriate to the Canberra market Toas wee ee ee or Le Sore Under u Under the heading "Building Design" the Plan provides: 17. when block sizes are larger but form only part of the section, then height of permitted development will be assessed in relation to the size of the site, but in particular to the main frontage of the site. Blocks having areas of over 2500 square metres and frontages of 50m or more have the potential to accommodate a building higher than six storeys, linked to contiguous blocks by low-rise building forms. To ensure adeauate separation between block developments the low-rise element will be required to occupy 20 metres or more of the block frontage." . the sub-heading "Amenity" the Plan provides - apart from the environmental amenity of public spaces, consideration has to be given to neighbouring uses and buildings new buildings should respect the design character of adjacent and neighbouring buildings with elements of facade which conform to the scale of those buildings the planning considerations will also include the likely impact of the proposed development on the neighbouring uses in terms of: - wind ~ sun - Licht - sound - smell however, if the current use and the proposed development is in a commercial policy area, then standards suitable to a commercial area will be the basis of assessment, notwithstanding the current neighbouring use." Teen ee ee ee ee 18. "The existing built form of Civic displays unity and consistency of form, colour and materials. The buildings making up Civic are each different but their scale, colour, materials and form are sufficiently similar to produce an overall Gevelopment character or context to which futuré Buildings should respond empathetically. The Commission wishes to allow more freedom of Gesign expression in response to the emergence of new styles of architectural design but not at the expense of disregarding the character and massing which has already been gained in the earlier development of Civic. Before approving individual building designs, the Commission will give consideration to the following; ° . Streetscape: Buildings in Civic have a major role as framing elements in an established elegant street and avenue context. Buildings should correspond to street lines in the geometry of their floor plans and the design of their facades; - Relation of Neighbouring Buildings: Where buildings adjoin, it is appropriate to match parapet lines and other details, such as the scale of structural bays and openirig in facades. It is also appropriate that the treatment of the ground floor corresponds with the neighbouring buildings; - Skylines: The tops of buildings should be designed as an important component, with plant rooms and roof edges or parapets designed to complement the design of the building as a whole and to enhance the skyline; Light and Shade: The character of Civic reflects Canberra's climate through its buildings. These should be designed to protect their facades from the extremes if } L He } emg ee Sa ay Taneranr ahaa Tye eee +t FZ OT, — nn tere pn ee of solar gain, and to create the opportunity for indented or shaded windows which can endow facades witha sculptured form. Colonnades will contanue to be a requirement on active frontages." In relation to materials and colour, the Plan states that the policy of generally limiting the colour of materials to off-white has served the city well and has resulted in consistency, harmony and an identifiable character. It recognises that, while the policy to be applied in the future will be more liberal, the framework of these overall objectives is to be maintained. Approval of Redevelopment of Block 3 (now Block 14) In March 1983 the Country Women's Association of New South Wales commenced negotiations with the Commission and the Department of the Capital Territory concerning a commercial office development on Block 3 which would incorporate premises for the Association. The original proposal lapsed but a revised scheme had been presented to the Commission by November 1983. In order that any commercial office development could take place on the site it was necessary that a change of use of the land be approved by the Commonwealth and that the existing lease under the Leases (Special Purposes) Ordinance be surrendered anda new lease be granted under the City Area sare- 4-5 wet oon, come ret te al ee tee v > Fete ee ee reer ee) se meee red mks 1 t : ed ee ee a nod - ae 20. Leases Ordanance. The change of use application was referred to the Commission for the formulation and approval of conditions for the redevelopment of the block. Negotiations on the proposal proceeded between the proposed developer, A.D.C. Properties (Vic.) Pty. Limited ("the third respondent"), and the Commission during the latter part of 1983 and during 1984. Series of preliminary sketch plans were prepared by the developer from time to time incorporating changes suggested as a result of discussions with officers of the Commission so that, by this process, the broad parameters of a development proposal that was likely to meet the needs of the developer and the requirements of the Commission emerged. What was done in relation to Block 3 may be seen as an example of what the Civic Centre Policy Plan refers to as "a process of negotiated approval". It may be noted that all the sketch plans submitted provided for the proposed building to abut the western boundary of the block. Following those negotiations a submission was prepared by Miss Anne Freeman, an officer of the Commission, dealing with the redevelopment conditions for the block. That submission, which was supported by Mr P. O'Brien, the section head of the Canberra Central Section of the Town Planning Division of the Commission, was in the following terms - "BACKGROUND Block 3 Section 23 City is leased to the Country Women's Association of NSW (Canberra Branch) for the el piel tite weal] , 4, woo ' ro wr ae woe we re eee oa iar ve ae we 21. Purpoges af a CWA clubhouse under the Leases (Special Purposes) Ordinance and has a small clubhouse of some 240 sq. metres on the site. The lessees wish to redevelop their site to provide for office development, with their own premises relocated on part of the ground floor of the office building. The block is within Commercial Office Area 1 of the Civic Centre Policy Plan and redevelopment for office purposes is consistent with the Policy Plan. It 2s proposed that a strip of land 9.068m wide be excised from the Moore Street frontage of the lease to enable future road widening works to Moore Street which is consistent with the redevelopment of the RSL site on Moore Street. SUBMISSION The attached development conditions are consistent with the Conmission's Land Use, Townscape and Transportation policies for Civic Centre as set out in the Civic Centre Policy Plan. The maximum height of the building is six floors and car parking is provided on site at the ratio of 1 space per 100 sq. metres of gross floor area of office space. A maximum of 400 sq. metres is to be developed for the purposes of CWA meeting rooms and hall. The site abuts the Town House Motel development but there is minimum impact on the view from the Motel. MAIN ADVANTAGES Redevelopment of the site will enable development to occur that is consistent with the nearby Squash Bowl, Town House Motel and Block 5 office development on Section 23. MAIN COSTS Nil. SECONDARY EFFECTS Redevelopment of the site will strengthen the built form and commercial activity of Civic but may increase longa stay parking pressure in west Civic. There is an increased provision of club space for the Country Women's Association. GT tess on ee rooney er emi yoo ee a me Venlo ee cae w/t it re mr ONS .0 pore we SMPERNAL RELATIONS AND EQLICY IMELICADCONS a eer an as Pets The conditions conform to the civ Flan and no public consultatzon sroc necessary." (2) That the Redevelopment Conditions Block 3 Section 23 City (Attachment 1) be aporoved for referral Department of Territories and Local Government." A plan that is, in all material respects, identical with the development plan referred to in the redevelopment conditions is reproduced below - BARRY DRIVE eoe00009000090 Li STREET ao000000 ' , % t ' of ri oR oN ° NN 3 == ————— 39 95 — 9 06S TOWN #0 WOE AccE i House WIDE ACCESS EASEMENT MOTEL SECTION 23 LEGEND ~—— Lease Soundery POLISH EX-SERVICEMENS a= = Mandatory Building Line ave e@eee Vehicle aie = | 2900 — Ground Lavel Colonnade | i Buiding Zone SSG bend fo be surrendered to Commormealth ait Ceveloomen Plan No.1857/24 3 Section 22 City be approved. MOORE for moa ee a ' Cr 7 Tc ST en et pee oe eo Redevelopment Conditions referred to in recommendations as Attachment 1 were as follows - "REDEVELOPMENT CONDITIONS PART BLOCK 3 SECTION 23 CITY CWA SITE 1. -l Ww WwW LAND USE Site Area 1326 sq. metres (t.b.d.)} excluding a strip of land 9.,068m wide at the Moore Street frontage of Block 3 which shall be surrendered to the Commonwealth. Lease Purpose The site may be used for any of the following purposes: Offices/professional suites, bank, co-operative society, club, social/community facility, retail, personal services. The gross floor area for club or social/community facilities shall be no less than 370 sq. metres. The gross floor area for retail and/or personal services shall not exceed 150 sq. metres. Development Intensity The maximum gross floor area of the building shall not exceed 6780 sq. metres. Gross floor area (GFA) is defined as the sum of the areas of ail floors as measured from the external surfaces of the building, excluding only basement areas used solely for car parking and/or plant, rooftop plant rooms and the ground level area of the colonnaded walkway. The maximum height of the building shall not exceed six (6) storeys. A rooftop plant room may exceed this level provided that any such structure does not exceed 4m in height above the six storey parapet level, and provided that minimum cetbacks aré maintained as follows: the Sar te > o-oo = mesa ain w Let) 24, Moore Street building line setback: 5 metres Barry Drive building line setback: 5 metres Western building line setback: 3 metres BUILDING DESIGN The building shall abut the northern and eastern lease boundaries. The facade to the western boundary shall be designed to complement the remainder of the building and shall have a strongly modelled elevational treatment. A continuous colonnaded walkway shall be provided at ground level as shown on NCDC Drawing No.1858/84, with a minimum internal dimension of three (3) metres as measured from the inside of the columns. The level of the walkway shall be coincident with that of the public walkway at all points. The crossfall shall not exceed 4% across the colonnaded walkway and adjoining footpaths. Low maintenance materials shall be used for all external finishes in the range light buff to off-white. Plantroom, air conditioning equipment and other structures on the roof shall be enclosed in the same materials as the external walls of the building. ° A comprehensive scheme for external signs shall be submitted for approval. TRANSPORTATION Vehicle access shall be provided as shown on NCDC Drawing No.1858/84.. On sate car parking shall be provided for minimum of 64 cars. > All garbage areas, storage areas, substations, shall be located and/or screened so as not to be visible from adjacent public streets and adequate provision shall be made for the entry and egress of garbage collection vehicles. SERVICES. The site 1s serviced at present. Costs for alterations to existing services shall be borne by the lessee." oilitendacomenaiaan sane ~ 25. The submission, including its recommendations, and the ip redevelopment conditions were considered by Mr J. Gilchrist whe was the Director of Town Planning within the Commission. After satisfying himself that the redevelopment conditions were consistent with the Civic Centre Policy Plan to which reference has already been made, Mr Gilchrist signed the document- indicating his concurrence in the recommendations. The submission and recommendations were then passed to Mr G.J. Campbell who | was the Chief Planner within the