O'Neill, B.E. v Wyrdeman, P

[1987] FCA 654

J NOT M R DISTRIBUTION

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IN THE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY	)
1 No. ACT G 64 of 1987

REGISTRY	DISTRICT	)
1

DIVISION GENERAL )

BETWEEN: BEVERLEY ENID O'NEILL, BERNARD I . .

JOSEPH EDWARD COLLAERY,

GERALDINE GEORGE, RICHARD	BAKER
and JOAN DUNCAN THNAITES

Applicants

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AND: PETER WYRDEMAN I

First respondent

NATIONAL CAPITAL DEVELOPMENT

COMMISSION

Second respondent

THE UNITING CHURCH IN AUSTRALIA

(AUSTRALIAN CAPITAL TERRITORY)

PROPERTY TRUST

Third respondent

_--

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.

DATE OF ORDER	: 6 October 1987
WHERE MADE	: Canberra

THE COURT ORDERS THAT:

1.	The application for interlocutory injunctive	relief
against the third respondent be dismissed.

2.     The applicants pay the respondents' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

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/ IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN	CAPITAL	TERRITORY	1
1 No. ACT G 64 of 1987

DISTRICT REGISTRY ) )

DIVISION GENERAL 1

BETWEEN :	BEVERLEY ENID O'NEILL, BERNARD
JOSEPH mWARD COLLAERY,
GERALDINE GEORGE, RICHARD BAKER
and JOAN DUNCAN THWAITES

Applicants

AND : PETER WYRDEMAN

- ,. First respondent	!
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NATIONAL CAPITAL DEVELOPMENT	t
COMMISSION

Second respondent

THE UNITING CHURCH IN AUSTRALIA

(AUSTRALIAN CAPITAL TERRITORY)

PROPERTY TRUST

Third respondent

CORAM: Neaves J.

W : G October 1987

REASONS FOR JUDGMENT . .

The applicants, Beverley Enid O'Neill, Bernard Joseph Edward Collaery, Geraldine George, Richard Baker and John	.	. J
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Duncan Thwaites, seek an interlocutory	in~unction	restraining	. -
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the third respondent, The Uniting Church in Australia

(Australian Capital Territory) Property Trust, a body corporate

established by the Unitins Church in Australia Ordinance 1977

(A.C.T.) ("the Unlting Church Ordinance"), its servants and

agents from carrying on, or permitting to be carried on, any

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building, site or excavation work on certain land known as I

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I	Section 75,	Division of	Narrabundah	in	the	Australian	Capital	L.:
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Territory. The building, site or excavation work in question

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I	is work	associated with the	construction	on the	land	of	a
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I	dwelling	house	and	garage	for	use, so the	third	respondent
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asserts, as a manse, that is to say, as a resldence for a

minister of the Uniting Church in Australia and her family.

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The injunction is sought pending the hearing and

determination of an application under the Administrative

Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial

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Review Act") pending in the Court at the suit of the applicants

against Peter Wyrdeman, who was at the relevant time the.

Building Controller appointed under the Buildlnq Ordinance 1972

(A.C.T.) ("the Building Ordinance"), the National Capital

Development Commission established under the National Capital

Development Commission Act 1957 (Cth) and the third respondent.

The applicatlon under the Judicial Review Act was

filed on 23 September 1987. Peter Wyrdernan was the only

respondent named in that application. However, on the hearing

on that date of an application for interlocutory relief, I .

Everett J. gave leave to the applicants to join the National

Capital Development Commission and The Uniting Church in

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Australia (Australian Capital Territory) Property Trust as,

respectively, the second and third respondents to the

application. The application filed on 23 September 1987 sought

an order of review in respect of what was described as the

decision of the (first) respondent, Peter Wyrdeman, made on 27

I July 1987 to issue a building permit under s.35 of the Building

I Ordinance for the work to be carried out on the land. At the

conclusion of the hearing on that date, his Honour granted an

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i interlocutory injunction against the third respondent and

i	adjourned the matter until	25	September 1907. On the latter
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i date, the interlocutory injunction was, by consent, dissolved

and the matter further adjourned until 1 October 1987.

