Bolaram v Australian Capital Territory & Ors (Appeal) - [2021] ACAT 64

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BOLARAM v AUSTRALIAN CAPITAL TERRITORY AND ORS (Appeal) [2021] ACAT 64

AA 2/2021 (XD 544/2020)
Catchwords: APPEAL – civil dispute application – owner/builder construction of a single dwelling residential house – appeal against dismissal of claim for damages in tort arising out of decision to issue stop notice under Building Act 2004 for non-compliance with planning code – non-compliance with minimum plot ratio – non-compliance with minimum upper floor level setback from front boundary – consideration of “adjacent” and “front boundary” in Territory Plan – no error found in decision to dismiss claim – stop notice validly issued and validly remained in force – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
Australian Consumer Law
Building Act 2004 ss 28, 32, 53, 64
Criminal Code Act 1995 (Cth)
Planning and Development Act 2007 s 133

Subordinate

Legislation cited: Planning and Development Regulation 2008 s 20, Sch 1 ss 1.100, 1.100AA
Single Dwelling Housing Development Code rr 1, 11, 12, 43

Cases cited:Bolaram v Australian Capital Territory and Ors [2020] ACAT 108
B & T Constructions (ACT) Pty Ltd v Construction Occupations Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Registrar and the Owners-Units Plan 3324 [2013] ACTSC 219

Tribunal:Presidential Member G McCarthy
Senior Member D Kerslake

Date of Orders:  29 June 2021
Date of Reasons for Decision:      9 July 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )  AA 2/2021
BETWEEN:
VENUMADHAVA BOLARAM
Appellant

AND:
AUSTRALIAN CAPITAL TERRITORY
First Respondent
BEN GREEN
Second Respondent
JADE WALTERS
Third Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member D Kerslake

DATE:29 June 2021

ORDER

The Tribunal orders that:

The application for appeal is dismissed.

………………Signed……………….
Presidential Member G McCarthy
For and on behalf of the Tribunal

REASONS FOR DECISION

This appeal arose from a decision of the tribunal at first instance (the original tribunal) to dismiss the appellant’s claim for damages arising from the issue of a stop notice under section 53 of the Building Act 2004 (the Building Act) and a decision made by a delegate of the Deputy Construction Occupations Registrar (the Deputy Registrar) not to cancel it. We begin with a summary of events that gave rise to the claim.
Mr Venumadhava Bolaram (the appellant) and his wife, Vinutha Bolaram, are joint owners of Block 5, Section 45 in the suburb of Lawson, ACT (the subject block). In 2018, the appellant commenced construction of a house on the subject block as an owner/builder. On 3 December 2019, a building inspector issued a stop notice under section 53 of the Building Act. The stop notice prohibited the appellant from carrying out any building work on the subject block that required building approval until issues stated in the stop notice concerning compliance with the Single Dwelling Housing Development Code (the SDHDC) were addressed. It also suspended the operation of a building approval that had been issued in relation to all building work for which building approval was required.
The appellant contended that the stop notice was invalid. He demanded that it be cancelled so that he could proceed with building work to complete construction of his house.
On 22 April 2020, the appellant brought proceedings in the tribunal[1] alleging that the respondents are liable to him for damages in tort, in nuisance, under the Australian Consumer Law and under the Building Act for the delay and additional costs caused by the stop notice.
[1] XD 544/2020
On 21 May 2020, the Deputy Registrar informed the appellant of his decision not to cancel the stop notice. It therefore remained in force.
On 20 October 2020, the appellant filed an amended application in the original proceeding, pressing his claim that the stop notice was invalid and should be cancelled. The appellant contended that his losses were $110,311.48, but abandoned his claim to the extent of the tribunal’s jurisdiction: $25,000.
For the purpose of determining the appellant’s claim, the original tribunal considered whether the appellant’s partially built house as at 29 October 2020 (the House) was non-compliant with the SDHDC.
The original tribunal found that the development was non-compliant with Rule 1 of the SDHDC that mandates a maximum plot ratio of 50%, consequent upon the appellant’s decision to enclose an area of the House described as “Veranda 2”. The original tribunal found that the enclosing of the veranda required this area to be included for plot ratio purposes, which in turn caused the maximum permissible plot ratio to be exceeded.
The original tribunal found that the House was also non-compliant with Rule 11 of the SDHDC that requires a minimum setback from the front boundary of 6m for the upper floor level of the House, consequent upon the upper floor level balcony having a 4.26m setback from the front boundary.
Having determined that the House was non-compliant with Rules 1 and 11 of the SDHDC, the original tribunal found that the stop notice was validly issued and remained operative. Where the appellant’s claim depended on him establishing to the contrary, the original tribunal dismissed the claim.
The appellant appealed against the original tribunal’s decision on several grounds, including his claim that the House complied with Rules 1 and 11. The appellant claimed $25 million in damages from the first respondent, $2 million in damages from each of the second and third respondents and $2 million in damages from each of six other named persons who were not respondents to the original claim or to the appeal.

