Gerondal and Gerondal v ACT Planning and Land Authority (Administrative Review)
[2014] ACAT 51
•1 August 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GERONDAL AND GERONDAL v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2014] ACAT 51
AT 14/10
Catchwords: ADMINISTRATIVE REVIEW – planning and development – termination of Crown lease under Planning and Development Act 2007 (PD Act) – activity order made by ACT Administrative Appeals Tribunal (AAT order) under Land (Planning and Environment) Act 1991 (repealed) (LPE Act) for completion of construction works – rectification notice issued under LPE Act in relation to some items of AAT order - compliance action under PD Act - survival of rights and liabilities with repeal of LPE Act – much of AAT order items were not completed – AAT order cannot be enforced under PD Act to the extent it has been complied with – for termination of lease under PD Act, contravention does not have to be an “offence” – lease cannot be terminated under PD Act for noncompliance with activity order or rectification notice under LPE Act because that measure was not available under LPE Act – presumption against retrospective operation of termination of lease provision in PD Act – Crown lease does not provide for termination for breach of requirement to maintain, repair and keep in repair buildings and erections – failure to keep leasehold clean is a controlled activity for which compliance action may be taken but, without more, lease cannot be terminated – section 382 (Termination of leases) of PD Act is not inconsistent with a right not to have one’s home interfered with unlawfully or arbitrarily – applicants, in spite of their bankruptcies, would not become homeless if lease is terminated
Legislation:ACT Civil and Administrative Tribunal Act 2008, sections 6, 68 and 84
Building Act 1972, s 46
Planning and Development Act 2007, sections 282, 339, 341, 345, 355, 361, 366, 367, 368, 381(5), 382, 384, 408 and 423, and Schedule 2
Legislation Act 2001, sections 84 and 180
Land (Planning and Environment) Act 1991 (repealed), sections 188, 253, 256, 257, 259, 259A and 258A, and Schedule 5
Australian Capital Territory (Self Government) Act 1988 (Cth), section 23
Human Rights Act 2004, sections 12, 28 and 40B
Cases:Canberra Fathers and Children Services Inc & Michael Watson (Residential Tenancies) [2010] ACAT 74
Fleischinger and ACT Planning and Land Authority [2005] ACTAAT 13
Gerondal and Anor v Minister for Planning [2004] ACTSC 84
Gerondal and Conservator of Flora and Fauna [2007] ACTAAT 4
Gerondal and Minister for Planning [2003] ACTAAT 32 (AT 03/5)
Re Paul & Monica Gerondal and Minister for Planning [2004] ACTAAT (AT 04/97)
Texts/Papers: Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011)
Tribunal:Ms W. Corby – Senior Member (Presiding)
Mr P. Sutherland – Senior Member
Date of Orders: 1 August 2014
Date of Reasons for Decision: 1 August 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 14/10
BETWEEN:
PAUL AND MONICA GERONDAL
Applicants
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL: Ms W. Corby – Senior Member (Presiding)
Mr P.Sutherland - Senior Member
DATE:1 August 2014
ORDER
The Tribunal Orders that:
1.Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008, the reviewable decision dated 19 December 2013 to terminate the Crown lease of the premises is set aside.
………………………………..
Ms W. Corby – Senior Member
for and on behalf of the Tribunal
REASONS FOR DECISION
Paul and Monica Gerondal, the Applicants, seek review of the decision by the ACT Planning and Land Authority (“ACTPLA”), the Respondent, on 19 December 2013 (the ‘reviewable decision’) pursuant to section 382(2) of the Planning and Development Act 2007 (the ‘PD Act’) to terminate the Crown lease of Block 45 Section 37 Waramanga in the ACT (the “premises”).
The Applicants are the joint lessees of the premises. Pursuant to section 408 and Schedule 1, Item 48 of the PD Act, they are entitled to apply to the ACT Civil and Administrative Tribunal (the “ACAT”) for review of the reviewable decision.
The hearing of the application for review of the reviewable decision was conducted over three days, from 5 to 7 May 2014 inclusive, by a panel (the ‘Tribunal’) comprising Senior Member Wilhelmena Corby (Presiding) and Senior Member Peter Sutherland. At the conclusion of the hearing the Tribunal reserved its decision on the Application.
At the hearing of an interim application on 8 April 2014, discussed below, Senior Member Corby was advised that each of the Applicants had filed a debtor’s petition for bankruptcy. The Applicants tendered a letter dated 7 April 2014.[1] The letter from the trustee for the bankrupt estates of the applicants (“Trustee”), Mr Hundy, confirmed that the Trustee was appointed on 11 March 2014. In the letter, the Trustee confirmed that in his capacity as trustee of the bankrupts’ estates, he supported the continuance of the application to the ACAT in this matter.
BRIEF HISTORY OF THE MATTER
[1] Exhibit A1
The following brief history of the matter is provided to assist in understanding these Reasons for Decision.