Commission and to whom the power of the Commission to exercise the authority vested init by s.6 of the Design and Siting Ordinance had been duly delegated. He approved the recommendations on 5 October 1984. On 9 October 1984 the approved redevelopment conditions were forwarded to the Department of Territories and Local Government. Although it appears to have no significance for present purposes, it may for completeness he stated that on 25 October 1984 Mr G.E. Moseley, who was the Director of District Planning with the Commission but who was at that date acting as Chief Planner, approved Policy and Development Plan 1924/84 recording in a formal way the matters approved by Mr Campbell on 5 October 1984. Working drawings for the project were lodged by the third respondent with the Department of Territories and Local ' HH ' : 26. i Government and referred by that department to the Commission Tor consideration under s.6 of the Desion and Siting Ordinance. The working drawings provided for a building abutting the northern, eastern and western boundaries of the site but with a set-back from the southern boundary above the first storey level. The decision to give desian and siting approval to the proposed redevelopment was made on 19 November 1984 by Mr Gilchrist as a duly authorised delegate of the Commission. It is that decision which is the subject of the present proceedinga. The decision was made upon a submission prepared by Miss Freeman and concurred-in by Mr O'Brien. It recommended that the working drawings attached to it relating to the proposed building be approved. Under the heading "Project Assessment" the submission read - "CA have supported the drawings subject to submission of materials and consideration of the use of varying materials on the elevations. The levels have been cleared by Hughes Trueman Ludlow. Additional levels marked on plan give RL requirements at each column. Additional levels received 16.11.84 on amended ground floor level ensure uniform 3.5% max. crossfall to kerb. The plans are in accordance with the development conditions and the western elevation revised so as to leave a future option to revise site boundaries for the Town House Motel site." Pa i The initials "CA" refer, I understand, to the Chief Architect's Division of the Commission. Hughes Trueman Tudlow were a firm wre Sy wr we wy at ——— ba eee aT TAG oe et Sa een oe wT et ag . , 27. of ngineering consultants employed by the Commission to ih examine the working drawings. The reference to the western elevation having been revised rélates to the deletion from that elevation of windows which had been proposed at its northern end on storeys 2-6 inclusive, that part of the western elevation adjoining public land and not the Town House Motel site. In addition to approving the submission made to him, Mr Gilchrist signed each of the working drawings as having been approved, each being marked, however, with a notation that the approval was subject to samples of all external materials being submitted to the Commission for approval. That condition was subsequently fulfilled. In the issue of the "Canberra Times" newspaper published on Saturday 1 December 1984 an article appeared stating that the site of the Country Women's Association's Canberra meeting rooms at the corner of Moore Street and Barry Drive was to be redeveloped "early next year" to provide a six-storey office building. The article, which was accompanied by a picture of the then existing building on the land, further stated that the Commission had given design and siting approval and that construction was scheduled to begin in February 1985 and to be completed within 12 months. Reference was also made to proposals to redevelop the Polish Ex-servicemen's Club site adjoining the CWA site. face omy Ty ae ee pie ge eee ma 4 at In May 1985 the Building Controller, acting under the Building Ordinance, approved the building plans and construction commenced on the site at the end of that month. A further article relating to the development of Block 14 appeared in the "Canberra Times" newspaper published on 31 May 1985, That article referred to the demolition "yesterday" of the CWA meeting rooms to clear the site for the construction of a six-storey office block for the A.C.T. regional office of the Australian Tax Office. On 6 June 1985 the Commission approved amendments to the plans providing for a third basement, amended vehicular access from Moore Street and amended plantroom details. On 17 dune 1985 a lease of Block 14 was granted by the Commonwealth to the Country Women's Association of New South Wales under the City Area Leases Ordinance for a term of 99 years commencing on 10 December 1984. Under the lease the lessee is required within twelve months from the date of the commencement or the lease or within such further time as may be approved to commence to erect a building and on site parking on the land in accordance with plans and specifications prepared by the lessee and previously submitted to and approved by the Commonwealth in writing. The lease provides, inter alia, that the maximum qross floor area of the building is not to exceed Sr es ee rey er eee ae 2 n ; eNTaa ye > te toe | er oem fa me eo ars 6780 square metres and its maximum height is not to exceed six storeys exclusive of rooftop plant rooms. The lease was, with the consent of the relevant Minister, transferred to the third respondent on 17 June 1985 and to Serton Pty. Limited ("the second respondent") on 28 June 1985. The transfer of the lease to the second respondent was made pursuant to an agreement made on 28 June 1985 between the third respondent and Hambro Australia Limited, the parent company of the second respondent. By a further agreement made on the same day the third respondent was appointed project co-ordinator in respect of the redevelopment. Yet another agreement of the same date between Hambro Australia Limited, the third respondent and Australian Development Corporation Limited referred to negotiations which were proceeding for the grant to the Commonwealth of a sub-lease of the building, other than the area to be occupied by the Country Women's Association of New South Wales, and provided that, in the event of the Commonwealth not executing an agreement to sub-lease the building within a specified time, the third respondent could be required to acquire from Hambro Australia Limited the whole of the issued shares in the second respondent. The applicant's solicitors addressed to the Commission a letter dated 28 June 1985 reading as follows - — . Myo ny tooo een me mee ot a ve ; 30. "We act for Idonz Pty. Limited, the lessee of the Town House Motel. Our client has learned of the development presently under constructiorf of the adjoining Block 3 Section 23 City (formerly the C.W.A. site) and we are instructed to inquire: 1. Whether the Commission has approved in writing the external design and siting of a building for block 3. 2. If approval has been given, what was the date of approval? 3. If approval has been given, is it subject to any, and if so what conditions? : ° 4, If approval has been given, what, if any, consideration was given to matters that arise hereunder as the client has been told by the builder, Leighton Contractors Pty. Limited, that the building to be erected comprises a 3-storey underground carpark and a 6~-storey office block to-be built on the boundary line of Block 3 with our client's property with a totally blank wall on that boundary which will he apparently off-white in colour. Matters of concern are: (a)(i) Possible disruption of our client's Town House foundations due to very deep and very close excavation. (ii) The need for an existing request by (b) (c} (ad) the builder to drill into our client's land for temporary shoring. Intrusion of working activities by the builder into our client's site, including scaffolding. The uncomfortable glare that can be anticipated into the north~easterly Windows of the Town House Motel created by an unrelieved off-white wall six storeys in height on the boundary. Heat reflection that can be anticipated by the boundary wall of Block 3 during summertime creating the need for extra cooling capacity in our client's building. TT eee ee oe Cine te ey Sr en On ha ' 7 bower, timer i Mee Oe re 31. (¢) Whether any model wind tests were conducted and, if s0, when and with what result regarding wind turbulence due to the tunnelling effect of the wall under winds, particularly prevailing north-westerly winds, including acowm-draft and, if any tests were conducted, what, if any assessment was made of wind conditions and turbulence? Did the tests (if carried out) include our client's neighbouring building and/or the buiiding with the extension of a further three floors? Who carried out the tests? (f) Has any and if so what consideration has ECsic] been given to -.a harmonious relationship between the blank wall of the building on Block 3 with our client's building on the adjacent block? (gq) Has any and if s0 what consideration been. given to the design character of our client's adjacent building with elements of facade that conform to the scale of the building? - (h) Has any and if so what consideration been given to the likely impact of the proposed development on our client adjacent owner's use in terms of: (i) wind (ii) sun (iii) light (iv) sound (v) smell (vi) dust? Our clients first knew of the development proposal for Block 3 when they read about it in the Canberra Times on the 3lst May. They have little idea of what is proposed. In these circumstances they are not in a position to form any meaningful view of the proposals for Block 3 nor as to how their own property may be affected. We therefore request a copy of the approved plans and specifications of the Block 3 proposals, including any conditions imposed, together with answers to the queries set out above." Sn cn ee a fees ae weary ee ro roee Lm ay - ene mee coee terms: - The reply. dated 26 duly 1985, was 2n the followang "Thank you for your letter of 28 June 1985 concerning the proposed redevelopment of Block 3 Section 23 City. Responses to your queries are as follows: - 1. The Commission qranted approval under the Buildings (Desion and Siting) Ordinance 1964 to the proposed redevelopment of Block 3, Section 23 City on 19 November 1984. The approval was for a 6-storey office building with two basement levels, wholly contained within the lease and was subject to samples of all external materials being submitted for approval. The plans approved on 19 November 1984 were in accordance with the Commission's development conditions for the above site and with the Commission's Policy Plan for Civic Centre. bo 3. The developers-.of the site informed the Commission in December 1984 that the specific requirements for building occupation meant that an additional basement would be required.. After negotiation regarding the traffic and safety aspects of providing an additional basement the relevant working drawing amendments were approved on 6 June 1985. Your letter requested information as to what consideration was given to the impact on the amenity of the Town House Motel. rf Issues of concern as noted in your letter are the " presence of a 'totally blank off-white wall' on the western boundary of the site, possible disruption to the Town House Motel foundations, the need to utilize a part of the Town House Motel site during the construction phase and detailed questions of the impact on the amenity of the Town House Motel development. = © 7" pee eer, - - 33. The blank wall at the western boundary of the site was approved by the Commission as a direct result of the perceived need to ensure that there will be no future constraint placed on any redevelopment of your client's land. It was felt that the inclusion of windows on this facade at the boundary would have the effect of requiring any new building on your client's land to be set back significantly from this boundary. This decision is consistent with previous approvals of commercial developments at a common boundary and protects the development rights of adjoining lessees. Windows on or near this