Background
In this case the applicant sought review by ACAT (‘the Tribunal’) of a decision by the ACT Planning and Land Authority (‘ACTPLA’) to approve a Development Application (‘DA’) for land adjacent to the applicant’s property. The applicant was concerned that the construction of a two-story block of units on the land would infringe her privacy as the upper floor units would overlook her property.
ACTPLA argued that the jurisdiction of the Tribunal to hear the matter was limited by s 121(2) of the Planning and Development Act 2007 (ACT) (‘the Planning Act’). Section 121(2) provides that:
If there is a right of review […] in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—
(a) the development proposal is subject to a rule and does not comply with the rule; or
(b) no rule applies to the development proposal.
The Tribunal considered that ACTPLA’s arguments regarding the operation of s 121(2) of the Planning Act also raised questions about the operation of the HRA; of particular relevance were the right to privacy in s 12 HRA and the right to a fair trial in s 21 HRA (at 28-29).
The Human Rights Commissioner assisted the Tribunal as amicus curiae but decided not to intervene under s 36 HRA (at 31).
Decision
The Tribunal confirmed ACTPLA’s decision to approve the DA. It considered that s 12 HRA was not engaged, and that while s 21 HRA was engaged, it had been subject to reasonable limitations by s 121(2) of the Planning Act.
Reasoning
The Tribunal considered that it was a public authority within the meaning of s 40 HRA, as it was it was ‘acting in an administrative capacity by standing in [ACTPLA’s] shoes’ (at 34-35). The Tribunal noted that, as a public authority, it would be unlawful for it to make a decision without giving proper consideration to relevant human rights contained in the HRA (at 28). The Tribunal considered that in order to fulfil its obligation under s 40B HRA, it had to interpret the Planning Act pursuant to s 30 HRA (at 36). Section 30 HRA states:
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
The Tribunal adopted the Court of Appeal’s approach to s 30 HRA in R v Fearnside and followed by Refshauge J in Hakimi v Legal Aid Commission (ACT), that is, interpretation involves considering three steps (at 38):
1. Whether the legislation engaged a human right.
2. If yes, whether the legislation was a reasonable limit under s 28 HRA.
3. If no, whether the legislation was capable of being (re)interpreted in accordance with s 30 HRA.
Step 1: Does s 121(2) of the Planning Act engage s 12 and s 21 of the HRA?
s 12 HRA right to privacy
The Tribunal found that s 12 HRA was not engaged. The Tribunal considered that s 12 HRA only prohibits unlawful or arbitrary interference with a person’s privacy, family or home. It concluded that there was ‘nothing unlawful about the use of a building which has the potential to overlook another and unless constrained by law, the owners of a property have the right to develop and use the property as they think fit.’ It also considered that a decision which falls within the scope of s 121(2) of the Planning Act was not arbitrary because the issue of privacy had been considered in the relevant planning codes (at 49-51).
s 21 HRA right to a fair trial
Section 21(1) HRA provides that:
Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
‘Rights and obligations recognised by law’
The Tribunal noted that ‘in deciding whether the right to fair trial is …engaged … it must be determined whether the applicant has “rights and obligations recognised by law” (at 52). The Tribunal considered that there were three possible bases from which to conclude that the applicant, as a third party objector, could assert a substantive right which engaged the right to a fair trial in s 21 HRA (at 57):
1. The ACT Court of Appeal had expressly recognised that the right of a third party objector engages s 21 HRA: Capital Property Projects (ACT) Pty Ltd v ACTPLA [2008] ACTCA 9. (at 59-62)
2. UK and European courts have recognised that the right of a third party objector may engage equivalent Article 6(1) of the European Convention which confers a right to fair trial ‘in the determination of … civil rights and obligations’. (at 63-71)
3. The term ‘rights and obligations recognised by law’ should be broadly construed to include novel claims and incipient rights: New South Wales v West [2008] ACTCA 14. (at 72-75).
The Tribunal noted that under equivalent Article 6(1) of the European Convention on Human Rights the right of access to the court is implied, and that so long as the claim is sufficiently tenable, the right need not be well-founded under domestic law: Editions Periscope v France [1992] ECHR 43 at [38].