7 Sept 1971 Crown lease for the premises issued to Paul Pang Gerondal and Monica Netta Gerondal (the Applicants’) in joint tenancy. There was a dwelling on the premises (the “existing dwelling”). 1975 The Applicants received approval for plans to construct extensions to the existing dwelling (the “construction of extensions”). 1983 The building permit for construction of the extensions expired. The construction of the extensions was not completed. 1995 The incomplete nature of the construction of the extensions was raised in the ACT Legislative Assembly, ultimately resulting in an order under section 46 of the Building Act 1972 to render safe sections of concrete pipe and to complete all outstanding building work in accordance with approved plans within 6 months of the notice. 16 Apr 1997 The Deputy Building Controller issued another notice under section 46 of the Building Act 1972 directing the Applicants to obtain a building permit to complete the construction of the unfinished extensions. 29 July 1998 ACT Building Control identified the work necessary to complete the construction of the extensions and issued a building permit to Mr Gerondal in respect of the work identified. 29 July 2001 The 1998 building permit expired. 6 Nov 2001 A private certifier, Kenyon Hopkins, issued an approval for the construction of the extensions, valid for three years. 12 Aug 2002 Planning and Land Management advised that legal action would be taken to require completion of the construction of the extension and clean up of the block. 30 June 2003 In Gerondal and Minister for Planning [2003] ACTAAT 32 (AT 03/5), the ACT Administrative Appeals Tribunal (‘AAT’) made orders that the Applicants must (a) by 5 November 2004 complete the construction of the extension in terms of the approved plans; and (b) clean up the leasehold block, in compliance with Schedule items 1,2,3 and 4 by 31 August 2004, and in relation to Schedule items 5 and 6 by 5 November 2004 (the “2003 AAT orders”). The AAT order was an “activity order” pursuant to s 256 of the Land (Planning and Environment) Act 1991 (repealed) (the ‘LPE Act’). 17 Aug 2004 In Gerondal and Anor v Minister for Planning [2004] ACTSC 84, Crispin J dismissed an appeal from the 2003 AAT orders and remitted the matter to the AAT to make further orders in view of the delay and the fact that some of the dates specified in the 2003 AAT orders had passed (the “Supreme Court decision”). 6 Oct 2004 In Re Paul & Monica Gerondal and Minister for Planning [2004] ACTAAT (AT 04/97),[2] the AAT amended the dates set out in the 2003 AAT orders so that the compliance date for order (a) was amended to 5 March 2005; and the compliance date for order (b) Schedule items 1,2,3, and 4 was amended to 6 December 2004, and Schedule items 5 and 6 was amended to 5 March 2005 (the ‘2004 AAT orders’). 5 March 2005 Final date for compliance with AAT activity order. 1 Dec 2005 ACTPLA conducted an inspection of the premises under warrant and recorded videotape footage of the inspection. 20 Dec 2005 ACTPLA issued a 'Direction to carry out rectification work' (the 'rectification notice') in relation to AAT activity order (b) Schedule items 3 and 4, in relation to vegetation, specifically bamboo, on the premises. 30 Mar 2007 In Gerondal and Conservator of Flora and Fauna [2007] ACTAAT 4, the AAT dismissed an application by the Applicants who were seeking to set aside a decision by the Conservator to allow prohibited groundwork in relation to protected trees on the premises (the “2007 AAT Flora and Fauna decision”). This groundwork was required to enable removal of bamboo from the premises pursuant to the rectification notice. 25 Nov 2007 The building approval for the extensions expired and Mr Gerondal's registration as an owner-builder expired. 31 Mar 2008 The Land (Planning and Environment) Act 1991 (‘LPE Act’) was repealed and the PD Act commenced. 12 Sept 2013 A delegate of ACTPLA signed a Notice of Intention to Terminate Crown Lease for the premises (the “Notice of Intention”). The Notice of Intention identified four grounds for the foreshadowed termination and invited written submissions from the Applicants in relation to the Notice of Intention. 14 Sept 2013
24 Oct 2013
Written responses to the Termination Notice were provided by Mr Gerondal on behalf of the Applicants. 19 Dec 2013 After considering the submissions by the Applicants, the ACTPLA delegate issued a Termination Notice pursuant to section 382(2) of the PD Act terminating the Crown Lease for the premises, the termination to take effect 28 days after the date of the Notice of Termination (the ‘reviewable decision’). 7 Jan 2014 Application to the ACAT by the Applicants for review of the reviewable decision to terminate the lease. 11 Mar 2014 Mr Hundy was appointed as trustee in relation to the bankrupt estates of both Mr and Mrs Gerondal. 8 Apr 2014 Senior Member Corby heard and dismissed the Applicants’ interim application pursuant to section 84 of the ACAT Act to have a question of law referred to the ACT Supreme Court. 5-7 May 2014 Hearing of the Application for Review by the Tribunal. [2] T documents 60- 62
The 2003 AAT orders as amended by the 2004 AAT orders are set out in full in the Schedule attached to these reasons. The legislative provisions relevant to the Tribunal’s decision in this matter are also set out in the Schedule to these reasons.
OVERVIEW OF LEGISLATIVE FRAMEWORK
Activity Order under section 256 and Rectification Notice under section 259A – Land (Planning and Environment) Act 1991
The AAT activity orders were authorised:
a.in relation to order (a) - by sub-sections 257(3)(d) of the LPE Act, being an order “to comply with the terms of an approval to undertake a development”;
b.in relation to order (b) and the Schedule - by section 257(3)(j) of the LPE Act being orders “to clean up a leasehold”.
Contravention of a section 256 LPE Act activity order was a strict liability offence, pursuant to section 258 of the LPE Act, which attracted a penalty. In addition, if an activity was not carried out within the period stated in the order[3] the Respondent could issue a rectification notice pursuant to section 259A of the LPE Act. The section 259A notice could state, among other things, the nature of the rectification work to be undertaken and the grounds for the notice. Failure to comply with a rectification notice was a strict liability offence that attracted a penalty.[4]
[3] Section 259, LPE Act
[4] Section 259B, LPE Act
An activity order under the LPE Act operated “until revoked” or ended ”in accordance with the order” (section 258A, LPE Act). The person to whom the activity order is directed could apply for revocation of the order.The AAT activity order did not state when it was to end and was not revoked.
Section 188 in Part 5 of the LPE Act authorised service of a termination notice on a lessee if the lessee contravened ‘this part or the lease’. The provisions concerning activity orders and revocation notices were in Part 6 of the LPE Act.
Notice of termination pursuant to section 384 of the PD Act
The Notice of Intention to Terminate (T157) issued by the Respondent pursuant to section 384 of the PD Act, in compliance with 382(1)(b) of the PD Act, was enclosed with the Respondent’s letter to the Applicants dated 12 September 2013.[5] In the Notice of Intention the Respondent identified the alleged breaches by the Applicants which would be relied on by the Respondent as grounds for the issue of the Notice of Intention and the foreshadowed termination.
[5] T document 155
The Notice of Intention identifies four breaches by the Applicants:
a.re section 361, PD Act – failure to comply with the AAT activity order made pursuant to section 256 of the LPE Act;
b.re section 367, PD Act – failure to comply with the rectification notice made 20 December 2005 pursuant to section 259A of the LPE Act;
c.re Schedule 2 Item 1(a), PD Act – failure to comply with the lease; and
d.re Schedule 2 Item 2, PD Act – failure to keep leasehold clean.
The Respondent, when making the reviewable decision to terminate the Crown lease of the premises, relied on the grounds and reasons set out in the Notice of Intention.
The Notice of Intention, pursuant to section 384 (a)(iii) of the PD Act, invited the Applicants to provide reasons as to why the Applicants considered that the lease should not be terminated. The Applicants provided a response on 14 September 2013[6] and 24 October 2013.[7]
[6] T document 148
[7] T document 44
The Respondent is required pursuant to section 384(c) of the PD Act, before making a decision pursuant to section 382(2) of the PD Act, to take into account any reasons for not terminating the lease given to the Respondent by the recipients of the Notice of Intention.
The Respondent provided a Supplementary Statement of Reasons prepared by the decision maker dated, and filed in the Tribunal, on 14 February 2014 (the “Supplementary Reasons Statement”).
The Respondent advised that although the Supplementary Reasons Statement is dated 14 April 2014, they record the consideration of the Applicants’ submissions by the reviewable decision maker before making the reviewable decision.
On 19 December 2013, the reviewable decision maker exercised the discretion to terminate the Crown lease of the premises pursuant to section 382(2) of the PD Act.