boundary may also have had the effect of reducing the amenity of your client's land through overlooking from the new building. The design of the western wall is consistent with the Commission's development conditions for this' site which state that: 'The facade to the western boundary shall be designed to complement the remainder of the building and shall have a_ strongly modelled elevational treatment'. The design proposes a modelled treatment using two harmonising colours of applied finish, emphasising the structure of the building and complementing the structural modelling of the remainder of the building. The colours proposed are "Tallow" P-42-1 Granopeari and ""Buff" P-42-5 Granopearl and these are currently under consideration for design and siting approval. Samples of these materials and Getails of the proposed design may be inspected at the Commission offices should your client wish to © so. The second major. matter of concern raised, i.e. the 'possible disruption of your client's building foundations due to very deep and very close excavation and the need for the builder to drill into your client's land for temporary shoring have been referred to the Building Controller, Department of Territories for urgent consideration. I understand that the lessees of Block 3 Section 23 City are currently considering alternative methods of excavation and this matler wiil need to be resolved between your client, the lessees of Block 3 Section 23 City and the Budlding Controller of the Department of Territories. er a Net aren ee eee Your concern that scaffolding may intrude into your client's site has also been referred to the Department of Territories. I understand that the preferred finish of the western wall, "Granopearl" cannot at this stage be applied without some temporary intrusion into your client's airspace. The Commission is concerned that the western wall is finished in a material that is aesthetically pleasing but will await advice from the lessee regarding possible alternative methods of finishing the wall to the same standard and design quality as the preferred material. Your third major query concerns the amenity of the Town House Motel development as it stands and in the future. The Civic Centre Canberra Policy Plan Development Plan (February 1984) refers to the amenity of neighbouring sites on page 42 and states that: 'LE the current use and the proposed development is in a commercial policy area, then standards suitable to a commercial area will be the Dasis of assessment, notwithstanding the current neighbouring use'. Section 22? City is within land use policy area 'Commercial Office Area 1' under the Civic Centre Policy Plan. In considering the redevelopment of the CWA site it was decided that it would not be reasonable to restrict building up to the boundaries of the site, since this would be a normal expectation of a lessee ina commercial area. Nevertheless in agreeing to the new building on the CWA site, it was noted that: the Town House Motel is angled at 45 degrees on its block and the closest point of the motel building to the boundary with the CWA site is about 5 metres from the boundary at the.external Walls (north-eastern corner); because of the position of the motel building on its biock the rooms are generally oriented either north-west or South-east rather than directly facing the CWA site boundary; te ere ns vent at moses fe hee ey ' Rete op pe a cree es ye : Ce fone 35. - there will be minor overshadowing of the motel by the new building on the CWA site but not after noon on any day; due to the location and orientation of the motel building, natural lighting to the bedrooms should continue to be adequate; the provision of a blank wall to the new building on the boundary will ensure that the amenity of the motel is not affected through overlooking or noise transmission. The new building on the CWA site conforms to all the relevant policies of the Civic Centre Policy Plan and the Commission's Specific Development Conditions for the site. The approved plans for Block 3 Section 23 City may be inspected at the Commission's offices at 220 Northbourne Avenue Braddon as requested in your letter and acopy of the Commission's specific development conditions for that block is enclosed. The project officer for this work is Ms Anne Freeman (468728) should your client wish to inspect the above documents or raise further issues in connection with this matter." The Issues The present proceeding was commenced on 10 September 1985 by the filing of an application naming the Commission as the onlv respondent. The applicant applied by motion to Fox J. on 17 September 1985 for an order extending the time within which the application might be brought and his Honour extended that time up to and including 10 September 1985. His 'Honour also directed that notice of the application be given to Serton Pty. Limited, A.D.C. Properties (Vic.) Pty. Limited and Leighton Contractors Pty. Limited. Subsequently, Serton Pty. eee By Bert ' Par iy Were t ee Wer oe gp wT tl 1-4 . 36. Limited and A.D.C. Properties (Vic.) Pty. Limited applied to be joined as parties and orders were made joining them as second and third respondents respectively. An amended application was filed by the applicant on 24 September 1985. When the substantive application came on for hearing on ld October 1985 the second and third respondents sought to bring on for hearing at short notice a motion for an order under Order 35, rule 7(2) of the Federal Court Rules setting aside the order made by Far J. on 17 September 1985 extending the time within which the proceeding might be commenced. The ground of the application was that the order had been made in the absence of the second and third respondents. After hearing argument I declined to entertain the motion at that stage and directed that the hearing of the substantive application should proceed, in reaching that conclusion I had regard to the circumstance that the issues raised by the motion could only be resolved after an examination of much of the material that would be relevant to the substantive issues in the matter and that to embark on the hearing of the motion would only serve to delay the resolution of those issues. I also had regard to the submission put by counsel for the applicant that the motion should have been brought before Fox J. - see Farrell v. Delaney (1952) 52 5.R. (N.S.W.) 236 at p.238. wanes May vy seine pa ee ao. Sout ak Pan yowtte peor eee + ~ om, TN te ee ee ee ee ee it is also convenient to mention at this stage that during the first day of the hearing the applicant sought, -but was refused, leave to amend the proceeding so as to seek orders of review in respect of the decision of Mr Campbell made on 5 October 1985 and the decision of Mr Moseley made on 25 Octcber 1985 te both of which reference has aiready been made. The applicant then commenced a separate proceeding seeking orders of review in respect of those decisions and for declaratory and I . injunctive relief under the general law. No application was made for an order extending the time within which that proceeding, in so far as it was brought under the Judicial Review Act, might be commenced. I refused an application to have that proceeding heard contemporaneously with the application then before the Court. Both applications were later renewed but were again rejected. An application was also made to amend further the amended application before the Court so as to challenge the decision made on 19 November 1984 under the -general law and to seek relief by way of declaratory order, injunctive relief and damages. I rejected this application on the ground that by the proposed amended application the applicant sought to raise substantially different issues, factual and legal, from those raised in the amended application then before the Court and that it was not appropriate that those issues be raised for the first time at such a late stage. I did, however, allow an amendment of the amended application to add further grounds, ot ea - Sedan iP we abd Ww wen ween ee ee ee ee pee aeninnies VA pee meee eee ee zo ee ee ee ee ee et 38. based on the applicant's assertions as to the effect of the evidence adduced in the proceeding, upon which it relied. The applicant submitted that a breach of the rules of natural justice had occurred in connection with the making of the decision of 19 November 1984 wumnder par.6(1)(a) of the Design and Siting Ordinance (see Judicial Review Act, par, 5(l)¢(a)). It was submitted that the Commission, being bound as a matter of law todo so, had failed, before exercising that power, to give notice to the applicant of the matter which it had under consideration and to afford it an opportunity to make submissions thereon. Secondly, it was submitted by the applicant that. procedures that were required by law to be observed in cormezion with the making of the decision were not observed (see Judicial Review Act, par.5(1)(b)}. The procedures required by law to be observed were, according to the applicant's submission, to be found in the administrative procedures approved under the Environment Protection (Impact of 'Proposals) Act 1974 (Cth) ("the Environment Protection Act"). Thirdly, it was submitted that the Commission had failed to carry out its statutory function under the Design and Siting Ordinance in that there had been a fatlure, in making the decision of 19 November 1984, to take into account the provisions contained in the Civic -Centre Policy Plan. ee ene ee ee soc 39, Alternatively it was submitted that the decision-maker had failed to take into account particular policy considerations made relevant by the Civic Centre Policy Plan and had taken inte account irrelevant matters: (see Judicial Review. Act, par.5(1)(e) read with par.5(2)(a) and (b)). The respondents joined issue with the applicant upon each of the above submissions and contended further that the applicant lacked standing to bring the proceeding as it is not properly described as a person aggrieved within the meaning of that expression in s.5 of the Judicial Review Act. It was also . submitted on behalf of the respondents that, even if the Court should be of opinion that the applitant had established a ground for relief in relation to the decision of 19 November 1984, the Court should, in the exercise of the wide discretion vested in it by the Judicial Review Act, decline to afford the applicant such relief. Although logically the submission that the applicant is not a person aggrieved should be the first point considered, I propose to follow a different course and consider first the substantive issues. Natural Justice It 1s common ground that the Commission took ho steps to give notice to the applicant of the application for design yee ener es mare epee meee von ae alee and siting approval of the building proposed to be constructed on Block 14 and did not afford the applicant an opportunity to make submissions in relation thereto. The 1ssue is whether the Commiseion was, as a matter of law, bound to do so. What has been said by the High Court on the subject makes clear that the question whether the Commission is under 4 duty to observe the rules of natural justice in relation to an application for design and siting approval is to be resolved as a matter of the proper construction of the legislative provisions, those provisions being construed against the background of the relevant common law principles: see Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106, Salemi v. MacKellar [No.2] (1977) 137 C.L.R. 396, The Oueen v. MacKellar; Ex parte Ratu (1977) 137 C.L.R. 461, Heatley v. Tasmanian 7 C.L.R. 487, Bread tW Racing and Gaming Commission (1977) 1 Manufacturers for New South Wales v. Evans (1981) 38 A.L.R. 93 and F.A.,1. Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342. As Barwick C.d. said in Twist v. Randwick Municipal Council, supra: "The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice." le mena rere enna mate een ti a ee 41. d by coungel for the applicant that ng It wags accept there 1s no provision in the National Capital Development Commission Act or the Design and Siting Ordinance or elsewhere expressly requiring the Commission, before exercising the power conferred upon it by par.6(1)(a)} of the Design and Siting Ordinance, to give notice to any person of an application made to it thereunder or to afford any person an opportunity to make submissions to it upon the application. The applicant's contention is based solely upon the general rule of law which finds in the nature of some statutory powers a sufficient ground for inferring that the powers are to be exercised in accordance with the requireménts of natural justice. ~ The argument proceeded on the basis, accepted by ail parties, that the legislative provisions, on their proper construction, obliged the Commission to act fairly with respect to the person seeking approval under par.6(l)(a) of the Design and Siting Ordinance, Such an applicant is entitled, by virtue of par.6(2) of the Ordinance, to have his proposal approved unless the Commission is satisfied that it is necessary to refuse to give approval "for the purpose of securing the carrving out or observance of the policies of the Commission with respect to the planning and development of the City of Canberra". It was not asserted by any party that a clear indication of leqislative intention to the contrary is to be found in the provisions of the Design and Siting Ordinance r p tA, pe oat! ' mT ee ee ee ene 2 eee ted one ne which provide a dissatisfied applicant with a right of appeal to the Design and Siting Review Committee. The issue between the applicant and the respondents is whether the legislative provisions, on their proper construction, extend the protection which they afford to the person seeking an approval under par.6(1)(a) of the Ordinance to other persons and, if so, to which other persons or classes of persons. The duty which the law imposes, unless displaced by a clear indication of legislative intention to be found in express words or by necessary implication, is that a statutory authority having power to affect a person's rights, privileges, interests or legitimate expectations is bound to afford the person whose person of property is the subject of the exercise of the power a fair opportunity of presenting his case before the power is exercised adversely to him. The duty which is thus imposed on the Commission in relation to the exercise of its power under par.6{1)(a) of the Design and Siting Ordinance clearly extends to affording to the person applying for approval under that provision a fair opportunity to present his case. This will be so because such a person has a right, privilege or interest, or a legitimate expectation of a benefit arising from the exercise of the power under the relevant legislative provisions, of which he will be deprived. or which ns ra le te te ee at been me FB ke ee tn oe ete fin ane eh eee pee gee ae Will be Limited, qualified or restricted, if a decision adverse to him is made by the Commission. The position of such a person is to be contrasted with the position of the applicant in the present proceeding. The applicant is not, 50 it seems to me, properly described as a person who was entitled to any right, privilege or interest, or a legitimate expectation» of a benefit under the relevant legislative provisions, of which it has been deprived, or which has been affected in any relevant sense, by the decision of the Commission taken on 19 November 1984 to qive design and siting approval to the proposed development on Block 14. What the decision of the Commission did was to remove one obstacle in the path of the lessee of Block 14 in carrying out its intention of erecting a commercial office building on that land. Having overcome that obstacle, the lessee required approval of the plans and specifications by the Building Controller under the Building Ordinance | and the grant thereunder of a building permit allowing the work to proceed. In my view, the decision of the Commission did not, and does not, operate in law to affect prejudicially any right or interest which the applicant enjoyed. Whatever rights or interests it had, immediately before the decision was made, as the lessee of Block 13 remained, and remain, unaffected in law by the making of the decision. It is not the decision of the Commission but the action taken by or on behalf of the lessee worse i a re | a Ned Ree tee ~ tne es et - te ee ee er see ne ee oe -_—— Da --B Le of Block 14 consequent upon the approval given under the Building Ordinance that could, in law, affect the applicant's rights or interests. Those rights and interests may be infringed by the existence of the building when constructed on Block 14 or by the methods used in the course of construction work and, if so, the law will not be slow to protect those rights and interests. But those circumstances, to my mind, provide no sound basis for concluding that the grant by the Commission of design and siting approval to the proposed development prejudicially affected any right, 'privilege or interest, or any legitimate expectation of a benefit under the legislation, which the applicant enjoyed 50 as to impose upon the Commission an obligation, before exercising its statutory power, to give the applicant notice of the application before it and to afford it an opportunity to make submissions thereon. If a view contrary to that which I have expressed were thought to be appropriate, detailed attention would need to be given to the identification of the persons to whom, or the classes of persons to which, the Commission is bound to afford an opportunity to make submissions in respect of an application for design and siting approval which it has under consideration. Although counsel for the applicant submitted that the implied obligation to afford natural justice required that all those whose interests (including property interests) would or might, be affected by an impending decision be given ro notice thereof and an opportunity to contribute to the Rene tee en ee Lene emetnt on ceeee ce eh vet 6 ee ee ot ve oe welt. 4 Ls owes mee ais a tere ee aad She ten eT decision-making process by putting submissions, he contended that it was unnecessary to do more in the present case than to conclude that the applicant as the lessee of an adjoining block 8 so affected. I do not'think, however, Las] fell within the cla that the matter can be approached in that way. If an obligation to afford natural justice is to be implied into the relevant statutory provisions, the circumstances in which the obligation arises, as distinct from what is necessary in the circumstances of a particular case to satisfy the obligation, must be capable of being stated with reasonable precision. Unless this can be done the repository -of the statutory power can only be left in a state of 'uncertainty. A recognition of this circumstance tends, in my view, to support the conclusion that the ambit of the implied obligation extends only to those whose rights, privileges, interests or legitimate expectations are affected in a much more direct way than those whom the applicant's submission would encompass. The only authority relied upon by counsel for the applicant as directly supporting the broad proposition for which he was contending was the decision of the Supreme Court of Tasmania (Burbury C.J.) in R. v. Commissioner for Town and Country Planning; Ex parte Scott (1970) 24 L.G.R.A. 108. The researches of all counsel failed to discover any other reported casé in Which the question has been discussed whether the duty which the law imposes in a case such as this extends toa - ree er . Sa i nel a pas eee, ewe ee vols Py sure tke spec me ne Ts annem e = 46. person other than the person whose person or property is the subject of the exercise of the relevant statutory power. ' In R. v. Commissioner for Town and Country Planning; —_ Ex varte Scott (supra) the Court made absolute an order nisi for a writ of certiorari in relation to a determination made by the Commissioner for Town and Country Planning under sub-s.734(15) of the Local Government Act 1962 (Tas.). By that determination the Commissioner allowed an appeal by Kemp and Denning Pty. Limited against a decision of the Corporation of the City of Hobart refusing that company permission to chance the use of certain land owned by it for the purpose of the establishment thereon of an industrial undertaking consisting of a timbermill and allied operations. At the hearing of the appeal the Corporation of the City of Hobart, the company and a local progress association were represented and heard, but no opportunity was afforded to landowners in the immediate vicinity of the land owned by the company to take part in the proceedings. The order nisi was made absolute because the Commissioner was held to be under an implied duty to give notice of the hearing of the appeal to persons who appeared (or ought to have appeared) to him to be persons who might be injuriously affected by the upholding of the appeal and to give each of them an effective opportunity to present his case. ee ee ee eee ee He tee 0 ee einer nine eres ees ee inte Neen re Ps : be| oe tke Bee ee The ztatute expressly provided that a person injuriously affected by a determination by a municipality giving approval to an alteration to the use of land might appeal to the Commissioner. In the case of such an appeal the person directly affected, that 1s to say the owner who had been granted permission, was to be made & respondent to the appeal. The statute provided for public notification of the determination by the municipality so that persons indirectly injuriously affected (such as neighbouring owners) were given adequate opportunity to challenge a determination adverse to their interests. However, in the case of an appeal by a person injuriously affected by a refusal by a municipality of such permission, the statute made' no provision for public notification of the determination or for notice to individual residents or others who might be indirectly injuriously affected if the Commissioner, on appeal, were to set aside the refusal and permit the change of use. Nor did the statute contain any provision requiring the public notification of an appeal. It did, however, provide that, in the case of any appeal, a person who might be injuriously affected might be made a party to the appeal as an appellant cr a respondent. This provision was considered to be illusory unless the person injuriously affected was made aware that an appeal was pending. Burbury C.J. stated his conclusion at p.136 thus: eo ee re tae eee ee eee 4B, "It follows from my interpretation of s.734 as applied to the case where an owner appeals to the Commissioner against a local authority's refusal of yermission to change the use of his land that the statutory procedure prescribed by the section is insufficient to achieve justice to individual home owners residing in the vicinity of the land the subject ci the appeal and whose properties may be adversely affected by the upholding of the appeal. It is therefore necessary for the Court to supply the deficiencies in the procedure by reading into the section an implied obligation on the Commissioner to notify those persons of the time and place of the hearing and to give them a full opportunity to present their individual cases aqainst the upholding of the appeal by submitting argument, evidentiary material, and cross-examining witnesses called by other parties." It is clear that the decision in that case depended upon its own particular facts and the statutory provisions that were relevant to the resolution of the issue which then arose for decision. Those provisions bear no resemblance to those in question in this case and the decision of the Supreme Court of Tasmania is learly distinguishable. In my view, it provides no support for the applicant's contention. Before leaving this aspect of the case I should, for completeness, mention that counsel for the applicant did not suggest - indeed. expressly disclaimed - that the evidence disclosed any circumstances peculiar to the applicant which Au would support an assertion that it had a "legitimate" or "reasonable" or "settled" expectation that no design and siting approval would be given in relation to Biock 14 without it being afforded an opportunity of making submissions in relation to the granting of such approval. Mo ay Maen i ame en ele eet In the result, I reject the applicant's contention that the Commission was bound, before granting design and afford it an opportunity to make submissions thereon. Environment Protection I turn now to the submission that the Commission, in connexion with the making of the decision of 19 November 1984, was required by law to observe the procedures approved under the Environment Protection act and that it failed to observe such procedures. That Act is described in its long title as an Act to make provision for protection of the environment in relation to projects and decisions of, or under the control of, the Australian Government, and for related purposes. Section 5 - provides: "G. (1) The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to - (a) +the formulation of proposals; (b)* the carrying out of works and other * projects; thot pee re fa, corms me ee ee cee teen ne ee et ted 50. {c) the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States); (ad) the making of, or the participation in the making of, decisions and recommendations; and (e) the incurring of expenditure, by, or on behalf of, the Australian Government and authorities of Australia, either aione or in association with any other government, authority, body or person. (2) The matters referred to in sub-section (1) extend to matters of those kinds arising in relation to direct financial assistance granted, or proposed to be granted, to the States." By virtue of sub-s.6(1), the Governor-General mav, from time to time, by order approve, and approve variations of, administrative procedures for the purpose of achieving the object of the Act, being procedures which are consistent with relevant laws, as affected by regulations made under the Act. Sub-section 6(2) lists a number of topics or matters for which the approved procedures may provide. They include the supplying to the Minister administering the Act of information for the purpose of consideration, by him or on his behalf, of the necessity for environmental impact statements (par.6(2)(a)) and authorising the Minister to direct the preparation or obtaining, and the submission to the Minister, of statements to be known as environmental impact statements (par.6(2)(b)). > a ee ee a te ee ee ee ee 51. Section 9? provides: "QO, Without prejudice to any right, power or duty of any authority of Australia, apart from this Act, to take into account matters relating to the environment in the exercise cf any power or function, the regulations may - (a) make provision for or in relation to requiring or permitting a prescribed authority of Australia to take into account, either generally or in accordance with the regulations, matters affecting the environment in the taking of any action or the making of any decision or recommendation; and (b) prescribing matters necessary or convenient to be prescribed as incidental to provision so made, including matters relating to procedures and times, and regulations so made have effect notwithstanding any other law." Fe me On 20 June 1975 an order was made under sub-s.6(1) of the Act approving administrative procedures thereunder (see Australian Government Gazette of 24 June 1975). Paragraph 1.2.1 of those procedures provides: "1.2.1. Subject toa these procedures, the action Minister, or a person on behalf of the action Minister, shall, as scon as possible after a proposed action has been first formulated, designate a person or Department as the proponent of the proposed action and shall ensure that the Department is thereupon informed of the proposed action and of the name and address of the person or Department so designated." Ae Ne tet eee eee ee ee 52. The expression "the action Minister" is defined in par.1.1, in relation to a proposed action, to mean the Minister of State responsible for the proposed action. The reference to "the Department" where secondly occurring is a reference to the Department of State administered by the Minister administering the Act. Paragraph 1.1 also provides that, in the procedures, unless the contrary intention appears, "proposed action" means a matter veferred to in any of the paragraphs of s.5 of the Act. "Responsible authority" is defined to mean, in relation to a proposed action, the authority of Australia by whom, or on whose behalf, the proposed action is to be executed. The remainder of par.1, par.2 and pars.3.1,1 and 3.1.2 provide: "1.2.2. In designating the proponent of a proposed action under paragraph 1.2.1, the action Minister, or a person on behalf of the action Minister, shall have regard to the general principle that, as far as convenient. the person or Department responsible for the execution of the proposed action should be designated as the proponent. 1.2.3. In relation to a proposed action to be executed by, or on behalf of, an authority of Australia, the responsible authority shall be the proponent of the proposed action and shall ensure that the Department is, as soon as possible after the proposed action has been first formulated, informed of the proposed action. 1.3. Before a proposed action is executed, the proponent shall do all things necessary to ensure that these procedures are complied with in relation to the proposed action. Meco ote ae) cote as Cn a ae epee ne ee eee ee Tan ae ee ee ee 53. Supplying of Information to the Minister 2.1, The proponent shall, as soon as possible after a proposed action has been first Formulated, supply to the Minister, through the Department, such information as is required by these procedures, or is otherwise necessary, for the purpose of consideration, by him or on his behalf, of the necessity for an environmental impact statement in relation to the proposed action. 2.2. For the purpose of paragraph 2.1., the information required by these procedures shall, to the extent appropriate in the circumstances of 'the case, be information - (a) summarizing any preliminary planning, consideration of work undertaken ain relation to the proposed action and, in particular, describing any feasible and prudent alternative to the proposed action considered by the action Minister or the proponent; (b) describing the environment that is likely to be affected by the proposed action and by any feasible and prudent alternative to the proposed action; (c) indicating the potential impact on the environment of the proposed action and of any feasible and prudent alternative to the proposed action, including any enhancement of the environment; (ad) describing any safeguards or standards for the protection of the environment intended to be adopted or applied in connexion with the proposed action; and (e) stating any investigations or studies intended to be made of the possible impact on the environment of - the proposed action. 2.3. For the purpose of consideration, by him or on his behalf, of the necessity for an environmental impact statement in relation »to a proposed action, the Minister, or the Department on behalf of the Minister, may require the proponent to provide, within a reasonable period, such other information as is specified and is necessary for that purpose, a me en en. 54. Reauirement for Environmental Impact Statements - 3.1.4. Subject to the Act and these wrocedures, the Department shall. as soon as possible after the information referred to in paragraph 2.1., and any further information required under paragraph 2.3., has been received in relation to a propased action - (a) determine, on behalf of the Ma2nister, that the preparation or obtaining, and submission to the Minister, of an environmental impact statement in relation to the proposed action is not gequired for the purpose of achieving the object of the Act; or refer the question whether the preparation or obtaining, and submission to the Minister, of an environmental impact statement in relation+to the proposed action is required for the-~~ purpose of achieving the object of the Act to the Minister who shall forthwith~ determine the question and shall make a direction accordingly. o 3.1.2. Subject to the Act, the Minister, or the Department on behalf of the Minister, shall, in making a determination under paragraph 3.1.1., take into account whether the proposed action may result in ~ fa) a substantial environmental effect ona community; (b) the transformation of a substantial area; . {c) a substantial impact on the eco-systems of an area: {d) a significant diminution of the aesthetic, recreational, scientific or other environmental quality, or value, - £ an area; (e) an adverse effect upon an aréa, or structure, that has an aesthetic, anthropologic, archaeclogic, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations; we ee ee et ek ee ee Ce een ei eee ee ease toe ne ee ee ee ee i te ne 55. (f) the endangering, or further endangering, of any species of fauna or flora; fo) important long-term effects on the environment; (h) the degradation of the quality of the environment; (i) the curtailing of the range of beneficial uses of the environment; (j) the pollution of the environment; (k) environmental problems associated with the disposal of waste; or (1) ancreased demands on natural resources which are, or are likely to be, in short supply." . Tt is common ground that the administrative procedures approved under the Act were not followed in connexion with the making of the decision of 19 November 1984 giving design and siting approval to the proposed development. In particular, the Commission did not give notice to the Department of State administered by the Minister administering the Act that it had before it the application for approval and it provided no unformation to the Minister in relation thereto. The issue that arises for decision is whether the Commission was required by law to follow those procedures in connexion with the making of the decision. The effect of the applicant's argument, if accepted, would be that no decision could be made by the Commission under s.6 of the Design and Siting Ordinance, whether to give or pratt - ene ve + es 56. refuse agcproval, until the prescribed information in relation to the application for approval was provided to the relevant Department and a decision made by the Minister or the Department whether or not an environmental impact statement _ should be prepared. This would be the position unless the Minister were 'to exercise the power given to him by par.11 of the procedures to exempt a proposed action, or a class of proposed actions, from all or any of the requirements of the procedures. The requirements that the Commission give notice to the relevant Department and provide information to the relevant Minister were said to arise from pars 1.2.3 and 2.1 of the administrative procedures. Those requirements are imposed on the "proponent" of the proposed action. In relation to a decision under par.6(1l)(a) of the Design and Siting Ordinance, the Commission is said to be the proponent by reason of the provisions of par.1.2.3 of the administrative procedures. No other basis for that conclusion was suggested. The applicant's argument focused on the definition of "proposed action" in par.1.1 of the administrative procedures, a definition which brings within the concept a matter referred to in any of the paragraphs of s.5 of the Act. One of those Paragraphs, par.