Hamib Pty Limited and Stephen William Conroy v Leigh Palmer and Commonwealth of Australia [1988] ACTSC 67 (18 November 1988)

SUPREME COURT OF THE ACT

HAMIB PTY. LIMITED and STEPHEN WILLIAM CONROY v. LEIGH PALMER and COMMONWEALTH
OF AUSTRALIA
S.C. No. 1350 of 1988
Building Control

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Building Control - application for declarations that s notices and a demolition notice issued by Building Controller invalid - office block plans approved by NCDC subject to endorsement that samples of external materials be submitted for approval - construction begun using external glazing before samples examined - stop notice and demolition notice specifying removal of glass panels served.

Building Control - whether Building Controller bound to grant building permit without conditions or refuse application where NCDC gives conditional approval - power of Building Controller to grant approval subject to design and siting conditions - whether Building Controller can issue further stop notice after revocation of earlier notice - question of validity of further notice served when building work not in progress - whether endorsement of plans approved by NCDC met by delivery of sample board prior to service of stop notices.

Building Ordinance 1972

Buildings (Design and Siting) Ordinance 1964-1972

National Capital Development Commission Act 1957

Kent and Others v. Johnson, Minister of State for Works and Others (1972) 21 FLR 177

Re City Area Leases Ordinance 1936 and Axiom Pty. Ltd. (1986) 66 ACTR 1

HEARING

CANBERRA
18:11:1988

Counsel for the Plaintiffs: Mr T.J. Higgins, Q.C., Mr J. Purnell

Solicitors for the Plaintiffs: Gallens Crowley & Chamberlain

Counsel for the Defendants: Mr R. Williams

Solicitors for the Defendants: Australian Government Solicitor

ORDER

1. The notice of motion dated 19 October 1988 be dismissed.

2. The defendants have leave to enter judgment.

3. The plaintiff pay the defendants' costs of the action including the notice of motion.

DECISION

This was an application made by notice of motion dated 19 October 1988 seeking, inter alia, declarations that certain notices given by the first defendant under the provisions of the Building Ordinance 1972 (the Building Ordinance) are invalid. On 8 November 1988 I announced my decision that the notice of motion should be dismissed and said that I would give reasons later. This I now do.

2. The notice of motion was taken out on the same day as the issue of the writ of summons to which was attached a statement of claim seeking the same relief as that sought in the notice of motion. The defendants entered an appearance through the Australian Government Solicitor but did not file a defence. As there was virtually no dispute on the facts, and because there appears to be some urgency about the resolution of the matter, the hearing of the notice of motion was treated as the hearing of the application for final relief.

3. The plaintiffs at the hearing of the notice of motion relied upon the affidavit of Anthony Robert Hedley, sworn 27 October 1988 and the affidavit of Stephen William Conroy sworn 19 October 1988, together with the annexures and exhibits to that affidavit. There was also a statement of agreed facts signed on behalf of the plaintiffs and the defendants.

4. The case turns on the provisions of the Building Ordinance and the Buildings (Design and Siting) Ordinance 1964 (the Design and Siting Ordinance) and their application to the facts. With due respect to the industry of counsel, I think it is necessary to set out only some of the relevant provisions and to state the facts only briefly. I state the facts first.

5. The plaintiff (Hamib) is the registered proprietor of the lease from the Commonwealth of land at Blocks 2 and 3 Section 43 Division of Turner. The second plaintiff holds a building permit issued under Part III of the Building Ordinance for the construction of a building on the land. The first defendant (the Building Controller) is the Building Controller appointed under s.7 of the Building Ordinance.

6. Hamib acquired the land from the former lessees from the Commonwealth after they had made successful application under s.11A of the City Area Leases Ordinance 1936 for a variation of the purposes clauses of the leases from residential to offices and professional suites and ancilliary uses.

7. The architect who drew the plans which were in evidence in the s.11A application swore in an affidavit filed in these proceedings:
"4. I have been given a commission to design a

building of very high quality. It is my
intention to produce a finished product which
will harmonise with and enhance the existing and
emerging streetscape. Materials will be of the
highest quality. While the shape of the building
has been determined and will not now be changed,
no decisions have yet been made on materials for
the external faces of the bilding. Necessarily,
the nature and colour of those materials will
have to be approved by the Commission, and will
be chosen to enhance the visual appeal of the
building. Materials which had high reflectivity
or whose colour clashed with the environment
would be avoided where those effects might be
felt in the residential houses nearby."

