Owen Hughes & Margaret Hughes, Anne GORDON-HAMED v Australian Capital Territory Planning and Land Authority and Paul & Silvana BISA

[2004] ACTSC 132

OWEN HUGHES & MARGARET HUGHES, ANNE GORDON-HAMED v AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY and PAUL & SILVANA BISA [2004] ACTSC 132 (17 December 2004)

BUILDING AND CONSTRUCTION – town planning – whether garage below level of ground floor “basement car parking” – whether garage “in addition to” two storey house – whether area of garage should have been included in gross floor area – whether garage constitutes a third “storey”.
ADMINISTRATIVE LAW – judicial review – question of whether facts fall within statutory description – whether questions of law or fact – discretionary remedies – relevant considerations.

Territory Plan
Land (Planning and Environment) Act 1991 (ACT), ss 247, 8, 7
Administrative Decisions (Judicial Review) Act 1989 (ACT), ss 5, 17(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16

Gill vHumberstone & Co Ltd [1963] 3 All ER 180
Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565
Hope v Bathurst City Council (1980) 144 CLR 1
Collector of Customs v PozzolanicEnterprises Pty Ltd (1993) 43 FCR 280
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29
Lek v Minister for Immigration, Local Government & Ethnic Affairs (1993) 43 FCR 100

No.  SC 429 of 2004

Judge:  Crispin J
Supreme Court of the ACT
Date:  17 December 2004

IN THE SUPREME COURT OF THE     )
  )          No.  SC 429 of 2004
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:OWEN HUGHES & MARGARET HUGHES

First applicants

ANNE GORDON-HAMED

Second applicant

AND:AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY

First respondent

PAUL & SILVANA BISA

Second respondents

ORDER

Judge:  Crispin J
Date:  17 December 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. the application be dismissed.

1. At least in pre-feminist days it was often asserted that an Englishman’s home was his castle, but in contemporary Australia any budding Arthur and Guinevere who take this concept too literally are likely to find that their neighbours are not enchanted by the prospect of living next to a castle.   This was brought home to the second respondents when they submitted a development application for the demolition of an existing house and the construction of a new home to the ACT Planning and Land Authority (“ACTPLA”) in January this year.  Their version of Camelot was to be constructed on land at Block 7, Section 9, Yarralumla, more commonly referred to as 14 Brown Street, Yarralumla in the Australian Capital Territory (“the block”).  However, this architectural foray into the green and pleasant land of Yarralumla apparently caused some consternation to the neighbouring gentry.

1. The applicants, who own adjoining properties on either side of the proposed development, commenced the defence of their “residential amenity” by lodging objections dated 21 and 22 January 2004 and, when subsequently notified of a variation to the application, fired further salvos dated 7, 12 and 13 May 2004.  The applicants indicated that their principal concerns related substantially to what they described as the excessively high first floor level of the kitchen, dining room, sunroom and adjoining terraces that they feared would result in breaches of their right to privacy and severe overshadowing of their homes.

1. The battle appeared to have been decided on 25 May 2004 when the first respondent advised the applicants that it had approved the development application. 

1. However, the applicants were not so easily defeated.  On 27 May 2004 their solicitors wrote to the first respondent protesting that the approval was inconsistent with the Territory Plan at least in the following respects:

·     since the basement garage had been relocated “so as to be external to the building”, the area in question was no longer a basement but formed part of the gross floor area of the building and this would exceed the 50% “plot ratio”; and

·     part of the area formerly identified as a basement garage was still identified as garage space contrary to the provision of paragraph 3.6(h) of planning control B1 contained in the Territory Plan.

1. The solicitors also advised the second respondents that the applicants intended to apply for judicial review, that the approval might be set aside and that their actions in demolishing the existing dwelling were unwise.  The solicitors sought an indication that no further demolition work would be undertaken pending the resolution of the foreshadowed application and threatened that in default of such an undertaking their clients would “obtain a stay order” from this court.