ISSUES IDENTIFIED BY THE TRIBUNAL
The primary questions for the Tribunal are, does the Tribunal have power to exercise the discretion to terminate the lease? If so, should the Tribunal exercise that discretion to terminate the lease?
The 2003 AAT orders as amended by the 2004 AAT orders (the ‘”AAT activity order”) were made under the LPE Act. The rectification notice was issued under the LPE Act. The LPE Act was repealed and the PD Act commenced on 31 March 2008. The decision to issue the Notice of Intention was made on 12 September 2013 under the PD Act. The decisions to issue the Notice of Intention and to terminate the lease were based, in part, on alleged contravention by the Applicants of the AAT activity order and the rectification notice.
The issue arises as to whether the transitional provisions between the LPE Act and PD Act authorised reliance by the Respondent on instruments made under the repealed LPE Act when exercising the discretion under section 382(2) of the PD Act to terminate a Crown lease for the premises (the “transitional provisions issue”).
Further, under the LPE Act contravention of an activity order and rectification notice were not a basis for termination of the lease by the Respondent. The issue arises as to whether the Respondent may now rely on the alleged contravention by the Applicants of those LPE Act instruments to terminate the Crown lease under section 382 of the PD Act (the “Power to Terminate a Crown Lease” issue).
Similarly, the Tribunal will need to determine whether the Applicants’ engagement in controlled activities of “failing to comply with a provision of a lease” (PD Act Schedule 2 Item 1(a)) or ‘failing to keep a leasehold clean’ (PD Act Schedule 2 Item 2) authorises the Respondent to exercise the discretion under section 382(2) of the PD Act to terminate the Crown lease.
The Notice of Intention identifies breach of Clause 1(c) of the Crown lease[8] as a ground for termination of the lease. Whilst breach of some of the clauses of the Crown lease afford the right to terminate the Crown lease, such as Clause 3(a), Clause 1(c) of the Crown lease does not. The issue arises as to whether the Respondent may rely on breach of Clause 1(c) of the Crown lease as a ground for exercise of the discretion to terminate pursuant to section 382(2) of the PD Act (the “breach of the Crown Lease” issue).
[8] T document 90
It is necessary for the Tribunal to determine the effect of the AAT activity order under section 256 of the LPE Act and of the rectification notice, and whether they have ended.
Further, the Tribunal will need to determine whether the Applicants complied with order (a) of the AAT activity order to complete the construction of the extensions in accordance with the development approval by 5 March 2005, or at any time before, or subsequent to, the issue of the Notice of Intention.
Also, the Tribunal will need to determine whether the Applicants complied with order (b) Schedule items 1,2,5 and 6 of the AAT activity order, to ‘clean up the leasehold block’ in relation to removal and storage of wood and building materials, by the relevant compliance dates, or at any time before, or subsequent to, the issue of the Notice of Intention.
The Tribunal will need to determine whether the Applicants complied with order (b) Schedule items 3 and 4 of the AAT activity order to ‘clean up the leasehold block’ in relation to vegetation, specifically ‘bamboo’, or with the requirements of the rectification notice in relation to vegetation. The Tribunal will need to determine whether the Applicants carried out this work in compliance with the dates in the activity order and rectification notice, or at any time before, or subsequent to, the issue of the Notice of Intention.
Section 382(2) of the PD Act provides a broad discretion in relation to the decision whether or not to terminate a Crown lease. That discretion may be exercised in circumstances where there is a contravention of Chapter 11 of the PD Act or of the lease. If there is such a contravention in this case, should the discretion to terminate the lease be exercised (the ‘Exercise of the Discretion to Terminate” issue)?
The Tribunal will need to consider the relevance of the Human Rights Act 2004 (the "HR Act”) to the interpretation of section 382 of the PD Act and/or to the exercise of the discretion under section 382(2) of the PD Act, given the particular circumstances of the Applicants (the ‘HR Act’ issue).
THE HEARING PROCESS
Material and information relied on by the Tribunal
In its consideration of this matter the Tribunal has taken into account:
a.documents and materials filed by the parties including Statements of Facts and Contentions and witness statements;
b.oral and written submissions made by or on behalf of the parties at the hearing;
c.oral and documentary evidence given or tendered by the parties or witnesses during the hearing;
d.the ‘view’ of the premises on Tuesday 6 May 2014, conducted by the Tribunal in the presence of the parties (the ‘view’);
e.a videotape recording of footage taken on 1 December 2005 (Attachment C Exhibit R2) of an inspection of the premises under warrant;
f.the decisions of the ACT Administrative Appeals Tribunal in Gerondal and Minister for Planning ([2003], ACTAAT 32), of the ACT Supreme Court in Gerondal and Anor v Minister for Planning ([2004] ACTSC 84) (the ‘Supreme Court decision’), and of the AAT in Paul & Monica Gerondal and Minister for Planning [2004];
g.the legislation and authorities referred to and relied on by the parties; and
h.tribunal Documents (the ‘T Docs’) and supplementary information filed by the Respondent that relate to the reviewable decision made by the Respondent, including the Supplementary Statement of Reasons for the Notice of Decision on Terminate filed in ACAT by the Respondent on 14 February 2014.
Applicants’ interim application pursuant to section 84 of the ACAT Act
On 24 March 2014, the Applicants applied to the ACAT for an interim order. The Applicants sought to have a question of law referred to the Supreme Court pursuant to section 84 of the ACT Civil and Administrative Tribunal Act 2008 (the ‘ACAT Act’).
On 8 April 2014, Senior Member Corby dismissed the Applicants’ Interim Application.
The question of law that the Applicants sought to have referred was:
Whether Section 382(2) of the Planning and Development Act 2008 is invalid being a law for the acquisition of property otherwise than on just terms for the purpose of Section 23(1)(a) of the Australian Capital Territory (Self Government) Act 1989 (Cth)
In making the decision to dismiss the Application, Senior Member Corby concluded that, taking into account the objects of the ACAT Act set out in section 6 and in particular section 6(c), the determination of the Applicants’ substantive Application by the Tribunal would best achieve an outcome of either finality, or, would enable any further proceedings that might follow that Tribunal decision to deal with all of the issues which might arise out of that Tribunal hearing. The issues to be determined in those further proceedings could include the question of law posed by the Applicants in the Interim Application.
The hearing of the Applicants’ substantive application
The matter was heard over three days from 5 to 7 May 2014 inclusive. The Applicants attended and were represented by Mr Richard Arthur of Counsel, instructed by Ms Lorraine White from Baker Dean and Nutt Solicitors.
The Respondent was represented by Ms Katavic of Counsel, instructed by Mr Leszek Stawski from the ACT Government Solicitor’s office. Mr Nathan Hancock, Special Counsel from the ACT Government Solicitor’s Office attended on the last day of hearing to make specific submissions on behalf of the Respondent in relation to the HR Act issue.