8. After the Court approved the change of purposes clauses on 11 December 1987 Hamib made application for approval of plans for proposed new office development on the land to the National Capital Development Commission (NCDC) pursuant to the Design and Siting Ordinance. On 29 February 1988 the NCDC advised by letter that the NCDC had refused approval to the proposal pursuant to s.6 of the Design and Siting Ordinance. Amongst the reasons given were that the external design of the building was not in accordance with the approved Policy Plan for Section 24 and Section 43 Blocks 1-9 Turner, which required that all buildings in that area be constructed of materials in the white to light buff colour range, that the proposed external glass walls were not appropriate to the general development and amenity of the locality and that the glass walls would be discordant with existing development along Northbourne Avenue.

9. Some time in March 1988 Mr. Hedley, who holds power of attorney from Hamib, met with the Commissioner of the NCDC. There was discussion about the reflectivity and tinting of the proposed glass walls. According to Mr. Hedley, he asked whether untinted glass with a reflectivity of no more than twenty percent would be approved and the Commissioner replied that "provided it is not dark glass, it should be all right".

10. On 15 April 1988 Hamib lodged a further set of plans for the approval of the NCDC. Those plans contained a proposal that the external glazing of the building would consist of "double glazed curtain wall Pilkington SS 22 on clear". On 19 April 1988 the NCDC purported to approve the proposed plans with the exception that the words "Pilkington SS 22 on clear" were struck out and a stamped endorsement was placed over the external glazing proposal. That endorsement read, "SUBJECT TO SAMPLES OF ALL EXTERNAL MATERIALS BEING SUBMITTED FOR APPROVAL".

11. The plans approved by the NCDC on 19 April 1988 are in evidence in these proceedings. There are distinct differences between the proposed building shown on those plans and the building shown on the earlier plans which were in evidence in the s.11A application. In the earlier plans the horizontal features of the building are emphasized with the result that it has a long, low appearance. Those features presumably provide shade and sun control to the facade of the building and also provide some conformity with what the architect called "the existing and emerging streetscape". In the approved plans the horizontal features are eliminated and the building is virtually sheathed in glass. Whilst opinions may differ, there is room for the view that the building in the approved plans is out of character with other buildings in the vicinity, both old and new and the question suggests itself whether the s.11A variation would have been approved in the public interest if the approved plans had been before the Court.

12. On 22 April 1988 Hamib lodged the plans as approved by the NCDC with the Building Controller.

13. On 15 June 1988 the Building Controller, pursuant to s.33 of the Building Ordinance, approved the plans submitted to him. Prior to approval the Building Controller placed on the front page of the plans a stamped endorsement the relevant parts of which read as follows:

"Building work shall be constructed in accordance
with the approved plans ..... the notations made
on the plans and any matter specified in the
building permit."

14. On 23 June 1988 the Building Controller issued to Mr. Conroy, pursuant to s.35 of the Building Ordinance, a building permit for the construction of the proposed building to which the approved plans applied.

15. For some months thereafter there were negotiations between Hamib's architects and the NCDC relating to the external glazing of the proposed building. On 6 July 1988 the NCDC advised Hamib's architects that the acceptable standard of the external glass would be a maximum reflectivity of fifteen percent and a minimum visible transmission of light of twenty percent. On 14 September 1988 the architects lodged a sample board containing samples of the external glazing materials with the NCDC and on 30 September supplied further technical information to the NCDC.

16. On 5 October 1988 installation of the glass panels by contractors engaged by Hamib commenced.

17. On 11 October 1988 the NCDC wrote to Hamib's architects advising that the glass samples submitted did not meet the standards referred to in the letter of 6 July 1988. The NCDC advised that it refused approval to the proposal pursuant to s.6 of the Design and Siting Ordinance. The letter drew attention to the right of review given by s.13 of the Design and Siting Ordinance, and the following day Hamib, through its architects, lodged an application for review of the NCDC's decision by the Design and Siting Review Committee.

18. On 13 October 1988 the general foreman at the site received on behalf of Mr. Conroy a notice, which omitting formal parts, was in the following terms:

"I HEINRICH POSCH Building Inspector, hereby prohibit
the carrying out of building work, namely:
Installation of external glazing paels (sic.) being
erected on the above mentioned parcel of land pursuant
to Section 43(1) of the Building Ordinance 1972.
Building work is being carried (sic.)
.....
(f) contrary to the approval of the Commission
or a condition of that approval given under
the Buildings (Design and Siting) Ordinance
1964 in respect of that building work."

