Gerondal & Anor v Minister for Planning [2004] ACTSC 84 (17 August 2004)

Last Updated: 17 September 2004

PAUL PANG GERONDAL and MONICA NETTA GERONDAL v MINISTER FOR PLANNING [2004] ACTSC 84 (17 August 2004)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 46 of 2003

Judge: Crispin J

Supreme Court of the ACT

Date: 17 August 2004

IN THE SUPREME COURT OF THE )

) No. SCA 46 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: PAUL PANG GERONDAL and

MONICA NETTA GERONDAL

Appellants

AND: MINISTER FOR PLANNING

Respondent

ORDER

Judge: Crispin J

Date: 17 August 2004

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. the matter be remitted to the Administrative Appeals Tribunal for the purpose of enabling it to make further orders in view of the delay that has occurred as a consequence of the appeal and the fact that some of the dates specified in the orders have already expired whilst others are so imminent that compliance by those dates may now be unreasonable;

3. the appellants pay the respondent's costs.

1. This is an appeal against a decision of the ACT Administrative Appeals Tribunal (the "Tribunal") setting aside a decision made by a delegate of the respondent on 20 December 2002 pursuant to s 256 of the Land (Planning and Environment) Act 1991 (the "Land Act"), and in lieu thereof ordering that the following decision be substituted:

The lessees are directed to -

(a) comply with the terms of the approval in plans No 26446D, E, and F (or in any amended plans that may be approved in writing by the Territory) to construct extensions to the existing residence and related works on Block 45 Section 37 Waramanga, all the works to be completed by 5 November 2004 or within such further time as may, prior to that date, be agreed in writing by the Territory.

(b) clean up the leasehold Block 45 Section 37 Waramanga in accordance with the schedule or within such further times as may, prior to the date specified in the schedule, be agreed in writing by the Territory.

2. The schedule then provided as follows:

(1) By or before 31 August 2003, all building materials on the block to be stored inside the residence or the garage or shed or behind the rear building line of the residence, except at times when in use for construction work.

(2) By or before 31 August 2003, all wood or timber that is building material (other than material incorporated in buildings on the block) to be stored in such a way that it is not in contact with the soil.

(3) By or before 31 August 2003:

(a) trim or prune all vegetation on the block that is bamboo that extends beyond any boundary of the block so that it does not extend beyond the boundary, and in such a way that prunings and loppings fall only within the boundaries of the block; and

(b) trim, prune, or remove all vegetation on the block that is bamboo, to the reasonable satisfaction of the Territory.

(4) By or before 31 August 2003 remove from the block any loppings, prunings, or clippings of vegetation that is bamboo.

(5) By or before 5 November 2004, remove from the block, all unused building material, including any timber offcuts or offcuts of any other material, and any metal, bricks, concrete or masonry other than that which is stored inside the garage or shed or behind the rear building line of the residence.

(6) Until 5 November 2004, all building material, offcuts or waste not to be used in construction (other than any material stored in accordance with clause 1), including any timber offcuts or offcuts of any other material, and any metal, bricks, concrete or masonry, to be removed from the block or stored in a miniskip within the boundary of the block.

(7) In this schedule "building material" means any material that is to be incorporated in the building or in part of the building on the block.

3. In the reasons for the decision the Tribunal explained that the appellants were Crown lessees of Block 45, Section 37 Waramanga, herein after referred to as "the block". They acquired the lease on 9 September 1971 and commencing in that year approvals were granted to the appellants for the construction of extensions to their house. A number of amendments were subsequently made to the plans that were originally approved.

4. Amended plans, marked 26446D, of additions to the house were approved on 7 January 1975. The extensions referred to in that plan consisted of a lounge room on the front corner of the house, a studio and a bathroom on the front corner of the house, and an open atrium at the rear of the house.

5. Further amendments to plans, marked 26446E and 26446F, which included a toilet and a skylight in the lounge room, changes of entrance area design and the material to be used in the floor and changes to building setbacks, were approved on 1 July 1976 and 24 May 1978. It was accepted, as the Tribunal noted, that an earlier plan, marked 26446C, had been superseded by the later amendments.

6. An application for a permit to carry out the building works involved in the extensions was first granted to Mr Gerondal, one of the appellants, on 15 August 1975 for a period of 12 months. There was no requirement at that time for him to be the holder of a builder's licence. The permit was subsequently renewed until 1983.

7. Mr Gerondal had explained during the course of this period that there were delays due to the need to amend approved plans, overseas trips taken by the appellants, a need to approve new drainage plans, constant water logging of lounge room footings, lack of finance, problems in locating a stormwater line, delay in receiving quotations whilst calling tenders for crane work, delay in completion of brickwork, the fact that the building work was only being undertaken on weekends, a death in the family, a bricklayer on holidays and the absence of a survey.

8. The reasons for judgment provided by the Tribunal then canvassed subsequent events though for present purposes I think it is unnecessary to do more than note a few particular incidents.

