Council of the Law Society of the Act v LP082024 (Archie Tsirimokos) (Occupational Discipline)
[2025] ACAT 57
•1 August 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NEWMAN v TERRITORY PLANNING AUTHORITY
(Administrative Review) [2025] ACAT 57
AT 35/2025
Catchwords: ADMINISTRATIVE REVIEW – planning and development-Single Dwelling Housing Development Code – controlled activity orders – time to submit development application-time for reversion works
Legislation cited: Act Civil and Administrative Tribunal Act 2008 s 7,8,68
Planning Act 2023 s 5, 7, 46, 47, 48, 50, 51, 52, 145, 175, 176, 177, 186, 403, 404, 406, 412, 414, 417, 424, 425, 427, 429, 442, 462, 463, 465, 642, Schedule 4
Building Act 2004 s 69
Evidence Act 2011 s 138
Subordinate
Legislation cited: National Construction Code
Planning and Development Regulation 2008
Single Dwelling Housing Development Code
Territory Plan 2023
Cases cited:Brudenell and Ors v Owners Corporation Unit Plan No.202 [2016] ACAT 101
Tribunal:Senior Member W Hawkins
Senior Member G Tomlins
Date of Orders: 1 August 2025
Date of Reasons for Decision: 1 August 2025
Date of Publication: 20 August 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 35 of 2025
BETWEEN:
MARK CHAE NEWMAN
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL:Senior Member W Hawkins
Senior Member G Tomlins
DATE:1 August 2025
ORDER
The Tribunal orders that:
The decision under review to make a Controlled Activity Order under the Planning Act 2023 is confirmed subject to the following variations to the terms of the Controlled Activity Order:
a)Part 3 is amended to:
i. substitute the erroneous word “structuee” with “structure”
ii. add the following controlled activity below the reference to and extract of Schedule 4, Item 3:
“Schedule 4, Item 4 of the Act:
having a building or other structure constructed without development approval required by this Act”
b)Part 4 is amended, to replace the entire paragraph 3 with the following to account for circumstances in which no development application is pursued:
“3. If development approval is refused, or if a development application is not applied for pursuant to paragraph 1, the rumpus room and carport (as identified in paragraph 1) are to be reverted back to that originally approved within:
a) Six (6) calendar months of the date of refusal of the development application applied for in paragraph1, unless a decision to refuse the development application is subject of an ACT Civil And Administrative Tribunal (ACAT) merits review proceeding, or
b) Six (6) calendar months beginning on the day of the expiry of the period in paragraph 1 (for applying for development approval), if no development application is applied for pursuant to paragrph1.
c) The date on which the Controlled Activity Order takes effect (set out in Part 5) is varied to take effect on the same day the Tribunal makes this order.
d) The outdated references to the “Environment Planning and Sustainable Development Directorate” are substituted with the “Territory Planning Authority”
2.Pursuant to order 1 of the Tribunal Orders dated 14 May 2025, the stay in respect of the Controlled Activity Order made of 12 March 2025 is lifted.
………………………..
Senior Member W Hawkins
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction and background
In this decision a reference to “ACAT” or “tribunal” refer to the ACT Civil and Administrative Tribunal generally, whereas “Tribunal” refers to the presently constituted tribunal.
Mark Chae Newman (the applicant) is the lessee and occupier of Block 5 Section 100 in the division of Banks in the Australian Capital Territory (the property).
The applicant purchased the property in about March 2024.[1] Prior to the applicant purchasing the property, on 5 October 2023, building inspectors from the Access Canberra Rapid Regulatory Response Team (RRRT) undertook a preliminary investigation including an inspection of the property. The investigations continued and culminated in a second inspection on 26 November 2024 by which time the applicant was now resident in the property.[2] The investigations and inspections are discussed further below.
[1] Exhibit 2 Applicant’s submissions dated 29 May 2025 at [8]
[2] Exhibit 1 T- Documents T3 “Notice of Decision-Controlled Activity Order dated 12 March 2025
On 12 March 2025, a delegate of the Territory Planning Authority (TPA or the respondent) issued a Controlled Activity Order (CAO) to the applicant pursuant to section 424(1) of the Planning Act 2023 (the Planning Act) in respect of the property.
The CAO concerns two structures on the property, which were the subject of controlled activities in that they were developed or constructed during the period between 2008 to 2023 without required development approvals and/or otherwise than in accordance with the plans in the development approval given for the property in 2005.