1. On 28 May 2004 the first respondent’s solicitors replied, indicating that the issues raised in the letter sent on the previous day had been discussed and that planning solutions were being addressed. The letter stated that the second respondents were prepared to lodge an application under s 247 of the Land (Planning and Environment) Act 1991 (ACT) (“the Land Act”) to amend the approval to bring the development into line with the Territory Plan and that the first respondent did not propose to stop the demolition process.  The first respondent had been advised that the existing building had already been sold and would shortly be removed.

1. The applicants’ solicitors protested by letter dated 2 June 2004 that the only proper course was to revoke the approval, but on 15 June 2004 the first respondent’s solicitors replied confirming that their client would entertain the anticipated application under s 247 of the Land Act.

1. The application for an order of review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (“ADJR Act”) was initially filed on 21 June 2004.

1. On 24 September 2004 the first respondent advised the applicants that the foreshadowed application under s 247 of the Land Act had been approved. A statement of reasons was sought but the applicants apparently decided not to wait for them. An amended application for an order of review was filed on 25 October 2004 challenging the decision made on 25 May 2004 as varied by the decision of 24 September 2004. The statement of reasons was provided on the following day.

1. In support of their amended application, the applicants rely upon s 5 of the ADJR Act which enables a person who is aggrieved by a decision to which the Act applies to apply to the Supreme Court for an order of review in respect of the decision on one or more of the following grounds:

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)that the person who purported to make the decision did not have jurisdiction to make the decision’;

(d)that the decision was not authorised by the enactment under which it was purported to be made;

(e)that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)that the decision was induced or affected by fraud;

(h)that there was no evidence or other material to justify the making of the decision;

(i)that the decision was otherwise contrary to law.

1. The applicants claim to be aggrieved by the first respondent’s decision because they fear that the new dwelling will have an adverse impact on the residential amenity of their own properties.  Their standing to bring the application was not disputed.

1. Neither the application nor amended application for an order of review was drafted in a manner that precisely reflected any of the grounds specified in s 5 of the ADJR Act. In dealing with the “grounds” that have been pleaded, it is necessary to keep in mind the limitations imposed by s5 on the scope of the issues that may properly be raised on an application of this nature.

1. The first ground pleaded is that the decision to approve the development, albeit subject to the amendment under s 247, “was contrary to” s 8 of the Land Act in that the approval was “not consistent with the Territory Plan” because:

(a)it approved basement car parking in addition to two storeys contrary to Control B1 3.6(h);

(b)it approved a dwelling with a plot ratio exceeding 0.5:1 contrary to Control B1 3.6(i);and

(c)it approved a building which contains more than three (sic) storeys contrary to Control B1 3.4.

1. Whilst Mr Arthur, who appeared for the applicants, did seek to raise some other issues in relation to the calculation of the gross floor area, the issues raised by this ground related primarily to the garage which was to be located underneath a verandahh on the eastern side of the house.

1. It had been alleged that the approval of the garage contravened cl 3.6(h) of Control B1 which provides that:

On standard blocks, attics or basement car parking shall not be approved where in addition to 2 storeys.

1. The first respondent had found that the proposed development did not contravene cl 3.6(h) because the plans had been varied to move the basement car parking to the side so that it would not be immediately below the two storey portion of the building.  It excluded most of the garage from the calculation of the gross floor area on the basis that it was considered to be part of the sub floor area but included a portion amounting to 10.1 sq m on the ground and that it did not comply with the definition of “basement”.  On this basis the first respondent calculated the plot ratio at 48.9 per cent, which, as it observed, would have been 1.1 per cent less than the maximum of 50 per cent permitted by Control B1 3.6(i).

1. It was not explained how the relocation of the basement car parking area could have avoided any contravention of cl 3.6(h).  It is true that the definition of the term “basement” in schedule 1 to Part D of the Territory Plan makes it clear that the term applies only to “a space within a building” but it is difficult to see how the relocation would have taken the car parking space outside the ambit of that description, especially since the definition of the term “building” in the Territory Plan includes a structure attached to a building.