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When the matter came before the Court on 1 October

1987 the applicants foreshadowed the filing of an amended

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application under the Judicial Review A c t joining as an

additional respondent one Howard Lipscornbe, who was at the

relevant time an officer of the Department of Territories of- the Commonwealth, and identlfying further decisions in respect

of which the applicants sought orders of review. It will be

necessary to refer to those decisions later in these reasons

but, before doing so, the circumstances which have given rise

to the present proceeding should be further addressed. What

follows, however, should not be read as constituting definitive

findings of fact. It is rather a summary of what is to be

I gleaned from the material at present before the Court. It is

necessary to make this reservation as the facts have not been

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i fully investigated for the purpose of the present interlocutory

application and some of the material before the Court	has not
been the subject of formal proof. That material has been

placed before the Court, withoul; objection,	but for the purpose
only of the interlocutory application.

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The land is triangular in shape having an area of

approximately 1 acre 1 rood 36 314 perches. It is bounded on I ’

the west and south by Wylie Street and on the north-east by

Brockman Street. On 14 May 1960, a lease of the land was

granted by the Commonwealth of Australla to the Presbyterian

Church (New South Wales) Property Trust pursuant to the Leases

(Special Purposes) Ordinance 1925 (A.C.T.) for a term of

ninety-nine years commencing on 22 December 1959. Clause 1 of the lease contained the followlng covenants by the lessee -

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“(c) that the lessee will within twelve

months from the commencement of the said	I ‘
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term or within such further time as may

be approved writing in the by

Commonwealth or the Minister on behalf

of the Commonwealth for that purpose

submit to the Commonwealth or the

Minister on behalf of the Commonwealth a

I	complete building scheme for the said
land including:- l .J

(i) a plan or plans showing all

buildmgs (including a church)

which the lessee proposes to

erect on the said land and also

the approximate positions on the

said land in which such buildings

are to be erected;

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(ii) a statement in respect of each

building shown on such plan of -

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(a) the minimum cost at which it !

is proposed to erect such

building;

(b)	the purpose for which the
lessee proposes to use such I
building; !.
(c)	the respective times within
whlch it is proposed to I
commence to erect and to

complete such building;

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(d)	if the Minister does not approve of the
building scheme so submitted and
notifies the lessee of the matter or

matters of which he does not approve and

of the manner in which he requires the

I building scheme to be amended the lessee

shall within six months after the date

of any such notice amend the said

building scheme in accordance with such

notice and submit the amended building

scheme to the Minister for his approval;

I	(e)
that the lessee will commence to erect plans within the time stated in the
statement referred to in sub-clause
(c)(ii) of this Clause as the time
within which it is proposed to commence
to erect that building or within such
further time as may be appfoved in
writing by the Commonwealth or the
Mlnister on behalf of the Commonwealth
for that purpose in a position on the said land approved by the Commonwealth " ,
or the Minister on behalf of the I ? _
Commonwealth and in accordance in all
material respects with the building
scheme approved by the Minister as
l	provided in sub-clause (c) of this
Clause and with plans and specifications
prepared by the lessee and previously
submitted to and approved in writing by , _
the Commonwealth or the Minister on
behalf of the Commonwealth and that the lessee will complete the erection of such building within the time stated in
the said statement as the time within
which it is proposed to complete such
building or within such further time as

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may be approved in writing by the

Commonwealth or the Minister on behalf

of the Commonwealth for that purpose at

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a cost no less than the cost stated in I ,'

the said statement to be the minimum

cost at which it is proposed to erect

such building or at a cost approved in

writing by the Commonwealth or the I

Minister on behalf of the Commonwealth and in accordance wlth the said plans

and specifications and every Statute

Ordinance	and	Regulation	applicable
thereto;

(f) that the lessee will not erect any

building or buildings on the land or any

part thereof additional to the buildings

contained in the plan or plans referred

to in sub-clause (c) of this Clause

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without the prior consent in writing of

the Commonwealth or the Minister on

behalf of the Commonwealth and will

erect any building in respect of the

erection of which consent has been so

given in accordance with plans and

specifications thereof to be previously

submitted to and approved in writing by

the Commonwealth or the Minister on

behalf of the Commonwealth and in

accordance with every Statute Ordinance

and Regulation applicable thereto;

....