19. Installation of the glazing panels was suspended on 14 October 1988.

20. On 17 October 1988 Mr. Conroy was served with two other notices each issued by the Building Controller. One notice read as follows:

"AUSTRALIAN CAPITAL TERRITORY
BUILDING ORDINANCE 1972
REVOCATION OF STOP NOTICE
I LEIGH GRANT PALMER, Building Controller hereby
revoke the stop notice numbered 101 issued by
HEINRICH POSCH on 13 October 1988."
The other notice read as follows:
"AUSTRALIAN CAPITAL TERRITORY
BUILDING ORDINANCE 1972
STOP NOTICE PURSUANT TO SECTION 43(1)(f)
WHEREAS building work is being carried out contrary
to the approval of the National Capital
Development Commission or a condition of that
approval given under the Building (Design and
Siting) Ordinance 1964 in respect of that building
work.
NOW, I, LEIGH GRANT PALMER, Building Controller
hereby prohibit as and from the service of this
notice the carrying out of building work namely
the installation of external glazing panels being
erected on Blocks 2 and 3 of Section 43 TURNER
pursuant to Section 43(1)(f) of the Building
Ordinance 1972."

21. On 24 October 1988 the Building Controller caused to be served on Mr. Conroy the following notice:

"AUSTRALIAN CAPITAL TERRITORY
BUILDING ORDINANCE 1972
NOTICE PURSUANT TO SECTION 44(1)
BLOCKS 2 AND 3 SECTION 43 TURNER
WHEREAS A STOP NOTICE was given on 17 October
1988 pursuant to section 43(1)(f) on the ground
that building work was being carried out contrary
to the approval of the National Capital
Development Commission or a condition of that
approval given under the Building (Design and
Siting) Ordinance 1964 in respect of that
building work, now I, LEIGH GRANT PALMER,
Building Controller, hereby specify in the
Schedule hereto the building work that is
required to be carried out to ensure that the
building work for which the building permit was
issued will be carried out in accordance with the
approved plans, the provisions of the Building
Ordinance 1972 and any conditions subject to
which the building permit was issued AND I
require the building work specified in the
Schedule to be carried out within 28 days.
SCHEDULE
The removal of all external glazing panels
erected on Blocks 2 and 3 of Section 43 TURNER
with a reflectivity factor of more than 15%."

22. I turn now to the relevant statutory provisions.

23. Under sub-s.11(1) of the National Capital Development Commission Act 1957, the functions of the NCDC are "to undertake and carry out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth".

24. Sub-section 11(3A) further provides as follows:

"(3A) The powers of the Commission under sub-
section (3) include 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 1910-1959."

25. These provisions have been the subject of judicial comment: see for instance Smithers J. in Kent and Others v. Johnson, Minister of State for Works and Others (1972) 21 FLR 177, and Re City Area Leases Ordinance 1936 and Axiom Pty. Ltd. (1986) 66 ACTR 1.

26. In accordance with its statutory function the NCDC has under the Design and Siting Ordinance been given certain powers relating to the design and siting of buildings in Canberra.

27. The powers of the NCDC in this regard have been co-ordinated with those of the Building Controller by the following provisions of the Design and Siting Ordinance.

"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;
(b) to exercise all other powers expressed by
this Ordinance to be exercisable by the
Commission; and
(c) to grant (either absolutely or subject to
conditions) or refuse an application, for
the purposes of section forty-seven of the
Building Ordinance 1972, for the approval of
the Commission with respect to the external
design and siting of a building or an
alteration to a building.
(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 be commenced, carried on or completed
except in conformity with proposals approved in
writing by the Commission with respect to the
external design 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.
8. The Building Controller shall not -
(a) approve the design of a proposed building or
of a proposed alteration of a building, or
issue a permit in respect of a proposed
building or a proposed alteration of a
building, under the Building Ordinance 1972
unless proposals with respect to the
external design and the siting of the
proposed building, or of the building as
proposed to be altered, have been approved
by the Commission and the building or alteration
to which the approval or permit
relates is to be in accordance with those
proposals; or
(b) except in accordance with the last preceding
paragraph, refuse an application for an
approval or permit under the Building
Ordinance 1972 by reason of the external
design or the siting of a proposed building,
or of a building as proposed to be altered,
except where the Building Controller is
satisfied that it is necessary to do so -
(i) in order to prevent a contravention of
a provision of that Ordinance or of
some other law or the terms and
conditions of a lease or tenancy granted
by the Commonwealth; or
(ii) in the interests of the health or
safety of persons or property."