1. Mr Walker, who appeared for the first respondent, submitted that the answer was to be found in a purposive construction of cl 3.6(h).  Instruments such as the Territory Plan that were intended to achieve a practical outcome should be interpreted in a manner conducive to the attainment of their apparent objectives.  Hence, it has been suggested that if the language is capable of more than one interpretation, one “ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result” per Lord Reid in Gill vHumberstone & Co Ltd [1963] 3 All ER 180 at 183; see also Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 at 580-581. Mr Walker argued that cl 3.6(h) should be interpreted by reference to the objects of the Territory Plan as set out in s 7 of the Land Act and the objects, goals and strategic principles set out in parts A1, A2 and A3 of the Territory Plan itself.  The clause was intended to prevent houses on standard residential blocks from “presenting” as having three or even four storeys, as might occur on land sloping downwards towards the street.  The Territory Plan did not prevent approval of two storey houses with basements; but it did prevent the approval of basement car parking with such houses.  Hence, the words “in addition to” should be construed to mean that basement car parking could not be located directly under the bulk of the house so that it would have the appearance of a three storey building when viewed from the street.

1. It is difficult to embrace a purposive approach to construction if one cannot deduce with any confidence the purpose of the provision to be construed and I must confess that I am somewhat uncertain as to what purpose cl 3.6(h) may be intended to serve.  Since basements may be approved so long as they are not designated for car parking, it is difficult to accept that the clause is intended to prevent the visual impact of houses that present as three storey buildings.  There is no reason to suppose that the front wall of a basement used to store goods, accommodate billiard or table tennis tables or the family boat would be more attractive to people on the street than the front of a basement car parking area.  The clause cannot have any impact on the maximum permissible height of the buildings because that is measured from the natural ground level.  Mr Arthur submitted that it was intended to limit the overall size of the building, areas devoted to basement car parking not being included in the gross floor area.  However, the prohibition is unrelated to the size of the other portions of the building and, as Mr Walker pointed out, it does not apply to single storey buildings no matter how large they may be.  Furthermore, if the objective had been to contain the size of the building it could have been more effectively achieved by the simple expedient of amending the definition of “gross floor area” so that any area used for basement car parking would be taken into account.  It seems clear from the explanatory notes to Variation 200 which amended the clause that a basement unaccompanied by a driveway was acceptable.  This suggests its purpose was related to the appearance of the streetscape, though it would not prevent the approval of a driveway leading to a carport in front of a basement which would be no more attractive.  However, I am unable to conclude that the clause was intended to serve either of the purposes attributed to it by opposing counsel and unable to construe it in the manner suggested by Mr Walker.

1. Mr Arthur also submitted that, having been moved out from under the main portion of the building, the area described as “basement car parking” did not fall within the concept of a “basement”.  This term was defined in the Territory Plan as:

. . . a space within a building where the floor level of the space is predominantly below natural ground level and where the finished floor level of the level immediately above the space is less than 1.0 metre above natural ground level.

1. This submission prompted debate about the meaning of the word “floor”.  Mr Arthur maintained that it meant the lower flat surface of a room or other enclosed space and Mr Walker insisted that it meant a flat surface capable of being walked upon irrespective of whether the surface was inside the external walls of a building or part of an external verandah.  The competing arguments were supported by reference to both authorities and dictionary formulations but, in my opinion, the word must be construed by reference to the context in which it is used.

1. There was also  some debate about whether issues of this kind involved questions of fact or questions of law.  In Hope v Bathurst City Council (1980) 144 CLR 1, at 8, the High Court affirmed the principle that whether certain facts fall within the provisions of a statutory enactment is generally a question of law but that when a statute uses words according to their ordinary meaning and it is reasonably open to the decision maker to hold that the facts fall within them, then the question as to whether they do so is one of fact. In the later case of Collector of Customs v PozzolanicEnterprises Pty Ltd (1993) 43 FCR 280 at 287 a Full Court of the Federal Court of Australia suggested the following general propositions:

1.The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

3.        The meaning of a technical legal term is a question of law.

4. The effect or construction of a term whose meaning or interpretation is established is a question of law.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.

1. The Full Court qualified the fifth proposition, stating that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact.

1. In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 (10 December 1996) the High Court said that such general expositions of the law were helpful in many circumstances but suggested that the distinction between the second and fourth of the five propositions created difficulty. Their Honours said that “If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law”. However, it was not necessary to resolve this issue in that case because of a concession made in argument and the application of the undisputed principle that the determination of whether an "Act uses [an] expression . . . in any other sense than that which they have in ordinary speech" is always a question of law. See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-512.