The Tribunal also observed that the term ‘obligations’ in s 21 HRA may encompass good administration. It noted that as it was barred by s 121(2) of the Planning Act from taking into account certain factors when re-considering the approval decision, this could lead to anomalous or inconsistent outcomes on review, which may potentially undermine good administration (at 76-78).
‘Decided by a Competent, Independent Court or Tribunal’
The Tribunal accepted that it was not enough that rights and obligations were ‘affected by’ an application for s 21 HRA to be engaged; rather, those rights and obligations must be ‘decided’ by the proceedings. The Tribunal considered that the word ‘decided’ in s 21 HRA ’reflects the necessity for there to be a dispute’ to be resolved: R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 at [147]. In this case, the applicant’s initial appeal against the DA indicated the presence of a dispute. (at 79-82)
In coming to the conclusion that the right to a fair trial in s 21 HRA was engaged, the Tribunal noted the need to adopt an approach to statutory interpretation which fosters compatibility with human rights under s 30 HRA rather than merely restating the traditional rules of statutory interpretation: Kracke v Mental Health Review Board & ORS [2009] VCAT 646 at [89]-[97]. (at 56)
Composite process
The Tribunal noted that, in order to determine whether the planning approval process was consistent with s 21 HRA, it was necessary to take into account the overall process for decision making. Relevant considerations in this regard included: (at 83)
- The characteristics of and procedures followed by the initial decision maker;
- Opportunities for third parties to have input in the approval process; and
- The availability and quality of review mechanisms, including judicial review.
The Tribunal observed that the comparative caselaw from the UK and Europe indicated that proof of the sufficiency of the composite process would be required where the right to fair trial is engaged and limitations are placed upon merits review. However, the Tribunal decided that it was not necessary for it to decide whether the composite process was sufficient in this case because it had concluded at Step 2 that the limitation on the right to a fair trial by s 121(2) of the Planning Act was reasonable under s 28 HRA.
Step 2: Is the limitation to s 21 HRA reasonable under s 28 HRA?
The Tribunal concluded that the limitation created by s 121(2) of the Planning Act was reasonable under s 28 HRA in light of ‘the broad objectives of the Planning Act [ie to promote certainty and timely approval processes], the public consultation that occurred prior to the passage of the Planning Act and the 2008 Territory Plan and ongoing opportunities for certain people to make representations about development proposals in combination with access to judicial review.’ (at 103)
Step 3: Can s 121(2) of the Planning Act be (re)-interpreted under s 30 HRA?
As the Tribunal had concluded in step 2 that the limitation to s 21 HRA was reasonable under s 28 HRA, it did not need to consider step 3. Accordingly, it proceeded to review the DA in line with its partial review powers under s 121(2) of the Planning Act, concluding that there was no reason why the DA should not have been approved by ACTPLA.
Comment
This is the first substantive HRA decision by ACAT; previous decisions by the Tribunal have made only passing reference to the HRA. The case is also significant as the first decision to consider the question as to when a tribunal, normally exempt from the definition of a ‘public authority’ under s 40 HRA, acts in an ‘administrative capacity’ and is therefore bound by the duty on public authorities under s 40B HRA to give proper consideration to human rights. The Tribunal’s confirmation that it acts in an administrative capacity when exercising its review jurisdiction where it stands in the shoes of the decision-maker accords with the approach adopted by the Victorian Civil and Administrative Tribunal in Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646. While this is a welcome confirmation, it is nevertheless debatable whether the Tribunal’s express status as a public authority made any discernible difference to the way in which it approached the HRA inquiry, as it made no specific reference to the duty or defences to public authority conduct in s 40B(2) in the context of applying the Fearnside methodology to the interpretive obligation in s 30 HRA.
Overall, the decision is notable for its detailed and careful analysis of the right to a fair hearing in s 21 HRA, in particular the scope and content of the term ‘rights and obligations’, as well as for its comprehensive use of comparative jurisprudence. But given that the sufficiency of the composite process is a relevant consideration in assessing the proportionality of any limitation to the right to a fair trial in s 21 HRA, it is unfortunate that the Tribunal addressed and dismissed this issue independently of its s 28 HRA analysis. It is also disappointing that the Tribunal dismissed the application of the right to privacy in s 12 HRA based on a narrow construction of ‘unlawful or arbitrary interference’ without undertaking a proper reasonable limits analysis as required under s 28 HRA. |
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