Catherine Townsend As Agent of Valerie Anne Dellit and Peter Pearce Hanlon v Richard Johnston and Bruce Ronald James [1995] ACTSC 148 (15 December 1995)

SUPREME COURT OF THE ACT

CATHERINE TOWNSEND as agent for VALERIE ANNE DELLIT and PETER PEARCE HANLON v.
RICHARD JOHNSTON and BRUCE RONALD JAMES
No. SCA71 of 1995
Number of pages - 10
Appeal - Time

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - application for leave to appeal a decision of the ACT Land and Planning Appeals Board - plans initially approved by a delegate of the Minister - discrepancy between building heights on plans approved by the Building Controller and the ACT planning authority - effect of lack of building approval on builder - authority of Building Controller to order removal of work - power of the ACT planning authority to retrospectively disapprove proposals already approved by the Building Controller.

Time - application to extend time to appeal under s282ZI of the Land (Planning and Environment) Act 1991 (ACT) - whether an arguable question of law - whether just and reasonable to extend time - delay - prejudice to the respondents - applicant must show seriously arguable case - judicial discretion.

Land (Planning and Environment) Act 1991 (ACT) ss282ZI, 282U, Pt VI

Building Act 1972 (ACT) ss31, 46
Building (Design and Siting) Act 1964 (ACT) ss5, 6
The Territory Plan

HEARING

CANBERRA, 16 November 1995
15:12:1995

Counsel for the Appellant: Ms S Shepherd

Instructing solicitors: Clayton Utz

Counsel for the First Respondent: Mr S J Goggs

Instructing solicitors: ACT Government Solicitor

Counsel for the Second Respondent: Mr J D Parkinson

Instructing solicitors: Wood Fussell

ORDER

THE COURT ORDERS THAT:
The time limited to appeal be extended so as to expire seven days from the date hereof.

DECISION

HIGGINS J This is an application to extend the time within which the appellant may appeal to this Court from a decision of the Australian Capital Territory's Land and Planning Appeals Board (the Board).

2. The decision in question was made on 20 September 1994 and purportedly supplemented on 31 July 1995.

3. Pursuant to s282ZI of the Land (Planning and Environment) Act 1991 (ACT) (L(PandE) Act) a party to a proceeding before the Board may appeal to the Supreme Court "on a question of law" from a decision of the Board in that proceeding.

4. The time limited for such an appeal is, per s282ZI(3)(a),

Not later than the 28th day after the day on which a document setting
out the terms of the decision of the Appeals Board is given to the
person or within such further time as the Supreme Court (whether
before or after the end of that day) allows.

5. An applicant for an extension of the time limited for such an appeal carries a similar onus to an applicant for extension of the time limited for commencing proceedings or to file a defence or to set aside a default judgment.

6. That is, the applicant must explain the delay, demonstrate at least a seriously arguable case and satisfy the court that, in all the circumstances, it is just and reasonable to grant the concession requested.

The facts
7. The appellant is an architect. She was engaged by Valerie Anne Dellit and Peter Pearce Hanlon. They are the Crown Lessees of a property known as Block 10 Section 3, Nicholls in the Australian Capital Territory. The appellant represented the lessees before the Board.

8. Plans were drawn for the erection of a dwelling house, with a garage attached, upon the land. Those plans were apparently approved by a delegate of the Minister, being a member of the ACT Planning Authority. There was no allegation of non-compliance with the Plan at that time. There is, however, a paucity of material as to the scope of that approval or as to whether it was effectively evidenced.

9. The plans apparently proposed that the floor of the garage be set at Reduced Level (RL) of 619, that is, 619 metres above sea level. The plans, as presented to the Building Controller, in fact had endorsed on them "RL 620.4" as the datum for the garage floor. Whether that was an error, or the original "RL 619" was an error, is not clear on the material so far presented.

10. A letter from the builder, Scott Brothers Pty Ltd, to the Board, which was before me, seems to suggest that the builder proceeded in the belief that RL 620.4 was the correct level. That was the level used by the builder to construct the garage. It was, apparently, the level shown on the plan approved by the Building Controller. That resulted in the garage roof being 1.4 metres higher than appears to have originally been proposed to the ACT Planning Authority.

11. It further appears that when the Building Controller first became aware of the apparent discrepancy, he issued a stop order. When the builder pointed out that it was proceeding according to the plans as approved by the Building Controller, the stop order was withdrawn. The stop order was said to have been dated 1 March 1994.

12. What happened next, the builder alleged, was that the delegate of the Minister retrospectively corrected the discrepancy by disapproving the plans which the Building Controller had passed. What actually occurred is not clearly discernible on the material before me.