The two structures are a carport (the carport), which the respondent said was included in the original development approval as a class 10a structure[3] but had since been developed into an enclosed space. The second was a rumpus room (the rumpus) which had been constructed over an area which had been designated as open space in the plans approved in the development approval for the property.[4]
[3] See National Construction Code, Building classifications, Class 10 buildings, are non-habitable buildings or structures. Class 10a buildings are non-habitable buildings including sheds, carports, and private garages
[4] Exhibit 1 T- Documents at T3 “Notice of Decision-Controlled Activity Order dated 12 March 2025”
The CAO contained directions in accordance with section 429(3)(b),(f ), (g), (i) (k), and (n) of the Planning Act, that the applicant apply for development approvals for the carport and rumpus and if granted, comply with the development approvals or, alternatively, if the approvals were not given, revert the structures back to the originally approved plans.
On 4 April 2025, an Application for Review of a Decision (the Application) was filed.
On 2 May 2025, orders including the allocation of a hearing date and a timetable were made for the future conduct including the filing and exchange of evidence and written submissions and if necessary, submissions in reply.
On 11 July 2025, the matter was listed for hearing before the Tribunal. The applicant appeared in person and the respondent was represented by Nathan Sinnthurai, of counsel and instructed by Kylie Munro of the ACT Government Solicitors Office. A number of documents were tendered by the parties including written submissions by both parties and the applicant’s written submissions in reply. The Tribunal does not intend to individually identify the tendered documents but will refer to them as necessary in this decision. As neither party filed witness statements, the hearing proceeded by way of oral submissions, and if necessary, submissions in reply. At the conclusion of the hearing the Tribunal reserved its decision.
Legislative framework and the Territory Plan
CAOs are made pursuant to section 424 of the Planning Act. In essence, the section permits the TPA to make an order directed to the lessee or the occupier of premises where a “controlled activity” was, is being, or will be undertaken, or to anyone by whom a controlled activity as, is being, or will be undertaken.[5] A “controlled activity” includes an activity mentioned in Schedule 4 of the Planning Act.[6] Schedule 4 contains 10 items which describe a range non-compliant actions. Relevantly for the present application, items 3 and 4 concern developments and construction without (or not in accordance with) a required development approval. Part 20.14 of the Planning Act contains the transitional provisions relating to controlled activities, so that a reference to a required development approval required by the Planning Act also includes its now repealed predecessors, namely the Planning and Development Act 2007, the Land (Planning and Environment Act 1991 and the Building (Design and Siting) Act 1964.[7]
[5] Planning Act 2023 section 424(1)
[6] Planning Act 2023 section 412(a)
[7] Planning Act 2023 section 462
If the TPA intends to make a CAO, it must provide written notice of its intention (that is, give a “show cause notice”) to each person to whom the TPA intends to direct the order and must consider any response to the notice when deciding whether to make the order.[8] There is a time limit prescribed by regulation, and there is limited remedial action if the CAO is not made within time.[9] Section 429 of the Planning Act provides for a CAO to contain a range of potential protective and remedial directions, including prohibiting development without a development approval, requiring development approvals to be made, and the restoration of non-compliant development.[10]
[8] Planning Act 2023 section 425, 427
[9] Planning Act 2023 section 642
[10] Planning Act 2023 section 429(3)(a)-(n)
Chapter 12 of the Planning Act is concerned with development offences and controlled activities. Both development offences and controlled activities are two measures intended to maintain compliance with the development application process and the Territory Plan 2023.[11] At its core, the CAO regime contained in part 12.3 of the Planning Act prohibits development conduct or action otherwise than in accordance with development approvals including offences. Offences are set out in sections 403, 404 and 406 of the Planning Act. The CAO regime in Part 12.3 complements the development offences by providing a remedy to address conduct undertaken outside of the development application process, or inconsistently with development approvals. It is supported by Part 12.2 which establishes a process by which interested parties may bring instances of alleged non-compliance to the attention of the TPA by making complaints about controlled activities. Sections 414 and 417 of the Planning Act then require the TPA to take reasonable steps to investigate each complaint. In combination with the measures contained in Chapter 12 of the Planning Act, that is, rectification work and prohibition notices and injunctions, CAOs are an important mechanism that are intended to ensure that development in the ACT is properly assessed through the development application process and be consistent with the Territory Plan.
[11] Planning Act 2023 Chapter 5 Territory Plan and Chapter 7 Development Assessment and Approvals
Critically, Chapter 5, Part 5.1 of the Planning Act establishes the Territory Plan.[12] The object of the Territory Plan is to ensure (in a manner not inconsistent with the national capital plan), that the planning and development of the ACT provides the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.[13] Moreover, the Territory Plan must promote the principles of good planning and must give effect to the planning strategy and district strategies and must take into account (and may give effect to) relevant outcomes related to planning contained in other government strategies and policies.[14] The contents of the Territory Plan must also identify districts and designate zones and set out mandatory requirements and outcomes against which development proposals are assessed.[15] To support the Territory Plan, the Minister and chief planner may prepare design guidance for development proposals and the chief planner may make technical specifications to support design guides and the Territory Plan.[16]
[12] Planning Act, 2023 section 5
[13] Planning Act, 2023 section 46
[14] Planning Act, 2023 section 47
[15] Planning Act, 2023 section 48
[16] Planning Act, 2023 sections 50, 51
Importantly, section 52 of the Planning Act mandates that the ACT, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, which is inconsistent with the Territory Plan. It therefore follows that the Tribunal is also so bound by section 52 of the Planning Act.