The Trustee, Mr Stephen Hundy, attended for some of the hearings and gave oral evidence and his statement (Exhibit A4) and a letter from him (Exhibit A1) were tendered.
Several officers from the Respondent’s office attended for some, or all, of the hearing. In addition to making written statements which were tendered in evidence, the following of the Respondent’s officers gave oral evidence - Mr Sean Moysey (Exhibit R1), and Mr Joshua Turk (Exhibit R2); and Mr Benjamin Green (Exhibit R3).
The Tribunal, with the parties and their representatives and some of the Respondent’s officers, attended at the premises to conduct the view on the morning of Tuesday 6 May 2014, the second day of hearing.
Witnesses
Witnesses for the parties were as follows:
For the Applicants -a.Mr Paul Pang Gerondal – one of the Applicants
For the Trustee -
a.Mr Stephen Hundy, Director, Worrells Solvency and Forensic Accountants
For the Respondents -
a.Mr Sean Alexander Moysey, Manager, Utilities, Land and Lease Regulations Section, Construction Services Branch, Environment and Sustainable Development Directorate ('ESDD')
b.Mr Joshua Turk, Inspector, Breach Management Team, ESDD
c.Mr Benjamin Green, Acting Manager, Construction Occupations Licensing and Construction Audit, Construction Services Branch, ESDD
The ‘view’ conducted by the Tribunal on 6 May 2014
A ‘view’ of the premises was conducted on Tuesday 6 May 2014. The Tribunal, the Applicants, the legal representatives of the parties and some officers from the Respondent’s office attended. Those present were able to enter the premises and view those parts of the premises where construction of the extensions is being undertaken. The view did not include any part of the interior of the existing dwelling where the Applicants are residing and which is not part of the construction work being undertaken. The Tribunal and those present were able to view the exterior of the premises, front and back, and were able to enter most parts of the areas under construction to view the work that had been carried out and the status of construction.
The premises consist of an existing dwelling and partially constructed extensions to that dwelling. The extensions are across the, predominantly West facing, front of the dwelling which faces the street, and along part of the, predominantly North facing, side and, predominantly North East, back corner of the dwelling. Virtually all of that part of the dwelling that is visible from the street is ‘under construction’.
Much of the external ‘shell’ of the extensions appears to have been constructed. In relation to the areas under construction, plumbing, flooring and other work is either not begun or is unfinished. Some windows are missing; the glass panes in some of the installed windows are cracked; doors are not installed; there is roofing and the empty window and door spaces allow the internal area of the construction to be exposed to the elements.
In the back yard of the premises, there are many items stored out doors. There was a shed in the back yard with items stored in it. There was vegetation and a clothesline. Due to the large number of items stored outside in the back yard it would be too difficult to attempt to list those items that were identifiable. There were many items which were not, from the brief view undertaken on 6 May 2014, identifiable.
There are a large number of items stored within the area of the construction of the extensions at the front of the dwelling facing the street. These items are stored within or between the areas under construction at the front of the premises and are visible from the public area at the front of the premises. Some of these items, such as doors, may be intended for use in the construction. There were too many items to enable a complete list to be made. Some of the items were not readily identifiable and it is not clear which items the Applicants intend to use in the further construction of the extensions.
EVIDENCE AND SUBMISSIONS OF THE PARTIES
Evidence of Witnesses
Evidence of the Applicant, Mr Paul Gerondal
Mr Gerondal, one of the Applicants, gave oral evidence. He tendered two statements dated 7 April 2014 (Exhibit A2) and 2 May 2014 (Exhibit A3). Although Mrs Gerondal, the other Applicant, attended some or all of the Tribunal hearing, Mrs Gerondal did not give evidence.
Mr Gerondal relied on the information set out in his statements (Exhibits A2 and A3). Under cross examination, he confirmed the information set out at paragraph 8 of his statement (Exhibit A2) and gave evidence that before 6 December 2004, the compliance date in the AAT activity order, the Applicants had complied with that part of the AAT activity order which relates to vegetation which is ‘bamboo’ (i.e. 2004 AAT orders (b) Schedule items 3 and 4).
Mr Gerondal says that prior to the compliance date of 6 December 2004 he had contacted Mr Thew from the Respondent’s office. Mr Gerondal said he had asked Mr Thew to advise the Applicants as to ‘what work needed to be done’ in relation to the ‘bamboo’ in order to comply with the AAT activity order. Mr Gerondal said that neither Mr Thew nor anyone else from the Respondent’s office provided that advice. Mr Gerondal said that he, therefore, did what he thought was appropriate. He said that he removed only bamboo. Mr Gerondal said that he did remove ‘Arundo’, which is a similar plant to bamboo and is intermingled with bamboo on the premises. Mr Gerondal said that the AAT activity order did not refer to ‘Arundo’.
Mr Gerondal said that some of the vegetation which had been identified by the AAT and others as ‘bamboo’, was not in fact bamboo. During his evidence, Mr Gerondal was asked by the Respondent’s counsel to look at photographs of the premises which had been taken at various times and were included in the documents filed in the Tribunal by the Respondent or were included in the T Docs. In response to questions by the Respondent’s counsel, Mr Gerondal said he was unable to identify specific plants in photographs of the premises. He said that he could not see a difference between plants as, he said, its ‘all vegetation to me’.
When being cross examined, Mr Gerondal advised on several occasions that as he is not a botanist, he could not answer questions about the plants depicted in photographs of the premises taken on 14 April 2014 and 24 April 2014 by Mr Turk, the Respondent’s officer.[9]
[9] Exhibit R2 (Mr Turk’s statement), Annexures B and D
Mr Gerondal said that he did not contact anyone after he did the work which, he said, was in compliance with the AAT activity order (b) Schedule items 3 and 4. He said no one from the Respondent’s office inspected the premises until ‘about 6 months later’.
Mr Gerondal agreed that at some stage he received the rectification notice dated 20 December 2005. The rectification notice required the removal of bamboo by 31 January 2006. Mr Gerondal says that on several occasions, after 31 January 2006, he contacted the Respondent’s office about the activity order and rectification notice in relation to the bamboo. However, he says that no one from the Respondent’s office replied to him. Mr Gerondal expressed the view that it was up to the Respondent to monitor compliance and there is no obligation on a person who is the subject of compliance action to follow up and seek inspections.
The Respondent’s counsel reminded Mr Gerondal about the 2007 AAT Flora and Fauna decision. This decision was made in relation to the Applicants’ application to the AAT seeking review of a decision by the Conservator of Flora and Fauna in relation to ‘tree damaging’ work related to the removal of bamboo on the premises.