1. Whilst, if I may say so with respect, these observations do not reveal the relevant principles with pellucid clarity, I am inclined to regard the debate concerning the meaning of the word “floor” as involving a question of fact since it is used in the Territory Plan in its ordinary meaning.  Nonetheless, like other ordinary words, it may convey different shades of meaning according to the context in which it is used.  In the definition cited above it forms part of the phrase, “the finished floor level of the level immediately above the space”.  I see no reason to notionally re-write the definition so that the word “level” is effectively supplanted by the more narrow concept conveyed by the word “storey”.  Nor can I see any reason to imagine that Mr Polglase (the Principal Officer, Development and Building Administration Branch of the first respondent), attributed any other meaning to this phrase and no question of reviewing any decision he may have made concerning its meaning arises.

1. I am inclined to regard the debate concerning the meaning of the word “basement” as involving a question of law since the word is defined by the Territory Plan and must be construed in the context of its objects and statements of principle.  However, I am unable to attribute to the word the limited meaning suggested by Mr Arthur.  The area in question is to be constructed directly underneath a verandah formed by the extension of the floor of the lower storey of the building.  The verandah is to extend from an area adjacent to the meals area of the kitchen on the eastern side of the building, span the southern end and extend along the western side to an area adjacent to the sunroom.  It is to be accessible by sliding glass doors at several points and would appear to provide opportunities for outdoor meals and entertaining.  In my opinion, it should clearly be regarded as an integral part of the house.  In the circumstances, I can see no reason to find that it had not been open to Mr Polglase to find that that portion of the floor that extended beyond the external walls and/or glass windows and doors opening onto the verandah was still a “floor” or that this word should have been forsaken for some other description.

1. In the present case, the car parking area beneath a portion of this floor was not intended to lie within the same verticals planes as those formed by reference to the inner surfaces of the walls of the house but, whilst the word “basement” clearly applies to an area that lies wholly or partially beneath other portions of a building, the definition in the Territory Plan does not require that it be located beneath any particular part of the building.

1. Mr Arthur drew my attention to the decision of the NSW Court of Appeal in Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 in which it was held, in effect, that in determining whether a building had more than three storeys it had been necessary to count all of the storeys, notwithstanding the fact that the front walls of the units on the fourth level were in line with the rear walls of the unit of the first, and that the upper floors were progressively stepped back so that each only partially overlapped the storey below. There was some divergence of view. Glass JA said, at 35, that he would have construed the relevant clause of the ordinance to read “No building should be erected which contains more than three levels which form part of its structural unity and are vertically superimposed upon each other in whole or in part”. On the other hand, Samuels JA said, at 39, that he could see no warrant for confining the aggregation to those floors that lie, wholly or partly, in the same vertical plane. However, all agreed in effect that a level of a building was not excluded from the concept of a “storey” merely because it was not located within the same vertical planes as the corresponding level immediately above or below.

1. A “basement” is, of course, a somewhat different concept if only because it must be located substantially beneath natural ground level but, in my opinion, there is even less basis for any contention that it must be within the same vertical planes of an enclosed part of the building.  The floor level must be predominantly below natural ground level and the finished floor level of the level immediately above must be less than one metre above natural ground level.  The definition otherwise requires only that it be “a space within a building” and the word “building” is expansively defined.   

1. It may be that a garage that is, in effect, “tacked onto” the side of a house could not be described as a basement even if it met the height requirements and an applicant with a flair for hyperbole was moved to describe the upper part of its roof as a “floor”.  However, it is unnecessary to consider that possibility.  In the present case, as I have mentioned, the floor above was an integral part of the house and the car parking area itself was linked to the upper portion of the house by a staircase which led from and was located beneath the lower storey.  I am satisfied that, considered in the context of the nature and the objects of the Territory Plan, the definition of the word “basement” must be construed as having sufficient breadth to encompass the car parking area in question. 