(h) to use the said land only for the

purposes of a church a church hall and a

manse. "

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Clause 3, so far as material, provided:

"3. IT IS MUTUALLY COVENANTED AND AGREED as

follows -

(a) that if -

(i) ....

(ii) the lessee fails to comply with

the covenants contained in

sub-clause (e) of Clause 1 of

this lease; or

(iii) after completion of any building

as aforesaid such building is at

I any time not used for a period of

one year for the purpose of a

church a church hall and a manse

or for some other purpose

approved in writing by the

Minister;

the Commonwealth or the Minister on

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behalf of the Commonwealth may determine

this lease but without prejudice to any

claim which the Commonwealth or the

Minister on behalf of the Commonwealth

i	may have against the lessee in respect
of any breach of the covenants on the
part of the lessee to be observed or , .
performed; l
....

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(d) that in this lease the expression

'Minister" shall mean the Minister of

State of the Commonwealth for the time

being administering the Leases (Special

Purposes) Ordinance 1925-1943 including

any amendments thereof or of any Statute

or Ordinance substituted therefor or the

Member of the Executive Council of the

Commonwealth for the time being

performing the duties of such Minister

and shall include the Authority or

person for the time being authorised by

the Minister or by law to exercise the

powers and functions of the Minister

under the Leases (Special Purposes)

Ordinance 1925-1943 including any

amendments thereof or any Statute	or
Ordinance substituted therefor;

Section 4 of the Leases (Special Purposes) Ordinance

provides that land leased under the Ordinance is not to be

used for any purpose other than the purpose specified in the

lease.

There is evidence before the Court that, in or

about August 1960, a plan (Exhibit "C") described as a

tentative site plan for the land was prepared on behalf of the lessee. This envisaged the construction on the land of

a church, a church hall, a kindergarten hall, a manse, a

tennis court and car parking areas. Except, possibly, in so

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far as the plan referred to a church hall, it may properly

be said to have recorded little more than a vision for the

1 future. It provided a guide to the proposed location on the site of the various buildings and amenities in contemplation as future developments but it did not descend into any

detail. Under the plan, the proposed church hall was sited

towards the north-west corner of the land, the future church

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l	at the south-west corner, the future kindergarten hall and
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I	tennis court to the east of the future church and the future manse further again to the east in the vicinity of the more southerly junction of Wylie and Brockman Streets. The car parking areas were shown as located north of the future
church with vehicular access from Brockman Street. It can
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be said of the plan that it provided for the retention of
none of the natural features of the land which the present
applicants find so attractive and desirable.

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It may be a matter for debate whether the plan

answered the description in clause l(c) of the lease of a

complete building scheme for the land including a plan or

plans showing all buildings (including a church) whlch the

lessee proposed to erect on the land and the approximate

positions on the land in which the buildings were to be

erected. But, however that may be, the plan was apparently

submitted to the Commonwealth and the proposals therein were

"considered satisfactory" the National by Capital

Development Commission (see the Commisslon's letter dated 14

March 1961 to the Secretary, Department of the Interior). i

There is nothing in the material before the Court

to suggest that the then lessee of the land complied with

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that part of clause l(c) of the lease which required it to

submit to the Commonwealth or the Minister on behalf of the

Commonwealth a statement in respect of each building shown

on the plan of the minimum cost at which it was proposed to

erect such building and the respective times within which it

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I was proposed to commence to erect and to complete such

i building. Nor is there anything in the material to suggest

that the time of twelve months from the commencement of the

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term of the lease fixed by clause l(c) for the submission of

!	that	statement	was ever	extended.
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l It appears that detailed plans specifications and

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I	for one of the buildings, that described as a church hall, were subsequently prepared and approved. That building was
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erected in 1962 and is at present being used as a church, St ..