Although section 427 of the Planning Act provides some discretion to the TPA (and through it to the Tribunal) when making a decision, the discretion is not “at large” and must be exercised within boundaries dictated by the subject matter, scope and purpose of the Planning Act and the overarching role of Part 12.3 of the Planning Act and its regime of CAOs which support compliance with the development approval process.
Applicant’s written submissions dated 29 May 2025
The carport
First, the 10a structure has not been modified since it was completed in 2008 and the respondent has not provided any evidence of modification since that time. The structure was given a certificate of use (COU or COO) in 2010. Thus, as there have been no modifications since then, any alterations from the approved 2008 plans were accepted at the time the COU was issued.[17]
[17] Exhibit 2 “Applicant’s submissions dated 29 May 2025 at [1]-[2]
Second, although there had been an excessive noise complaint, which occurred prior to the applicant moving into the property in March 2024. Since that time the applicant had received no complaints. The structure is no longer inhabited and is now used primarily for storage. Ultimately, natural justice should mean that the structure’s existence should be allowed.[18]
The rumpus
[18] Exhibit 2 “Applicant’s submissions dated 29 May 2025 at [8]
First, the access to the premises on 5 October 2023 to conduct an inspection by the RRRT was not in accordance with section 465 (or section 463) of the Planning Act. In particular, there was no permission by the occupier of the premises. The inspection was therefore “illegal.”[19]
[19] Exhibit 2 “Applicant’s submissions dated 29 May 2025 at [3]
Second, the senior inspector who conducted the inspection (Corey Dashwood) exercised his discretion to “overlook” the “unapproved structure” because the structure had existed since 2014; there had been no complaints concerning the structure and there was continuing benefit to the applicant and the tenant and the structure provided increase privacy for both; was structurally sound with an engineer’s certificate and did not pose any safety concerns.[20]
[20] Exhibit 2 “Applicant’s submissions dated 29 May 2025 at [4]
Third, section 427(1) of the Planning Act requires the respondent to consider any reasons given in response to the “show cause” notice that was issued pursuant to section 425 of the Planning Act and there was no evidence that the applicant’s response to the notice had been considered prior to the respondent issuing the CAO on 12 March 2025.[21]
[21] Exhibit 2 “Applicant’s submissions dated 29 May 2025 at [5]
Fourth, research reported in the West Australian News concluded that 25-30% of all properties had some unapproved structure and extrapolating this percentage to Canberra would mean that there would be about 51,400 properties with unapproved structures. As a consequence, the respondent did not have the resources to pursue unapproved structures in the ACT without “due cause”.[22]
Merits review and the correct or preferable decision
[22] Exhibit 2 “Applicant’s submissions dated 29 May 2025 at [10]
He argued that the correct or preferable decision, was that the CAO should not have been issued and the Tribunal should set aside the CAO in accordance with section 68 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).[23]
Respondent’s written submissions dated 27 June 2025
[23] Exhibit 2 “Applicant’s submissions dated 29 May 2025 at [6]
There were no development applications or approvals in respect of the development and construction of the carport or the rumpus. The CAO contains directions in accordance with section 429(3)(b,) (f), (g,) (i,) (k,) and (n) of the Planning Act that the applicant apply for development approvals for the carport and rumpus and, if granted, comply with the development approvals or, alternatively, if the development approvals are not granted, revert the structures back to the originally approved plans.[24]
The carport
[24] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [2]
First, an open sided Building Code of Australia (BCA) class 10a carport structure with a garage door at the front had been approved subject to plan number 054407/A/B. By 2023, the carport had been converted to an enclosed structure and the garage door at the front had been replaced with a large window. None of the changes are in accordance with the development approval for the property and original carport.[25] By at least October 2023, the carport had been leased to tenants.[26]
[25] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [12.1]-[12.2]
[26] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [12.3]
Second, the carport is located forward of the building or setback line and located about 7.5 metres from the front boundary whereas the Planning and Development Regulation 2008 (the Regulations) requires the structure to be located behind the building line and at least 15 metres from the front boundary.[27]
[27] See Planning and Development Regulation 2008, at section 1.45(1)(e) of Schedule 1 and Exhibit 2 Respondent’s submissions dated 27 June 2025 at [12.4]
Third, as it is now developed, the footprint of the carport is an enclosed habitable space and therefore adds to the gross floor area of all buildings of the property. As a result, the maximum plot ratio of 50% of the property as proscribed by the single Housing Development Code (SHDC) is exceeded.[28]
[28] See Single Dwelling Housing Development Code (SDHDC) at Rule 1 and Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [12.5]
Fourth, there is no development application or approval, or building approval, for the development and construction of the carport in its enclosed habitable form.[29]
[29] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [13.4]
Fifth, in relation to the applicant’s submission regarding the manner in which respondent officials conducted the investigation and the original decision making process, the respondent submitted that although the decision as a whole is a reviewable decision that can be reviewed by the Tribunal, the manner in which the investigation was conducted and the decision making process are not relevant to the Tribunal’s consideration of the merits of the CAO.[30]
[30] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [15]