1. Mr Arthur also argued that the car parking space was a further “storey” of the building and that the approval therefore involved a contravention of cl 3.4 which is in the following terms:

Except where provided for in a relevant Area Specific Policy … or in Special Requirements under the National Capital Plan, buildings shall not contain more than two storeys.  Subject to clause 3.6, a basement and/or an attic, may also be permitted.  Notwithstanding this clause or clause 3.6, on land where a lawfully constructed building exceeds 2 storeys in height, a new building or buildings up to the height of the existing building may be permitted subject to consideration of any adverse impact resulting from increase in building bulk.

1. It was not suggested that any exception applied and, since cl 3.6(h) applied to the block, approval could not be given for an attic or basement car parking in addition to two storeys.  It is clear from the decision of the NSW Court of Appeal in Leichhardt Municipal Council v Daniel Callaghan Pty Ltd , to which I have already referred, that, even if the term is not defined by the relevant statutory instrument, it may consist of a space on a level of a building not confined within the same vertical planes as other levels.  However, the Territory Plan provides that “storey” means “a space within a building that is situated between one floor level and the floor level next above, or if there is no floor level above, the ceiling or roof above but does not include an attic or a basement”.  In view of the last part of this definition, my finding that the area in question falls within the concept of a “basement” necessarily means that it does not fall within the concept of a “storey”.

1. It was not contended that any finding that the approval had involved a contravention of cl 3.6(h) would require the whole area of basement car parking to be taken into account in calculating the gross floor area of the building and, since the definition of “gross floor area” excludes areas “used” for such a purpose, it is difficult to see how there could have been any basis for such a contention.  However, in view of the suggestion that the contravention of cl 3.6(h) had an impact on the calculation of the gross floor area, it may be appropriate to indicate the extent to which the inclusion of that area would have affected the “plot ratio”.  The first respondent had calculated the gross floor area as 347.2 sq m and if one had added 26.4 sq m (that being the area of the garage which is 37.5 sq m less the area of 10.1 sq m already taken into account) that figure would have been increased to 373.6 sq m.  The area of the site is 709.8 sq m.  Hence the true plot ratio would have been 52.6 per cent.

1. Mr Arthur submitted that the true plot ratio would have been even higher. He argued that Mr Polglase, who apparently made the calculations on behalf of the first respondent had made errors in his calculations.  However, I ruled that an expert report purporting to reveal errors of calculation was inadmissible, if only because as it had not been available to the first respondent when the decision was made and that the relevant issue was one of fact not law.  It was not suggested to Mr Polglase in cross-examination that any such errors had been made and a foreshadowed attempt to demonstrate them on the material annexed to the affidavits was not pursued.  It was also submitted that Mr Polglase had also omitted to add in the area of a plant room but, again, this proposition was not put to him in cross-examination and, whilst the words, “plant room” do appear on one of the plans, no attempt was made to point to a depiction of any such structure or to demonstrate its size.  I was left with the impression that it may have been a reference to a mere box or garden shed to house the swimming pool pump and equipment.  I was not satisfied that it should have been regarded as part of the house.  Accordingly, had I found that the car parking area was not “basement car parking” then I would have found that the plot ratio was 52.6 per cent which would, obviously, have been marginally greater than that allowed.

1. The second ground was pleaded in the following terms:

The making of the decision was an improper exercise of the power conferred by section 230 Land Act in that the First Respondent

a.        failed to take into account relevant consideration being:

(i)noise generated from the swimming pool adjacent to the western boundary and from pumping and filtration equipment associated with the pool (“pool equipment”);

(ii)the location of the pool equipment;

(iii)the existence of encroachments at the lower floor level within the minimum setbacks required by Appendix 111.2 D3.1;

(iv)the requirements for the First Respondent to be satisfied that the encroachments within minimum setbacks at lower floor level and upper floor level met Appendix 111.2 P3.5 and O3.3;

(v)the requirement for the First Respondent to be satisfied that the privacy screen on the eastern side and the privacy wall on the western side met Appendix 111.2 P3.5 and O3.3;

(vi)the gross floor area of the plant room or other area housing the pool equipment; and

(b)took into account an irrelevant consideration being figures for the gross floor areas of the upper and lower floor levels which were arithmetically wrong.

