Select Structure Pty Ltd v Bojan Sekara (in the Capacity as a Building Inspector for the Building Act 2004) (Administrative Review)

[2022] ACAT 35

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SELECT STRUCTURE PTY LTD v BOJAN SEKARA (IN THE CAPACITY AS A BUILDING INSPECTOR FOR THE BUILDING ACT 2004) (Administrative Review) [2022] ACAT 35

AT 114/2021

Catchwords:               ADMINISTRATIVE REVIEW – statutory interpretation – merits review of decision to issue stop notice – altering a single dwelling without development approval – whether alterations are an exempt development – interpretation of rule 12 of Single Dwelling Housing Development Code – interpretation of s 1.100 of schedule 1 of Planning and Development Regulation 2008 – development is an exempt development only if the alteration results in a compliant single dwelling – assessment for compliance with R12 of the SDHDC must consider all buildings on the block that collectively comprise the single dwelling (i.e. the class 1 building and any class 10a buildings associated with the building) regardless whether the proposed work is to the class 1 building only – decision confirmed

Legislation cited:        Building Act 2004 ss 28, 53

Legislation Act 2001 s 126

Planning and Development Act 2007 ss 113, 133

Subordinate

Legislation cited:        Planning and Development Regulation 2008 ss 5, 20, sch 1 s 1.100

Planning and Development Regulation 2009 (No 5) (repealed) s 7

Single Dwelling Housing Development Code r 12

Tribunal:Senior Member M Orlov

Date of Orders:  21 March 2022

Date of Reasons for Decision:      28 April 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 114/2021

BETWEEN:

SELECT STRUCTURE PTY LTD
Applicant

AND:

BOJAN SEKARA (IN THE CAPACITY AS A BUILDING INSPECTOR FOR THE BUILDING ACT 2004)

Respondent

TRIBUNAL:Senior Member M. Orlov

DATE:21 March 2022

ORDER

The Tribunal orders that:

1. Bojan Sekara (in the capacity as a building inspector for the Building Act 2004) is substituted for the Constructions Occupations Registrar as the respondent.

2. The decision under review is varied to identify Bojan Sekara as the decision maker.

3. The decision under review is otherwise confirmed.

………Signed………
Senior Member M Orlov

REASONS FOR DECISION

1. This is an application for a merits review of a decision made on 10 November 2021 by Mr Bojan Sekara, a building inspector in the Access Canberra Rapid Regulatory Response Team (RRRT), to issue a stop notice under section 53(1)(f)[1] of the Building Act 2004 (Building Act) prohibiting the carrying out of building work on a corner block in Red Hill due to non-compliance with Table 5 of Rule 12 (R12) of the Single Dwelling Housing Development Code (SDHDC), specifically the requirement for a minimum three metre setback from the north-eastern side boundary designated as side boundary 1 for the purposes of the rule.

   [1] Section 53(1)(f) applies where building work is being carried out “for building work forming part of a development requiring development approval – without development approval”

2. The block is situated on a corner with front boundaries to the north-west and south-west.  An existing brick residence is centrally located on the block, facing north-west. A free-standing brick garage is located adjacent to the southern side boundary, with a setback of 0.16 metres at the front corner and 0.145 metres at the back corner. To the east of the garage, also located close to the southern boundary, is another free-standing brick building, labelled ‘Rendered Granny Flat & Tiled Roof’ on the survey plan[2]  and ‘Existing Sunroom’ on the architectural plans[3], with a setback of 1.5 metres. It is not disputed that this structure currently is not approved.[4] All other structures were built with the requisite approvals.

   [2] T Docs, page 47

   [3] T Docs, pages 46, 48

   [4] T Docs, page 42

3. The building work prohibited by the stop notice relates to a proposed alteration to the residence comprising an extension to be built parallel to the north-eastern side boundary of the block and an extension to an existing porch, the location of which is not apparent from the plans (the proposed work).[5]

   [5] T Docs, page 46

4. The applicant is the building certifier appointed by the owners to issue building approval for the proposed work. On 23 August 2021, the applicant determined that the proposed work was an ‘exempt development’ within the meaning of section 133 of the Planning and Development Act 2007 (PD Act) and issued a building approval under section 28 of the Building Act, numbered BA20214380.