The 2007 AAT Flora and Fauna decision (Gerondal and Conservator of Flora and Fauna and Anor [2007] ACTAAT 4) was made on 30 March 2007. The Respondent’s counsel put to Mr Gerondal that, given the matters addressed by this decision, he must have known that the Respondent did not consider that the AAT activity order (b) Schedule items 3 and 4, or the rectification notice, had been complied with by the Applicants as at March 2007. Mr Gerondal simply confirmed his evidence that, in his view, the activity order had been complied with by 6 December 2004 and the Respondent had not inspected the work despite requests by the Applicants.
Under cross examination, Mr Gerondal agreed that there were provisions relating to the ‘clean up’ of ‘building materials’ in the AAT activity order (b) Schedule items 1, 2 ,5 and 6. Mr Gerondal noted that he did not accept the definition of ‘building materials’ used in the AAT activity order. Mr Gerondal gave evidence that by 6 December 2004 and 5 March 2005, in compliance with the activity order, the Applicants had removed or stored material. He said that materials currently stored at the premises were different from those that were present at the time that the AAT activity order was made.
Mr Gerondal made the point, several times when giving oral evidence, that it was a ‘dynamic situation’ in relation to both the growth of vegetation and the construction of the extensions. He said that the building materials stored on the premises subsequent to 6 December 2004 or 5 March 2005 were different from those which were on the premises prior to or at those dates. In short, he said that the Applicants had complied with the AAT activity order (b) Schedule items 1, 2, 5 and 6 in relation to wood and building materials. Mr Gerondal said this is confirmed by the fact that the rectification notice does not address building materials.
Mr Gerondal took issue with the conclusion that the current plans relating to the construction of the extensions are those plans identified in the AAT and Supreme Court decisions in 2003 and 2004 – namely plans 26446D, E and F. Mr Gerondal asserted that the most recent building approval given by the private certifier, Mr Hopkins, on 25 November 2004 (referred to in the Statement of Mr Benjamin Green Exhibit R3 Attachment A) was for Plan No 044470/A and this was different from the plans referred to in the AAT and Supreme Court decisions. Mr Gerondal asserted that it is the plans No 044470/A which were approved for construction of the extensions from 25 November 2004 to 25 November 2007.
Mr Gerondal did agree that no certificate of completion, or certificate for occupancy and use, had been issued in relation to either plans No.26446D, E and F, or Plan 04470/A, at any time up to or subsequent to 25 November 2007. On 25 November 2007, Mr Gerondal’s owner builder licence, and the building approval for the construction of the extensions, expired.
In addition, Mr Gerondal said that he had been prevented from completing the construction of the extensions because since the building licence and building approval expired on 25 November 2007, the Respondent had refused to grant him an owner builder licence.
The Respondent’s counsel referred Mr Gerondal to correspondence between Mr Gerondal and the Respondent’s office (Attachment A to Exhibit R3) wherein Mr Gerondal was advised that in order to obtain an owner builder licence he would need to undertake a course and the Applicants would need to provide a current building approval. Mr Gerondal gave evidence that he had not undertaken the course because, in his view, it was not required. He also said that Mr Hopkins, the private certifier, had not agreed to provide a building approval. Mr Gerondal asserted that this was because an officer from the Respondent had ‘threatened’ Mr Hopkins not to issue the approval. (The Tribunal notes that no further evidence of this assertion was provided by the Applicants.)
The Respondent’s counsel referred the Applicant to paragraph 6 of his statement (Exhibit A2) which states that the only ‘external work’ remaining to complete the construction of the extensions is the glazing of some windows and the installation of door frames and doors. Otherwise, says Mr Gerondal, only internal work, including connection of lighting, final plumbing and reinstallation of spiral staircases after tiling, is outstanding. When asked whether he has obtained ‘costings’ in relation to the outstanding work, Mr Gerondal said that he had not obtained ‘costings’ but that he would obtain quotes from sub-contractors in relation to the work.
Mr Gerondal agreed that there are residences on other properties that one or other of the Applicants owns in NSW and which are referred to in the evidence given and statement made by the Trustee – Mr Hundy (Exhibit A4). However, Mr Gerondal said that the Applicants’ current situation dictates that they need to reside in Canberra, in particular, because of the need to accommodate Mrs Gerondal’s health treatment needs. The Applicants also want to be close to their son who resides in Canberra and who provides them with support. Mr Gerondal said that, if the termination were effected, the Applicants would need to apply for and await allocation of public housing in the ACT.
Evidence of Mr Stephen Hundy, the Trustee
The Trustee, Mr Stephen Hundy, gave oral evidence. In addition his letter dated 7 April 2014 attaching the Certificate of his Appointment as Trustee for the bankrupt Estates of both Applicants[10] and his statement dated 1 May 2014 (Exhibit A4) enclosing the ‘Report to Creditors’ dated 16 April 2014 in relation to each of the Applicants, were tendered.
[10] Exhibit A1
Mr Hundy gave evidence that the Applicants each own property in NSW and are joint tenants of the lease of the premises. The premises is the only jointly held property and the only property in the ACT. Mrs Gerondal has two properties in NSW. Mr Gerondal has a property in Broulee, NSW. Information about the Applicants’ properties are set out in the Reports to Creditors, attached to the Trustee’s Statement.[11]
[11] Exhibit A4
In relation to dealing with the bankruptcy of both Applicants, Mr Hundy confirmed that in consultation with the Applicants the decision had been made to sell the Broulee property which is solely owned by Mr Gerondal. Mr Hundy said that he expected that the proceeds of the sale of the Broulee property would be sufficient to pay all unsecured creditors in Mr Gerondal’s bankruptcy. Mr Hundy said that it was anticipated that there would be surplus funds. He said that Mr Gerondal had undertaken to pay out of any surplus funds the unsecured creditors in Mrs Gerondal’s bankruptcy.
Mr Hundy said that he expects that all unsecured creditors in both bankruptcies will be paid in full and then both bankruptcies would be annulled. If there were insufficient funds from the sale of the Broulee property, then there were other properties in NSW, owned by Mrs Gerondal, which could be sold.
Mr Hundy said that the decision was made not to sell the ACT property, although it is the only jointly owned asset, following consultation with the bankrupts. He said that the Broulee property, because of its location, was a desirable property. Mr Hundy said that he did not know what needed to be done to complete the construction of the extensions at the premises, but said that he intended to get a formal assessment of the premises to determine what needs to be done, however, he had not yet done so.
Mr Hundy[12] indicated that the Trustee may still consider undertaking the outstanding work at, and removing materials from, the premises, in the interests of ‘preserving assets’ of the bankrupt estates.
Evidence of Respondent’s witnesses
Mr Sean Moysey
[12] Exhibit A4 – last paragraph
Mr Sean Moysey, Manager of the Utilities, Land and Lease Regulation Section within the Construction Services Branch of the ESDD, gave oral evidence and his written statement dated 29 April 2014[13] was tendered.
