Adverse economic effect of decision gives standing under AD(JR) Act

In Argos Pty Ltd v Corbell [2014] HCA 50, the High Court held that an applicant whose profitability would be affected by a decision had standing under the AD(JR) Act.

The ACT planning Minister approved a new commercial development. Some supermarket tenants in a nearby shopping complex, and one of their landlords, sought judicial review of the Minister’s decision. The trial judge found that the supermarkets’ profitability would likely be affected but that this mere economic interest was too remote to give them standing as a “person aggrieved” under the ACT AD(JR) Act (which was materially identical to the Commonwealth AD(JR) Act). The landlord’s interests were held to be one step further removed and so a fortiori it too lacked standing.

This reasoning followed a line of authority in the Federal Court which appeared (at least to the Full Court of the ACT Supreme Court) to suggest that a mere detriment to the economic interests of a business will not give rise to standing under the AD(JR) Act.

The High Court unanimously rejected that approach and clarified that significant detriment to one’s economic interests makes one a “person aggrieved” for the purposes of the AD(JR) Act and that the supermarket tenants would suffer such detriment (the estimated loss of profitability was 8-10 per cent). However, the Court further held (Gageler J dissenting on this point) that the landlord’s interests were not sufficiently affected, as it had not been shown that its tenant’s supermarket business would fail by reason of the loss of profitability and so it had not been shown that it would lose the benefit of its lease with the tenant.

Another interesting point that arose was whether the decision in question must affect an interest which falls within the subject-matter, scope and purpose of the Act under which the decision is made, in order to render an applicant a “person aggrieved”. Planning decision-makers must typically ignore as an irrelevant consideration the fact that planning approval might create a threat of competition to existing businesses (KFC v Gantidis (1979) 140 CLR 675).

So are adverse economic impacts by reason of increased competition relevant interests for the purposes of standing to challenge a planning decision? The majority (Hayne and Bell JJ contra) considered that the considerations which give standing need not be relevant to the legal validity of the decision which is sought to be challenged. In other words, one looks to whether interests have been affected in the broad sense, independently of how the Act under which the decision is made treats those interests.

Print Friendly, PDF & Email

You may also like...

Leave a Reply

Your email address will not be published. Required fields are marked *