5. Following a complaint about the proposed work on about 8 November 2021, the matter was referred to the RRRT for investigation, where it was assigned to the  Acting General Director, Mr Sekara. As mentioned, Mr Sekara made the decision to issue the stop notice on 10 November 2021 (the decision under review).

6. The applicant applied to the ACAT for merits review of the decision under review on 8 December 2021, naming the Construction Occupations Registrar as the respondent.

7. The Statement of Reasons provided by Mr Sekara on 3 February 2022 states:

   5.     Rule 12 of the Single Dwelling Housing Development Code sets out requirements into [sic] side and rear boundary setbacks – all blocks

   6.     Corresponding table 5 of Rule 12 of the Single Dwelling Housing Development Code sets out minimum side boundary setback requirements for SB1 and SB2 for large blocks.

   7.     [The block] is classified a large block (approximately 729m²) as per the definition in the Territory Plan which states: large block means a block with an area greater than 500m².

   8.     The minimum setback requirement for large blocks at lower level for SB1 is 3 metres and minimum setback requirements at lower level for SB2 is 1.5 metres within both primary building zone and rear building zone with an exception to build garages and carports at nil setback.

   9.     Building work is approved to be carried out on [the block] under the building approval B20214380. The approved plans forming part of building approval B20214380 show a side setback of 1.787m (at the closest point to the side boundary) from SB1. Therefore, the building approval B20214380, as assessed, is incorrect as it had been granted based on an incorrect development approval exemption assessment in which the development does not comply with Rule 12 of the Single Dwelling Housing Development Code.

   10. The development subject to building approval B20214380 is not exempt from a development approval pursuant to s1.100 of the Planning and Development Regulation 2008, specifically in respect to minimum side setback requirements of Rule 12 of the Single Dwelling Housing Development Code. The building work forming part of this approval therefore requires development approval. As the building work was being, or was to be, carried out without development approval, section 53(1)(f) of the Building Act 2004 applies, and the stop notice was issued.

   11. Section 53(1)(f) of the Building Act 2004 states:

   (1)This section applies if building work is being, or is to be, carried out –

   (f)for building work forming part of a development requiring development approval – without development approval [emphasis in original]

8. The parties filed an agreed statement of facts and detailed written submissions.

9. I heard the application on 21 March 2022. As it was uncontroversial that Mr Sekara was the relevant decision-maker and was authorised to issue a stop notice by virtue of his appointment as a building inspector for the Building Act, I made orders substituting him as the respondent and varying the decision to identify him, rather than the RRRT, as the decision-maker. On the substantive issue, I made an order confirming the decision under review.

10. The applicant subsequently requested that I provide reasons for my decision. These are my reasons.

11. Division 7.2.6 of the PD Act provides for certain developments to be exempt from requiring development approval (exempt development). The definition of exempt development in section 113(1)(c) includes a development that is exempt from requiring development approval under a regulation.

12. Pursuant to section 20(1) of the Planning and Development Regulation 2008 (the Regulation) a development that complies with schedule 1 of the Regulation is an exempt development.

13. Section 1.100 of schedule 1 applies where a dwelling has previously been built on a block and the development proposal involves building a new single dwelling or altering an existing single dwelling:

    1.100 Compliant single dwellings—old residential land

    (1)Building a single dwelling (the dwelling) or altering a single dwelling (the alteration) on a block if—

    (a)the dwelling will be the only dwelling on the block; and

    (b)a dwelling has previously been built on the block; and

    (c)the dwelling or alteration, as built, complies with—

    (i)the relevant rules in any relevant precinct code that would apply if the dwelling or alteration were not exempt; and

    (ii)to the extent that they are not inconsistent with the relevant rules in a relevant precinct code—the relevant rules in the Residential Zones—Single Dwelling Housing Development Code that would apply if the dwelling or alteration were not exempt; and

    (iii)to the extent that they are not inconsistent with the relevant rules in a relevant precinct code or the Residential Zones—Single Dwelling Housing Development Code—the prescribed general exemption criteria; and

    (d)the dwelling or alteration will be in a residential zone; and

    (e)section 1.19 (Information about certain development proposals) has been complied with in relation to building or altering the dwelling.