9. On 16 April 1997 the Deputy Building Controller issued a notice under s 46 of the Building Act 1972 (the "Building Act") directing the applicants to obtain a building permit for the completion of the unfinished work.

10. On 20 May 1998, after a number of adjournments, the Magistrates Court convicted Mr Gerondal and fined him $500 in respect of an offence of failing to comply with the notice dated 16 April 1997.

11. On 12 June 1998 the appellants met with Mr B Dagger, Manager, Building Survey ACT Building Electrical and Plumbing Control. They indicated their intention to apply for further approval of the plans for extensions to raise the lounge room roof to include solar access, install a wood stove, add a mezzanine loft to the studio, install a spiral staircase, fit a polycarbonate roof over the bathroom area, and raise walls slightly to the semi-circular bedroom to improve roof drainage and detail. There was a discussion about the need for a safety fence to be constructed to prevent children accessing the construction area and for the block to be kept neat in appearance.

12. Mr Dagger apparently expressed the need for a chart timeline setting appropriate milestones for the completion of the building work. He subsequently prepared such a document which he forwarded to the applicants and requested that the approved works and any approved amendments to them be completed in accordance with the time frame specified in it, although the letter which accompanied what was described as the "gant chart" acknowledged the possible need for some extension of time to allow for wet weather and other contingencies.

13. Plans incorporating the amendments proposed by the applicants were duly approved and a building permit issued in respect of the work on 29 July 1998. In its reasons for judgment the Tribunal set out the requirements specified in the gant chart and also referred to some subsequent inspections.

14. On 29 July 2001, the building permit that had been granted for the completion of the work, expired. The appellants were advised that they would need to engage a builder or apply for an owner-builder license to carry out the work. Forms were also forwarded to the appellants to enable them to appoint a private certifier to approve the plans for the building.

15. On 6 November 2001, a private certifier issued an approval for the work to Mr Gerondal as the builder.

16. On 12 August 2002 the Executive Director of Planning and Land Management wrote to the appellants referring to complaints about the state of the block and advising that unless a commitment to a program that was considered reasonable by the Territory for the completion of the extension and a clean-up of the block was made within 21 days, legal action would be taken.

17. In a letter in response, the appellants stated that they had shown commitment to completing the extensions by taking out a three-year building permit and travelling weekly from interstate to carry out the work. All building materials on the site were to be used in the construction of the extensions and any unused materials would be removed from the site or used for another purpose. They disputed the word "rubbish" as an appropriate description of materials on the block and claimed that the materials had a strong recyclable future in the right hands and location. The letter identified a number of tasks as requiring completion. However, the appellants disputed the contention that their garden was overgrown and said that it was a native garden. They said that it was necessary for them to provide a screen from their neighbours and complained that trees on adjoining land overhung their block.

18. The letter set out details of the work that had been undertaken on the extensions, despite problems including the illness of a relative, litigation in which the appellants had been involved, the appellant's health problems, injury to their builder-carpenter, complexity of the design of the extensions and problems they had encountered in dealing with officers of the Planning Authority and the private certifier. The letter stated that because the appellants had not had previous experience in such a large building project, they could not accurately assess a realistic completion date earlier than the three-year period allowed by the building permit, but said they were making a genuine effort to complete the building and commence the landscaping within the permit period.

19. During the course of the hearing before the Tribunal, Ms Luchetti, the delegate of the respondent who issued the order which was the subject of the proceedings gave evidence and a number of photographs were tendered.

The Tribunal stated, and I quote:

The photographs show an array of apparently wooden and metal objects in the backyard of the block. Vegetation in the backyard appears to comprise a variety of trees, shrubs and vines, of its (sic) covering unidentifiable objects. A dense growth of bamboo is located along a side boundary of the block. There is a significant invasion of the bamboo into an adjoining block (No 16 Yambina Crescent). The photographs show part of the extensions do not have a roof cover. Photographs of the front yard show unglazed window openings, incomplete brickwork, unstacked bricks, corrugated iron sheets and other objects, a concrete mixer, an iron gate and chicken wire fence placed across the front of part of the extension and mesh supported by poles on the front boundary, an electric lead, tiles, concrete reinforcing, a vehicle wheel rim and a variety of other unidentifiable objects. A number of the photographs taken of the backyard of the block were taken by Ms Luchetti holding the camera above her head and another through a gap in the side boundary fence.

20. Ms Luchetti in her evidence referred to concerns that had been expressed by neighbours to the effect that the materials located in the backyard of the block would provide a haven for snakes and rats but conceded that she was not aware of any evidence that such vermin were in fact present.

21. Mr Gallagher, an officer of the Planning and Land Management Department of Urban Services, gave evidence of inspections of the block undertaken by him since 1997 and produced in evidence earlier photographs of the work undertaken on extensions up to 24 September 1997.

