ACT Construction Occupations Registrar v Tokich [2006] ACTSC 89 (13 September 2006)

Last Updated: 13 February 2007

ACT CONSTRUCTION OCCUPATIONS REGISTRAR v JOHN TOKICH

[2006] ACTSC 89 (13 September 2006)

APPEAL - Administrative Appeals Tribunal - ACT Construction Occupations Registrar - Rectification Order - circumstances permitting a rectification order - "contravention" under Construction Occupations (Licensing) Act 2004 - no error of law - appeal dismissed.

Administrative Appeals Tribunal Act 1989 (ACT), s46

Construction Occupations (Licensing) Act 2004 (ACT), ss 6, 8, 16, 34, 35, 36, 38, 141, 149

Building Act 2004 (ACT) ss 6, 7, 8

Construction Practitioners Registration Act 1998 (ACT) (repealed)

Water and Sewerage Act 2000 (ACT)

Land (Planning and Environment) Act 1991 (ACT), s 259A

Building Act 1972 (ACT) (repealed), s 31, 34, 37, 41A, 53

ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 92 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 13 September 2006

IN THE SUPREME COURT OF THE )

) No. SCA 92 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: ACT CONSTRUCTION OCCUPATIONS REGISTRAR

Appellant

AND: JOHN TOKICH

Respondent

ORDER

Judge: Higgins CJ

Date: 13 September 2006

Place: Canberra

THE COURT ORDERS THAT:

1. Leave to appeal be refused.

1. This is an application for leave to appeal pursuant to s 46 of the Administrative Appeals Tribunal Act 1989 (ACT) (AAT Act) from a decision of the Australian Capital Territory Administrative Appeals Tribunal, constituted by Ms P O'Neil, Senior Member, handed down on 24 October 2005.

2. That decision, in turn, was made on appeal from a decision of the ACT Construction Occupations Registrar (made by the appellant, who was also the Building Controller) and a Deputy Registrar exercising the Registrar's powers to take certain remedial construction action in respect of Unit 28 of Block 2 Section 94 Charnwood in the Territory.

3. That decision had resulted, on 16 November 2004, in the issue of a "notice of rectification order" sent to Mr John Tokich, a licensed builder (the respondent).

4. The order was in the following terms:

In accordance with section 38 of the Construction Occupations (Licensing) Act 2004 (the Licensing Act), I, hereby order you to take the stated action as described in schedule 1 to this order to rectify work done by you as licensed builder. This rectification work is to be finished by 31 March 2005.

...

Schedule 1 to Rectification Order issued on 16 November 2004 ...

Rectify the stormwater drainage system for surface water in the vicinity of unit 28 of block 2 section 94 Charnwood (unit 28) to comply with Building Code of Australia (the Building Code) Performance Requirement P2.2.1. to prevent the likelihood of any further damage or nuisance to unit 28. To achieve this, you are required to perform the following actions to rectify the work:

1. remove the sump and related spoon drain located in the yard of unit 28 and make good the area including the stormwater main pipe and landscaping; and

2. put in place a permanent solution designed and certified by a qualified hydraulics engineer according to requirements of the Building Code and AS/NZS3500.3.2 to deal with the overland flow of surface water from adjacent land in the vicinity of unit 28 including appropriate provision for overland flow paths to deal with stormwater surcharges. This permanent solution is to replace the temporary earth bank solution and small drainage pipe currently in place; and

3. obtain, with the consent of the owner, any necessary building approvals and commencement notices required under the Building Act 2004 to carry out the work stated at points 1 and 2; and

4. have the qualified hydraulics engineer who designed the solution inspect and provide certification of the completed works; and

5. carry out the works in a way that causes the least amount of impact on the tenants of unit 28; and

6. restore to original condition any structures, plant or materials damaged or altered during rectification works; and

7. all works are to be done in accordance with requirements of the Building Act 2004; and

8. you are to bear all costs associated with bringing into effect the above stated works.

5. The notice was delivered in purported compliance with s 38 of the Construction Occupations (Licensing) Act 2004 (ACT) (the Licensing Act).

6. Such a notice must be preceded by a notice of intention to issue it. That is dealt with in the following provisions:

34 Intention to make rectification order

(1) This section applies if the registrar believes on reasonable grounds that -

(a) a licensee or former licensee (the entity) has provided a construction service otherwise than in accordance with this Act or an operational Act; and

(b) it may be appropriate to make a rectification order.