13. In some manner which is also unclear, there then came into existence an application no. 936549 dated 3 March 1994 seeking to alter the approved garage floor level from RL 619 to RL 620.4, that is, to bring the plans approved by the first respondent retrospectively into conformity with those approved by the Building Controller. That application was refused but there is no record of the first respondent's reasons for doing so in the material before me. It is not clear if the second respondent was involved in that process as an objector but he may well have been.

14. Being dissatisfied with that decision, the appellant sought a review thereof by the Board in accordance with s282U, L(PandE) Act.

15. The only record of the proceedings before the Board that has so far been located is a Monitor's Log. The tapes have, apparently, been wiped or mislaid. It is, therefore, difficult to compare the Board's findings with the evidence before it.

16. On 20 September 1994, the Board, following a hearing on 7 September 1994, delivered a decision confirming the decision under review.

17. Nothing seems then to have occurred until 24 October 1994 when the builder wrote to the Board protesting at the allegation contained in its reasons for decision that he had proceeded in defiance of a stop order.

18. The builder asked the Board to "correct" its decision by deleting those references. The builder also commented,

I wonder if the Board's deliberations would have been different if
they were aware that the house, footings, drainage, retaining walls,
plumbing etc were all complete when this retrospective disapproval was
made.

19. That was a reference to the process by which the delegate had, allegedly retrospectively, disapproved the plan passed by the Building Controller.

20. There then followed a letter from the Deputy Chairman of the Board, Mr McMichael, to the Registrar of the Board, Mr Thompson.

21. In that letter, Mr McMichael acknowledged the possible correctness of the builder's comment. He asserted, however, that the appellant had stated, before the Board, that the builder had "worked through a stop order". He considered that statement to have justified the Board's finding. He set out a quotation from "the tape" of what the appellant had said in that respect.

22. That quotation does not, however, support the conclusion which Mr McMichael purported to draw from it.

23. It is surprising that none of the other Board members noticed this. It was the second respondent who had asserted that the builder had worked in defiance of a stop order. He could not have had any direct knowledge of that. The appellant did not in terms confirm nor deny his allegation. It is obvious that she had no direct knowledge one way or the other as to whether the builder had so acted. It seems to have been assumed by the Board that the appellant's statement not denying something of which she had no knowledge somehow confirmed it. As may be expected, the builder had dealt directly with the Building Controller concerning the problem identified with the garage floor level. It follows that the Board had not acted fairly in criticising the builder without at least checking on the second respondent's assertions. It would have been relatively simple to have checked with the Building Controller before recording a finding adverse to the builder.

24. Mr McMichael suggested that the "note to the decision", which had read,

(c) the builder had proceeded to construct the garage knowing that
the structure did not comply with the approved plans. This disregard
for the appropriate policies and approval mechanisms did not appear to
have been properly dealt with when the relevant authorities were first
alerted to the situation. It was noted that the ACT Planning
Authority intends to discuss the general nature of this case with the
ACT Building Controller.

be modified as follows,

(c) while it was asserted that the builder had proceeded to construct
the garage knowing that the structure did not comply with the approved
plans and while a stop work order was in place, the Board was not
presented with any documentary evidence that this was so and has been
subsequently advised by the builder that at no time did any
construction occur to the property while a stop work order was in
place and that it is not true that the builders proceeded with the
construction from the outset without plan approval. Nevertheless, it
is clear that there was a breakdown in the approval process which
permitted the construction of the garage to occur at an RL
significantly different from that which was originally approved. It
was noted that the ACT Planning Authority intends to discuss the
general nature of this case with the ACT Building Controller.

25. A document entitled "Amendment to Decision" then issued from the Board on 31 July 1995 adopting that suggestion. It was sent to the builder and by its solicitors, then, to the solicitors for the appellant.

26. Needless to say, this unusual procedure created more confusion than had already hitherto been evident.

27. It is apparent that much of this confusion might have been avoided had the parties been legally represented.

28. The solicitors for the appellant wrote to the solicitors for the builder on 21 August 1995 complaining of the apparent ex parte communication with the Board by the builder. No reply was forthcoming from the builder's solicitors despite a follow-up letter.

29. On 13 September 1995 notice of the present application was filed.

30. There is certainly, before me, no clear or satisfactory reason why the appellant did not seek to appeal within 28 days after 20 September 1994, that is, on or before 18 October 1994.

31. The Notice of Appeal for which the extension of time is sought refers to the relevant decision as having been made on 31 July 1995. If that is accurate, as a matter of law, time for appeal would have expired on 28 August 1995.

32. The request for the "amendment" did not emanate from the appellant. The appellant did nothing to seek review of the Board's decision until solicitors for the appellant were informed of the Board's "Amendment to Decision". Whether they had previous instructions to do so I do not know.