22. In a statement admitted in evidence at the hearing, the appellants said that the vegetation on the block was not overgrown, but in fact part of an ongoing native permaculture-style garden. It was not a manicured lawn but it was significantly more environmentally correct and encouraging of native bird life than more traditional gardens. They said that they had made consistent complaints to departmental inspectors about trees from neighbouring properties overhanging the block which dropped branches, leaves and needles and which were potentially a fire hazard. No action had been taken against the neighbours in respect of those complaints. They said their garden remained evergreen with foliage due to its design. Its efficient coverage protected it from heatwaves and made watering, other than that which naturally occurred, unnecessary. It was fertilised by self-composting dying leaves and microbes. Materials in the backyard were non-polluting, environmentally-friendly and used for the purpose of hobbies in which they were involved, particularly the creation of artworks.

23. They produced a letter from Ms Tucker MLA confirming that the appellants were trying to establish a permaculture garden. In the evidence given at the hearing before the Tribunal, Mrs Gerondal said that the material stored at the block would be used either in the construction of the extensions or for creative purposes connected with her hobby as an artist. Many of the items had been recycled and used as building products in the extensions. A number of artistic items had been created from the objects stored in the backyard of the block. They had been displayed at art exhibitions. The use of these items was important to her in her role as a lecturer in adult education classes in relation to recycling. Mrs Gerondal explained that when the gant chart had been prepared, neither she nor her husband had any experience in estimating the time that would be necessary to undertake the specific activities specified.

24. Mrs Gerondal explained that they had understood that the building permit that had been issued to them was only current for the one year period. At the expiration of that year, she had telephoned Mr Dagger to inform him that they had been unable to complete the works in accordance with the gant chart and had been informed by him that their building permit was in fact current for a period of three years.

25. In his evidence to the Tribunal, Mr Gerondal drew attention to the fact that the gant chart had contained the words, "This chart is made on the condition that weather permitting and work is scheduled on time," but they had been partially obliterated from the copy tendered in evidence.

26. He said that in June 2000 he had been in hospital for a period of five weeks and been sick for a period of seven to eight months before that time. He also explained that some of the trusses to be used in the construction of the roof had been incorrectly manufactured and had to be re-welded.

27. He said he had constructed a safety fence to the extensions on the block, despite the fact that this had not been a usual requirement imposed in respect of residential extensions. He also said that he had spoken to departmental officers on numerous occasions expressing complaints about activities that had been carried out on adjoining land without approval and bricks and pieces of concrete that had been left by the occupants of the land on the footpath but that, despite assurances that the matters would be investigated, nothing had happened.

28. Section 256(1) of the Land Act, which was the provision upon which Ms Luchetti relied in making the decision which was reviewed by the Tribunal, then provided that the relevant time in subsection (1) that a person might apply to the minister for an order against the lessee or an occupier of a place on which controlled activity was, is being, or is to be conducted, or any person by whom or on whose behalf the activity was, is being, or is to be, conducted.

29. The term "controlled activity" was defined by the Act to mean an activity of a kind specified in schedule 5. As the Tribunal observed, the items of schedule 5 that appear to be relevant to the proceedings before it were "failure to keep a leasehold clean" and "undertaking a development".

30. The term "development" is defined by s 222(1) of the Land Act as consisting of one or more of a number of activities which include "the erection, alteration or demolition of a building or structure on/or under the land".

31. Subsection 256(5) of the Land Act permits an order to be made directing the person against whom it is made to take a number of steps including, relevantly:

o "to comply with the terms of an approval to undertake a development; and

o to clean up a leasehold;

o to prune in a manner specified in the order so much a tree, sapling, plant or shrub as overhangs a public place."

32. Section 255 of the Land Act makes it an offence without reasonable cause to contravene an order, whilst s 259 provides, that whether or not proceedings are instituted in respect of an offence under s 55, the minister may direct and authorise a person to enter the place on which a controlled activity is being conducted and carry out work to which an order relates which was not carried out within the period specified in the order or apply for a restraining or a mandatory injunction.

33. The Tribunal observed that much of the time at the hearing had been spent in the presentation of evidence and challenging evidence about the extent of the building work completed at various points in time and the building tasks necessary to complete the extensions to the house on the block.

34. The Tribunal expressed the opinion that for the purpose of arriving at a decision little point would be served in endeavouring to make findings which particularised such matters. The evidence before the Tribunal showed that the three major components of the extensions were first approved for construction by, at least, 7 January 1975.

35. A departmental file note recorded that when responding to a notice that informed the appellants that the building permit issued in respect of work was due to expire on 8 August 1977, Mrs Gerondal had stated that the only work undertaken to that date had been the footings of the extensions.

36. The Tribunal observed that the evidence therefore showed that the appellants' building project, after a delayed start, had been in progress for at least 25 years. Although some parts of the block were screened from the public domain by vegetation, the incomplete state of the building work, the presence of building materials, makeshift protection barriers and an assortment of unidentifiable objects of a type not ordinarily found in the front yard of a residence were clearly apparent from some angles of view and had been for many years.