Removal to the Supreme Court

On appeal, the appellant alleged that the Australian Capital Territory (ACT or Territory) and many of its officers had breached many different provisions of different Territory Acts, and the Criminal Code Act 1995 (Cth). He applied for an order that his appeal be removed to the Supreme Court because, he said, the tribunal does not have jurisdiction to hear and determine these many alleged breaches.
The appellant stated his “request” that the Supreme Court “pass on the orders to dismiss all involved Government Officers including the Registrars and involved Law Practitioners from the ACT Government and disqualify them to get any future opportunities in the Local and Federal Government Departments so that other people will not suffer from their inefficient, misleading, negligent, dishonest and fraudulent services & nature and also their unprofessional and unethical behaviour”.
We dismissed the application for removal primarily because the grounds for removal were misconceived.
This proceeding was an appeal from the decision of the original tribunal. On 15 February 2021, the Tribunal ordered that the appeal proceed as a review of the original decision unless the Appeal Tribunal ordered otherwise. The Appeal Tribunal did not do so. Our only jurisdiction and role, on appeal, was to review the original decision for error.[2]
[2] Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [38]
Were we to have removed the appeal, the Supreme Court would have been required to “exercise the jurisdiction that would otherwise have been exercised by the ACAT appeals tribunal”.[3] None of the alleged breaches of Territory or Commonwealth legislation that the appellant wished to pursue arose from the decision under appeal. They were fresh claims. It followed that neither this Appeal Tribunal, nor the Supreme Court (had we removed the appeal), had jurisdiction to consider them on the removal. Accordingly, we saw no purpose in removing the appeal to the Supreme Court.
[3] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324 [2013] ACTSC 219 at [11]–[12]
We gave separate consideration to whether the issues we had jurisdiction to determine on appeal should be removed to the Supreme Court. The decision under appeal to dismiss the appellant’s original claim arose only from its findings that the House did not comply with Rule 1 or Rule 11 of the SDHDC. The issues, on appeal, were whether the original tribunal erred when making either or both of those findings. We were not persuaded that the appeal ought to be removed to the Supreme Court for it to consider those issues. Both issues involved interpretation of rules of a planning code, that being a task that the Tribunal routinely does in its administrative review jurisdiction.
For these reasons, the application for removal was dismissed.