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Aidan's Church, Narrabundah. It would seem, on the

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evidence, that no detalled plans and specifications for any

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of the other buildings shown on the tentative site plan were -

prepared. None appears to have been approved. Apart from

the church hall, none of the other buildings shown on the

plan have been erected. I .

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On 22 June 1977 the unexpired term of the lease

vested in the third respondent by operation of law - see the

Presbyterian Church Trust Propertv Ordinance 1971 (A.C.T.),

s . 8 , the Presbyterian Church (Proposals for Union with other

Churches) Ordinance 1972 (A.C.T.), 5.3, and the Uniting

Church Ordinance, s.ll(5). The third respondent has since 1

December	1980	been registered	as	the proprietor of the
lease.

The third respondent is said to hold the lease on

trust to be utilised in accordance with the decisions of the

appropriate decision-making bodies within the Uniting Church

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in Australia, those bodies being the Parish Council of the	.
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Canberra Central Parish, the Presbytery of Canberra and the

New South Wales Synod of the Church. It is further said

that all necessary decisions and approvals have been given '

within the Uniting Church in Australia for the construction

on the land in question of a residence for the Reverend Gwen

Masters, an ordained minister of the Church who was called to a position as a second minister of the Canberra Central

Parish with effect from the beginning of February	1987, and
for members of her family.

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During 1986 the third respondent put forward a plan

of development for the land which provided for -

the retention of the existing building

used as a church and church hall;

the setting aside of an area of land for

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the future extension of that building

when that should become necessary;

the erection of a minister's residence

or manse on the south-east corner of the

land; and i '

the erection of what were referred to as

"aged care units" on the eastern portion

of the land comprising 16 units, some of

one storey and some of two storeys in	I !
height.

It was then envisaged that the erection of the manse and the

"aged care units" would be implemented during the financial

year 1987-1988. It may be noted in passing, that a circular

letter dated 5 January 1987 and signed by the Chairman of

the St Aidan's Property Committee of the Uniting Church

asserts, quite incorrectly, that the plan of development "is

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consistent with the purpose clause relating to the lease of

the property". It is clear that the purpose clause of the

lease (clause l(h), the text of which is set out above) does

not permit the erection of "aged care units" on the land.

In a letter dated 19 February 1987 addressed to one of the

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applicants, the National Capital Development Commission I - .

stated that it had been informed by the Department of

Territories that the original lease issued under the Leases

(Special Purposes) Ordinance is to be surrendered and two

new leases are to be issued, being a lease under that I /

Ordinance for the area on which the building used as a t

church and church hall is erected and a lease under the City

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Area Leases Ordinance 1924 (A.C.T.) for the area to be used r ,

for the manse and the aged persons' housing. Those leases

have not yet been granted.

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It appears that the National Capital Development

Commission informed the third respondent that it supported

the proposal in principle. Thereafter, on 13 October 1986 '. I

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an application 'for design and siting approval for what was

described as the "St Aidan's Manse & Retirement Village" was

submitted to the Commission. The application stated that

the "Design and Siting of the Manse and the Retirement

Village have been integrated to read as a unified

development carried out in similar architectural character

and building materials".

12.

By letter dated 3 December 1986 the Commission

informed the architects for the project that sketch plans ! -.

for the proposed development of aged persons' units on the

land had been considered and there would be no objection to

them proceeding to the preparation of working drawings

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sub~ect	to certain amendments	or further work	on the aspects	i
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of the design identified in the letter. It appears that a

final design for the units has not been determined and

detailed plans and specifications have not been prepared.