37. The Tribunal noted that a question had arisen as to whether s 256(5)(b)(iv) of the Land Act conferred a power to give directions of the kind proposed by the respondent in relation to the incomplete state of the building work on the block. The Tribunal said that it had been accepted by counsel for the respondent that the section makes reference to a development that has been approved pursuant to s 230 or s 245 of the Land Act.

38. The Tribunal noted that plans marked 26446 C, D, E and F had been endorsed as approved pursuant to the Buildings (Design and Siting) Ordinance 1964, as amended, but that the approval given to the most recently approved amendments on file 26446, that is the amendments approved on 29 July 1998, had been expressed as an approval granted pursuant to s 230 or s 245 of the Land Act to the plans C, D, E and F brought forward from the dates of their respective approval as well as the amendments contained in the plans approved on 29 July 1998. On the face of the documents in evidence before the Tribunal the plans approved pursuant to the Land Act were those marked C, D, E and F on plans file 26446 and the amendments contained in the plans approved on 29 July 1998.

39. Furthermore the amendments submitted for approval on that date were shown as amendments endorsed on the earlier versions of plans D, E and F. The most recent amendments approved on 29 July 1998 involved changes incorporated into the earlier approved amendments and were dependent upon the completion of the work shown in the plans of those amendments.

40. In these circumstances the Tribunal expressed the opinion that the plans contained in Exhibit 7, that is the plans in 26446 D, E and F, were inextricably linked and should henceforth be regarded in their entirety as approved pursuant to the provisions of the Land Act.

41. The Tribunal also observed that it was a requirement for the exercise of power contained in s 256(5)(b)(iv) that any direction require compliance with the terms of the approval to undertake the relevant development.

42. In this case the approval relied upon was the endorsement on the plans referred to earlier which did not expressly specify terms or conditions and, in particular did not include as a condition of approval any requirement that the approved development should be carried out within a stipulated period.

43. The Tribunal noted that there was nothing in the Land Act which provided for the expiration of approvals to undertake a development that would have brought the approval in this case to an end. Nonetheless, the Tribunal expressed the opinion that it was inherent in the approval given to the undertaking of the development, the detail of which had been set out in the plans, that all of the work shown in the plans be undertaken. Partial completion of the work might well result in the development of a significantly different nature to that which was approved. Hence completion of the work in the approved plans was, in the opinion of the Tribunal, a term of the approval.

44. The Tribunal went on to express the opinion that, in the absence of any specification of a period of time for the completion of the development, it should be inferred that a reasonable time would be permitted.

45. The Tribunal said that in determining what was a reasonable period of time so as to justify the making of an order under s 256, a number of considerations relating to the public interest should be taken into account. The public interest required due regard for the financial, health and other difficulties which had confronted the applicants, but the public also had an interest in protecting the amenity of the neighbourhood. The presence of an incomplete construction for an indefinite period in a residential neighbourhood was clearly incompatible with the accepted standards of residential amenity.

46. The Tribunal expressed the opinion that nearby residents should not have had to endure what it described as a "blight on their neighbourhood" for such an extended period and referred to the department's failure to act upon various complaints that had been made by the appellants.

47. After considering all of the relevant considerations the Tribunal concluded that the evidence did not justify the making of any order directing the applicants to take any remedial measures in relation to the back yard of the block, other than those which required the containment of bamboo. However, it did consider there were grounds for requiring the appellants to take the other steps set out in the schedule to order (b).

48. In the proceedings before me the appellants have relied upon a number of grounds to challenge this decision. The submissions, which have taken place over a period of two days, have been wide-ranging and discursive. I hope they will understand that I do not intend to refer to all of their submissions only because many of them were relevant to propositions of fact which fall outside the scope of the appeal with which I am concerned.

49. Section 46 of the Administrative Appeals Tribunal Act 1989 provides in subs (1):

A party proceeding before the Tribunal may appeal to the Supreme Court on a question of law from any decision of the Tribunal in that proceeding.

50. It is of course clear from the nature of that section that the appeal is intended to be confined to questions of law and, accordingly, it is not appropriate for me to consider submissions as to the course of dealing between the appellants and officers of the respondent in years leading up to the approval in 1998 or, indeed, to embark upon a widespread analysis of many of the various grievances that have been raised in argument.

51. I will deal with the grounds of appeal in sequence.

52. The first ground of appeal was:

1. The Administrative Appeals Tribunal failed to give proper weight to the evidence of the applicants in relation to -

a) the non-invasive nature of the bamboo on the appellants' premises;

b) the presence of limited building materials upon the premises;

c) the state of vegetation on the premises, being part of a system of permaculture; and

d) difficulties encountered by the appellants in completing building work, including financial hardship, illness, disputes with contractors and errors by subcontractors delaying completion and the action of ACT Administrative Appeals Tribunal hearings, Territory officers, leading to issues of orders occurring within the three year building period ordered.