The respondent stated that the correct or preferable decision for the Tribunal was to confirm the CAO and to dismiss the application for review.[31] The respondent stated that this would be the correct or preferable decision because:
a)The development and construction of the carport and rumpus were undertaken without development approval and neither are “exempt” developments within the meaning of section 145 of the Planning Act.[32]
b)Developments that are non-exempt developments, undertaken without or otherwise in accordance with a development approval are “controlled activities” as prescribed by Schedule 4 of the Planning Act, items 3 and 4.[33]
c)The applicant as the lessee and occupier of the property, is the proper recipient of the CAO in accordance with section 424(1)(a) of the Planning Act, notwithstanding that the applicant did not personally undertake or direct the building, alteration and/or construction of the carport and rumpus.[34]
d)Both the carport and rumpus raise questions concerning compliance with the Territory Plan and in particular, there are site coverage and setback issues. Each require consideration in relation to Residential Zones Policy and other requirements. Conjecture whether the carport or the rumpus are capable of obtaining development approval or of obtaining conditional approval are not appropriate. The usual development application regime needs to be followed or adhered to so that these issues might properly be considered.[35]
e)The CAO directions only require the applicant to undertake the usual process and be afforded the usual rights of review and ultimately abide by the outcome.[36]
f)In the past there has been a complaint in respect of the carport being a controlled activity. As a result, there is a real possibility that there may be representations from third parties should there be a lodgement of a development application for the carport or rumpus which the TPA would have to consider pursuant to planning requirements. Importantly if the development application process is not followed there will be no opportunity for such representations to be considered.[37]
g)The CAO restores compliance with the Planning Act and the Territory Plan concerning the development and construction of buildings (including the carport and rumpus). The Tribunal, when standing in the shoes of the TPA must not do any act, or approve the doing of an act, which is inconsistent with the Territory Plan and must exercise its discretion in respect of controlled activity orders within established boundaries of the relevant statutory context and purpose.[38]
[31] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [16]
[32] Pursuant to section 145 of the Planning Act, “exempt development” may include development exempt pursuant to section 147 – “authorised use’; or by regulation; or land management practice undertaken in accordance with Aboriginal tradition and prescribed by regulation
[33] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [17.2]
[34] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [ 17.3]
[35] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [17.4]
[36] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [ [17.5]
[37] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [17.6]
[38] Exhibit 2 “Respondent’s submissions dated 27 June 2025 at [ 17.7]
At the hearing, the respondent tendered a document which they said varied the orders that the respondent had originally submitted that the Tribunal should make if the Tribunal was minded to confirm the CAO.[39] They said the amendments as a whole provided additional particularity to the original orders sought in their written submissions and also took into account an earlier order that the tribunal made 14 May 2025 which amongst other things, stayed the CAO made on 12 March 2025.[40]
Applicants submissions in reply dated 30 June 2025
Carport
[39] Transcript dated 11 July 2025,page 16 and Exhibit 7 Respondent’s Proposed orders
[40] See Order dated 14 May 2025 at [1]
The applicant largely repeated his earlier submissions that there has been no change to the carport since it was constructed and was issued with a COU.[41]
Rumpus
[41] Exhibit 4 Applicant’s submissions in reply dated 30 June 2025 at [2]
The applicant largely repeated his earlier submissions that he had not received any evidence that his response to the notice had been considered prior to the issuing of the CAO. He repeated his argument that the manner in which TPA officials had conducted themselves throughout the investigation was relevant and in particular, there had not been compliance with section 465 of the Planning Act which required a signed written acknowledgement (of consent) from the occupier of the premises.[42]
[42] Exhibit 4 Applicant’s submissions in reply dated 30 June 2025 at [4]-[7]
The applicant referred to documents produced on subpoena by the respondent. In particular, he referred to an email exchange concerning the 2023 inspection and the refusal by the previous lessee of the property who had sent her son to meet the staff of the respondent at the time of the inspection and the son then declined to sign the written acknowledgement.[43] Notwithstanding the refusal, the inspection continued. The applicant argued the inspection was not legal and in accordance with section 138 of the Evidence Act 2011, the Tribunal should exclude improperly or illegally obtained evidence obtained during the inspection.[44]
[43] Exhibit 9 Internal email exchange between Shiwali Mahajan and Carolina Gonzalez of the Regulatory Response Team commencing 9 February 2025 and concluding 3 March 2025
[44] Exhibit 4 Applicant’s submissions in reply dated 30 June 2025 at [8]-[9] and note the applicant incorrectly referred to the Evidence Act 1995
Finally, the applicant addressed whether the respondent’s staff acted in accordance with their obligations to the public to act with integrity and honesty and as their actions did not meet this standard, whether this would erode public confidence in the respondent and in government institutions and their ability to act in the public interest.[45]
Oral submissions at the hearing
[45] Exhibit 4 Applicant’s submissions in reply dated 30 June 2025 at [10]-[12]
Both the applicant and the respondent made detailed oral submissions at the hearing. The submissions generally followed the earlier written submissions. The oral submissions are summarised briefly below.