...

(2) The registrar may give the entity, and the land owner in relation to whose land the construction service was provided, a written notice that -

(a) gives details of the rectification order that may be made; and

(b) explains why the registrar intends to make the order; and

(c) invites submissions about the making of the order within the time stated in the notice that is not less than 5 working days after the day the entity or land owner receives the notice.

35 When rectification order may be made

(1) This section applies if -

(a) the registrar has given an entity notice under section 34; and

(b) the entity provided the construction service, or part of the construction service, to which the notice relates; and

(c) after considering any submissions made within the time mentioned in the notice, the registrar is satisfied -

(i) the entity is contravening, or has contravened, this Act or an operational Act; and

(ii) it is appropriate to make a rectification order in relation to the entity.

...

(2) The registrar may make an order under section 38 (Rectification orders) in relation to the entity.

...

and

38 Rectification orders

(1) The registrar may make an order (a rectification order) in relation to an entity requiring the entity -

(a) to take stated action to rectify work done as part of a construction service; or

(b) to demolish a building or part of a building where a construction service has been provided and provide the construction service under this Act or an operational Act; or

(c) to start or finish stated work in relation to which a construction service has been, is being or was proposed to be provided.

(2) If the entity is not licensed to do something required to be done under the order, the entity must arrange, and pay for, the thing to be done.

(3) The rectification order must state a period within which what is required to be done must be done.

...

7. As noted by the Senior Member in [4] of her decision:

The Building Act 1972 is an operational Act for the purposes of section 34 of the Licensing Act by virtue of sections 130 and 149 of the Licensing Act. A decision to make a rectification order under section 38 of the Licensing Act is reviewable by the Tribunal: section 45(1)(k) of the Construction Occupations (Licensing) Regulation 2004.

Background

8. Block 2 Section 94 Charnwood was created in 1999. The ACT Government had decided to redevelop the site of the former Charnwood High School. To this end, the site was subdivided so as to create two new blocks, numbered 2 and 3. Block 1 was the remnant of the original site including driveways, carparks and sporting facilities. The site of the former school buildings was the new Block 3 whilst Block 2 was allocated for residential development.

9. Blocks 2 and 3 were sold by tender to Pinto Homes Pty Ltd (Pinto). A development application (DA 20002094) was lodged by Pinto proposing the construction of 59 residential dwellings on Block 2. That application was approved in July 2000. Block 2 was then on-sold (with approval) to Tokich Homes Pty Ltd (Tokich Homes). As the name implies, that company was the corporate vehicle of Mr Tokich.

10. Mr Tokich duly constructed the 59 units and the same were sold by Tokich Homes to various individuals with individual titles being carved out from the area of Block 2.

11. Pinto developed Block 3 and transferred it in December 2000 to the Canberra Christian Life Centre.

12. Unit 28, one of the 59 units erected on Block 2, was sold on 3 March 2003. The registered owners are Geoff and Lissa Meggs.

13. In November 2003 there was a "flooding event". The paved area to the rear of Unit 28 on Block 2 was flooded following a storm.

14. Block 2 is lower than Block 3 and it is clear from photographs that the paved car park on Block 3 and the concrete apron to the front of Unit 28 encouraged water flow into the area of that unit.

15. There was an on-site meeting between Mr Tokich and a representative of the appellant. Mr Tokich agreed to undertake certain remedial measures. He constructed an earth bund (embankment), within Block 2 parallel to the boundary between Unit 28 and the car park. This blocked a spoon drain which had been designed to drain the flow from the car park into a sump drain in the garden of Unit 28. The sump drain was a pre-existing structure but it is, at least with hindsight, inadequate to cope with the flow off from Block 3 as re-developed. It had not been designed for that purpose.

16. That consequence had been foreseen by ACT Government studies before subdivision. As the Senior Member recorded:

The subdivision

8. Prior to the subdivision and sale of the land, a number of studies had been commissioned by the ACT Government. These included a Works and Commercial Services Site Investigation Report dated July 1996 by Bill Guy and Partners, which among other things stated:

4.3 STORMWATER

There is a 525mm dia stormwater tie at the east boundary of the site. All piped stormwater from the school buildings and ground drains to this point. The stormwater tie coincides with the overland flow discharge point from the site.