On 9 February 1987 the National Capital Development Commission, pursuant to the Buildinss (Desisn and Sitins)

Ordinance 1964 (A.C.T.) ("the Design and Siting Ordinance"),

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gave design and siting approval for the construction of a

dwelling house and garage in accordance with the plan

submitted on 13 October 1986 (Plan No.5752/C). The plan

itself was approved by the Building Controller on 3 April

1987 but the third respondent subsequently decided it was

not suitable. A revised plan (Plan No.5752/D) was submitted

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and that plan a'nd a further revised plan (Plan No.5752/E)

were given design and siting approval by the National

Capital Development Commission on 24 June 1987.

On or about 19 May 1987 the third respondent

entered into a building agreement with Jennings Industries house and garage.

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On 25 June 1987 Howard Lipscombe, describing

himself as a delegate of the Minister for Terrltories,

signed a notation as follows:

"APPROVAL GRANTED pursuant to clause l(f) of the

Crown Lease for the proposal outlined	in Plan
No.5752ID"

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No similar endorsement in relation to the revised Plan

No.5752lE	or	the further revised Plan No.5752IG	is	in
evidence.

On 24 July 1987 the plans No.5752ID and No.5752IE

were approved under s.33( 1) of the Building Ordinance by one

Noel Richard Cope, an officer of the Department of

Territories.

On 27 July 1987 a building permit under s.35(1) of

the Building Ordinance was granted in respect of the

erection of the dwelling house and garage by one Frances

MC Devitt, alGohn officer of the Department of Territories.

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Both Mr Cope and MS McDevitt are said to have been

performing the duties of a Deputy Building Controller under

the Building Ordinance. The documents by which authority is turns on that for present purposes.

said to have been conferred upon them respectively to

approve the plans and issue the building permit (see

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On 18 August 1987 the applicants, pursuant to s.13

of the Judicial Review Act, requested a statement of reasons

in relation to the decision to issue a building permit in

respect of the work. That statement was not provided to the

applicants until 24 September 1987.

On 3 September 1987 design and siting approval was

given by the National Capital Cevelopment Commission to a

further revised plan No.5752IC. The variations effected by

thls revised plan were approved by Mr Cope on	7 September
1987

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On 8 September 1987 the third respondent sought a

variation of its lease to enable the erection of residential

units on the land. No declsion has been made on that

application.

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The decisions in respect of which the applicants

seek orders of review may now be identified. They are -

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I	The decision made on 25 June 1987 by
Howard Lipscombe as delegate of the
Minister for Territories granting
I	approval pursuant to clause l(f) of the .- , .
lease for the proposal outlined in Plan l
No.5752ID. that is the proposal.for the
construction of the dwelling and garage.

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The decisions made on 24 June 1987 and 3

September 1987 by the National Capital

Development Commisslon under the Design

and Siting Ordinance granting design and

siting approval for the erection of the

dwelling and garage on the land.

decision The attrlbuted the by

applicants to Peter Wyrdeman but in fact

made by Frances McDevitt on 27 July 1987

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under s.35(1) of the Building Ordinance

granting a building permit in respect of

the work.

(d) The decision made by the National

Capital Development Commisslon on or

about 3 December 1986 to approve sketch

plans for the development a of

retirement village on part of the land.

(e) The decision of the third respondent,

said to be a decision under the Uniting

Church Ordinance, to submit to the

Commonwealth or the Minister on behalf

of the Commonwealth a building scheme

with respect to the land.

The applicants also seek an order of review in respect of

the failure of the third respondent to make a decision under

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the Uniting Church Ordinance to submit to the Commonwealth

or the Minister on behalf of the Commonwealth a complete

building scheme for the land including a plan or plans

showing all buildings (including a church) proposed to be	I-
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erected on the land.	I'

Each of the applicants claims to be either resident

in Wylie Street-or Brockman Street, Narrabundah or a person

having a proprietary interest in premises in one of those	I	/
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streets. Some claim to answer both descriptions. As such,

they claim to be persons aggrieved by the decisions sought

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to be reviewed. The respondents dispute that the applicants

or any of them are persons aggrieved within the meaning of

that expression in 5.5 of the Judicial Review Act and have

given notice that the issue will be raised at a later stage

of the proceeding.	I	need not now consider the matter
further.