[13] Exhibit R1
Mr Moysey had obtained information about property owned by the Applicants. This information was consistent with the information set out in the Trustee’s statement.[14] Mr Moysey confirmed that the Cootamundra property owned by Mrs Gerondal, and the Broulee property owned by Mr Gerondal, both have residences.
[14] Exhibit A4 and Attachments
Attachment D to Mr Moysey’s statement[15] confirms that for most of the time between 29 July 1998 up until 25 November 2007, the Applicants, or Mr Gerondal, had an owner builder licence in relation to construction at the premises, but neither of the Applicants has had a valid building licence since 25 November 2007.
[15] Exhibit R1
Mr Moysey confirmed that, in relation to the premises, no notice of a certificate of completion of the building work nor notice of compliance with the Building Act 2004 had been received by the Respondent.
Mr Moysey also gave evidence that the Respondent is dealing with a large number of competing priorities and budget constraints. Given this, it is not feasible for the Respondent, and it does not have the capacity, to undertake the work necessary to complete the construction of the extensions and clean up the premises.
When questioned by the Counsel for the Applicants, Mr Moysey agreed that the Respondent has a ‘policy’ in relation to the ‘clean up’ of leases, but agreed that this was not referred to in the reasons for the reviewable decision. Mr Moysey confirmed that there is no policy in relation to ‘termination of leases’ and the Respondent’s ‘enforcement’ policy does not make reference to termination of leases.
Mr Joshua Turk
Mr Joshua Turk is an inspector with the Breach Management Team at the ESDD. He gave oral evidence and his statement dated 30 April 2014 was tendered.[16] In his capacity as inspector, he undertook inspections of the premises on 23 April 2013, and 14 and 24 April 2014. Reports in relation to, and photos taken at the time of, those inspections are at T168 –T208 and attachments ‘B’ and ‘D’ to his statement.[17]
[16] Exhibit R2
[17] Exhibit R2
These inspections by Mr Turk were conducted from a neighbouring property or the public area. Mr Turk also viewed the video footage taken at the inspection, pursuant to a warrant, by the Respondent’s officers on 1 December 2005.[18] Mr Turk confirmed that he had made a total of four (4) inspections of the premises, including the view on 6 May 2014 with the Tribunal. He advised that the first time he had been granted access to the premises was at the view on 6 May 2014.
[18] Exhibit R2, Attachment ‘C’
Mr Turk gave evidence that he had observed the presence of bamboo at the premises and on neighbouring blocks. Also, that he had observed materials stored, and which were visible from the public area, inside the front area of the premises within or between the areas of the construction of the extensions.
Mr Turk said that he had been able to identify materials including doors, doorframes, bricks, scrap metal and tiles. Mr Turk said that whilst some of these materials may be capable of use in the construction of the extensions, given their exposure to the elements, they would need to be assessed as being ‘fit for purpose’ before they could be used in the construction work.
Mr Turk noted that the AAT activity order required ‘storage’ behind the ‘rear building line’. Mr Turk advised that the rear building line is that part of the premises between the ‘rear point’ of the structure and the ‘rear boundary’. Mr Turk observed that storage in the front part of the dwelling or extensions, which is visible from the public area, does not comply with the AAT activity order.
Whilst Mr Turk was unable to say what remains to be done to complete the construction of the extensions, he was able to determine that the construction of the extensions is not complete. Mr Turk said that it would be necessary for a suitably qualified certifier and engineer to be consulted about what is required to complete the construction of the extensions.
During Mr Turk’s evidence the Tribunal and parties and their representatives viewed the video footage taken during the inspection of the premises with a warrant undertaken on 1 December 2005.[19] In the video, Ms Wilden, the officer conducting the inspection, explained that the purpose of the inspection was to check compliance by the Applicants with the AAT activity order in relation to order (a) - the building work, and order (b) - the clean up.
[19] Exhibit R2, Attachment C
Ms Wilden said, on the video, that in relation to the AAT activity order (a) the building work at the premises was to be compared with the approved development plans for the construction of the extensions. The status of the clean up of building materials and bamboo was to be compared with the Schedule items in order (b) of the AAT activity order.
The video showed that construction of the extensions was incomplete; there was relatively new growth of bamboo along the adjoining neighbour’s boundary area on the north of the premises; there was vegetation identified as bamboo on other parts of the premises; and it was noted that there was relatively little bamboo along the south boundary with the adjoining neighbour. On the video one of the officers present noted that building materials and wood were stored in compliance with the AAT activity order (b) Schedule items 1, 2, 5 and 6.
Under cross-examination by the Applicants’ counsel Mr Turk agreed that whilst it is normal to have something between the roof and the interior of a structure, this was not a requirement. Similarly, Mr Turk said that unless there is some ‘energy efficiency rating requirement’ to do so, there is no requirement to line the internal walls of a double brick structure. The roofs of the extensions are not lined internally and the walls of the extensions are all double brick.
Mr Turk confirmed that the Respondent has no ‘policy’ in relation to vegetation.
Mr Benjamin Green
Mr Benjamin Green is the Deputy Construction Occupation Registrar, Acting Manager of the Construction Occupations Licencing and Constructions Audit in the Construction Services Branch of the Respondent. Mr Green gave oral evidence. His written statement dated 30 April 2014[20] was tendered.
[20] Exhibit R3
Mr Green gave evidence about the relevant history of owner/builder licences and building approvals in relation to the Applicants and the premises since 2004. Mr Green said that a Plan No 044710/A was allocated to plans lodged with the Respondent’s office, which relate to the building approval document[21] issued by the private certifier, Mr Hopkins, for the period 25 November 2004 to 25 November 2007 in relation to the construction of the extensions.
[21] Exhibit R2, Attachment A
The Applicants’ counsel asked how a search in relation to plans no 26446 would capture the plan number approved by Mr Hopkins. Mr Green said that the search is undertaken using the block and section number, which then shows projects and the associated building approval information. The search had revealed the building approval by Mr Hopkins. Mr Green also noted that building approval is given to projects, not plans.
Mr Green said that the need to be licensed as an owner builder and the building approval required, both related to the Building Act. Also he said that the changes effected by the enactment of the PD Act did not impact on the system for building approvals.
Mr Green confirmed that a search of the database revealed that no certificate for completion of the plans 26446D, E or F had been issued. No application for a certificate of occupancy and use had been lodged, nor had a certificate been issued for occupation and use of the completed plans.
The Applicant’s counsel asked if Mr Green could recall when the private certification procedures were introduced. He said that he could not recall exactly, but thought it was in about 1999. He agreed that, prior to that all certification, inspection and approval was done by Government officers.
Submissions by the parties
Both parties provided written and oral submissions as well as outlining their position in Statements of Facts and Contentions, and Responses, filed in ACAT. The following paragraphs set out a summary of those submissions as understood by the Tribunal.