53. As Dr Jarvis, who appeared for the respondent, pointed out, issues of the weight of evidence do not normally involve any question of law. They fall, rather, within the fact-finding exercise that must be undertaken by the Tribunal. It has been suggested that an error of law may be found when minimal weight is being given to a matter which is obviously of great importance, or vice versa (see, for example, Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705). However, there is nothing in the present case that would take the complaints raised in this ground of appeal outside the normal principle that these must be regarded as issues of fact rather than issues of law.

54. I might mention, in passing, that having read the Tribunal's decision with some care, it does not seem to me that the Tribunal in any way overlooked or underestimated the weight that should be given to the matters that were put before it. Rather, it appears to have taken the view that in some respects those considerations should be given priority, but that, in other respects, they were outweighed by competing considerations. No error of law is involved in such an approach.

55. Similar considerations arise in relation to ground 3, which was phrased in these terms:

3. The Tribunal erred in placing undue weight on the investigation and the evidence of Territory officers as to the condition of the premises, in particular, as to the presence of building materials lying on the ground in the premises.

56. It is, I think, unnecessary to refer to the evidence in any detail. This ground, again, raises issues of fact and, again, I could see no basis for inferring that the Tribunal did fall into such error, even if it were an error of the kind to which I could have regard on an appeal of this nature.

57. The second ground of appeal was:

2. The Tribunal had erred in accepting the interpretation and evidence of photographs taken into the premises into the presence of building materials lying upon the ground, such interpretation being not reasonably open to the Tribunal.

58. It should be observed that the Tribunal is not bound by the rules of evidence and may inform itself as it sees fit (see s 32 of the Administrative Appeals Tribunal Act). In any event, the photographs were, in my opinion, both admissible and relevant.

59. It was submitted in argument by the appellants that there had been considerable confusion about the photographs and that witnesses had in fact misidentified the areas of grounds depicted by them. There were in fact some quite extensive submissions directed towards this issue. However, having looked at the photographs and having read the Tribunal's judgment, I can see no basis for any conclusion that confusion of that nature would have had a substantial influence on the Tribunal's decision. Such an issue could not, in any event, impugn the decision on appeal to this court because the issue is one of fact rather than one of law.

60. Ground 4 provided:

4. The Tribunal erred in finding that in the absence of any time provision for the completion of building work that a reasonable period of time be implied, particularly in respect of section 36A(2) of the Building Act 1972.

61. As already mentioned, the Tribunal took the view that it was implicit in an approval, at least of the construction of extensions to a house, that the work actually be undertaken and that it be undertaken within a reasonable period of time. It is true that there is nothing in the Act which expressly states such a proposition, and it seems to me that it may be necessary to draw a distinction between developments upon which work has not commenced and those upon which work which has been commenced.

62. Where, for example, somebody obtains an approval to build a new house and is simply unable to proceed with it, whether due to illness, lack of funds or any other circumstance, it may well be that there would be no power under s 246 to order the construction or, alternatively, that it would be inappropriate for such a power to be exercised. In that event, the land would remain vacant or any building already constructed would remain unchanged. However, there does seem to me to be something in the approach taken by the Tribunal at least to the extent that there is an implied condition that, once started, the approved work will be completed within a reasonable time. If a landholder were to be entitled lawfully to simply build part of the approved plan and leave other parts uncompleted, the legislative policy underlying the statute could be effectively circumvented.

63. I do not suggest for one moment that that is what the appellant sought to do in this case. I am concerned with the interpretation of the statute generally. There are many circumstances that arise in relation to building applications where those responsible to approve an extension would wish to ensure that provision had been made in the plans to prevent particular problems arising. If no time limit for completion of the extensions were to be imposed, a builder or indeed a leaseholder could effectively circumvent those requirements by simply building that part of the extension that he or she really wanted to have and not getting around to building that part of the extensions that consisted of measures that the authorities had properly insisted be taken, whether for protection of neighbouring properties or otherwise.

64. Taking a purposive approach to the interpretation of the statute, as I think I should in the circumstances, I accept the Tribunal's approach that at least in relation to works that had commenced, there must be implied, firstly, a condition that the works will be wholly completed, and secondly, that completion will occur within a reasonable time, such time being, perhaps, from the time of commencement of the construction.

65. In my opinion the reference to s 36A(2) of the Building Act does not have the effect of militating against such a construction. Section 36A says:

Subject to section 35A and this section, a building approval is valid until the end of -

(a) a period of three years beginning on the day of its issue; or

(b) the development period applicable to the building work;

whichever sooner occurs.

66. It is clear that two forms of approval are required. Firstly, planning approval is required under s 230 or s 245 of the Land Act, and secondly, approval is required under the Building Act, which if a certifier is engaged, as in this case, can be effected under s 33A of that Act.