    Note 1Relevant rules, for a development proposal—see the Act, dictionary.  See also s (2).

    Note 2Other territory laws, including the Heritage Act 2004, must be complied with (see s 1.4 and s 1.14).

14. Section 5 of the Regulation defines ‘dwelling’ to mean, relevantly, a class 1 building including any class 10a buildings associated with the building. Here, the existing brick residence is a class 1 building and the garage and sunroom are class 10a (i.e. non-habitable) buildings. Collectively they comprise the existing dwelling.

15. As the proposed development involves altering the existing dwelling – i.e. it is an ‘alteration’ for the purposes of section 1.100(1) – the “alteration, as built,” must comply with section 1.100(1)(c).

16. Relevantly, the issue in this application is whether the “alteration, as built, complies with…the relevant rules in the Residential Zones—Single Dwelling Housing Development Code that would apply if the…alteration were not exempt”, specifically the side setback requirements of R12 in table 5.  

17. These are three metres for side boundary 1 (SB1) and 1.5 metres for side boundary 2 (SB2) at the lower level within both the primary building zone and the rear zone. The minimum side setback for a garage or carport is three metres for SB1 and nil for SB2 in both the primary building zone and rear zone.

18. The problem in this case arises because the side setback of the proposed addition to the residence will be 1.787 metres from the north-eastern boundary. This complies with table 5 of R12 only if that boundary is nominated as SB2, making the southern boundary SB1. However, the existing garage, which has a setback of between 0.145 and 0.16 metres to the southern boundary and the existing sunroom, which has a setback of 1.5 metres, comply with table 5 of R12 only if that boundary is nominated as SB2, making the north-eastern boundary SB1.

19. The applicant says the problem does not arise because R12 provides that in relation to table 5, “side boundary 1 and side boundary 2 are nominated by the applicant unless otherwise specified in this code or in a precinct code”. As neither the SDHDC nor the Red Hill Precinct Map say otherwise, the applicant says it is permissible to assess whether the proposed development is exempt from requiring development approval under section 1.100(1) on the basis that the north-eastern boundary is nominated as SB2. As I understand the applicant’s argument, it is irrelevant that the existing garage and sunroom would not comply with the side setback requirements for SB1 because they are not part of the proposed works, which are confined to altering the existing residence. This is so notwithstanding that the consequence of nominating the north-eastern boundary as SB2 is that the southern boundary is nominated as SB1 for the purposes of determining whether the development is exempt from requiring development approval.

20. The nub of the applicant’s argument is that existing structures need not be considered when nominating side boundaries for the purposes of R12. As the development proposal involves altering the class 1 building only (i.e. the residence) with no changes to the existing class 10a buildings (i.e. the garage and the sunroom), if the applicant is correct the ‘dwelling’ is assessed for compliance with R12 as if it does not include the class 10a buildings associated with the residence.

21. The applicant’s argument focuses mainly on what is said to be the ‘plain and ordinary meaning’ of R12. The applicant submits that if it was intended that the freedom to nominate SB1 and SB2 should be constrained by the presence of existing structures on the block, one would expect R12 to be drafted differently. Textual and contextual considerations, it is said, support the applicants interpretation of R12.

22. The focus on R12 is misplaced. The rule simply requires that a development on a large block must comply with table 5. The ability to nominate SB1 and SB2 is intended to do no more than facilitate compliance with the applicable setback requirements.