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The respondents also, qulte properly, have given

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notice of their intention to submit at an appropriate time '. .

that the proposed amended application, in so far as it seeks

orders of review in respect of decisions other than the

decision to issue a building permit in respect of the work,

was not filed within the period prescribed by s.11(3) of the

Judicial Review Act. m e respondents draw attention to the

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fact that no material has been placed before the Court by

the applicants to justify the grantlng of an extension of

time within which to file that application.

Much of the evidence which the applicants sought to

adduce on the hearing of the application was clearly

directed to the question whether the proposed "St Aidan's

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Manse and Retirement Village" was	a desirable development	l '
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having regard to the situation and nature of the site, the

desirability	of	preserving on the site what have been	, -
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described as "mature eucalypts (some more than 100 years

old)", the suggested unsuitability of the site for aged

persons' houging, the alleged disconformity between the

proposal and the guidelines for aged persons' housing

approved by the National Capital Development Commission and

the perceived adverse effect of the development upon the

residential amenity of the area, the value of neighbouring

properties, the streetscape in Wylie and Brockman Streets

and the landscape generally. The concerns which the

applicants have expressed may be very real. They may be

well founded and they may be worthy of detailed

consideration. However, they are not matters which touch on

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any issue which the Judicial Review Act commits to the decislon of the Court. They are matters for those who, under the appropriate legislation, are charged with the duty

of determining what (if any) development should be permitted

on the land. "he issue for the Court is simply whether the

decision-making process has been carried out according to

the applicable legal rules. Because of the Court's limited

role, the evidence directed to the above matters was

rejected as inadmissible except in so far as it was relevant

to the issue whether the applicants were "persons aggrieved"

by the decisions sought to be reviewed.

The appllcants rely on two matters as showing that

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there is	a serious question to be tried on the hearing	of	I -
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the substantive application such as to warrant the granting

of interlocutory injunctive relief. First, the applicants

say that there has been a failure to comply with the	I
relevant requirements of the lease under which the land is

held. It is submitted that what the lease requires before

any work may be'permitted on the site is the submission by .

the third respondent to the Commonwealth or the Minister on

behalf of the Commonwealth of a complete building scheme f o r

the whole of the land and the approval of that scheme by the

Commonwealth or the Minister on its behalf. In the absence

of such an approved complete building scheme, the decisions

relating to the erection of a dwelling house and garage on

the land are, so the argument runs, contrary to law and

should be set aside.

18.

!	It is apparent that this submission relies heavily on clause l(c) of the lease, the text of which has already been set out. It 15, of course, obvious that a complete building scheme for the land which included buildings to be
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used for aged persons' housing would not be a scheme
complying with that clause as the use of the land f o r such
purpose would be outside the purposes permitted by clause
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i(h). Clause l(c) is expressed to impose an obligation on
the lessee to submit a complete building scheme including
the specified plan or plans and statement "within twelve
months from the commencement of the said term or within such

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further time as may be approved in writing by the

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Commonwealth or the Minister on behalf of the Commonwealth

for that purpose". But it is said that the clause has a

continuing operation throughout the term of the lease

(ninety-nine years) and, presumably, during any extension of

the term pursuant to clause 3(c).

Clause l(f) of the lease provides a procedure

whereby buildings may be erected on the land "additional to .

the buildings colitained in the plan or plans referred in

sub-clause (c) 'I. have I already referred to the

circumstance that consent to the erection of the dwelling

and garage, a consent which in my opinion was necessary, has

been given under that clause. That consent was given by Mr Lipscombe acting as a delegate of the appropriate Minister (see clause 3(d) of the lease) and no challenge is made to

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his authority to do so. The applicants, however, submit

that clause l(f) offers no assistance to the third

respondent as Its operation is dependent upon the approval

of a complete building scheme under clause l(c).