(1)(d), vefers, inter alia, to the making of decisions by, or on behalf of, an authority of Australia. The Commission is clearly such an authority so that, according to en ne ne ee a ant en = - we ee See 57. the arguiuent, the Commission is the responsible authority in relation to the making of the decision and the proponent QW thereof (par.1.2.3). There are very substantial textual difficulties in reading the administrative procedurés in the manner contended for by the applicant. Some of those difficulties arise from the use of the words "executed" and "formulated" in relation to a proposed action consisting in the making of a decision. In what respects can it properly be said that the making 'of a decision is "to be executed by, or on behalf of. an authority of Australia"? How does one identify the point of time referred to as the fime when the making of the decision was "first formulated". It is even more difficult to answer those questions if the relevant part of par.5(1)(d) of the Environment Protection Act were that which refers to the participation in the making of decisions and recommendations by, or on behalf of, an authority of Australia. There are further difficulties when one contemplates the Eind of information which the Commission would be required to furnish if the procedures apply in a case such as the present (see par.2.2 set out above). Counsel for the applicant acknowledged the textual aifficulties in reading the procedures ain the manner he proposed. He submitted. however, that, as the expression "proposed action" as defined clearly includes a matter referred ae ne a te te be te te ee . ore Ve Wee + ' RYN on ny reat ree eee RO err ne ene . oof .oon~ me ee ee er es ae tl Ne ee teed AD on ee ee ee ey 58. to in par.5(1)(d) of the Environment Protection Act, the Court should give effect to the definition and, as he put it, "do the i best it can with the procedures". It may well be, as counsel for the Commission ' submitted, that par.5(1)(d) of the Environment Protection Act is, in its context, to be given a more limited interpretation than its language would, at first blush, suggest. indeed, there ig much to be said for the view that par.5{1)({d) and, indeed, Par.S5¢li(e}, which refers to the incurring of expenditure, are to be read as limited in their application to . the kinds of situation envisaged in the-earlier paragraphs of the sub-section. I have not found it necessary ta resolve this question Tor I have reached the conclusion that the administrative procedures, notwithstanding the width of the definition of "proposed action" which, it may be noted, is to apply only unless the contrary intention appears, do not apply to the making cf a decision by the Commission upon an application under par.6(l)(a) of the Design and Siting } Ordinance. To my mind, the textual difficulties to which I | have referred compel this conclusion. There is, I think, a further consideration supporting that conclusion. That consideration is to be found in sub-s.6(2) of the Design and Siting Ordinance restricting the circumstances in which the Commission may refuse an application under par.6(1)(a) to the case where it is satisfied that to do poet mee ee ey ey yee te a pe eee om wry cnt, seo oy a Pe ' 39. #0 ig necessary for the purpose of securine the carrying out or observance of the policies of the Commission with respect to the planning and development of the City of "Canberra.* In the absence of regulations under s.9 of the Environment Protection Act, ané@ it is common ground that there are none relevant, the Commission is under no obligation to give effect to the matters which may be stated in an environmental impact statement. Unless the statement contained material showing that the proposal was not consistent with the Commission's policies with respect to the planning and development of the City of Canberra, it would be totally irrelevant to the exercise by the Commission of the power conferred upon it by par.6(1l)(a) of the Design and Siting Ordinance. But even if it did contain such matter, it would be for the Commission, not the authors of the statement, to determine the accuracy and relevance of that matter and the effect which should be afforded to it. If, therefore, the administrative procedures have the effect contended for by the applicant, they would seem to he inconsistent with sub-s.6(2) of the Design and Siting Ordinance. Reference was made to a handbook prepared in February 1976 for project officers of the Commission in relation to the requirements of the Environment Protection Act. t was submitted for the applicant that the language of the handbook is not limited to those situations in which the Commission is the actual developer and that this circumstance supported the wre pr sen ges rs aang av eee ary ee pe So te re OM eee ae ee mae ee eee 5c. widctr proposition for thich the applicant contended. In ny Opanion, the handbook is of no assistance in resolvine the quesiion whether 'the Commission was, in relation to the decision of 19 Nevember 1984, bound, as a matter cf law, to comply with the administrative procedures to which reference has been made. For the reasons set out above, lorefect the applicant's challenge to the Commission's decision of 19 November 1984 in so far as the challenge is based upon the administrative procedures approved under the Environment The 'first of the other orounds upon which the applicant relied to establish that the making of the decision of 19 November 1984 was not an accordance with law was that the decision-maker. Mr Gilchrist. had given no separate and Centre Policy Plan or to the non-mandatory provisions of the redevelopment conditions approved on & Gctober 1984 and had. in fact, abrogated his @ecision-mzking responsibility under the Desiaqn and Siting In the alternative, it was submitted that in the Jecision-makina srocess there was & 'Failuré to take inte . YS Aveo PS ea a v = cee es eee RH ne ceed Ant Re ee it ot accoumt relevant congziderationa, namely the likely dlmpact cf the proposed develcpment on the environmental amenity of the area and the need for an harmonious relationship between buildings on adjacent sites including a respect for the design character of adiacent buildings and a respect for the uses of neighbouring buildings in terms, inter alia, of wind and sun. It was also submitted that an irrelevant consideration was taken into account in that encouragement of redevelopment £ the Towri House Motel site was wrongly regarded as a relevant matter. It was also said that there was a departure from the requirements of the Civic Centre Policy Plan in that a standard of assessment was applied in testing the amenity of the proposal in regard to the existing Town House Motel which was a lesser standard than that which the Plan required, namely that appropriate to a commercial area. Anether ground relied upon in the amended application was that the decision was made in accordance with a policy without regard to the merits of the particular case. This ground was not, however, developed and need not be further considered. In order to consider the applicant's submissions it is necessary to refer to the evidence given by the officers of the Commission in relation ta the formulation and approval of the redevelopment canditions and the qiviny of design and siting ouae omy eT eae he iN F waa, pn ot wee ee na remese age a a Poy . , i . ed ~ eS ee ee ere cee ee ee ee et ee ee ee 62. approval. The witnesses were Messrs Campbell, G2ilchrist and O'Brien, I regard each of _them as a truthful and reliable witness. Miss Freeman, who was also concerned in those aspects of the matter, did not give evidence and no explanation was offered for her absence, 'Hewever, I do not regard her absence from the witness box as being of any significance. Mr O'Brien was at the relevant time the section head of the Canberra Central Section of the Town Planning Division of the Commission, having held that position for approximately three years. In that position he had a supervisory role in respect of all the town planning work of the Commission in inner Canberra and, in particular, was responsible for dealing with all design and siting applications under the Design and Siting Ordinance in relation to that area. Prior to holding that position he had had responsibility for a smaller geographic area but an area which included the City Centre. Mr O'Brien traced in some detail the history of the Commission's involvement since November 1983 in the proposals for the redevelopment of Block 3 (now Block 14). I have already veferred generally to that history and to the circumstance that, as a result, of the negotiations which had taken place, the general parameters of a development proposal that was likely to meet 'the needs of the developer and the requirements of the Commission had emerged. Mr O'Brien was, bP '5 cr himselr, actively involved in the negotiations that took place, ropes sats wees cere wt ee a i ee et ae et eet 63. these neactiationse involving consideration of the provisions contained in the Civic Centre Policy Plan. As has been previously mentioned, redevelopment conditions in resvect of the block were prepared by Miss Freeman. They were then placed before Mr O'Brien for his considération. I accept his evidence that he checked the proposed conditions "to satisfy himself that the provisions in all respects of the Civic Centre Policy Plan had been met". In particular, he checked that the redevelopment conditions were consistent with the land-use, transport and townscape policies to be found in the Policy Plan. Mr O'Brien said, and again I accept his evidence, that he considered that the redevelopment conditions were such as to ensure that a building built in accordance with them would conform with the design character of adjacent and neighbouring buildings, particularly those on blocks which had been, or were an the course of being, redeveloped. He recognised that the proposed design would not in any way match or directly relate to the design of the Town House Motel. He took the view that it was not possible, consistently with what was contained in the Policy Plan, to have a building on Block 14 which would directly relate to the design of the motel. However, given the design features of. the motel, he was satisfied that the proposed development would relate satisfactorily to it. ; a ae ' ee er ane ' 64, Mr O'Brien said that he gave particular attention to the design and treatment of the western elevation of the building proposed for Block 14. He considered, and his view was confirmed in discussion with Mr Campbell, that the wesrern facade, which was to be sited on the boundary, should not have any windows and this for two reasons. The first reason was Chat it would ensure that the building proposed for Block 14 would not overlook the Town House Motel. The second was to ensure that, in the event that redevelopment of the motel site was desired Dy the lessee thereof at some time in the future (with' the possibility of the motel site being increased in size by siting the northern boundary closer to Barry Drive), the constraints on that redevelopment which might arise from the presence of windows in the western elevation would be removed. It was also considered that the western facade should be treated in a manner which did not look unfinished. This is reflected in the redevelopment condition that requires the facade to the western boundary to be designed to complement the remainder of the building and to have a strongly modelled elevational treatment. He said that, although there was nothing in the Policy Plan that required the western elevation to be sited on the boundary between Blocks 13 and 14, to have the proposed building abut that boundary would accord with the Commission's preferred objectives in the commercial area of which Section 23 formed a part. | t { i| r t f | i ve wes «a Mate --eee ete esa poe ' oa cero 65. In considering the redevelopment conditions Mr O'Brien gave consideration to the effect the proposed building would have on the amount of sunlight reaching the Town House Motel. He did riot orepare a shadow diagram to demonstrate the effect the proposed building would have but concluded, from his experience, that, while there would be some curtailment of unlight early in the morning, the effect would not be un sufficient to cause a problem or to warrant a change in the proposed conditions. 