33. The "amendment" did not change the decision. Nor could it. The Board was functus officio. To validly appeal as of right, the application had to be made by 18 October 1994. The action taken by the builder could not have created in the appellant or the lessees any false expectation that time for appeal had not, or would not, run.

34. If the success of the appellant was to hinge upon a satisfactory explanation for delay, it would clearly fail.

Prejudice to the respondents
35. This consideration is an important factor in deciding whether it is just and reasonable to extend time for appeal. It seems that the tapes recording the proceedings were wiped or disposed of during January 1995. Given that there was an outstanding request for relief by the builder before the Board, that should not have been permitted to occur.

36. It may well be that the inaction of the appellant persuaded the Board that no party to the proceedings before it wished to appeal. Thus, once the tape had been used for the limited purpose of deciding to issue the "amendment to decision", it is understandable that it would be considered unlikely that the tapes would be further required.

37. Whether the loss of the tapes is material depends on the nature and scope of the available challenge to the Board's decision. The decision is not likely to have turned on the demeanour of witnesses or the strength of oral testimony. The process before the Board, so far as the Monitor's Log reveals it, seems to have been characterised by a desire to mediate the dispute between the lessees and the second respondent rather than to focus on the possible flaws in the first respondent's decision.

38. The essence of the matter is the building itself. The second respondent claims that its current appearance detracts from the value of his property and, by reason of the shadow it casts, creates a frost hazard upon his driveway in winter.

39. However, in the absence of approval of an alternative proposal, the building remains unaltered unless its demolition, to the extent necessary to remove any non-complying work, could be ordered.

40. So long as the building remains unaltered, the disadvantages currently suffered by the second respondent will continue.

41. There are, of course, two possibilities which might emerge from a more focussed examination of the evidence. It may be, as the second respondent contends, that the builder proceeded in defiance not only of a lack of siting and design approval but contrary to a valid stop order. It is also possible that, mistakenly believing the first respondent had approved it, the Building Controller approved plans which the builder then followed. Different consequences could follow depending on which was the correct legal and factual situation. That was not examined by the Board.

42. There is no apparent prohibition in the L(PandE) Act upon a builder carrying out work not approved by the relevant authority under that Act. The effect of lack of approval seems intended to be dealt with under the Building Act 1972 (ACT) (Building Act).

43. That Act prohibits building work for which no permit has issued. The dwelling in question here was "building work" within the meaning of the Building Act. For "building work" to be lawfully carried out, the external design and siting should have been approved.

44. Section 5 of the Building (Design and Siting) Act 1964 (ACT) (B(DandS) Act) applies Part VI of the L(PandE) Act. The effect of that is to enable the approving authority under that Act to give design and siting approval for the purposes of s31 of the Building Act.

45. Whilst design and siting approval under s6, B(DandS) Act (that is, where unauthorised work has been done and is to be remedied), is a condition precedent to the issue of a building permit, approval under s5 of the B(DandS) Act is not mentioned in s31 of the Building Act.

46. Therefore, it is at least also open to argument that the approval by the Building Controller of the plans showing RL 620.4 for the garage floor was effective and, that there is no power in the Board or the Minister retrospectively now to disapprove of those plans.

47. It is also arguable that the approval of the Building Controller was ineffectual, even if purportedly given.

48. If work had been carried out contrary to or without the authority of validly approved plans, it is arguable that the Controller could make an order under s46, Building Act to remove that work: see s46(1)(e) Building Act.

49. However, that power is not only discretionary but may not be exercised "except on the recommendation of the Territory Planning Authority": see s46(2A) Building Act.

50. Clearly, if the builder's contentions represented the truth of the matter, the Building Controller could, arguably, decide not to require demolition of the offending work even if he had been legally empowered to do so. Even if the builder had acted contumeliously as the Board initially assumed, it might still be unfair to require demolition of the building unless there was good reason for it. The burden of the cost of demolition would, of course, fall initially on the lessees. It would be necessary to balance that burden and cost against the disadvantages of the present structure complained of by the second respondent.

51. Of course, if the Board had decided to give design and siting approval to the current structure, there would have been no non-compliance which would enliven the Building Controller's powers under s46, Building Act.

52. It is, therefore, arguable that a continuation of the present decision of the Board will not necessarily alter the status quo or remove the disadvantages now allegedly being suffered by the second respondent. Until the questions at issue are clarified, the Building Controller may be unable to act. There is nothing more that the first respondent as delegate of the Minister can do. It will be necessary at some stage to resolve the present legal and factual situation.

Arguable questions of law
53. Unless it appears that there is a seriously arguable case that the decision of the Board is tainted by an error of law, the application should be refused. Even then, unless the correction of that error is, at least arguably, likely to lead to a different result, the application should be refused.