1. In relation to 2a(i), it is true that the first respondent stated in a letter dated 25 May 2004 that noise generated from approved residential uses was not a matter for consideration under the Territory Plan and that this statement may have been technically incorrect.  However, whilst the first respondent may be bound to take this factor into account in an appropriate case, it is difficult to imagine that it could be given much weight when a normal residential dwelling is under consideration.  As the first respondent went on to explain, a certain amount of noise generated from a residence in an urban area is generally expected and any excessive noise complaints can be referred to the appropriate Government agency for investigation.  It was not suggested that the noise generated by the swimming pool pump or by people using the pool would be greater than that expected from any other swimming pool in suburban Canberra.  I am not satisfied that any failure to take this factor into account had any influence on the decision. 

1. So far as 2a(ii) is concerned, I can see no reason to suppose that the first respondent failed to take into account the location of pool equipment or that its proximity to the boundary fence should have had any substantial impact upon its decision.

1. The points raised in 2a(iii), (iv) and (v) were not pressed and, whilst the issue of the gross floor area of the “plant room”, proposed to house the pool equipment, was not abandoned, it was not the subject of extensive submissions, presumably because the area in question would have been quite small and may not have formed part of “the building”.

1. Whilst some attempt was made to press ground 2(b), the magnitude of the suggested error was not great and, in any event, this ground seemed to involve a question of fact rather than law.

1. No submissions were directed to the third ground pleaded and I can see no reason to suppose that the first respondent failed to consider the applicants’ objections.

1. The fourth ground pleaded does not appear to raise any issue falling within the scope of the grounds stipulated in s 5 of the ADJR Act. In any event, the approval given by the first respondent was only to a development plan and detailed building plans will have to be submitted in due course. The size and shape of the upper floor level privacy screens are clearly depicted in the plans annexed to the development application and the description, “privacy” screens, is sufficient to indicate that the screens must be so constructed as to prevent people standing on the other side of them from looking down into the yard of the adjoining premises.

1. The only remaining question is what, if any, orders should be made as a consequence of my finding that, by permitting a basement car parking area, the approval involved a contravention of cl 3.6(h) of Control B1.

1. Section 17(1) of the ADJR Act provides as follows:

(1)       On an application for an order of review in respect of a decision, the Supreme Court may, in its discretion, make all or any of the following orders:

(a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Supreme Court specifies;

(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Supreme Court thinks fit;

(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)an order directing any of the parties to do, or refrain from doing, any act or thing in order to do justice between the parties.

1. It may be noted that all of these remedies are discretionary. The Court is not required to set aside a decision merely because one of the grounds referred to in s 5 of the ADJR Act has been established. It has been suggested that, notwithstanding the conferral of a similar discretion by s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), when an error of law has been demonstrated relief will usually be granted, though the Court retains a discretion as to the appropriate course. Hence, the Court will not order a reconsideration of the decision if that would be futile: see, for example, Lek v Minister for Immigration, Local Government & Ethnic Affairs (1993) 43 FCR 100 at 136. Any judicial discretion must be exercised in the context of the facts and circumstances that have been established in the case in question and guided by relevant principles. It may sometimes be helpful to consider the manner in which other judges have exercised similar discretion. However, suggested trends in the exercise of discretion may offer little, if any, guidance unless they have emerged from similar types of cases. Some of the cases decided under the Commonwealth ADJR Act, such as those relating to deportation, the grant or refusal of television licences or a third runway at an airport, may obviously give rise to discretionary considerations quite different from those that arise in the present case and comments suggesting particular approaches to the grant of relief in such contexts should not be uncritically accepted in quite different contexts. The range of decisions that may be challenged under the ADJR Act is very broad and, as the present case demonstrates, the Court may be required to consider such trivial issues as the proximity of a swimming pool pump to a fence and whether a planning body should have given due consideration to the noise that may have been generated by such a pump. Hence, it may be appropriate to adopt a more liberal approach to discretionary considerations than that suggested in some cases dealing with quite different issues.