Redevelopment of the site will increase the extent of impervious areas hence the stormwater runoff will increase. Current DUS stormwater unit policy is for onsite stormwater detention systems (OSD) to be provided however this would need to be discussed with the stormwater unit once the extent and type of development as determined.

5.0 OVERLAND FLOW

There is an open unlined grass stormwater channel through the site to the south of the school buildings. The channel collects stormwater from the block and from our site inspection it appears that no contribution is made from outside the block, however, this would need to be verified by a more detailed review of stormwater in the area. ...... The channel discharges into open space to the east of the tennis courts.

...

Development constraints are difficult to identify due to the preliminary nature of possible redevelopment options, however, the following constraints exist and would require relocation/upgrading of services/easements created

*        1050mm dia stormwater main along Lhotsky Street frontage

*        sewer from school

*        stormwater from school

*        gas and telephone to school

*        open stormwater channel to south of school

*        significant stands or individual trees worthy of retention.

9. A Boundary Assessment Report to consider the boundary between the proposed new blocks was then commissioned by the ACT Government from Purdon Associates Pty Ltd. It is dated March 1997. It reads in part:

4. REVIEW OF EXISTING INVESTIGATIONS

4.1 Review of Works and Commercial Services investigation

*        ......the stormwater easement could be retained and incorporated into a landscaped buffer zone and pedestrian link across Lhotsky Street

*        stormwater pipes from the school building cross the south eastern portion of the site. These services may need to be relocated and/or easements provided

*        an overland flow stormwater channel crosses the south eastern portion of the site. ...... Although piping of some of this flow is possible, an overland flow path would still be required for extreme storm events. As a result, the existing or a modified version of this overland flow path will need to be incorporated in any development proposal. ...... Onsite stormwater detention systems may be required subject to negotiations with the stormwater unit of DUS.

5.2.2 Constraints on Residential Development

*        Some minor realignment of this flow path may be necessary and will require future design and investigation. It is anticipated that this flow path will be located in an easement across the residential site and be associated with a pedestrian link;

*        Relocation of stormwater pipes associated with the former high school building into its proposed curtilage.

10. In April 1997 Bill Guy and Partners was again commissioned to carry out a further Site Investigation Report into the land. It reads in part:

6.1 DUS - Stormwater

The current policy in relation to stormwater for redevelopment of the existing site is detailed in the publication "Interim Stormwater Management Guidelines for Redevelopment" Stormwater Section, Roads and Traffic Branch, ACT City Services, Edition 1 September 1994.

Mr S Brenan of DUS - Stormwater has confirmed the above would be applicable to any redevelopment on the site whether it be the residential area or expansion of the existing buildings.

It should also be noted that the site contains an overland flow path for the 100 year ARI. This flow path would need to be maintained and incorporated into any redevelopment.

With the creation of two or more blocks of land, rationalisation of services will be required to provide one stormwater tie to each block. Easements will be required over any services passing through new blocks.

11. The tender document for the sale of the land issued in May 1997 by Total Care Industries Limited, an agency of the ACT Government, identified the land for sale as two subdivided blocks. The document included the following clause:

7. EXISTING BUILDINGS, IMPROVEMENTS AND SITE CONDITIONS

Block 1 Section 94 Charnwood is fully serviced by water, sewer, stormwater, electricity, gas and telecommunications. The Associated Works required to separately service `Block A' and `Block B' are to be carried out by the successful Lessees in accordance with Prescribed Conditions for Associated Works to be determined when the boundary is finalized.

(`Block A' became Block 3 and `Block B' became Block 2.)

12. In summary, several reports prior to subdivision showed the need for provide separate stormwater services for the separate blocks prior to subdivision. This work was, according to the tender document, to be described as Prescribed Conditions for Associated Works and to be undertaken by the successful purchaser upon sale of the land. Yet it appears that no Prescribed Conditions for Associated Works were ever imposed, nor were any lease conditions dealing with stormwater and other identified services attached to the leases when they were issued to Pinto. Both overland and piped stormwater continues to flow from Block 3 to Block 2 as they did prior to the subdivision.

17. There is no suggestion that the respondent constructed the works on Block 2 otherwise than in accordance with the approved plans and specifications.