23. I do not understand the applicant to dispute that a development proposal for the alteration of a single dwelling can be treated as exempt from development approval only if, among other things, ‘the alteration’ (as defined in section 1.100(1) of schedule 1 of the Regulation) complies with the relevant rules of the SDHDC.

24. However, the applicant submits that section 1.100 “does not have any requirement for all structures on the land preceding an alteration (such as the Proposed Works) to be compliant in order for the alteration to be compliant”.[6] Thus, on the applicant’s case, only the structure or building that is to be altered is assessed for code compliance, and other structures or buildings on the block that collectively comprise the ‘dwelling’ (within the extended meaning given by section 5 of the Regulation) are ignored.

    [6] Applicant’s submissions, dated 25 February 2022 at [35]

25. This invites attention to the meaning of the defined term ‘the alteration’ in section 1.100(1) of schedule 1 of the Regulation.

26. Section 1.100 is in Division 1.3.7 of the Regulation, the heading of which is ‘Exempt developments – other exemptions’. The heading of section 1.100 is ‘Compliant single dwelling – old residential land’. Both headings are part of the Regulation[7] and provide part of the legislative context in which the section must be interpreted.

    [7] Legislation Act 2001 section 126(1) and 126(2)

27. The headings tells us that section 1.100 is concerned with exempt developments where the development proposal is for a ‘compliant single dwelling’ on old residential land – i.e. land that has been built on previously.

28. Section 1.100(1) introduces two defined terms for the purposes of the section – ‘the dwelling’ and ‘the alteration’. The term ‘the dwelling’ applies to a development proposal for a compliant single dwelling that involves “building a single dwelling…on a block”. This is to be distinguished from ‘the alteration’ which applies to a development proposal for a compliant single dwelling that involves “altering a single dwelling on a block”.

29. In both cases, ‘dwelling’ has the extended meaning given by section 5 of the Regulation – i.e. the single dwelling that is to be built or altered includes not only the residence, which is a class 1 building, but also any class 10a buildings associated with the residence.

30. Whether the development proposal relates to building, or altering, a single dwelling, the development is exempt from development approval only if the product of the development proposal is a ‘compliant single dwelling’.

31. In that context, the evident purpose of section 1.100(1)(c)(ii) in my view, is to ensure that a development proposal for a compliant single dwelling – whether achieved by building, or altering, a single dwelling – complies with the relevant rules of the SDHDC.

32. It is useful to look at what was said in the explanatory statement for section 1.100(1), when it was first substituted into the Regulation in relevantly similar but not identical terms to the current section. The substitution was made by section 7 of the Planning and Development Amendment Regulation 2009 (No 5) (repealed). At that time the section provided:

    (1)     Building a single dwelling (the dwelling) or altering a single dwelling (the alteration) on a block if—

    (a)the dwelling will be the only dwelling on the block (whether or not another dwelling has previously been built on the block); and

    (b)if the block is a preliminary block—the dwelling is built by the lessee of the holding lease; and

    (c)the dwelling or alteration, as built, complies with—

    (i)the relevant rules in any relevant precinct code that would apply if the dwelling or alteration were not exempt; and

    (ii)to the extent that they are not inconsistent with the relevant rules in a relevant precinct code—the relevant rules in the Residential Zones—Single Dwelling Housing Development Code that would apply if the dwelling or alteration were not exempt; and

    (iii)to the extent that they are not inconsistent with the relevant rules in a relevant precinct code or the Residential Zones—Single Dwelling Housing Development Code—the prescribed general exemption criteria; and

    (d)the dwelling or alteration will be in a residential zone.

33. The explanatory statement says:

    The amending regulation seeks to expand the current exemption that applies to development proposals for single dwellings in new residential estates (schedule 1, section 1.100) to development proposals for single dwellings in any residential zone providing the dwelling complies with the relevant Code and there would only be one dwelling on the block. the amending regulation therefor extends the same rights currently enjoyed by people building a single dwelling on new residential land to other members of the community who live in established residential zones.