28. For the purposes of the present case the relevant provisions to the Building Ordinance are as follows:

"Building Controller not to have regard to
external design and siting
38. The Building Controller shall not refuse
an application for a building permit by reason of
the external design or siting of a proposed
building, or of a building as proposed to be
altered, except where the Building Controller is
satisfied that it is necessary to do so in order
to prevent a contravention of a provision of this
Ordinance or of another law.
Stop notices
43(1) Where building work is being carried out-
(a) by a person who is not a holder of a building
permit for that building work or is not
employed by or under contract to the holder
of a building permit for that building work;
(b) otherwise than in accordance with the
approved plans for that building work;
(c) otherwise than in accordance with the
conditions subject to which a building permit
for the building work is granted;
(d) contrary to a provision of this Ordinance
relating to that building work;
(e) where the building work is being carried out
on a parcel of land held under lease from
the Commonwealth, contrary to a provision,
covenant or condition of the lease; or
(f) contrary to the approval of the Commission
or a condition of that approval given under
the Buildings (Design and Siting) Ordinance
1964-1972 in respect of that building work,
the Building Controller or a building inspector
may, by notice in writing, prohibit the carrying
out of any further building work or of such
building work as he specifies in the notice.
(3) A stop notice ceases to be in force -
(a) if the Building Controller, by notice in
writing signed by him revokes the notice
given under sub-section (1) of this section;
(b) except in the case of a notice given on the
ground specified in paragraph (1)(a) or a
notice of a kind referred to in paragraph
(ba) - on the expiration of 7 days after the
service of the notice unless the Building
Controller, before the expiration of that
period, gives a further notice under section
44;
(ba)in the case of a notice given on the ground
specified in paragraph (1)(d) in connection
with the carrying out of building work in
contravention of sub-section 36(3) - when
the plan referred to in that sub-section is
received by the Building Controller;
(c) if it is revoked under section 47 of this
Ordinance;
(d) if it is deemed to have been revoked under
the next succeeding sub-section; or
(e) if a further notice is given under the next
succeeding section - when the work specified
in that further notice is carried out.
.....
Notice specifying building work, including
demolition, of building to which stop notice
relates
44(1) Where a stop notice has been given on a
ground other than that specified in paragraph
43(1)(a), the Building Controller may, within the
period of seven days after the service of the
stop notice, by a further notice, specify the
building work (including work by way of
demolition) that is required to be carried out to
ensure that the building work for which the
building permit was issued will be carried out in
accordance with the approved plans, the
provisions of this Ordinance and any conditions
subject to which the building permit was issued,
and shall, by that further notice, require the
building work specified in the notice to be
carried out within such period as is specified in
that further notice."
I proceed now to apply the law to the facts.

29. It was submitted on behalf of the plaintiffs that the stop notice of 17 October 1988 and the demolition notice of 24 October 1988 were both invalid. Various alternative arguments of law were put to support the general submission.

30. The first argument stems from the proposition that according to s.8 of the Design and Siting Ordinance the Building Controller has no power to approve the design of a proposed building unless proposals with respect to external design and siting have been approved by the NCDC previously. Of that proposition there can be no doubt, as it is clearly contained within the terms of s.8(a). It was then put that once the NCDC had given its approval to proposals, then the Building Controller was precluded from doing other than giving an unqualified and unconditional approval pursuant to s.8(a), or, alternatively, refusing an application for an approval or permit on one of the two grounds specified in s.8. It was implicit in this submission that the Commission or the Building Controller or both had no power to grant approval subject to the fulfilment of a condition or conditions. As far as the NCDC is concerned, however, s.6(1)(c) gives the NCDC express authorization "to grant (either absolutely or subject to conditions) or refuse an application, for the purposes of section forty-seven of the Building Ordinance 1972, for the approval of the Commission with respect to the external design and siting of a building or an alteration to a building." These words are clear enough and indeed it would be surprising that, given the statutory planning function of the NCDC, it was denied power to grant conditional approval with respect to the external design and siting of a proposed building in the National Capital. As far as the Building Controller is concerned, I think that s.8(b) confers upon the Building Controller power to refuse approval or a permit on grounds which are not within the purview of the planning authority, the NCDC, but the section does not permit the Building Controller to ignore or waive conditions which the NCDC has attached to its prior approval of the plans.