18. The expert evidence called before the Senior Member was detailed and assessed by her as follows:

The expert evidence

13. Mr Tony Connell is the Manager, Civil Engineering, Canberra, with Northrop Consulting Engineers. Mr Bernard Cusack is a senior civil engineer and principal of Sellick Consultants. Both Mr Connell and Mr Cusack have experience in the engineering of urban infrastructure including provision of stormwater drainage in subdivisions in the ACT. Both provided expert written reports and gave oral evidence for the applicant. Both agreed that the stormwater services for Block 3 which run through Block 2 and which pre-existed the subdivision should have been rationalised at the time of subdivision so as to confirm ownership and service responsibilities as between both lessees and the ACT Government through Department of Urban Services ("DUS"). They described that as usual, indeed required, practice.

14. The expert opinions of both Mr Connell and Mr Cusack were that the flooding of the garden of Unit 28 in February 2003 had been caused by water flow across the 800m² hard paved carpark on Block 3, thence across the boundary into Block 2 towards the sump in the garden of Unit 28. They consider the Building Code of Australia Standard AS/NZS 3500.3.2: 1998, cited in the Order, may cover overland flow from a small area such as occurs in standard residential blocks but generally to be applicable for work inside a leased boundary only. They do not accept that it is meant to deal with stormwater draining from a catchment of about 3 hectares. In their opinions the responsibility falls to the lessees of Block 3 to manage the uncontrolled surface discharge from the large paved carpark. The Department of Urban Services Design Standard for Urban Infrastructure (November 2002) was cited as the relevant standard in support of this opinion. Both Mr Connell and Mr Cusack considered that Mr Tokich was not required to, and should not have, constructed the spoon drain. However, that had been overcome by the construction of the earth bund prior to the issue of the rectification order so that flooding of Unit 28 had subsequently been prevented. They consider that a more permanent solution to stormwater drainage of Block 3 is required. However their opinions, informed by their knowledge of the relevant standards and their experience as civil engineers working in this field, are that the applicant should not bear the responsibility for rectifying up-stream stormwater problems that were foreseen, and should have been resolved by those involved, at the time of subdivision.

15. Mr John Morgan provided an expert report and gave oral evidence for the respondent. He is also a civil engineer as well as being a building surveyor (certifier) and holding other registrations. He first became involved in the matter when approached by the residents of Unit 28. In his written report he disagreed with Mr Cusack and Mr Connell that the water responsible for flooding Unit 28 was discharge flow across the sealed carpark in Block 3, which he believed to be adequately drained. There is however ample evidence from photographs and from other witnesses of water collecting in the carpark. Mr Morgan attributed the flooding to a failure by the respondent to comply with the provisions of Building Code of Australia concerning surface water. In his opinion rectification work such as set out in the Order need to be done.

16. It emerged in giving oral evidence that Mr Morgan's written report had been prepared on the basis of incomplete knowledge of the history of the land. He agreed that the history of the subdivision of the land was relevant to considering responsibilities for stormwater management. His report was also predicated on the understanding that no civil works had been undertaken on Block 3 following subdivision, which understanding he later conceded was not correct. There is photographic evidence of civil works as well as oral evidence from Pastor Sean Stanton of the Canberra Christian Life Centre which operates from Block 3 to this effect. Pastor Stanton agreed that various works had been undertaken, including modification including grading of carparks, removal of traffic islands, and the construction of a new driveway entrance to the overflow carpark. While some of these works might, taken alone, have a limited impact, in the opinion of witnesses including Mr Connell at least some of those works could change the topography of Block 3 to the extent that the stormwater drainage and overland flows towards Block 2 have been affected.

17. Where they disagree, I prefer the evidence of Mr Connell and Mr Cusack to that of Mr Morgan because of their greater experience in civil engineering for subdivisions and their more complete consideration of relevant issues. I also prefer their evidence to that of Mr Johnson. Mr Johnson gave evidence that, in deciding that the applicant had failed to comply with the BCA standard in relation to overland flow of surface water, he had considered the incident of flooding in the context of building work on Block 2 only. However he accepted that works on Block 3 could have been relevant.

19. The Senior Member then considered the appellant's contention that the respondent had failed to comply with Development Condition 7. That provided:

That formal approval is to be obtained from ACT Roads and Stormwater, Department of Urban Services ("DUS") for the proposed on-site stormwater/drainage arrangements prior to the commencement of any construction work on the block.