50 far as wind turbulence is concerned, I find that Mr O'Brien did not specifically turn his mind to a consideration of the effect the proposed building would have on>- wind turbulence iri the immediate area. He did not do so because, xperience of building in the central 1] from his knowledge and area of Canberra, he believed that it was only in the case of tall buildings, by which he meant buildings of ten or more storeys, in close association with extensive pedestrian or open areas that problems with wind turbulence had been encountered. T He was aware that such circumstances could give rise, to uncomfortable wind conditions but he said: "T know of no circumstances over a good number of years in Civic where there had been problems related to medium rise developments like a six-storey development. " . Mr O'Brien also said that the other matters referred to in the Policy Plan to be taken into account in relation toa ayes eve), weep = te eae - + "- Bg Te on ert ene ea eee Breen cette meee ee mee a noose ne ne en a ON Sea 65. the likely impact of the proposed development on the neighbouring uses, namely light, sound and smell were not regarded by him as being of any particular significance in the Q m ca) a s f- the proposed development on Block 14 s0 as to require ecific consideration. u we) Ms Gilchrist was at the relevant time the Director of Tow Planning with the Commission, having held that position since 1975. Prior to that he was the senior town planner with the Commission. Having received the submission recommending approval of the attached redevelopment conditions, Mr Gilchrist discussed the matter with Mr O'Brien. Upon an examination of the redevelopment conditions, he concluded that they were consistent with the Civic Centre Policy Plan with which he was familiar. Having satisfied himself, particularly by discussion with Mr O'Brien, that there were no matters other than those mentioned in the submission that required special attention, he signed the submission supporting the recommendation and rorwarded it to Mr Campbell, the Chief Planner of the Commission. He agreed that he did not give specific consiceration to the effect the proposed development would have on wind conditions. Mr Campbell had held the office of Chief Planner since August 1978. He gave evidence that it was his practice, upon receiving a submission recommending the approval of redevelopment conditions, to call in the staff concerned with sro A ee ee - oe oate wees Fe ee ee en ee ee etl cet arene — oe the matter and discuss the zubmission with them. He could not recall whether, on this particular occasion, he called in Miss Freeman or Mr O'Brien or both of then. A discussion did, however, take place. He went through the conditions and assessed them against the Civic Centre Policy Plan. He satisfied himself that the proposed redevelopment conditions were consistent with the pelicy statements published in the Policy Plan on the topics of land use, transport and townscape. He also satisfied himselrt that the conditions proposed were consistent with what had been approved for other buildings erected or to be erected on blocks in Section 23 shaving. frontages to Moore Street so that the proposed development would lead ta a number of buildings of similar height and having aciose relationship one to the other. Further, he satisfied himself that the proposals were consistent with the Commissicner''s policy on car parking - a policy to be found elsewhere than in the Civic Centre Policy Plan. Mr Campbell also said that he was conscious that the design of a six-storey building on Block 14 would have a character in terms of design guite different 'from that of the Town House Motel. He was, however, also conscizsus that approval had been given for 4 commercial office building to be erected on the block to the south-west of the Town House Motel and that that building was of comparable height to the proposed building on Block 14 although set back some distance from the boundary between its site and that of the motel. He added: we rere ree ee ta 68. "I was therefore satisfied that if the section proceeded, that is all blocks in the section proceeded through redevelopment, that [Esicl we would «et a satisfactory solution in that the buildings would have met the policies in here [referring to the Policy Plan] and that the Town House Motel will be framed with a building to the south-west anda building to the north-east that were similar in scale." The witness said he also sought an assurance that the effects of sunlight and shadow on the motel had been considered and was assured that the impact was such that it could be regarded as satisfactory for a building in a commercial area. He had no recollection of having asked about the effect of the proposed development on wind turbulence. He said that in his experience the development of a number of six-storey buildings in a section would not lead to major wind effects. He directed attention to the fact that the reference in the Policy Plan to the ffect of buildings on wind turbulence is expressed in terms of tall buildings, not six~storey buildings. In this context, Mr Campbell regarded @ tall building as one not less than ten storeys in height. He stated that there was no feature of the proposed development on Block 14 that suggested to him that specific consideration should be given to wind conditions. rn. facade of any building to a te The question of the west be erected on Block 14 was also discussed. Mr Camphell said: a agence Se eee ee ee ee ee . 69. "The question of that facade which was discussed was that that building can stand independently on that western boundary, of over time there may be redevelopment of that townhouse block, so that that particthlar boundary of the site and the wall that is on it has to be designed so that initially it could be observed and later other buildings could be placed against it." Having satisfied himself on these matters Mr Campbell approved the redevelopment conditions. Wuen 'The application for design and siting approval was referred to the Commission with its accompanying working drawings, Mr O'Brien satisfied himself that the drawings met the redevelopment conditions. The application was then referred to Mr Gilchrist who made the decision of 13 November 1984 approving the application and the working drawings. He said in evidence that, having received the submission recommending design and siting approval to the proposed development on Block 14 together with the working drawings in respect of the proposal, he looked at the redevelopment conéitions which had been approved on 5 October 1984 and which he had previously examined. He then called in Mr O'Brien and Miss Freeman and went through the project assessment sheet with them. He satisfied himself that the assessment sheet tas correct and that the drawings were in accordance with the redevelopment conditions. He agreed that he did not take into account anything in relation to the effect which the proposed building might have on wind turbulence in the surrounding area. He said that, from his experience, he would only have been 2 pee nee ve tr rn 70. concerned about wind turbulence if the building had been of 14 or 15 storeys. In cress-examination Mr Gilchrist said that, in dealing with the application for design and siting approval, Th his concern was to see that the working drawings were consistent with the redevelopment canditions. He explained that the requirements of the Civic Centre Policy Plan had been taken into account in the preparation of those conditions which, as I have gaid, fellowed the discussions which took place between the developer and officers of the Commission @uring the latter part of 1983 and during 1984. In support of the contention that Mr Gilchrist had abrogated his decision-making responsibility, the applicant submitted that, in exercising the discretion conferred bv par.6(l){a) of the Design and Siting Ordinance, it was necessary that the design and siting of the proposed building be considered anew, regardless of the previous history, taking into account the matters referred to in the Civic Centre Policy Plan and any redevelopment conditions that had been Getermined in respect of the site. It was submitted that the -decisicn-maker, Mr Gilchrist, did not ask himself, as he should have done, whether the design of the proposed building was appropriate and whether it was sited in an appropriate place on the site. It was said that he confined his consideration of the matter to the question whether the proposal was consistent aera . - ve wort. abe soma ee enn wire eet te td " we TE TES ST erence neg ore oer © ee, 71. with the redevelopment conditions. In particular, i1t was said that he did not consider the effect of the proposed building on wind turbulence or the relationship of the proposed building to the Town House Motel site. It was further submitted that the decision-making process had miscarried because Mr Cilchrist had not had drawn to his attention, by way of a written or oral report of his subordinate officers who had been concerned with the matter, all material and objectively relevant considerations. rS I am unable to accept that submission. The discretionary power arising under par.6(1)(a) of the Design and Siting Ordinance is vested in the Commission and it cannot have been the intention of the legislature that the Commission should itself conduct the necessary inguiries to satisfy itself, in terms of sub-s.6(2) of the Ordinance, whether approval should be granted cr refused. It might act through its officers. Its officers, having made those inquiries, might then make recommendations to the Commission and it would be open to the Commission to act upon such recommendations and reach a decision without having examined and assessed for 1tself the material which was before its officers. But in so acting the Commission would be taken to have adopted any errors made by its officers. If what its officers did was contrary to he legal principles applicable, the decision of the Commission would be egually tainted. . qawotnee In the circumstances of this case Mr Gilchrist was entitled to exercise the powers of the Commission. But the circumstance that he was acting as a delegate of the Commission dees not, in my view, require that he be placed in any dirtferent position from that occupied by the Commission. It was, sO it seems to me, apen to him ta act upon the materia put before him by the officers of thé Commission more directly involved than he in assessing the proposed development against the policies enshrined in the Civic Centre Policy Plan and translated, so far as material, into the redevelopment conditions. It is also not unimportant to recall that Mr Gilchrist was familiar with the Civic Centre Policy Plan and 'had himself been involved in the process of approving the develcpment conditions. Upon the evidence before me I am satisfied that Mr Gilchrist exercised an independent discretion in the matter and formed the view, in terms of sub-s.6(2) of the Ordinance, that it was not necessary to refuse approval to the design and w siting applicaticn for the purpose of securing the carrying out or observance of the policies of the Commission with respect to the planning and development of the City of Cariberra. T turn, then, to the question whether in the decision-making process there was a failure to take into account any relevant consideration. As already mentioned, the matters relied upon by the applicant - may be summarised as a Byte eye ene re pe go Ty Ln sya otergs een ree wee ws aM Tailure to take into account the likely impact of the proposed "ih development on the environmental amenity of the area and the need for an harmonious relationship between buildings on adjacent sites including a respect for the design character of adjacent buildings and a respect for the uses of neighbouring buildings in terms, inter alia, of sun and wind. The submissions put on behalf of the applicant on this aspect ort the matter concentrated attention on the consideration given toa the application for design and siting approval by Mr O'Brien and Mr Gilchrist divorced from the previous history. But the sufficiency of what was done at that stage must be seen against the background that, . during the lengthy period of negotiation between the developer and the Commission prior to the redevelopment conditions being drafted and approved and in the consideration by the various officers concerned of the draft conditions, the