Applicant
Carport
First, the COU issued in 2010 remains valid. There have been no changes to the structure since completion in 2008 (including no garage door) and the development application should be amended to incorporate the changes and that he does not want to convert the carport into an inhabitable space and have to reclassify it as a class1a structure[46] as that would require a new development application. For example, even though it has a bathroom, it would require permanent cooking facilities (and ventilation).[47]
Rumpus
[46] See National Construction Code, Building classifications, Class 1 buildings, Class 1a building is a single dwelling being a detached house; or one of a group of attached dwellings being a town house, row house or the like
[47] Transcript dated 11 July 2025, pages 18-20
First, the inspection in October 2023 was “illegal” and “unlawful trespass” and any “evidence” obtained as a result of that inspection should be “inadmissible” in accordance with the Evidence Act.[48]
[48] Transcript dated 11 July 2025, pages 24-26
Second, the respondent did not give “any meaningful response to his feedback” following the show cause notice and before the making of the CAO.[49]
[49] Transcript dated 11 July 2025, page 26
Third, the current development application “covers 90% of what is there.”[50] So a fair outcome would be an application to amend the current development application rather than file a new development application to be filed.[51]
Respondent
[50] Transcript dated 11 July 2025, page 30
[51] Transcript dated11 July 2025, page 30
Submitted that a CAO is discretionary, but CAOs support the development application regime and the Territory Plan and the overall objective of the Planning Act is to ensure that development in the ACT is undertaken in a way which is consistent with the Planning Act’s objectives and the Territory Plan. The CAO is not requiring the applicant to convert his carport into a class 1a habitable structure, but rather to compel the development process to be engaged with in the usual manner. The Tribunal as a decision maker must not do any act or to approve the doing of any act that is inconsistent with the Territory Plan.[52]
[52] Transcript dated 11 July 2025, pages 33-34
Stated that sections 7(1)(c) and 7(2)(f) of the Planning Act broadly outline the objectives of the Planning Act including providing for public participation in the development of planning strategies and policies, and crucially, development assessment. This objective is operationalised in sections 175 to 177 and 186(h) which set out the notice requirement for development applications, the ability to make representations and for a decision maker to consider those representations.[53]
[53] Transcript dated 11 July 2025, page 34
Contended that the carport was never built in accordance with the original plan and the non-modification of the structure since it was built does not assist the applicant and indeed the applicant concedes the same in his written submissions and that a COO does not convert an unapproved structure into an approved structure.[54]
[54] Transcript dated 11 July 2025, page 35
Asserted that any development application in relation to the carport and the rumpus would have to address setbacks and gross floor area coverage. There were plans for the proposed carport in 2005 and amended plans were lodged in 2008. The 2008 plans had the toilet added with new windows but the carport remained an open structure. There were walls on two sides and a garage door. A photograph of the property in 2009 (supplied by the applicant) showed a window rather than a garage door. A photograph from late 2024, showed that a solid wall had been added to the side that had previously been open. Contemporary photographs showed a structure with four walls, a chair, a desk, shelving, a television, and a computer which confirm that it is not a carport and nor is it being used as a carport.[55]
[55] Transcript dated 11 July 2025, pages 36-41
Maintained that in accordance with the then in force Territory Plan, there had been open space in the approved plans of 6 metres by 6 metres but the contemporary photographic evidence showed that the space had been converted into a rumpus and included an air conditioning unit. And the conversion was not disputed by the applicant.[56]
[56] Transcript dated 11 July 2025, pages 44-47
Said that a COO is issued pursuant to section 69 of the Building Act, 2004 (the Building Act) if completed building works meet the prescribed requirements for the building work but does not qualify or interact with the requirements under the Planning Act and the requirement for development approval.[57]
[57] Transcript dated 11 July 2025, pages 47-48
Submitted that there needs to be consistency with the Territory Plan includes community participation in the planning approval process particularly where there has been a complaint concerning the carport in the past.[58]