20. The Senior Member considered that Condition 7 obliged the respondent to deal with:

on-site flows arising as a result of the approved construction of 59 dwellings in order to avoid the potential for down stream flows to increase as a consequence of that development. ... There is nothing in the condition or reasons for it to suggest that it was meant to impose on the developer of Block 2 the burden of dealing with off-site flows arising from a large upstream site with a 3 hectare catchment.

21. Given that finding, the Senior Member concluded that there was no requirement for the respondent to have submitted plans for or to undertake works to resolve the drainage problem arising from the development of Block 3. Nor was it reasonable, she considered, "to rely on the Building Code of Australia Standard AS/NZS 3500.3.2: 1998, to impose on downstream land - Block 2 - the responsibility to service stormwater flows from a large upstream catchment".

22. Section 46 of the AAT Act enables a party to appeal to this Court "on a question of law" from an AAT decision.

23. The Notice of Appeal identifies the following as errors of law:

4. The grounds of the appeal are:

(a) the Senior Member erred in law in taking into account irrelevant considerations;

(b) the Senior Member erred in law in failing to take into account relevant considerations;

(c) the Senior Member erred in law in finding that it was not reasonable in the circumstances to rely on the Building Code of Australia Standard AS/NZS 3500.3.2: 1998 to impose on the respondent developer the responsibility to service stormwater flows from an upstream adjacent block;

(d) the Senior Member erred in law in finding that that [sic] a condition of Development Application 20002094 that the respondent developer obtain formal approval from the Department of Urban Services for proposed on-site stormwater/drainage arrangements prior to commencement of any construction work did not impose on the respondent developer any duty to provide a solution to drainage problems identified before subdivision; and

(e) the Senior Member erred in law in finding, by inference, that the Australian Capital Territory was responsible for modification of stormwater arrangements before or upon subdivison.

24. Time to appeal was extended on 9 December 2005 to 16 December 2005.

25. Undoubtedly, the owners of Unit 28 are desirous of having the builder rectify the drainage problem. However, the issue is not whether they can oblige Tokich Homes to do that work or to pay damages. That is a matter that might be resolved by other proceedings which may or not involve the occupier or developer of Block 3.

26. The issue in these proceedings is, and was, whether the appellant could require the licensed builder, that is, Mr Tokich, to carry out such works.

27. The works in question were carried out prior to the commencement of the Licensing Act and prior to the commencement of the Building Act 2004 (ACT) (the Building Act). Both those Acts commenced on 1 September 2004.

28. For the purposes of the Licensing Act a person is taken to be licensed under that Act if licensed under the repealed Construction Practitioners Registration Act 1998 (ACT) (the Registration Act). Relevantly, s 141 applies s 34 (intention to make a rectification order) to:

(a) ... a person who was registered under the repealed Act; and

(b) ... a construction service provided before the commencement of this part.

29. Further, s 149 provides that:

A reference in section 35 (when rectification order may be made) ... to a contravention of this Act includes a reference to a contravention, before commencement day of -

(a) the repealed Act; or

(b) an operational Act; or

(c) the Building Act.

30. The term "construction service" is defined by s 6(2) of the Licensing Act as "the doing or supervision of work in a construction occupation".. That includes a "builder". A "builder" does or supervises "building work" (s 8(2)).

31. Building work, for the Building Act, means (s6(a)):

(a) work in relation to the erection, alteration or demolition of a building.

32. "Building" means (s7(1)):

(a) a structure on or attached to land ...

33. By s 8 a structure includes "a fence, retaining wall, swimming pool, ornamental pond, mast, antenna, aerial, advertising device, notice or sign".

34. The work in question here is plumbing and drainage work, hence the reference to Australian Standard 3500, which refers to the standard for such work. The particular problem is of stormwater disposal as defined in the Water and Sewerage Act 2000 (ACT) (Water and Sewerage Act) (an "operational Act") as "surface water, subsoil water and runoff caused by rainfall on roof areas".

35. In truth, the question here at issue does not relate to the Building Act (current or repealed) or the Water and Sewerage Act, but to the Land (Planning and Environment) Act 1991 (ACT) (the Land Act). Rectification work, if there was non compliance with development conditions, could be ordered under s 259A of the Land Act. A breach of that Act is not a breach of an "operational Act" (see s 16, Licensing Act).