67. In my opinion the provisions of the Land Act are not to be construed as providing for indefinite deferral of the time for completion of an extension by reference to the period in which permits may run under the Building Act. Such a construction could lead to an almost indefinite postponement of the completion of the construction, and there may be many circumstances in which public health or safety could be endangered by such an approach.

68. The fifth, sixth and seventh grounds of appeal should be perhaps considered together. They provide as follows:

5. The Tribunal erred in finding the Territory had validly issued orders for compliance with approvals previously granted.

6. The Tribunal erred in finding that the approval of all plans for the building work were pursuant to the Land (Planning and Environment) Act 1991.

7. The Tribunal erred in relation to the legislative power for the Orders made for issuing of plan approval and building approval and the Territory lacked jurisdiction.

69. Dr Jarvis had submitted in relation to ground 5 that there was no such finding and that no issue had arisen as to the validity of any of the approvals. However, the appellants explained in argument that the issue raised by that ground was whether the Tribunal had erred in treating the approval as approvals under the Land Act when, in reality, the relevant approval was the approval of the certifier in 2001. The same issues arise in relation to grounds 6 and 7.

70. In each case there are three substantial arguments. First, the prior approval under the Building (Design and Siting) Act was the only valid approval and hence there was no scope for a subsequent approval under the Land Act.

71. Second, even if that proposition was not correct, nonetheless the subsequent approval under the Land Act was invalid because there had been a breach of procedural requirements. There had been no delegation authorising the person who gave that approval to exercise the powers conferred by s 245 of the Land Act and he had, in effect, misled the applicants as to the need for them to apply.

72. Third, even if those submissions were to be rejected the relevant approval should now be regarded as that of the certifier.

73. Issues relating to the need for both planning approval and building approval were canvassed in the evidence before the Tribunal. Mr Gallagher gave evidence that two approvals were required for extensions such as those which the appellants were constructing, one being the approval under the Land, Planning and Environment Act which superseded the Design and Siting Act, and one being the approval under the Building Act. The witness went on to explain that the approval under the Land Act was directed toward issues of design and siting whilst that under the Building Act was directed toward issues of structural sufficiency and compliance with the Building Code of Australia. Mr Gallagher expressed the view that both were necessary. The decisive issue is, of course, whether that is required as a matter of law rather than whether it merely reflected the understanding of the witness, but nothing has occurred in this case to cause me to have any doubt whatever as to the correctness of Mr Gallagher's opinion. It is important that the distinction between these approvals be kept firmly in mind in considering the appeals that have been raised.

74. As I have mentioned, the Tribunal took the view that the subsequent approval in 1998 involved amendments which had been incorporated into the earlier approvals and were dependent upon the completion of the work shown in the plans. In those circumstances the Tribunal took the view that the plans were inextricably linked and that they should now be regarded in their entirety as having been approved pursuant to the provisions of the Land Act.

75. If I may say so, with respect, it is difficult to see how any other construction would make sense of the application of the legislative scheme to amended plans of the kind submitted in July 1998. It would create quite unnecessary problems if the legislation were to be interpreted on the basis that any time there was an amendment to the plans it was necessary to treat each individual amendment as having been the subject of a separate approval at the time of each individual application. There may be circumstances in which it would be entirely inappropriate to regard the amendment of some discrete aspect of the plans, such as the erection of a porch adjacent to an existing structure, as incorporating the earlier approval. However, where, as in these circumstances, there are substantial changes which impinge upon substantial portions of the plans already approved by, for example, raising the height of a room already included in earlier plans, it seems to me, that a question of judgement arises as to whether the subsequent approval was, in substance, a re-approval of the whole of the extensions encompassed by the earlier plans as well as the proposed changes, or whether it was merely a discrete approval of the changes later put forward.

76. Having considered the plans in question, it seems to me that it was open to the Tribunal to come to the conclusion that it did.

77. Furthermore, in my opinion, the conclusion that the approval on 29 July 1998 related to the whole of the plans and not merely to those discrete changes from the earlier plans was a conclusion of fact rather than law.

78. It was submitted by the appellants that the Tribunal should not have been satisfied that the plans before the Tribunal were, in fact, the plans actually approved. In support of that contention Mrs Gerondal drew my attention to the fact that there are at least two or more sets of plans in the Appeal Book which are not coextensive, at least in terms of their notations, though one of the plans appears to be an original and another appears to be a copy. In answer to that proposition Mrs Gerondal pointed out, obviously correctly, that there was no way in which the possibility that the plans, which appeared to be a photocopy, might have been a copy of an earlier approved original inconsistent with the original on file could be excluded. However, this again raises an issue of fact rather than law.

79. So far as the allegations concerning breaches of procedural requirements are concerned, I am unable to find that such issues were properly raised before the Tribunal in a way that would have warranted the Tribunal approaching and resolving any issue as to the validity of the approval.

80. It is clear that whatever occurred, the approval was applied for and was granted. I can see no reason to doubt that it was validly granted.