Background

We begin with a factual summary of the events that gave rise to the issue of the stop notice.
In 2018, the appellant caused Arch Space Design to prepare plans for a seven-bedroom two storey house to be built on the subject block.
In order to construct the house, the appellant appointed Mr John Bates as the certifier for the project. On 24 May 2018, Mr Bates certified that the work shown on the plans was an exempt development under section 133 of the Planning and Development Act 2007 (Planning Act). On the same day, Mr Bates issued a building approval under section 28 of the Building Act. With reliance on Mr Bates’ certification and issue of building approval, the appellant commenced building work.
Consequent upon a routine inspection of the building works, on 3 December 2019 Ms Walters (the third respondent) issued a stop notice under section 53(2) of the Building Act prohibiting the carrying out of all building work for which building approval was required until the matters stated in the notice had been resolved.
Under section 53(3) of the Building Act, the stop notice also suspended the operation of Mr Bates’ building approval in relation to all building work under the approval.
Under section 64 of the Building Act, for the appellant to do or to have done building work on the subject block contrary to the stop notice was and/or would have been a strict liability offence. It is not necessary in this appeal for us to determine whether the appellant carried out building work contrary to the notice.
In December 2019, the appellant caused amended plans to be prepared to show changes to the house as then under construction. On 20 December 2019, Mr Bates purported to approve the amended plans and amended the building approval to approve building work in accordance with the amended plans. On 23 December 2019, Mr Bates lodged the amended plans with Access Canberra.
In early January 2020, Ms Blissenden from Access Canberra audited the amended plans and the building work done to that date against the planning requirements under the SDHDC. She determined that the building work, as carried out to that date, did not comply with Rules 1, 11, 12 and/or 43 of the SDHDC.[4] Ms Blissenden informed the appellant and Mr Bates that the stop notice would remain in place until all of the issues she had identified had been addressed.
[4] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [29]
In response, the appellant wrote to the Construction Audit Team (CAT) within the Construction and Utilities Branch of Access Canberra contending that the amended plans “fully complied” with the SDHDC and that the CAT should lift the stop notice because Mr Bates had approved the amended plans and issued an amended building approval. This led to correspondence and meetings between members of the CAT, Mr Bates and the appellant which resolved the CAT’s concerns about non-compliance with Rules 12 and 43 but not Rules 1 and 11. Accordingly, on 21 May 2020 the Deputy Registrar gave notice to the appellant of his decision not to cancel the stop notice.[5]
[5] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [30]–[43]
Meanwhile, in April 2020, the appellant had commenced proceedings in the tribunal for damages arising from the issue of the stop notice.
As the original tribunal observed, the original proceeding before it did not involve administrative review of the stop notice. The appellant’s claim was in damages for alleged wrongful issue of the stop notice and alleged wrongful failure to cancel it. The original tribunal dismissed the claim consequent upon its finding that the stop notice was validly issued due to non-compliance with Rule 11 and its finding that the stop notice remained valid because the House was non-compliant with Rules 1 and 11.
It was not necessary, nor appropriate, for the original tribunal to enter on further questions about what would or might have been necessary to resolve the non-compliance with Rule 1 or Rule 11. We turn to the grounds of appeal.