36. However, the appellant purported to act in respect of the respondent under the Licensing Act. The initiating action under that Act may be taken pursuant to s 34:

(1) This section applies if the registrar believes on reasonable grounds that -

(a) a licensee or former licensee (the entity) has provided a construction service otherwise than in accordance with this Act or an operational Act; and

(b) it may be appropriate to make a rectification order.

37. The initial difficulty is that the carrying out of the terms of a development application is not within the definition of "construction service" as that term is used in the Licensing Act. That is not surprising as such applications are governed by the Land Act.

38. Section 35 (Licensing Act) permits the making of a "rectification order". Again, s 149 (Licensing Act), while including "a contravention" of various Acts as a cause for issuing a rectification order, does not include the Land Act. If Mr Tokich had, pursuant to condition 7 caused plans to be approved under the relevant Building Act and then failed to carry out the approved work, that would be a relevant contravention.

39. That error of law, albeit made out, does not assist the appellant. Indeed, it renders the whole process nugatory. The substance of the appellant's claim is that Condition 7 of the Development Approval was not complied with by Tokich Homes, the applicant developer. That, of course, if a non-compliance, is that of Tokich Homes, not Mr Tokich, so that, again, the appellant's case against Mr Tokich should still have failed.

40. However, I will consider the matter, on the assumption that the rectification order had been made under the correct Act and was directed to the correct party. That was the assumption upon which the Senior Member, albeit incorrectly, proceeded. Neither party had, it must be said, advanced any contrary view.

The Rectification Order

41. It was apparent that the earth bund had been effective so far as prevention of flooding was concerned. Nevertheless, the appellant purported to issue a direction to Mr Tokich in the following terms:

Schedule 1 to Rectification Order issued on 16 November 2004 ...

Rectify the stormwater drainage system for surface water in the vicinity of unit 28 of block 2 section 94 Charnwood (unit 28) to comply with Building Code of Australia (the Building Code) Performance Requirement P2.2.1. to prevent the likelihood of any further damage or nuisance to unit 28. To achieve this, you are required to perform the following actions to rectify the work:

1. remove the sump and related spoon drain located in the yard of unit 28 and make good the area including the stormwater main pipe and landscaping; and

2. put in place a permanent solution designed and certified by a qualified hydraulics engineer according to requirements of the Building Code and AS/NZS3500.3.2 to deal with the overland flow of surface water from adjacent land in the vicinity of unit 28 including appropriate provision for overland flow paths to deal with stormwater surcharges. This permanent solution is to replace the temporary earth bank solution and small drainage pipe currently in place; and

3. obtain, with the consent of the owner, any necessary building approvals and commencement notices required under the Building Act 2004 to carry out the work stated at points 1 and 2; and

4. have the qualified hydraulics engineer who designed the solution inspect and provide certification of the completed works; and

5. carry out the works in a way that causes the least amount of impact on the tenants of unit 28; and

6. restore to original condition any structures, plant or materials damaged or altered during rectification works; and

7. all works are to be done in accordance with requirements of the Building Act 2004; and

8. you are to bear all costs associated with bringing into effect the above stated works.

42. Reasons were appended. The appellant, in those reasons, recited that a Mr Mihaljevic had purported to issue an approval of building work in contravention of s 34 of the Building Act 1972 (the repealed Building Act). It was a requirement that he be a certifier appointed pursuant to s 31 of that Act. He was a duly appointed certifier. He certified in respect of Block 2 that the plans, including stormwater plans, complied with all appropriate requirements. According to the Building Controller, the relevant authority under the repealed Building Act, the stormwater plans were not included in those submitted to him. He asserts that he had not noticed the omission. The plans when later considered were allegedly "incorrect". The plans were in fact drawn up by Mr Geoff Moore, a plumbing consultant. They were considered by the appellant not to deal with stormwater discharge from the adjacent land. That, allegedly, is the respect in which they did not comply with AS/NZS 3500.3.2 (the Australian/New Zealand Standard).

43. Following from his conclusion that the plans did not comply with AS/NZS 3500.3.2, the appellant concluded that the stormwater arrangements did not comply with the Building Code. The flaw in that argument is that, pursuant to s 53, Building Act 1972, the Building Controller had already certified the works, including Unit 28, as having been completed in accordance with the prescribed requirements.

