Luongo v ACT Planning and Land Authority - [2013] ACTSC 206

LUONGO v ACT PLANNING AND LAND AUTHORITY
[2013] ACTSC 206 (8 October 2013)

ADMINISTRATIVE LAW – Judicial review – ADJR Act – ACT Planning and Land Authority – controlled activity order – order required the owners of a property to lodge a development application to change the Building Code of Australia occupancy class of the building or cease using the building as a class other than as a single dwelling – whether no evidence to support the order – whether order invalid for uncertainty – Wednesbury unreasonableness – order invalid – Planning and Development Act 2007 (ACT) s 355.

ADMINISTRATIVE LAW – Judicial review – ADJR Act – certificate of occupancy and use – power to revoke – statutory interpretation – statutory power of Constructions Occupations Registrar to issue a certificate of occupancy and use – whether decision to grant certificate amounts to an exercise of a power to make a statutory instrument – whether registrar has power to revoke such a certificate – whether Building Act 2004 (ACT) exhibits a manifest contrary intention – Building Act 2004 (ACT) s 69 – Legislation Act 2001 ss 6, 46.

STATUTORY INTERPRETATION – Certificate of occupancy and use under Building Act 2004 (ACT) – whether capable of revocation – no express power to revoke in Building Act – whether an “instrument” – revocation of instrument – whether manifest contrary intention appears in Building Act – Legislation Act 2001 (ACT) ss 6, 46 – Building Act s 69.

Acts Interpretation Act 1901 (Cth) s 33(3)
Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5
Building Act 2004 (ACT) ss 69, 77, 136(1)
Construction Occupations (Licensing) Act 2004 (ACT) s 104(2)
Legislation Act 2001 (ACT) ss 6, 7, 13(1)(a), 46, 47, 180
Planning and Development Act 2007 (ACT) ss 1.20(2), 7(1)(d), sch 1, Div 11.3.4, ss 355, 358, 361, 399(a), sch 2 item 3(a)
Planning and Development Regulation 2008 (ACT) Part 1.3

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Collector of Customs v Lawlor (1979) 2 ALD 1
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Fieldhouse v Federal Commissioner of Taxation (1989) 25 FCR 187
Hughes v Australian Capital Territory Planning & Land Authority (2004) 136 LGERA 420; [2004] ACTSC 132
Kazakova v Queensland Fire and Rescue Service [2011] QCA 328
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
O’Donnell v Environment Protection Authority (2012) 192 LGERA 1; [2012] ACTSC 140
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Macquarie Dictionary Online (September 2013, Macmillan Press Australia)
Oxford English Dictionary Online (September 2013, Oxford University Press)

No. SC 373 of 2012

Judge: Katzmann J
Supreme Court of the Australian Capital Territory
Date: 8 October 2013

IN THE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] ACTSC 206
Decision Date: 8 October 2013

CaseChat Overview and Summary

In the case of Luongo v ACT Planning and Land Authority, the plaintiffs, Agostino, Giuseppa, Michael, and Rebecca Luongo, sought judicial review of two decisions made by the ACT Planning and Land Authority (ACTPLA) and the Construction Occupations Registrar (registrar). The first decision was a controlled activity order made by ACTPLA, requiring the plaintiffs to either lodge a development application to change the Building Code of Australia occupancy class of the building or cease using the building as anything other than a single dwelling. The second decision was the registrar’s decision to revoke a certificate of occupancy and use. Both decisions were made on 18 October 2012 and were based on the premise that the plaintiffs had developed the premises as a multiple occupancy residence without development approval. The plaintiffs argued that there was no evidence to support the decisions and that the orders were invalid due to uncertainty and unreasonableness.

The legal issues before the court included whether there was sufficient evidence to support the decisions, whether the orders were invalid due to uncertainty, and whether the registrar had the power to revoke the certificate of occupancy and use under the Building Act 2004 (ACT). The court had to interpret the statutory provisions of the Planning and Development Act 2007 (ACT) and the Building Act 2004 (ACT) to determine the validity of the decisions. The court also had to consider whether the decisions were Wednesbury unreasonable.

The court found that there was no evidence to support the controlled activity order and that the order was invalid due to uncertainty. The court also found that the registrar did not have the power to revoke the certificate of occupancy and use under the Building Act 2004 (ACT). The court held that the decision to grant a certificate of occupancy and use did not amount to an exercise of a power to make a statutory instrument and that there was no manifest contrary intention in the Building Act 2004 (ACT) to suggest otherwise. The court concluded that the decisions were Wednesbury unreasonable and set aside the controlled activity order. The stay of the decision to revoke the certificate of occupancy and use was continued until 7 November 2013, and costs were reserved.

Orders

Orders of the court

1. The controlled activity order made by the first defendant pursuant to s 355(2)(a) of the Planning and Development Act 2007 (ACT) be set aside.

2. The application be otherwise dismissed.

3. The stay of the decision to revoke the certificate of occupancy and use granted by the Master on 23 November 2012 be continued until 7 November 2013.

4. Costs be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Costs be reserved.REASONS FOR JUDGMENT This is an application for judicial review of two decisions, one made by the ACT Planning and Land Authority (“ACTPLA”) and the other by a delegate of the construction occupations registrar (“registrar”). Both decisions were made on 18 October 2012. As it happens, the decision-maker in each case was the same person. The decisions relate to residential premises situated at 4 Hackett Gardens (also known as Block 20 Section 27) in the suburb of Turner (“the property”). The first decision (made by ACTPLA) concerns the making of a controlled activity order. The second (made by the deputy registrar as the registrar’s delegate) is a decision to revoke a certificate of occupancy and use (“certificate of occupancy”). The basis for each decision was essentially the same: that the premises were developed as a multiple occupancy residence without development approval. On 23 November 2012 the Master granted a stay of both decisions until further order. The application is brought under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (“ADJR Act”). It was supported by an affidavit sworn by the third plaintiff, Michael Luongo. The right to bring such an application vests in a person aggrieved by a decision to which the Act applies: ADJR Act, s 5. “A decision to which this act applies” is relevantly defined in the Dictionary to the Act as a decision of an administrative character made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in schedule 1. “Enactment” is relevantly defined to mean an act or subordinate law. An “Act” is an act made by the Legislative Assembly of the Australian Capital Territory: Legislation Act 2001 (ACT), s 7. The relevant decisions were made under the Planning and Development Act 2007 (ACT) (“Planning Act”) and the Building Act 2004 (ACT) respectively and are not excluded from the operation of the ADJR Act by schedule 1. There is no dispute and there could be no doubt that the plaintiffs are persons aggrieved by the decisions. The plaintiffs, Agostino, Giuseppa, Michael and Rebecca Luongo, hold the property as lessees under a Crown lease. The Crown lease contains a covenant that the building erected on the land will be used only as a single unit private dwelling house. On 25 July 2011 a building approval certificate was issued. Approval was given for a residence and garage to be built on the block. The approved plans were for the construction of an eight-bedroom house with an ensuite attached to each bedroom, two kitchens and a laundry. The approval was later amended to accommodate changes to the layout of windows and doors. The building approval certificate records the BCA (Building Code of Australia) occupancy class for the residence as 1a(i). Part A.3.2 of the Building Code of Australia (applied to the ACT by the Building Act) defines a class 1a building as “a single dwelling house” being “a detached house” or “one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit”. Building apparently commenced on 18 August 2011.

Ratio Decidendi

Legal Principle Established

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