1. In the present case, whilst there is a general public interest in ensuring that planning controls are not infringed, I can see no reason to suppose that the construction of this particular house would be contrary to the public interest or that the first respondent failed to give due consideration to the public interest in deciding whether to approve the development application.  In so far as this issue can be judged from the plans, the proposed house appears to be quite an attractive building and it has not been suggested that its appearance would be inconsistent with what is often described in planning cases as the “streetscape”.  The plans infringe the Territory Plan only by permitting parking spaces in an area that will be well back from the street, underneath a verandah and substantially below ground level.  Whilst the objects of the plan extend to the protection of the “streetscape”, it seems unlikely that the provision of these car parking spaces could have any significant impact upon it.  It is true that it will be accessible by means of a driveway leading to a roller door but, having regard to the overall configuration of the building, it again seems unlikely that this will have a substantial visual impact.  Other houses in the street, including those of the appellants, no doubt have garages and driveways.  In this case the driveway will presumably dip below natural ground level as it sweeps around the side of the house to the car parking area but that will not necessarily be an unattractive feature and, viewed overall, the development does not seem likely to have an adverse visual impact on those using the street or other members of the public.  Indeed, this was not suggested in argument.

1. The applicants’ case was that the approval should be set aside because the height and shape of the house would adversely affect the residential amenity of their adjoining properties.  Yet, neither the garages nor the overall size of the building had been identified by the either first or second applicants in their submissions to the first respondent as falling among their concerns.  As mentioned earlier, their expressed concerns related primarily to what they described as the excessively high first floor level of the kitchen, dining room, sunroom and adjoining terraces that they feared would result in breaches of their right to privacy and overshadowing of their homes.  These concerns had been considered by the first respondent but apparently regarded as offering insufficient grounds for refusal of the development application. 

1. I was informed that the applicants were unable to have the merits of these issues reviewed by appeal to the Administrative Appeals Tribunal but that, if I were to set aside the present decision and remit the matter for reconsideration, they may be able to circumvent this problem by having the issues reconsidered when amended plans were submitted.  Mr Arthur even expressed some optimism that the second respondents would submit plans for a smaller building that would either be of lesser height or be further set back from the boundaries of the applicants’ properties.  Whilst it may be reassuring to note that hope springs eternal even in planning cases, there is no real reason to believe that any of their principal concerns would be addressed.  There is no reason to suppose that the further plans would not locate those rooms at precisely the same height and leave the applicants with the same sense of grievance.  Indeed, there would appear to be nothing to prevent them from simply excising the garage and resubmitting the same plans for approval with the intention of leaving the cars uncovered in the drive way.  Mr Arthur was required to fall back upon the submission that the chance that new plans would better preserve the residential amenity of the applicants’ properties was sufficient to justify the exercise of discretion in their favour.

1. On the other hand, the existing residence has been demolished and the site now consists of a vacant block of land with a large excavation partly full of water after recent rain.  The second respondents have been effectively denied the use of their property for some months and the orders sought by the applicants would undoubtedly cause them further delay, inconvenience and expense.

1. These competing considerations have to be considered in the context of the objects and principles of the Territory Plan. However, I have ultimately decided that I should not exercise my discretion as the applicants have sought. Whilst Mr Arthur has put every argument that could reasonably be advanced on behalf of his clients, I am simply not satisfied that the interests of justice would be served by making any of the orders permitted by s 17 of the ADJR Act.

1. I might also mention that even if I had found that the plot ratio had been 52.6 per cent I would not have been so satisfied. 

1. Accordingly, in the exercise of my discretion, I order that the present application be dismissed.

1. I will hear counsel as to costs.

   I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

   Associate:
   Date:  17 December 2004

Counsel for the applicants:                  Mr R Arthur

Solicitor for the applicants:                 National Business Lawyers

Counsel for the first respondent:         Mr P Walker

Solicitor for the first respondent:        ACT Government Solicitor

Mr C Erskine appeared to indicate a submitting appearance for the second respondents

Solicitor for the second respondent:    Dibbs Barker Gosling

Date of hearing  10, 14 December 2004

Date of judgment  17 December 2004