Approved plans and the grant of building approval

The appellant made much of the fact that Mr Bates had issued an Exemption Assessment D Notice certifying that the site work as shown on the original plans is an exempt development under section 133 of the Planning Act and had stamped the plans to record his issue of building approval under section 28 of the Building Act. He similarly relied on Mr Bates’ amended plans, stamped to record his issue of amended building approval under section 32 of the Building Act.
He relied too on Mr Bates’ statement on the plans, signed and dated 24 May 2018, that the “work is exempt from development approval under Planning and Development Regulation 2008 S1.100”, meaning schedule 1, section 1.100.
Mr Bates’ statement on the plans was incorrect. Per section 1.100(1)(b), section 1.100 applies where a dwelling has previously been built on the block. A dwelling had not been previously built on the subject block. The section to which Mr Bates could or should have referred is section 1.100AA, which applies to blocks where another dwelling has not been previously built on the block.
Section 1.100AA (like section 1.100) provides that a proposed building is exempt from requiring development approval if, among other things, the dwelling complies with the relevant rules in the SDHDC that would apply if the dwelling were not exempt.
The appellant submitted that upon Mr Bates certifying that the work is exempt from planning approval and granting building approval, he was entitled to build in accordance with the plans and the approval. He submitted that the Deputy Registrar could not go against or contradict Mr Bates’ certification and building approval by issuing the stop notice.
We rejected the submission. Section 133(1)(b) of the Planning Act defines an “exempt development” as a development that is exempt from requiring development approval under, relevantly, a regulation. Section 20(1) of the Planning and Development Regulation 2008 (the Planning Regulation) provides that a development that complies with schedule 1 (exemptions from requirement for development approval) is exempt from requiring development approval. Section 1.100 and section 1.100AA then state requirements, including consistency with the relevant rules of the SDHDC, in order for the building of a single dwelling to be exempt from development approval.
These requirements all involve questions of fact. A development is an exempt development, or not, according to the facts concerning its design, construction and siting. In particular, the House was not an exempt development if it was not consistent with Rule 1 and/or Rule 11 of the SDHDC.
None of these legislative provisions in the Planning Act makes any reference to whether a certifier has stated that proposed works are consistent with the relevant rules of the SDHDC or attaches any significance to such a statement. The fact that Mr Bates certified that the proposed works are consistent with the relevant rules of the SDHDC does not mean that they are.
Seemingly in the alternative, the appellant submitted that the respondents should have checked that the plans and/or the amended plans were consistent with the relevant rules of the SDHDC within two weeks of the plans being lodged, and that they could not challenge the plans or stop him from progressing the development 1.5 years or so after work commenced. We rejected this submission also. The appellant did not point to any statutory provision requiring the Territory or anyone on its behalf to check whether plans that have been approved by a certifier as an exempt development are in fact an exempt development. Nor, in our view, is there such a provision.
The best that can be said is that the Building Act depends on private certifiers to make accurate statements, when certifying that a development is an exempt development. This case illustrates the substantial difficulties that can arise when a certifier’s statement is incorrect.
For these reasons, this ground of appeal failed.

Discrimination

The appellant contended that the original tribunal’s decision “is totally unethical, racial, negligent, irresponsible and deceptive to favour the ACT Government. I strongly believe and can sense that Senior ACAT Members became old school, conservative and lazy to carry out the ACAT works and passing on any reasonable Judgements to the people by applying the correct laws”.[6]
[6] Appellant’s written submissions dated 22 March 2021, page 23 at paragraph 11
The appellant similarly contended that the “claims against ACT Territory, ACCESS Canberra and all other relevant ACT Government Departments including the Employees who are mainly involved and above listed on the front page are valid, liable as they are very Dishonest, Unethical, Deceitful, Fraudulent”.[7]
[7] Appellant’s written submissions dated 22 March 2021, page 24 at paragraph 12
The appellant’s lengthy written submissions contain many allegations of this kind, including accusations against officers, personally, of lying[8] and falsifying the situation.[9]
[8] Appellant’s written submissions dated 22 March 2021, page 26 at paragraph 16
[9] Appellant’s written submissions dated 22 March 2021, pages 32-33 at paragraph 19
As best we could ascertain, these extremely serious allegations were made against persons and entities solely on the basis of their collective view that the stop notice was validly issued and validly remained in force, contrary to the view of the appellant.
We unequivocally reject the appellant’s allegations. It is clear on the face of the documents that the stop notice was issued and remained in force solely by reference to the mathematical facts concerning the design, construction and siting of the House. It is also clear that the original tribunal dismissed the appellant’s original claim solely because of the mathematical facts that demonstrated non-compliance with Rule 1 and Rule 11 of the SDHDC.
There is nothing to suggest that the appellant personally, his race or background, his ownership of the House, or his belligerent attitudes to the planning laws of the ACT and to those who administer those laws in any way influenced the decisions of the respondents or the decision of the original tribunal.
For these reasons, this ground of appeal failed.
Before leaving this ground of appeal, we pause to note that arising from the stop notice the appellant had apparently been making intimidatory accusations of the kind mentioned above over many months against public officers of the Territory for doing nothing more than upholding and administering the law. It would appear that his purpose was and remains to bully his way to approval of a non-compliant building. If tactics of this kind succeed, the rule of law deteriorates.
We also note that if any of those officers were to have made statements about the appellant (or any other member of the public) of the kind made by him, significant disciplinary action would have been taken against them. Yet it would seem that the appellant can make accusations of this kind with impunity. In our view, in the interests of a safe workplace and a respectful community, legislative provision is necessary to address behaviour of this kind.