[58] Transcript dated 11 July 2025, pages 52-53 and Exhibit 6 Undated redacted complaint
As regards the 5 October 2023 inspection of the carport and the applicant’s submission on legality, the respondent stated that the contemporaneous report of the inspection recorded that it had been at the owner’s invitation and had taken place in the presence of the then owner’s real estate agent (the property was listed for sale) and the owner’s son as the owner remained inside. The inspection had been arranged with the real estate agent acting on the then owner’s behalf. The inspection arrangement was confirmed by contemporaneous internal email communications between staff of the respondent.[59]
[59] Transcript dated 11 July 2025, pages 55-63 and Exhibit 9 Internal email chain commencing 27 February 2025 and concluding 3 March 2025
Regarding the second inspection on 26 November 2024 (after the applicant had purchased the property), the respondent maintained that the inspection arrangements were made by email with the applicant and the applicant provided a signed consent. Ultimately, it was this inspection that was relied upon by the respondent and there was no issue of the inspection’s legality.[60]
Applicant in reply
[60] Transcript dated 11 July 2025, pages 64-65 and Exhibit 1 T-Documents at pages 67-69
Submitted that in relation to the carport, maintained that there had been a comprehensive development application approval process between 2005 and 2008 and had existed since then without significant issues identified.[61]
[61] Transcript dated 11 July 2025, page 79
Argued that in relation to the inspections in 2023 and 2024, said that in relation to the 2023 inspection there was no compelling evidence that consent had been given and in relation to the 2024 inspection that “consent was given under false pretences that no new investigation was going to be undertaken.” [62] He said conceded that it could have been a continuation from the earlier investigation but in any event, no new evidence was obtained.[63] He then said that it was to confirm that there had been no changes since the 2023 inspection. He then said that if he had been aware that the 2023 inspection had not been consented to by the then lessee, he would not have agreed to the 2024 inspection.[64]
[62] Transcript dated 11 July 2025, page 80
[63] Transcript dated 11 July 2025, page 80
[64] Transcript dated 11 July 2025, pages 80-82
Notwithstanding that there was no documentary evidence to support the submission, there could have been an amendment to the development application concerning the carport but conceded that he purchased the property knowing that the rumpus was not approved. He accepted that he knew that it had to be addressed at some stage, but he didn’t think it was going to be a “pressing issue the week he moved in” and he was not aware of issues with the carport.[65]
[65] Transcript dated 11 July 2025, pages 83-89
If ultimately, his application was not successful, he argued that he would need six months to submit the development application and to follow up with any building works within 18 months.[66]
Respondent in reply
[66] Transcript dated 11 July 2025, page 91
The respondent focused upon the time periods in the amended orders that they submitted that the Tribunal should make and that the time periods are at the Tribunal’s discretion. They said that allowing between two and four months for a development application to be made could be considered “quite generous” and asserted that six months is a “long time to bring these things into compliance” and furthermore 18 months is a “very, very long time.”[67]
Consideration and findings
[67] Transcript dated 11 July 2025, pages 93-94
There was no doubt that the applicant believes strongly in the rightfulness of his case and that he has been unfairly treated by the respondent. At the very least, he had been innocently caught up in the complex area of ACT planning laws and in particular, development applications and approvals and most relevantly, CAOs.
The applicant faces a very real dilemma. If he is not successful in his application, he will be required to apply for a development approval for the carport and rumpus and if his development application is approved, he will have to comply with the terms of the development approval. If his development application is not successful, then the carport and/or rumpus will have to be reverted back to what was originally approved by the respondent (or more correctly its predecessors) within a limited period of time. The carport (which is now an enclosed structure) would have to be reverted to an open class 10a structure and the rumpus, will have to be reverted to open space. No doubt the structures now provide particular amenity and use to the applicant and his family. Apart from the loss of amenity and use, there will be disruption caused by the work and significantly, financial cost to him.