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The applicants also point to s.8 of the Design and

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Siting Ordinance which provides, inter alia, that the

Building Controller shall not, except in accordance with

par.(a) thereof, refuse an application for an approval or

permit under the Building Ordinance by reason of the

external design or the siting of a proposed building except t

where the Building Controller is satisfied that it is

necessary to do so "in order to prevent a contravention of a

provision of that Ordinance or of some other law or the

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terms and conditions of a lease or tenancy granted by the

Commonwealth". The applicants contend that the application

for a building permit in respect of the work to be carried

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out on the land should have been refused under this

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provlsioz in order to prevent a contravention of clause l(c)

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of the leases on-the part of the third respondent.

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In my opinion, the applicants seek to give to

clause l(c) of the lease an operation which its language

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will not sustain. The clause cannot, I think, be read as

imposing the continuing obligation throughout the term of

the lease which is essential if the applicants' submissions

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are to be accepted. Whether the lessee at the time

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fulfilled its obligations under clause l(c) may, as I have
already said, be debatable. Its failure to do so, or to
comply with its obligations under clause l(e) as to the time
within which the approved buildings were to be erected, may have provided grounds for the determination of the lease but
no actlon in that regard was, in fact, taken. But, whether

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the lessee fulfilled those obligations or not cannot, so it

seems to me, effect the legallty of decisions made in 1987

permittlng work to proceed for the erection on the land of a

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dwelling and garage to be used for a purpose clearly within

the purpose clause of the lease, namely as a manse. The

lack of substance in the submission was, I think, t.

demonstrated by the way in which it was first formulated by

counsel for the applicants. He described what had occurred

as amounting to "a breach of the spirit" of the requirements

of the lease. That way of putting the matter falls far

short of a contention that what is being done is in

contravention of the terms of the lease.

I

._

The se&nd matter upon which the applicants rely is

an apprehended breach in the course of the approved building

operations of the provisions of 5.3 of the Roads and Public

Places Ordinance 1937 (A.C.T.) which relevantly provides

that, subject to the section, the Minister may fix or alter

the level of any public road and, further, that the level of

any public road is not to be fixed or altered before an

opportunity is given to persons interested in such fixation

1 'I 2

or alteration to be heard in relation thereto. Provision is

made for the giving of notice of the Minister's intention to

fix or alter the level of a public road and for interested

persons to be heard. "Public road" is defined in 5 . 2 to

mean any street, road, lane, thoroughfare, footpath or place

open to, or used by, the public.

The contention is that the contours of the land

adjoining Wylie Street, Narrabundah at the place where a

driveway is to be constructed givmg access from Wylie

Street to the garage to be erected on the subject land are

such that an excavation of the nature strip will be

necessary to permit the driveway to be constructed at an

acceptable gradient. It is further contended that, the

nature strip being within the above definition of "public

road" and the procedures prescribed by the Ordinance not

..

having been carried out, the decision to issue a building	I '
I.
permit in respect of the work was not lawfully made.

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The sh&t answer to this contention is that the

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approved plan for the driveway does not authorise or permit

any excavation of the nature strip in the course of

constructing the driveway. Further, the evidence does not

show or suggest that the driveway will be constructed

otherwise than in accordance with that approved plan.

It follows from what I have sald that, in my

opinion, the applicants have failed to establish that there

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is a serious question to be tried on the hearing of the

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substantive application such as to warrant the grant of an

interloctuory Injunction restraining the third respondent

from havlng constructed on the site the dwelling and garage

I for use as a manse. The application is, therefore,

dismissed. The applicants must pay the respondents' costs

of the application.

;

I certify that this and I

the preceding 21 pages are	I,,
a true copy of the Reasons for Judgment herein.of the

Honourable Mr Justice

Neave S.

Associate

Dated: 6 October 1987

Counsel for the applicants : Mr S.L. Walmsley

Solicitor for the applicants	: Mr B. Collaery
Counsel for tge-Tirst and	: Mr C. Erskine

second respondents

Solicitor for the'first and : Australian Government Solicitor

second respondents

Counsel for the third : Mr I.W. Nash

respondent	i
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Solicltors for the third : Macphillamy Cummins & Gibson

respondent

Date of hearing : 1 October 1987

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