On 5 March 2015, the ACT Court of Appeal handed down its decision in the matter of Baptist Community Services v ACT Planning and Land Authority & Ors [2015] ACTCA 3. The decision concerns a development application lodged by Baptist Community Services (BCS) with the ACT Planning and Land Authority (ACTPLA) for approval to demolish Morling Lodge, an aged care facility in Red Hill, and build new independent living units on the site. The development application was assessed in the ‘merit track’ and was refused.

BCS then instituted proceedings for review by the ACT Civil and Administrative Tribunal (ACAT). ACAT upheld the decision of ACTPLA, and BCS appealed to the Master of the ACT Supreme Court, arguing that ACAT had erroneously seen itself as obliged to affirm the refusal of the proposal purely because it did not meet one or more of the zone objectives in the Territory Plan. The Master held that ACAT did not take that view. BCS then appealed the decision of the Master to the Court of Appeal. The appeal was allowed, and the decision of ACAT was set aside. The matter was remitted to ACAT to deal with the application in accordance with the Planning and Development Act 2007 (ACT) (Planning and Development Act) and the Territory Plan, having regard to the views expressed by the Court of Appeal.

The key points coming out of the Court of Appeal’s decision are as follows:

  • For ‘merit track’ proposals, compliance with the code is a necessary condition for merit track approval, however it does not guarantee approval.
  • Section 120 of the Planning and Development Act confers discretion on ACTPLA to either approve or reject a code-compliant development application. ACTPLA may exercise this discretion only after it has considered the matters set out in section 120, including applicable zone objectives.
  • ACTPLA has discretion to either approve or reject a development application where it is inconsistent with a zone objective. Section 50 of the Planning and Development Act does not require the rejection of proposals that are inconsistent with zone objectives. The role of zone objectives in the Territory Plan is to provide general instructions for the preparation of the code, and a test for the validity of that code. Section 53(1) of the Planning and Development Act does not mean that zone objectives set out the policy outcomes to be achieved by applying the code to a proposal, although a zone objective may incidentally be an instruction to a person interpreting a code for the purpose of applying it to a proposal.
  • RZ1 (suburban zone) zone objective (a) is to ‘create a wide range of affordable and sustainable housing choices within a low-density residential environment to accommodate population growth and meet changing household and community needs’. The Court held that this objective does not require that a development be ‘low-density’. Instead, ‘low-density’ is the description that the objective gives to the ‘residential environment’ in the zone. The objective therefore does not contemplate a development that would change the character of the residential environment so that it was no longer a ‘low-density residential environment’.

Applicants should therefore be aware that inconsistency with zone objectives is not fatal to a ‘merit track’ development application, however, equally, this may form a basis for rejecting a proposal in ACTPLA’s discretion.