81. I excluded evidence purporting to show that the person who granted that approval may have lacked a delegation from the Minister to exercise the powers under s 245 for reasons that I have already given in an earlier oral judgment. I might add, however, that during the course of the argument, both appellants informed me that they thought that s 245 was irrelevant and that the real power was the power to approve under s 230.

82. In any event, as I have indicated, the questions of validity were not squarely raised in the facts and contentions, which in an appeal to the Tribunal effectively define the ambit of the proceedings. Furthermore, in the absence of compelling evidence to the contrary, the Tribunal would, in my opinion, have been entitled to rely upon the presumption of validity. I reject this ground.

83. The eighth ground of appeal alleged:

8. The Tribunal erred in the orders made, which are incapable of compliance by reason of imprecision and/or exposing or requiring the appellants to commit civil or criminal wrongs in order to effect compliance.

84. The first of the substituted directions requires the lessees to "comply with the terms of the approval in plans 26446 D, E, and F (or in amended plans that may be approved in writing by the Territory) to construct extensions to the existing residence and related works on block 45, section 37 Waramanga . . .". As I have mentioned, there were no explicit terms in the approval and, if these words had to be construed without reference to their context, some confusion could arise. However, the words were immediately followed by the direction "all the works to be completed by 5 November 2004 or within such further time as may, prior to that date, be agreed in writing by the Territory". In this context it seems relatively clear that that compliance requires completion of the works approved by that date. Furthermore, perusal of the reasons for judgment reveals, as I have already mentioned, a debate about the words "terms of approval" and extensive discussion about the implication of a term requiring that the works be completed and that they be completed within a reasonable time. In this context I think that the meaning of the direction is quite clear.

85. The requirements of order (b) are, in my view, very clear. It was submitted by the appellants that they were too vague because the precise nature of the trimming and pruning of the bamboo is not specified. It was also argued that bamboo was not a noxious weed or a "pest plant". However, the directions do not suggest that the bamboo falls within either description and, having regard to the terms of the order, there was no need for such a precise specification as suggested. The orders in relation to bamboo required the appellants to trim or prune the bamboo that extends beyond the boundaries so that it no longer extends beyond the boundaries and in such a way that the prunings and loppings fall back within the block. Ms Gerondel argued that this would require her to trespass on neighbouring land but I do not accept that this would be necessary.

86. The directions require the appellants to trim or remove the bamboo to the reasonable satisfaction of the Territory. Whilst I understand the heartfelt objections which the appellants have to that direction, it does seem to me to be a perfectly clear order and one which could not be impugned on the basis suggested.

87. Furthermore, as Dr Jarvis pointed out in his submissions, an order is not rendered invalid merely because its scope and purpose do not appear with pellucid clarity. There may be circumstances in which it cannot be determined that particular matters fall within its scope but, generally speaking, courts and parties, for that matter, must do the best they can to interpret the orders made.

88. In the present case, I can see no difficulty in the interpretation of this order. It seems to me to be have been phrased with commendable clarity and the objections to it really seem to have been based upon a reluctance to comply with it.

89. The final grounds of appeal are as follows:

9. The Tribunal President erred in not informing [the] disclosing to the parties at the commencement of the Tribunal hearing or at any time thereafter that the Tribunal President had worked with and knew both counsel appearing for the respondent.

10. The Tribunal President erred in not inviting the parties (or any of them) to advise if they wished for the Tribunal President to disqualify himself (by reason of the matters raised in (9) above).

11. By reason of the reason of the matters raised in (9) and (10), there is a reasonable apprehension of bias in the decision of the Tribunal President.

90. I should make it clear that the mere fact that the President of the Tribunal knew both of the counsel appearing for the respondent offers absolutely no reason for him to have disqualified himself or, indeed, for him to have disclosed that fact. Judges, magistrates and, as in this case, presidents of tribunals, especially in a city the size of Canberra, frequently know both counsel appearing in a case and in many cases have known them for a very extended period of time. As Higgins J, (as he then was), explained in Pacific Cinemas Canberra Pty Ltd v Administrative Appeals Tribunal, Commissioner for Land and Planning and Lend Lease Property Management (Australia) Pty Ltd [1999] ACTSC 15 (9 March 1999), the general principle is that if there is any real possibility that the participation of a judge in a case might lead to a reasonable apprehension of prejudgment or bias he or she should refrain from hearing it. On the other hand, it would be an abdication of judicial responsibility and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever requested to do so on the grounds of a suggested appearance of possible prejudgment or bias, regardless of whether the other party wanted the matter to be dealt with by the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the court. See Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294.

91. The grounds for what has been referred to as the doctrine of disqualification were outlined succinctly by Deane J, as he then was, in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 where his Honour said and I quote:

The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct though sometimes overlapping main categories of case. The first is disqualification of interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

92. It is abundantly clear, however, that in adverting to some direct or indirect relationship or experience or contact with a person or persons interested in or otherwise involved in the proceedings, his Honour was not merely adverting to the counsel and/or their instructing solicitors acting on behalf of particular parties. In referring to association with persons "interested" in the proceedings, His Honour clearly had in mind the parties or others who might profit or suffer by virtue of the way in which the proceedings were resolved rather than lawyers who had merely been retained to represent them.