Rule 1 – the GFA issue

Rule 1 of the SDHDC applies to single dwelling blocks. The subject block is such a block. Rule 1 a) applies to “large blocks”. A “large block” is defined in the Definitions part of the Territory Plan as “a block with an area greater than 500m²”. The appellant’s block is 888m² in area, and is therefore a large block. Rule 1 a) is therefore applicable. Compliance with it is “a mandatory requirement”.

Rule 1 a) provides that the plot ratio for a large block is “not more than 50%”.
Plot ratio is defined in the Definitions part of the Territory Plan as meaning “the gross floor area in a building divided by the area of the site”.
Where the appellant’s block is 888m², the maximum permissible gross floor area (GFA) for the proposed dwelling is 444m².
GFA is defined in the Definitions part of the Territory Plan as follows:
Gross floor area (GFA) means the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.
The original plans for the appellant’s house showed the internal area on the ground floor, the garage and the upper level to be 444m², that being the maximum permissible GFA under Rule 1 a). In addition, the plans showed a further 168m² of areas under cover in the form of alfresco areas, verandas, a porch, a balcony and a terrace.[10] These additional areas were not included for plot ratio/GFA purposes.
[10] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [18]
Much debate occurred at the appeal hearing about the features that cause an area of a building to be included, or not, for GFA purposes. Much depended on the meaning of the words “measured from the external faces of the exterior walls” in the definition of GFA. Having regard to those words, we were satisfied that any floor area of a single building is included for GFA purposes if a measurement can be taken across that floor area to an exterior wall. The words “from the external faces” mean that the GFA is calculated by reference to the floor area and the additional area taken by the wall itself to its external face.
In the original plans, Veranda 2 was not counted for GFA purposes because there was no exterior wall to contain the veranda and thus no measurement could be taken of the kind described in the definition of GFA. For reasons not explained, and contrary to the approved plans, the appellant enclosed Veranda 2 by constructing an exterior wall. This enabled a measurement to be taken across the floor area of the veranda to the external face of the wall. Per the definition of GFA, that area therefore counted for GFA purposes. Where that area was necessarily in addition to the 444m² of internal areas of the building already calculated for GFA purposes, it followed that the plot ratio exceeded 50%. Rule 1 a) was therefore not met. Accordingly, we were satisfied that the original tribunal was correct to find that Rule 1 a) was not met.
We appreciate that the appellant could make structural changes to cause Veranda 2 no longer to count for GFA purposes. We appreciate too that other parts of the House such as the alfresco areas, terraces and balconies might also count for GFA purposes by reason of their exterior walls.
The original tribunal did not make any findings about these issues, nor did it need to. For the purpose of determining whether non-compliance with Rule 1 a) was a proper basis for the stop notice remaining in force, its finding that the enclosure of Veranda 2 caused the plot ratio to exceed 50% was enough. Where we agree that the enclosing of Veranda 2 had that consequence, we saw no error in the original tribunal’s finding.
At the appeal hearing, by reference to the definition of GFA, the appellant made lengthy submissions about the uncertainties of what is included, or not, for GFA purposes. He rejected the respondents’ opinions that an area counts for GFA purposes if it is “substantially enclosed (enclosed on more than two sides)”. He sought definitive rulings on these issues and rejected the respondents’ opinion that the structural design of the alfresco areas, terraces and balconies cause them to count for GFA purposes. He referred to changes to the plans which, he said, caused these areas no longer to count for GFA purposes.
Sitting as an Appeal Tribunal, we had no role to comment on these wider issues. Our function under section 82 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) was to review the original decision for the purpose of determining whether an error occurred of a kind alleged by the appellant.
The original tribunal cannot have erred in relation to any of these wider issues when it did not make any finding about them. Indeed, the original tribunal expressly acknowledged that the calculation of GFA is likely to be “a critical and potentially contentious” issue to be dealt with at a different time and in a different context.[11] It was not appropriate for us to usurp that process by commenting on those issues in our determination of this appeal.