The carport and rumpus are not exempt developments within the meaning of section 145 of the Planning Act. The applicant could apply for a development approval for the carport and rumpus, but that would mean proceeding through the planning approval process and as identified by the respondent, there are likely to be site and setback issues under the Territory Plan, the Residential Zones Policy and the Planning (Residential Zones) Technical Specifications 2023 (No 2). Moreover, if a development application is lodged, there may be representations from third parties in relation to both the carport and rumpus which the respondent would have to consider. The applicant would have the usual rights of review in the tribunal. However, the lodgement of a development application and possible outcomes are all hypothetical at this stage and do not have a bearing or influence on the Tribunal’s decision. Moreover, if the applicant does not have to abide by the development application process, then there will be no opportunity for third party representations to be considered.
There are a number of difficulties for the applicant. Even if it was conceded by the respondent that there are a significant number of unapproved structures in the ACT, which does not assist the applicant. The Tribunal, when “standing in the shoes” of the TPA is bound by section 52 of the Planning Act and therefore cannot do any act or approve the doing of an act that is inconsistent with the Territory Plan.
The applicant placed significant reliance upon the alleged fact that there had been no modifications to the carport since it was completed in 2008. That may be so, but the Tribunal finds that it was non-compliant in 2008 and it remains non-compliant now.
The applicant also argued that the obtaining of a COU in 2010 means that it was approved at that time and if there had been no modifications since that time, then the structure remains compliant. With respect to the applicant, that argument is misconceived. The obtaining of a COU does not convert an unapproved structure into an approved structure. A COU is issued in accordance with section 69 of the Building Act because completed building works meet the prescribed requirements for the building work, but in no way qualifies or interacts with the requirements for development approval under the Planning Act. In any event, the applicant conceded in his email to the respondent of 8 December 2024 that the carport as it was at that time not an exact replication of the approved 2008 plans.[68] Indeed, in his oral submissions at the hearing, the applicant said that the development approval “covers 90% of what was there.”[69]
[68] Exhibit 1 T- Documents at T12, page 152
[69] Transcript dated 11 July 2025, page 30
The applicant repeatedly returned to his submission that the 2023 inspection was “unlawful” and that any evidence obtained during that inspection was not admissible. He also said that the 2024 inspection only came about because of the 2023 inspection and that the earlier inspection somehow tainted the later inspection and that the 2024 inspection occurred under “false pretences.” This essentially made unlawful any evidence that was obtained from the 2024 inspection unlawful as well.
The respondent provided considerable detail about the circumstances leading up to and occurring at both inspections. The Tribunal agrees with submissions made by the respondent in regard to both the 2023 and the 2024 inspections. However, even if the Tribunal is in error with regard to the legality of the 2023 inspection, it does not follow that the 2024 inspection was in any way tainted. Indeed, even if in some way the 2024 inspection was unlawful, it does not necessarily follow that evidence obtained during the inspection would not be admissible and able to be considered by the Tribunal. The Tribunal is not bound by the strict rules of evidence,[70] and even if it were, the weighing up the legal complexities of whether the evidence would be inadmissible is as the respondent submitted not a “foregone conclusion.” In exercising its functions, the principles for the Tribunal to consider are observing natural justice and procedural fairness.[71] The Tribunal is satisfied that in all the circumstances, it cannot ignore the evidence from either the 2023 or the 2024 investigations and relies upon the evidence obtained in both inspections. The overarching mandate for the Tribunal in undertaking a merits review is to stand in the shoes of the original decision maker, and to make the correct or preferable decision as if the original decision to issue the CAO had never been made. The Tribunal goal is to determine whether the original decision was the correct or preferable decision and in some cases this may involve a tribunal making a decision which was not advocated for by any party.[72]
[70] ACT Civil and Administrative Tribunal Act 2008 section 8
[71] ACT Civil and Administrative Tribunal Act 2008 section 7
[72] Brudenell and Ors v Owners Corporation Unit Plan No.202 [2016] ACAT 101 at [20], [23]-[24]
The rumpus presents particular difficulties for the applicant. Unlike the carport, the applicant cannot argue that there had been any approval for it. The applicant was then largely left with his arguments concerning the investigation; the occurrence of other unapproved structures in the ACT; that there had been some exercise of a discretion by the senior inspector to “overlook” the unapproved structure and that the respondent had not considered his response prior to the issuing of the CAO. None of those arguments are accepted by the Tribunal. The structure is unapproved. Even if it had been overlooked at an inspection (and this assertion is rejected by the respondent and is not accepted by the Tribunal), the Tribunal standing in the shoes of the original decision maker could not overlook the illegality. The rumpus occupies the previous open space in the approved plans and this was not disputed by the applicant.
The Tribunal standing in the shoes of the respondent after considering all of the evidence and the submissions finds that both the carport and rumpus are without the required development approvals and/or are otherwise not in accordance with the plans in the development approval given for the property in 2005. The decision to issue the CAO in relation to the carport and the rumpus was correct.