Applicants’ submissions
The Applicants submit that the reasons for the reviewable decision rely, primarily, on there being ‘no evidence’[22] of certain matters having occurred. A decision to terminate the Crown lease should not be based on such conclusions. The Applicants say that there should be positive evidence to support a decision to terminate the Crown lease.
Termination under PD Act where activity order and rectification notice under LPE Act
[22] See the Notice of Intention - paragraphs 7, 8, 10 and 11 at T documents 159 to 160
The Applicants submit that ‘contravention of Chapter 11’ in section 382(1) of the PD Act means having been convicted of an ‘offence’ under Chapter 11. In this matter that would be for contravening the AAT activity order and or rectification notice. The Applicants submit that this is a precondition to the operation of section 382(1)(a) in relation to ‘contravention of Chapter 11’. They have not been convicted of an offence in relation to breach of the AAT activity order or rectification notice, thus their actions do not enliven section 382(1)(a) in relation to ‘contravention of Chapter 11’.
Further, section 188 of the LPE Act, which authorised termination of a lease under the LPE Act in relation to Chapter 5 matters and the lease, did not apply to contravention of activity orders or rectification notices which are in Chapter 6 of the LPE Act. Thus, even if the Applicants failed to comply with the AAT activity order or rectification notice, this would not have authorised the Respondent to terminate the lease under the LPE Act.
The Applicants submit that section 382 of the PD Act is invalid because of the operation of section 23 of the Australian Capital Territory (Self Government) Act 1988 (Cth). It was this question that the Applicants had sought to have referred to the Supreme Court when they made the interim application pursuant to section 84 of the ACAT Act. The Applicants made detailed submissions on this matter at the hearing of the interim application on 8 April 2004. The Tribunal does not have jurisdiction to determine the validity of section 382 of the PD Act.
The Applicants say that all of the Applicants’ conduct relied on by the Respondent occurred before 31 March 2008 when the operation of the PD Act commenced. The Applicants submit that events which had already occurred before that date can not ‘contravene’ Chapter 11 of the PD Act.
The Applicants say that because section 339 of the PD Act states that a ‘controlled activity order means an order made under part 11.3’, this does not apply to the AAT activity order made under the LPE Act. Nor does it apply to the rectification notice made in relation to the AAT activity order. The compliance date in the rectification notice, and the AAT activity order it relates to, occurred before 31 March 2008 (when the PD Act commenced). Thus noncompliance with the AAT activity order or rectification notice, made under the LPE Act, does not ‘contravene Chapter 11’ of the PD Act. Section 382(1)(a) of the PD Act is not enlivened and section 382(2) of the PD Act does not apply.
The Applicants say that section 423 of the PD Act is intended to operate to aid in the construction of out-dated references. Whilst section 423 may operate so that actions which predated 31 March 2008 are ‘read as if’ actions under the PD Act, section 423 does not have the effect of ‘deeming’ provisions to be ‘made’ under the PD Act. The Applicants say that if this latter interpretation is what was intended by the legislature then it is not achieved.
The Applicants say that the presumption against retrospective operation is only displaced where there is a clear statement or as a matter of law the provision applies to actions that predate its enactment.[23] That is not the case here.
[23] Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011), pages 322 to 323
Similarly, the Applicants submit that the legislature will not be presumed to have subjected a person, by subsequent legislation, to a greater liability than existed at the time of the action unless that intention is express in the legislation.[24] Significantly, the power to terminate, section 188 of the LPE Act, related to breaches of Chapter 5 which concerned land management, not Chapter 6 where the activity order and rectification notice provisions are found. The consequence of noncompliance with an activity order or rectification notice under the LPE Act did not include termination of the Crown lease.
[24] Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011), pages 322 to 323
The Applicants accept that the liability created by the activity order and rectification notice may survive the repeal of the LPE Act. Pursuant to section 84 of the Legislation Act 2001, the Respondent retains the right to investigate the Applicants’ actions and to take action as it might have done under the LPE Act. However, in relation to the alleged contravention of the AAT activity order and the rectification notice, this action by the Respondent does not extend to the right to terminate the Crown lease which first became available under section 382 of the PD Act.
The Applicants submit that section 258A of the LPE Act sets out the process for bringing an activity order to an end. The section states that when an order is no longer ‘necessary or appropriate’ it should be revoked. The Applicants submit that this does not really relate to the Applicants and that nothing should be inferred from their failure to apply for revocation of the AAT activity order.
Breach of Crown lease
The Applicants’ counsel pointed out that breach of Clause 1(d) of the Crown lease[25] is referred to in the Respondent’s written closing submissions (filed on 7 May 2014). Clause 1(d) had not been previously raised by the Respondent in either the Notice of Intention nor in the Notice of Termination decision. The Applicants submit that the Tribunal should disregard the reference to Clause 1(d) of the Crown lease.
[25] T document 90
Although ‘breach of lease’ was available as a basis for termination under section 188 of the LPE Act, the Applicants say that the Tribunal should not accept that the inclusion in Schedule 2 of the PD Act of item 1(a) demonstrates an intention to ‘convert’ the breach of a clause of the lease which, before the enactment of the PD Act would not have authorised termination, to now operate to ‘invest’ the Respondent with that authority.
The Applicants submit that neither the inclusion in Schedule 2 of the PD Act of item 1(a) - ‘failing to comply with a provision of a lease’ - nor breach of Clause 1(c) of the lease (T90), if proved, authorise a decision to terminate the lease.
HR Act considerations
The Applicants say that if the Tribunal does not accept the above submissions and finds that section 382 of the PD Act operates then the exercise of the discretion under section 382(2) of the PD Act is ‘shaped’ by the HR Act.
The Applicants submit that because the Tribunal is a ‘public authority’ within the meaning of the HR Act[26] it must, subject to the qualification in section 40B of the HR Act, act in a way that is compatible with, or gives proper consideration to, a human right.
[26] Section 40, HR Act
The relevant ‘human right’ is the right not to have ‘home or family’ unlawfully or arbitrarily interfered with.[27] The Applicants acknowledge that this right may be limited by law[28] and, if a law purports to ‘limit’ the right, then the decision in relation to that law must be a ‘proportionate response’, having regard to the matters set out in section 28(2) of the HR Act.
[27] Section 12, HR Act
[28] Section 28, HR Act
The Applicants accept that section 382 is a law that ‘limits’ the human right in section 12 of the HR Act. However, section 382 offers no guidance on the exercise of the discretion it affords, such as the nature or severity of the contravention of Chapter 11 or the lease, which might be of sufficient significance to warrant the outcome of termination.
The Applicants’ counsel referred the Tribunal to the decision of Canberra Fathers and Children Services Inc and Michael Watson[29], in relation to the exercise of the discretion; what are ‘reasonable limits’[30]; and considerations of what is ‘arbitrary’ within the meaning of section 12 of the HR Act.