Rule 11 – the front setback issue

[11] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [65]–[67]

Rule 11 and Table 2C of the SDHDC set down minimum front boundary setback requirements for “large blocks” in subdivisions approved on or after 31 March 2008. The subject block is such a block. Table 2C states that, ordinarily, the minimum front boundary setback for a large block is 4m for the lower level and 6m for an upper level. Table 2C contains three exceptions, one of which states:
minimum front boundary setback to open space or pedestrian paths wider than 6m.
Table 2C states that where the exception applies, the minimum setback is 4m for the lower floor level and 4m for an upper floor level.
The building inspector issued the stop notice, and the Deputy Registrar decided not to cancel it, because the upper floor level of the house was set back 4.26m from the front boundary contrary to Rule 11, Table 2C, which required it be set back not less than 6m from that boundary.
In the original proceeding, the appellant contended that because his front boundary is set back to open space, the above-mentioned exception in Table 2C applies – meaning the minimum setback is 4m, not 6m. The original tribunal disagreed. It noted that the subject block fronts onto Dawn Crescent and is separated from the road by a concrete pathway and a verge.[12] It accepted that there is “open space” on the other side of the road,[13] but determined that the exception does not apply because the front boundary of the subject block is not “to” open space. The original tribunal found that the use of the word “to”, in the exception provision of Table 2C, means that the front boundary of the land “must be contiguous with the boundary of the open space”.[14] Here, the “open space” on which the appellant relied is separated from the subject block by, at least,[15] the road.
[12] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [13]
[13] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [15]
[14] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [58]
[15] We were prepared to accept that the verge should not be taken into account for the purpose of determining what separates the subject block from the open space. It was not necessary to decide whether that approach is correct.
The original tribunal rejected the appellant’s submission that the exception applies because the front boundary “faces to open space”,[16] meaning the open space across the road. It pointed out that that is not what the exception states.
[16] Bolaram v Australian Capital Territory and Ors [2020] ACAT 108 at [58]
On appeal, the appellant relied on the definition of “front boundary” to maintain that the exception applies. “Front boundary” is defined in the Definitions part of the Territory Plan as follows:
Front boundary means any boundary of a block adjacent to a public road, public reserve or public pedestrian way.
The word “adjacent”, as used in the definition of “front boundary”, is defined in the Definitions part of the Territory Plan as follows:
Adjacent means either being contiguous with the subject location; or, if separated only by a road, where the front boundary faces the section of the road which separates it from the subject location.
The word “road” is defined in the Definitions part of the Territory Plan as follows:
Road means any way or street (so called), whether in existence or under reserve, open to the public which is provided and maintained for the passage of vehicles, persons and animals and which may include footpaths, community paths, bus lay-bys, light rail tracks, turning areas, or traffic controls.
The appellant submitted that for the exception to apply, it is not necessary for his block to be “contiguous” with the open space across the road. The appellant submitted that his block is “adjacent” to the open space across the road because it is separated from the open space “only by a road” and “faces” the section of the road which separates the open space from his block.
The appellant’s submission is misconceived. We accept by reference to the second meaning of “adjacent”, as defined, that the subject block is adjacent to the open space across the road, but it does not follow that the front boundary of the subject block is “to open space” for the purposes of the exception in Table 2C. We expand.
Land can be “adjacent” to a subject location (in this case, the subject block) in either of two situations:
(a)where it is “contiguous”, relevantly meaning touching, adjoining or in contact with[17] the subject location; or