44. It was not open to the Building Controller to have assumed that there had been a breach of s 37 of the Building Act 1972. He was estopped from asserting such a breach so long as the Certificate of Compliance under that Act remained valid. No proceedings were taken to set aside the certificate. Indeed, given the change of ownership of the relevant portions of the land, it is unlikely that any such relief would have been granted. Nor is it clear that the owner of the parcel of land (see s 41A, Building Act 1972) could have been successfully prosecuted for any contravention of s 37 occasioned, it would seem, by a contravention, if any, committed by the certifier Mr Mihaljevic. No contravention was alleged to have been committed personally by the developer or the builder. It should be noted that Mr Mihaljevic is not a party to these proceedings and the reference by the appellant to him is not evidence that Mr Mihaljevic had, in fact, breached the Building Act 1972 in certifying the stormwater and drainage plans for Block 2.

45. Central to the appellant's contention that Development Condition 7 was not complied with is the contention that the surface drainage design for Block 2 was not in compliance with AS/NZS 3500.3.2 (the Standard).

46. It is correct that clause 5.3.2(a)(iii) of the Standard refers, as a relevant consideration for layout of such a drainage system, to "any stormwater discharges from adjacent land". It is also correct to assert that, prima facie, the drainage system, as approved, even if the certifier did so incorrectly, was not adequate to meet the objectives of the Standard in so far as the drainage system for Block 2 was lawfully required to deal with the discharge from Block 3 on the assumption that its drainage system did not comply with the Standard.

47. However, as the Senior Member noted, Development Approval Condition 7 did not itself require such compliance, at least so far as Tokich Homes was concerned. The responsibility for ensuring adequacy of stormwater arrangements for the area was clearly placed upon the Department of Urban Services (ACT) (DUS) as the body with authority to approve the relevant plans and specifications for "on-site stormwater drainage arrangements". That was done, even if inadequately, by the acceptance of the certification by Mr Mihaljevic of the plans drawn by Mr Moore.

48. Even so, the purpose of Condition 7, of the Development Approval, was explained in the document imposing it as being to:

Ensure measures are taken to limit potential increase in stormwater flows from the site which might contribute to flooding of down stream areas and to ensure that this work is designed to the satisfaction of [DUS].

49. It was also reasonable to suppose that conditions for the development of Block 3 would address the question of surface water run-off from that block to Block 2. Indeed, that was the assumption Mr Mihaljevic said, in his witness statement of 19 July 2005, that he made. It was clearly a reasonable assumption.

50. It follows that not only did the Senior Member correctly construe Development Condition 7 but she was also entitled to conclude that Mr Tokich genuinely believed that he had complied with that condition.

51. The Senior Member did not conclude that Mr Tokich had failed to lodge on-site drainage plans. There was evidence to suggest that they had been lodged. There was, however, no record found confirming that. Had that matter been of importance to establishing a breach of Development Condition 7, then the appellant would have failed to discharge his onus of proof for a finding that such a contravention, if it was one, had occurred.

52. It was open to the Senior Member, in those circumstances, to have concluded that, standing in the place of the decision maker, she was not satisfied that there was a contravention empowering the appellant to issue a rectification order.

53. It was also open to the Senior Member to be satisfied that, even if he had been empowered to do so, it was not reasonable for the appellant to have issued the rectification order which he did. It was relevant to consider that the owner of Block 3 should have borne the onus of putting in place a permanent drainage solution to prevent or control run-off from that block to Block 2.

54. It was not, nor could it be, mandatory for the appellant to have issued a rectification order. Section 38 merely empowered the appellant, if the preconditions for it were satisfied, to make such an order. ("The registrar may make an order ..."). The considerations leading to the exercise of such a power include, per s 36(2), "... anything else that is relevant".

55. In my view, there is no error of law made by the Senior Member in her decision to set aside the rectification order. That order was without validity in any event. Hence leave to appeal must be refused.

56. I will hear the parties as to costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 13 September 2006

Counsel for the appellant: Mr J Harris SC

Solicitor for the appellant: ACT Government Solicitor

Counsel for the respondent: Mr I D Bradfield

Solicitor for the respondent: Phillips Fox

Date of hearing: 14 July 2006

Date of judgment: 13 September 2006