[29] [2010] ACAT 74 at [56]
[30] Section 28(2), HR Act
The Applicants referred to the evidence from the Respondent’s witnesses that confirmed that the Respondent has no ‘policy’ regarding the exercise of the termination power, although it does have policies about other forms of enforcement. The Applicants submit that the lack of policy suggests that the exercise of the discretion may be arbitrary. The Applicants do accept the right of review and appeal may overcome an otherwise ‘arbitrary’ process.
The Applicants note that the system of leasehold in the ACT means that for ACT lessees, the notion of ‘security’ of one’s home is a very different situation from the freehold system which operates in most other parts of Australia.
Balancing interests when exercising the discretion under section 382(2) of the PD Act
The Applicants accept that there is an interest of protecting ‘neighbourhood amenity’ which, given the circumstances of this matter, has to be balanced against the individual’s right to be free from interference with home in section 12 of the HR Act. The Applicants say that the regime of Chapter 11 is aimed at protecting neighbourhood amenity by providing the Respondent with enforcement procedures, including activity orders and rectification notices.
The Applicants say that the two aspects of ‘impact’ on neighbourhood amenity in this matter are:
a.the invasion of plants from one block to another; and
b.the visual impact of the incomplete construction on the neighbourhood.
The Applicants say that they accept Mr Turk’s evidence as to what is required in order to complete the construction of the extensions.
The Applicants say that there was no evidence provided by the Respondent about the impact of the Applicants’ conduct on neighbours. The inaction of the Respondent between 2007 and 2013 suggests that the level of agitation among neighbours in relation to these issues was not such as to warrant ‘taking away someone’s home of 40 years’. The ‘punishment’ is grossly out of proportion. Further, termination of the Crown lease does not have any impact on either the visual state of the construction or the presence of bamboo, thus, it cannot be said to achieve these purposes.
The Applicants say, referring to section 28(2) of the HR Act, that there are other enforcement procedures by which the Respondent could achieve the outcome desired by less restrictive compliance measures than termination of the Crown lease. Measures such as an activity order requiring construction of concrete barriers to stop invasive plants; and in relation to ‘visual’ issues of the construction of the extensions, an activity order requiring installation of doors and windows. The Applicants concede that this latter measure would not result in the completion of the construction of the extensions as required by the AAT activity order (a).
The Applicants say that there are other compliance actions which the Respondent could take which would better achieve the outcome of improving neighbourhood amenity, including undertaking the work and recovering the cost from the Applicants.
The Applicants referred to the evidence of the Respondent’s witness, Mr Moysey, who provided an explanation for the Respondent’s decision not to undertake the work and then seek recovery of the cost from the Applicants. The Applicants submit that this evidence does not adequately explain why this approach had not been adopted by the Respondent. The Applicants submit that the evidence was that the Respondent could, but did not desire to, take this approach.
The Applicants also noted there were other options, such as demolition, and that the Respondent can use the process of a Statutory Charge to secure any expenditure incurred plus interest.
The Applicants noted that the Trustee has indicated that he may, from the proceeds of sale of other property owned by the Applicants, arrange for completion of the construction of the extensions. Therefore, the Applicants submit that if the discretion under section 382(2) of the PD Act arises, it would be premature to exercise the discretion to terminate the Crown lease before the Trustee makes a decision in this regard.
The Applicants submit that the Tribunal should accept Mr Gerondal’s evidence that the AAT activity order (b) Schedule items 3 and 4 in relation to bamboo had been complied with by 6 December 2004 as required. Mr Gerondal’s evidence is that it was regrowth that was observed on 1 December 2005. This was not noncompliance with the AAT activity order, however, this alleged noncompliance by the Applicants was the basis for the issue of the rectification notice. The Applicants submit that therefore the rectification notice is invalid. The Applicants accept that the Tribunal is not able to review the decision to issue the rectification notice, but say that under section 180 of the Legislation Act, the Respondent can reverse or change this decision.
The Applicants agree that the construction of the extensions is not complete, but say that, in relation to the AAT activity order (b), the ‘clean up’ Schedule items 1,2,5 and 6 were complied with, as were Schedule items 3 and 4. Therefore, the AAT activity order (b), in relation to these matters, is ‘spent’. The Applicants say that once complied with, the order cannot be relied on for further enforcement action. In support of this proposition the Applicants’ referred the Tribunal to the decision of ACAT of Fleischinger v Planning and Land Authority [2005] ACTAAT 13.
The Applicants submit that if the Tribunal concludes that the exercise of the discretion to terminate under section 382(2) of the PD Act does arise, then in relation to the exercise of the discretion, the Applicants point out that section 382(2) of the PD Act does not mandate termination of the Crown lease. Rather, section 382(2) of the PD Act authorises the exercise of a discretion. That discretion should be exercised in favour of not terminating the lease.
The Applicants submit that termination is a ‘drastic’ action that is not warranted when, on balance, the consequence of the decision not to exercise the discretion in this way has a considerably less significant impact on others than the impact on the Applicants of a decision to exercise the discretion to terminate.
Australian Capital Territory (Self Government) Act 1988 (Cth)
23Matters excluded from power to make laws
(1)Subject to this section, the Assembly has no power to make laws with respect to:
(a)the acquisition of property otherwise than on just terms;
(c)the provision by the Australian Federal Police of police services in relation to the Territory;
(d)the raising or maintaining of any naval, military or air force;
(e)the coining of money;
(g)the classification of materials for the purposes of censorship.
(1A)The Assembly has no power to make laws permitting or having the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life.
(1B)The Assembly does have power to make laws with respect to:
(a)the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient but not so as to permit the intentional killing of the patient; and
(b)medical treatment in the provision of palliative care to a dying patient, but not so as to permit the intentional killing of the patient; and
(c)the appointment of an agent by a patient who is authorised to make decisions about the withdrawal or withholding of treatment; and
(d)the repealing of legal sanctions against attempted suicide.
(2)The regulations may omit any of the paragraphs in subsection (1) or reduce the scope of any of those paragraphs.
Human Rights Act 2004
Privacy and reputation
Everyone has the right—
(a)not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b)not to have his or her reputation unlawfully attacked.
Human rights may be limited
(1)Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2)In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a)the nature of the right affected;
(b)the importance of the purpose of the limitation;
(c)the nature and extent of the limitation;
(d)the relationship between the limitation and its purpose;
(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
40BPublic authorities must act consistently with human rights
(1)It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b)the law cannot be interpreted in a way that is consistent with a human right.
NoteA law in force in the Territory includes a Territory law and a Commonwealth law.
(3)In this section:
human rights do not include the economic, social and cultural rights in part 3A.
public authority includes an entity for whom a declaration is in force under section 40D.
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