(b)if it is separated from the subject location “only by a road”, where the front boundary (of the land) faces the section of the road which separates “it” (meaning the land) from the subject location (in this case, the subject block).
[17] Macquarie Dictionary (7^th ed, 2017)
By reference to the first meaning of “adjacent”, the subject block is adjacent to Dawn Crescent because it is contiguous with Dawn Crescent.[18]
[18] As mentioned, we were prepared to accept that the verge should not be taken into account for the purpose of determining what separates the subject block from the open space. It was not necessary to decide whether that approach is correct.
By reference to the second meaning of “adjacent”, the subject block is also adjacent to the open space on the other side of Dawn Crescent because it is separated from that open space “only by a road”.
Land being “adjacent” to other land may have implications or create obligations in ways described in the Territory Plan. For example, stated activities or stated kinds of construction might be proscribed on land “adjacent” to stated kinds of land or other land.
None of this, however, has any bearing on the meaning of the exception in Table 2C. By reference to either meaning of “adjacent”, the boundary of the appellant’s block facing Dawn Crescent is a front boundary. It being a front boundary, the upper floor level of any development on the block must be set back 6m from the boundary. The exception applies only where the boundary is “to” open space. If the legislature had intended the exception to apply (or also to apply) where a block is “adjacent” to open space, it would have said so. It did not.
The exception in Table 2C recognises that some blocks can have more than one “front boundary”, as that term is defined. For example, the two boundaries of a corner block that are contiguous with a public road (or with two public roads) are both front boundaries. Boundaries on either side or to the rear of a block that are contiguous with a public reserve or a public pedestrian way are also front boundaries. It is possible for all boundaries of a block to be front boundaries.
Noting that a public road is not “open space”, the exception in Table 2C applies where an adjoining boundary is a front boundary because:
(a)it adjoins (meaning is “to”) a public reserve, and the public reserve is “open space”; or
(b)it adjoins (meaning is “to”) a public pedestrian way, and that way (i.e. pedestrian path) is wider than 6m.
The exception contemplates that an upper floor level set back of 6m is not necessary - and 4m is sufficient - in such cases because there is additional open space or a pedestrian path wider than 6m adjoining the block which achieves, in part, the privacy and aesthetic purposes of a setback.
None of this is relevant to the subject block because it has only one front boundary: the boundary adjoining Dawn Crescent which is not open space or a pedestrian pathway wider than 6m.
For these reasons, we saw no error in the original tribunal’s finding that the House did not comply with Rule 11 and that the stop notice was therefore validly issued and validly remained in force.

Damages

Counsel for the respondents made submissions as to why none of the alleged causes of action could be made out even if the stop notice should not have been issued or should have been cancelled. Whilst we acknowledge the strength of those submissions, it was not necessary to determine these secondary questions of liability where we were satisfied that the original tribunal did not make any error in concluding that the stop notice was validly issued and validly remained in force.

Conclusion

Whilst the appeal must be dismissed, we acknowledge that the appellant was (and appears still to be) in a difficult situation.
At the time the stop notice was issued, the appellant was partway through construction of a house that was not compliant with relevant rules in the SDHDC and/or was therefore not exempt from requiring development approval. It would seem that the non-compliance could have been rectified at the time the stop notice was issued with minimal cost and minimal inconvenience, but the appellant continued building work that has entrenched the non-compliance and caused a comparatively small problem to become a very large one. It is not necessary or appropriate for us, in this appeal proceeding, to venture upon why this occurred.
………………………………..
Presidential Member G McCarthy
For and on behalf of the Tribunal

Date of hearing	19 May 2021
Applicant:		In person
Counsel for the Respondents:		Mr J Bird
Solicitors for the Respondents:		Ms Z Robens, ACT Government Solicitor