54. In this case, the reasons of the Board for refusing the application were, relevantly, expressed as follows,

d) the proposal failed to satisfy the following Performance Measures
and relevant Objectives and Performance Criteria of the Code:
. D3.1 - Side Setbacks
. D3.4 - Height of Walls
. Objectives O3.3
. Performance Criteria P3.5.
e) the overshadowing caused by the garage wall and its height and
bulk would have a detrimental impact on the amenity of Block 10 and on
the safe use of the driveway by the residents of Block 10.

55. "O" refers to an "objective" of the Plan. "P" refers to stated "performance criteria" and "D" refers to stated "performance measures". The introduction to the Code explains the relevance of these terms. It states,

The Code is in the form of a series of "Performance Controls"
consisting of statements of "objectives" and "performance criteria"
together with associated "performance measures". An approval may not
be granted to a proposal which is inconsistent with the objectives and
performance criteria stated in a relevant Performance Control.
However, the performance measures are considered to satisfy the
objectives and relevant performance criteria in most cases, so that
normally no further evidence of performance is required. Proposals
which do not meet the performance measures may still be considered in
terms of whether they meet the relevant objectives and criteria.

56. The "Plan" is a reference to the Territory Plan approved under the L(PandE) Act. The "Code" is Appendix III.1 to the Plan, entitled "Residential Design and Siting Code for Single Dwellings in the ACT".

57. The provisions referred to by the Board are as follows,

. D3.1 requires a set-back from the lease boundary of at least
3 metres.
The outer wall facing the second respondent's land was between
.2 and 1.6m away from the common boundary.
. D3.4 - a wall facing a side boundary should not exceed 4 metres.
The height of the relevant wall was complicated by the pitch of the
roof. It was not given in the material before me. The Board merely
refers to the height being 1.4 metres higher than originally
proposed.
. O3.3 is a general requirement that the relevant wall be "of
appropriate residential character".
. P3.5 requires building walls "to be sited and to be of length and
height to ensure no significant loss of amenity to adjacent
dwellings and private open spaces".

58. The questions of appropriateness and as to when loss of amenity becomes "significant" are clearly value judgments. Non-compliance with particular performance measures, for example, set-backs, do not require a refusal of approval of the proposal.

59. The finding by the Board in paragraph e) of its decision would seem to rely on two considerations. The first is the bulk of the side wall and the second is as to the shadow it casts, rendering the adjoining driveway unsafe in frosty conditions.

60. That the wall had that effect is not seriously open to question. However, the appellant's evidence also indicates, that even had the height of the entire wall been 1.4m lower, the overshadowing problem would remain. The wall would still have overshadowed the adjoining driveway. Overshadowing beyond the driveway would have been only marginally less. The bulk and height of the wall would clearly have been less if the total height of it was 1.4m lower. The actual extent of that lesser height and bulk does not appear to have been calculated.

61. If the adverse impact on the adjoining premises was the central reason for refusal of approval, some comparison of that impact with the originally approved proposal should, arguably, have been made.

62. Having decided that the proposal should have been rejected, the Board, though not required to do so, proceeded, in effect, to indicate the kind of amended proposal it would have been prepared to approve.

63. In (a) and (b) under a heading "Other Matters Noted", the Board indicated that "the option of a Dutch gable roof over the garage" with some cosmetic treatment of the wall, would reduce the impact on the second respondent's amenity and was "supported" by the second respondent and by the "ACT Planning Authority". The latter reference is to the first respondent.

64. If such a proposal was supported by those parties, it would be unlikely that approval of the proposal would be refused by the first respondent and, if that proposal was approved, an appeal to the Board would be unlikely.

65. The compromise proposed by the Board, however, did nothing to remove the relevantly objectionable overshadowing, although it lessened it marginally. It did affect, again marginally, the bulk of the wall. The major effect seems simply to provide a more interesting facade for the neighbours to look at than that which now exists.

66. It follows therefore, that it is arguable that the Board failed to take account of the original plans not objected to by the first respondent. The Board could be said to have judged the proposal as if it was a de novo application, rather than as representing a departure from a previously accepted proposal.

67. Further, there is a question as to the power of the first respondent retrospectively to disapprove a proposal already approved by the Building Controller and as to the legal effect of the Controller's grant of approval.

68. Those questions are arguable and a decision on them favourable to the appellant could well lead to a different result.

Discretion
69. There remains a discretion whether to extend time even if an arguable case is shown. In my view, the entirely unsatisfactory consequence of leaving unanswered the questions of law raised outweighs the apparent and unexplained dilatoriness of the appellant.

70. I extend time for notice of appeal to be given to seven days from the date hereof.

71. I will hear the parties as to costs.