The Tribunal has referred to the respondent’s proposed orders. In relation to the appropriate time period for applying for a development approval, the CAO referred to a period of 8 weeks. This period appears to be one of usual practice of the length of time that is ordinarily allowed. It does not appear that there is any specific legislative basis or requirement regarding the period that should be allowed, but rather the period comes down to what might be reasonable in the circumstances. The respondent indicated that something between two and four months might be considered “quite generous.”[73] The applicant suggested that a period of six months would be more reasonable taking into account his financial circumstances as a new property owner.[74]
[73] Transcript dated 11 July 2025, page 94
[74] Transcript dated 11 July 2025, pages 90-91
After considering the submissions, from the parties, the Tribunal determines that a period of three months that is, 12 weeks to submit the application for development approval is a reasonable period in all the circumstances.
In relation to the period that in the event that the application for development approval is refused by the respondent, the CAO prescribed a period of six calendar months of the date of the refusal for the reversion works. The respondent submitted that this period was reasonable.[75] The applicant argued that a period of 18 months is reasonable.[76]
[75] Transcript dated 11 July 2025, page 94
[76] Transcript dated 11 July 2025, page 91
After considering the submissions from the parties, the Tribunal considers that an appropriate period for any reversion work to be completed is six months.
In other respects the Tribunal has generally adopted the respondent’s proposed orders with an amendment that is discussed below.
Conclusion
The Tribunal has concluded that:
a)the developments and construction of the car port and the rumpus were undertaken without development approval and that neither is an “exempt development” within the meaning of the Planning Act
b)as the carport and rumpus are not exempt developments and were undertaken without development approval, they are “controlled” activities within the meaning of schedule 4 of the Planning Act
c)the applicant as the lessee and occupier of the property is the proper recipient of the CAO as a controlled activity was undertaken on the property even though the applicant did not personally undertake or direct the building, alteration and/or construction of the carport or rumpus
d)the directions of the CAO require the applicant to comply with the usual development application process subject to the usual rights of review
e)it would be inconsistent with the Territory Plan for the development and construction of buildings including the carport and rumpus to take place outside the development application process as established by the Planning Act.
f)standing in the shoes of the respondent, the Tribunal must not do any act, or approve the doing of any act, that is inconsistent with the Territory Plan and therefore exercises its discretion in respect of CAO within the limitations of the relevant statutory context and purpose.
g)agree with the respondent’s proposed orders as tendered at the hearing but subject to the variations to enable the applicant to apply for a development approval within 12 weeks.
h)the Tribunal does not make any orders that might relate to any future order that the ACAT may make in any future application that the applicant may bring should the respondent refuse the applicant’s potential future development application.[77]
[77] See Exhibit 7 “Respondent’s Proposed Orders at [1b]
Orders
The Tribunal orders that:
The decision under review to make a Controlled Activity Order under the Planning Act 2023 is confirmed subject to the following variations to the terms of the Controlled Activity Order:
a)Part 3 is amended to:
iii. substitute the erroneous word “structuee” with “structure”
iv. add the following controlled activity below the reference to and extract of Schedule 4, Item 3:
“Schedule 4, Item 4 of the Act:
having a building or other structure constructed without development approval required by this Act”
b)Part 4 is amended, to replace the entire paragraph 3 with the following to account for circumstances in which no development application is pursued:
“3. If development approval is refused, or if a development application is not applied for pursuant to paragraph 1, the rumpus room and carport (as identified in paragraph 1) are to be reverted back to that originally approved within:
a) Six (6) calendar months of the date of refusal of the development application applied for in paragraph1, unless a decision to refuse the development application is subject of an ACT Civil And Administrative Tribunal (ACAT) merits review proceeding, or
b) Six (6) calendar months beginning on the day of the expiry of the period in paragraph 1 (for applying for development approval), if no development application is applied for pursuant to paragrph1.
c) The date on which the Controlled Activity Order takes effect (set out in Part 5) is varied to take effect on the same day the Tribunal makes this order.
d) The outdated references to the “Environment Planning and Sustainable Development Directorate” are substituted with the “Territory Planning Authority”
2.Pursuant to order 1 of the Tribunal Orders dated 14 May 2025, the stay in respect of the Controlled Activity Order made of 12 March 2025 is lifted.
………………………..
Senior Member W Hawkins
For and on behalf of the Tribunal
| Date(s) of hearing: | 11 July 2025 |
| Applicant: | In person |
| Solicitors for the Respondent: | Kylie Munro, ACT Government Solicitor |
| Counsell for the Respondent: | Nathan Sinnthurai |
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