31. It was submitted in the alternative on behalf of the plaintiffs that once the NCDC had given its approval to a proposal to which approval it purported to attach conditions, then certain consequences followed. Firstly, so it was submitted, the Building Controller was not bound to approve the plans or grant a building permit in respect of plans to which such conditions attached and, secondly, the Building Controller had an independent discretion either to grant the building permit without conditions or to refuse the application for approval or building permit pursuant to s.8(b) of the Design and Siting Ordinance on one of the two grounds therein specified, and on one of those grounds only, namely:

"(i) in order to prevent a contravention of a
provision of that Ordinance or of some other
law or the terms and conditions of a lease
or tenancy granted by the Commonwealth; or
(ii) in the interests of the health or safety of
persons or property."

32. Section 38 of the Building Ordinance, which has been set out above, is relied upon also in order to support the same submission. Under that provision the Building Controller has no power to refuse an application for a building permit by reason of external design or siting, except where the Building Controller is satisfied that such refusal is necessary in order to prevent the contravention of a provision of that Ordinance or of another law. In short, the submission is that the Building Controller has no power to take design or siting considerations into account at all, except for the limited purposes of a refusal under s.38, and that the Building Controller has no power to grant approval subject to conditions relating to design or siting.

33. However, once it is recognized, as I consider it must be recognized, that the NCDC has the power to grant approval of building proposals subject to conditions, then I see no difficulty in recognizing that the consequent approval of the Building Controller and any building permit used by him is to be made subject to the same conditions.

34. The second major submission on behalf of the plaintiffs was that, once the stop notice of 13 October 1988 was revoked by the Building Controller on 17 October 1988, there was no power in the Building Controller to issue a further stop notice. Such a result was said to follow, as I understand the argument, from the provisions of s.43 and particularly sub-s.43(3). Again, however, I think it is sufficient to say that that limitation cannot be read into those provisions either as they stand alone or read in conjunction with the other provisions of the Ordinances. It was said that the power of the Building Controller might be exercised oppressively if, instead of giving a notice under s.44 (which specifies the building work that is required to be carried out to ensure compliance with the approved plans) the Building Controller simply issued a succession of s notices under s.43. Whilst it might be that in certain factual circumstances such oppression might arise, that was not contended to be the situation in the present case. The possibility that it might arise does not compel a construction to be placed on s.43 which it does not otherwise bear.

35. A third submission put on behalf of the plaintiffs was that the stop notice of 17 October 1988 was invalid because s.43(1) authorises the issue of stop notices only "where building work is being carried out" and on 17 October 1988 no building work was in fact being carried out. It is, of course, true that the erection of the glass panels had, prior to that date, come to a halt as a result of the s notice issued and served on 13 October 1988, and that such activity had not resumed. There is, furthermore, no evidence that any other sort of building work was in progress on 17 October 1988. Nevertheless I do not think that for the purposes of the sub-section the Building Controller is precluded from issuing a stop notice if work has temporarily ground to a halt. Clearly, the power of the Building Controller to prohibit the carrying out "of any further building work" is not one which may be exercised only during working hours.

36. The final submission put on behalf of the plaintiff and one which was not put very strongly, was to the effect that the endorsement placed on the plans by the NCDC of approval "subject to samples of all external materials being submitted for approval" imposed a condition which had been fulfilled by the delivery of the sample board to the NCDC on 14 September 1988. The endorsement may not have been drafted with particular precision. However, it is clear that what is intended is that final approval will not be given until the NCDC has had the opportunity of considering approval and, if it so decides, granting approval to samples submitted to it. In the absence of any samples being submitted, the question of approval will not even be considered. But once the samples are submitted, it is the further question of whether those samples are or are not approved after examination and consideration by or on behalf of the NCDC is crucial. It simply does not make sense to say that the deciding factor is the submission of the samples, regardless of whether or not they receive the approval of the NCDC.

37. In my view, there is no substance in any of the submissions put on behalf of the plaintiffs with regard to the alleged invalidity of the stop notice of 17 October 1988. The arguments as to the validity of the demolition order of 24 October depended upon the established invalidity of the prior stop notice of 17 October and those arguments are bound to fail also. For the foregoing reasons the notice of motion is dismissed.

38. Insofar as the application was treated as if it were an application for final relief I shall, if one or other of the parties so desire, consider whether any further order is appropriate, such as a stay of proceedings, or leave to the defendants to enter judgment. I shall also hear the parties on costs if they wish to be heard.