Commission's officers had satisfied themselves that the proposed development as shown on the final set of oreliminary sketch plans was consistent with the requirements of the Civic Centre Policy Plan. The officers of the Commission who dealt with the matter were very familiar with the Policy Plan. Their concern was to ensure that approval was given only if there were consistency between the proposed development and the Commission's policies with respect to the wvlanning and development of the city. I am satisfiec, on the evidence, that Qe eee cee er ee 74, the officers concerned gave consideration to the relationship between the proposed development and the Town House Motel and conciuded that that rélationshizp would be satisfactory. Particular attention was given to the western facade of the progesed building. I have already referred to the evidence in that redard and the redevelopment conéition relating thereto and I need not repeat it. There is evidence that, in the course cf considering certain of the preliminary sketch plans made available during the negotiations with the developer, the view was expressed by certain officers of the Commission that it was desirable, in order better to integrate the proposed development with the Town House Motel, that the western facade be designed so as to provide a set back from the boundary over part of its length art of the height of the building. This proposal was u and for p b suggested by Mr dohnston, a town planner employed by the Commission, Miss Freeman and an identified officer employed in the Chief Architect's | Division. An indicative drawing was prepared and this was seen by Mr O'Brien. The proposal was, however, not further considered and all subsequent sketches and basis that there would be no get back, ITe drawings were on th partial or otherwise, from the western boundary. Counsel for _the applicant relied on this material as showing that a relevant consideration, namely the siting of the western * facade, had not been given contideration in the decision-making process leading te the decision of 19 Nevember 1984, — as porn lee Be eR op mene eee, map re on i 75. It way well be that a building set back from the western boundary of Block 14 would have been consistent with the policies set out in the Civic Centre Policy Plan, although Mr Campbell and Mr O'Brien both said that the Commission's preferred option was for no set back at least at the street frontage But be that as it may, the circumstance that the suggestion for a set-back was not further pursued does not, so it seems to me, warrant the conclusion that there was a failure in the decision-making process to give proper consideration to the relationship between the proposed development and the Town 10] so far as the likely impact of the proposed development on the Town House Motel in terms of sun is concerned, I am satisfied that this aspect was properly considered by both Mr O'Brien and Mr Campbell in the course of considering the redevelopment conditicns and that there was nothing in what occurred subsequently to require the matter to be reconsidered before design and siting approval was given. So far as the likely impact on the Town House Motel in terms of wind 1s concerned,- che experience of the Commission's officers, and it was not inconsicerable, was that the erection of a medium rise building on Block 14 was not likely to give rise to any serious problem either in the pedestrian areas or for adjoining blocks. In this connexion it is to be noted that te teat Qe ee te ee ee al tn lt el a ll te tenet dee oe in sehaticn tc wind effects - 2t simply identifies wind as one of the matters that may be of siaqniticance in considering the nmpact of a development proposal in relation te neighbouring uses. Theré was nothing in the material before the Tomrissicn's officers which suggested that investigation of the likely wind eflects was necessary or desirable. Professor WLR. Melbourne on benalf of the appli standards. Those erit being the hnishest wind spe a) a roy mh Wwa a Dd cr a mh ct ty m tr? th a w@ re '< vy ich are now well réecoanis jog thicucghout the vear and beine ca Evidence was given as to the likely wind effects by cant and Dr J.d he Commission. Professor Melbourne made nvironmental wind conditions about north-east corner of the Town House Motel with the proposed elopment on Block 14 in place. He made this assessment hout the benefit of wind tunnel tests and against criteria comfort which he had himself developed some years age and da as providing appropriate ov were explained by Dr Finnigan as gu el wt based on the probability that the annual maximum wind st will be within certain limits, the annual maximum aust ver anv three second oY fu fum te sv 'Q sf) nm culated from measured of wind behaviour. The four criteria adopted by Professor Melbourne state that in main public acceées-ways wind conditions sa So pyre ves my me" Wr Age Ste eee eee ee eee ie y pace wees we SO mar ee . SO rete = we eo owe 6 meee — owe oe . eee om a hee ee ent entertain ater a ee We et 6 3 77. "ai completely unacceptable if the annual RAZiMuM Fust exceeds 23 meztres per second: (b> Generally acceptabie if the annual maximum cust does not exceed 16 metres _! per second; {co} generally acceptable for stationary short-expesure activities (window shopping, standing or sitting in plazas) if the annual maximum qust does not excesd 12 metres ver second: and {ad} qenerallv acceptable for stationary, long-exposure activities (outdoor restaurants theatres) af the annual naximum gust does not exceed 1060 metres per second. ha i a uw mnig te] er Professor Melbourne agreed that his a been superseded by Dr Finnigan's réport which was an assessment inferred from wind tunnel tests which had been carrieé out at his, Dr Finnigan's. direction, The tests were carried out on e three scdel confiaurations as follows - Cenficuration Cl: The buildings present were the Towr House Motel, the CWA rooms and the Polish Ex-servicemen's Club as they formerly existed. and the newly constructed buiidines on the remaining block: in Section 23. Confieuration C2: As in Cl except that the old CWA rooms and the Pslish x-servicemen's Club were replaced by the proposed developments on those sites. Conficussation T2: Ags in C2 except that the approved three-storey extension to the Town. House Motel was added. Dr Finnigan set out the results of his assessment in table a >. gu Se shower { Rote Tt ~ . © rofecsar a's hich BOWES, am 2SSbecu or each of Professce Melbourne' = in i . ser RAN See eleeadin resntaceenematl ketal te ' oe Ey 29 mss 13 ms 16 m/s eed the model House Gevelopments on Polish Motel in the probability of 78. ' a the occurrence of & gust of three uratio exceeding that criterion. The table, which report date@ 15 October 1985, shows: ' Confiquréageticons CL C2 c3 hess than once Once in Less than cnce 1M Six months two Weeks per month Less than once Once in Once per year per year. three months Less than once Once per Less than once per yeac year per vear Less than once than once Less than once Dy Fannigan summarised tests showed that, their Ex-servicemen's configuration prior to Biock 14 ané Club for environmental comfort for yr year per year his assessment by stating that with the buildings around the Town the proposed the adjoini block on which the had been sited, Professor long tern stationary activity is exceeded; that the erection of the proposed develorments makes things somewhat worse in that Frofessors Melbourne's criterion for environmental comfort for o atpeen remem nee three-storey extension to ity is just e¢xceeded: but that the back close to their state and the Polish Ex-servicemen's the Town PELL. ~~ ' . . ' \ * ' 72, i. I. Thave siréadvy referred ta the ecircoumetance that the " Civic Centre Folicy Flan doeés not lay Gown any criteria or : standar2c in relation to wind effects but simply icentifies ve wind as one of the matters that may be of significance in . considering the imeact of a development proposal in relation to fF nelahbou: ing uses. The Flam comprises general quidelines and ' t Dproad statements of planning policy as a basie for making 7 decisicns abcut development., Tn stating that the flannins ( considerations will include the likely impact of the provosed development on the neighbouring uses in terms of wind. sun. fey ete | eal pe yey La ct . Li] o Spay) on ty fu ©on) bw j-! . ct bow ot) sas) ra) fv oa } an a he fai) rf at fa ¢ He] o ct I. bo] cr ad ban) fu bh Hn] 'Q ct ict vy oa list of subjects which must be separately and ~- specifically addressed in relation to each application for pe ie allie Mitel tiiel PP desian and siting approval. In considering such an e application, it is a matter for those concerned in the appropriate wind tunnel tests to be carried cut and the results thereof to be expertly assessed. i a In essence, the case for the applicant on this aspect . : nee Va ek _ ee L of the matter Gepends upon it being established that those % iz -, 27 te ' ; ' . 1 {- * 80. le b cemeerned in reaching a decision on the application for design " wera: rea ed avrange for wind tunnel tests tc be carried out and the results : ' — 8 thereof to be evaluated. Uniess such steps were taken, the [ decision-maning precess was said to be vitiated because of a L: failure to take into account a relevant consideration. I. In wy opinion, a consideration of the material before i the Court - inclucing particularly the table prepared by Dr ~ Finnican and set cut above - does not warrant the conclusion ° : that the effect of the proposed development on wind environment . . F conditions in relation ta the Town House Motel was likely ta be bs be of such significance in the decisidn-making process that those io ' concerneé in that wbrocess were bound to act in the manner ke suggested. Not being so bound, it cannot properly be said that © there was a failure to take into account & relevant ( consideration ane the applicant's case on this aspect, therefore, fails. 7 The vsmaining matters upon which the applicant relied may be dealt with quite shortly. Tam wnabie to accept that we officers concerned in the decision-making process wae toneerned to encaourace the redevelopment of the Town House Motel site. ao is true that they tock into account. wa mt m a Ts oO the wh a ot c bh roy "i Ss re] + cr Lact b iT Lad to tr, otnm s ray we % {- led Ee wi ty ec] ft ou it fe actct tm wh rt rs ig] Qo o ib - ron a a] ry) ct re G Ma] o Fh ct re i) 2 TFT TE ee raves - . - - : - 7 - _ . tee ee ee ee _ loam aise unable ¢ accept the arqument that in ensiderirg the amenity between the proposed building and the Town House Motel a lesser standard than that appropriate to a commercizl area was applied. The evidence does not. in my opinion, previde any foundation for that eubmizaion. No + ra a - i . ur c we fu i] ad a) ct Q re) a ct hy 1M i] om Cc Han t mo pa) ct i) ia) FA concerneé with the mat the Civic Centre Policy Flan in any relevant respect. Iodeferred consideration cf the question whether the applicant was a person aggrieved within the meaning of that expression in s.5 cf the Judicial Review Act until after I had considered the substantive matters relied upen by the apolicant. In the light of the conclusions te which I have come on those matters. it is unnecessary to consider further the yuestion of the applicant''s standing to bring this proceeding. Whether, if the Court had been cf opinion that the had sstablishec ai around for relief, th Cour Vv a rep ee ad tng nee ee ™) pr: planer ieee g2 che exercise of its discretion, decline to afford velier wat the subject of a qcod deal of evidence and gsion during the'course of the proceedings, particulariv ehaif of the second and third respondents. As the cant has failed on ali the grounds taken. the question not now arise and I say nothing further about it. Yor the vexeons FT have given, the application should enuiised. The applicant must pay the respondents' costs of priication. I certify that this and the preceding 81 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Yon Mee sociate Dated: 11 December 1985 tee n TS ea ot — dine hoadataaren taeneheee Ta 28 eee ety