93. Indeed, in Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31; (1991) 173 CLR 78 Brennan, Gaudron and McHugh JJ pointed out, at 87, that even a prior relationship between the legal adviser and a client does not generally disqualify the former adviser, on becoming a member of a tribunal, from sitting in proceedings before that tribunal to which the former client is a party. If an erstwhile legal adviser sits in a proceeding in which the quality of his or her advice is likely to be at issue there may be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the case. However, much may depend on the nature of the relationship with the client, the ambit of the advice given and the issues falling for determination.

94. In the case of Pacific Cinemas to which I have already referred, Higgins J held that the mere fact that the Commissioner had been a regular client of the ACT Government Solicitor would not be a cause for disqualification of that person when he subsequently sat as a member of the Tribunal. The relevant question was whether the hypothetical bystander would consider it inappropriate for the President to preside over a matter for which he had been administratively responsible and ultimately accountable but had had no actual prior knowledge about it.

95. In that particular case, his Honour concluded that it would have been necessary for the President to otherwise have disqualified himself had it not been for the application of the doctrine of necessity, he being the only legally qualified member at the time. However, in that case, the President had held the position of Chief Solicitor with the ACT Government Solicitor ("AGS") at the time when the AGS received instructions to act for a party in the very proceedings before the Tribunal over which the President proposed to preside. The present position is quite different. It seems clear that the President ceased to hold that position in November 1998 and the proceedings before the Tribunal did not commence until 14 January 2003.

96. It was submitted in argument, though not raised in the grounds of appeal, that there was a further basis upon which the President should have disqualified himself, namely, that he had been the head of the AGS at a time when its staff conducted a prosecution of Mr Gerondal for failing to comply with the notice under s 46. There was, however, no evidence before the Tribunal or before me to establish that staff of the AGS had conducted the prosecution. Indeed, the Appeal Book contains a letter dated 25 May 1998 from the Acting Director of Public Prosecutions, addressed to the Manager, Building, South Canberra Region, ACT Building, Electrical and Plumbing Control, Planning and Land Management and informing him of the result of the prosecution. There is a statement from Mr Dagger which refers to the fact that on 17 May 1996 the then senior manager for South Region, Mr Peter Weiderman, sought legal advice from the Government Solicitor. Written advice was received from Dr Jarvis on 23 May 1996. Mr Weiderman accepted the recommendations and wrote a letter in terms of the draft letter supplied. That statement proceeds to outline subsequent dealings between the parties and reveals that Mr Gerondal had apparently written to the ACT Government Solicitor on 14 July 1998. However, Mr Dagger states that information had been received from the DPP that the form of the service of the s 46 notice had not been in strict conformity with the relevant section of the Building Act, that on 20 June 1997, the DPP had been formally advised of the failure of the lessees to respond to the notices, that following directions from the DPP on 4 September 1997 he had twice made attempts to serve the appellants with a summons, and that the matter ultimately proceeded to a hearing.

97. Accordingly, the only real evidence in the case is that proceedings were conducted by the DPP.

98. There is no material before me that would provide any ground upon which I could be satisfied that a reasonable member of the public properly informed of the relevant circumstances would have been concerned at the possibility that the President might be influenced by bias merely because he had occupied a different position in 1996 and that one of his subordinates had given advice about the form of a letter prior to a prosecution being instituted by another government agency.

99. In my view, the grounds for any finding of apprehended bias has not been made out and these grounds must be rejected.

100. Accordingly, the appeal must fail.

101. Dr Jarvis did submit that, in the event that I was not satisfied that any of the grounds of appeal had been established, the matter should nonetheless be remitted back to the Tribunal because the existing orders had been stayed upon the institution of the appeal and it would be necessary for the Tribunal to redetermine appropriate dates for compliance with the steps referred to in the orders. It follows that, notwithstanding the fact that I have been unable to detect any error of law in the decision of the Tribunal and that the appeal must otherwise be dismissed, that seems to me to be an entirely reasonable approach.

102. The orders I make are as follows: first that the appeal be dismissed but, second that the matter be remitted to the Tribunal for the purpose of enabling it to make further orders in view of the delay that has occurred as a consequence of the appeal and the fact that some of the dates specified in the orders have already expired whilst others are so imminent that compliance by those dates may now be unreasonable.

103. [Argument about costs then ensued]

104. I order that the appellants pay the respondent's costs.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 6 September 2004

Counsel for the appellants: Mr P & Mrs M Gerondal (self represented litigants)

Counsel for the respondent: Dr D Jarvis

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 16, 17 August 2004

Date of judgment: 17 August 2004