    …

    A development proposal, for a single dwelling, will still need to comply with the relevant rules of the relevant code and precinct code in the Territory Plan and have building approval under the Building Act 2004. The relevant rules in the codes are the “black and white” quantitative rules and do not include qualitative merit criteria in the relevant Code.

34. After reproducing the definition of ‘dwelling’ in section 5 of the Regulation, the explanatory statement continues:

    The amending regulation allows the following scenarios:

    (1)The building or altering of a single dwelling which is compliant with the relevant rules of the relevant Code (Code compliant) without development approval in all residential zones. Dwellings which are not Code compliant can still be built but require either development approval or an exemption declaration depending on what features are not Code compliant. See clause 7 & 9. 

35. Later it says:

    Clause 7 – Schedule 1, section 1.100 (1) —substitutes a new subsection 1.100 (1) in schedule 1 to exempt the building or altering of a single dwelling on a block from requiring development approval if, amongst other things, the dwelling will be the only dwelling on the block, whether or not-another dwelling has previously been built on the block. This extends the existing exemption in section 1.100 to include the building or altering of a single dwelling not just in new residential estates but also where there has previously been a dwelling on the site as is usually the case in established residential zones in the ACT. The exemption only applies to residential zones. It does not apply to Community Facility Zones, Commercial Zones, Non- urban Zones, etc

    Clause 7 also amends section 1.100(1)(c) by making it apply to an alteration as well as the building of a single dwelling.  It requires that the dwelling, as built, or the alteration, as built, needs to comply with the prescribed general exemption criteria (see clause 8), the relevant rules in any relevant precinct code and the relevant rules in the Residential Zones - Single Dwelling House Development Code to the extent that they are not inconsistent with each other.

1. This reinforces my opinion that the evident purpose of section 1.100(1) is to provide for a single dwelling on land that has been built on previously to be exempt from development approval if the resulting single dwelling is code compliant, whether the dwelling is newly built or the result of altering an existing dwelling. I am unable to find any support for excluding class 10a buildings associated with the class 1 building from consideration in assessing whether altering the class 1 building will result in a compliant single dwelling.

2. The applicant concedes that if the development proposal in this case had been for a new single dwelling (comprising the residence, proposed additions, sunroom and garage) to be built in accordance with the plans that received building approval, it would not be an exempt development because the development proposal would not comply with R12. Whether the north-eastern or southern boundary is nominated as SB1, the buildings on the other boundary that form part of the dwelling would not comply with the side setback requirements for SB2.

3. However, the applicant says that a different result obtains where the development is carried out in stages. Thus each stage of the development is treated as ‘the alteration’ and is assessed for compliance with section 1.100(1) without regard to any existing buildings on the site. By this means a lessee could build to within 1.5 metres of both side boundaries as well as having a garage with a nil setback to one side boundary, effectively circumventing the evident purpose of the side setback requirements in R12.

4. This would produce a perverse result. The applicant has not demonstrated any basis upon which the resulting dwelling would be considered to be a compliant single dwelling.

5. I am not persuaded that such an interpretation is available when the text, purpose and context of section 1.100(1) is considered.

6. However, if there is a constructional choice to be made, the interpretation that best achieves the evident purpose of section 1.100(1) is to require a development proposal for alterations to a dwelling to be assessed on the basis that the result must be a compliant single dwelling. This is possible only if the dwelling is assessed as a whole – i.e. the class 1 building and any class 10a buildings associated with the building are considered.

7. Where the development proposal is to alter a dwelling that comprises a class 1 building and one or more class 10a buildings, as is the case here, all of the buildings must be considered in the assessment for compliance with R12. The fact that the proposal does not include altering the class 10a buildings does not exempt them from being considered to determine whether the result will be a compliant single dwelling.

8. I am satisfied, for these reasons, that the proposed development does not comply with table 5 of R12 and is not exempt from requiring development approval.

9. The appropriate order in those circumstances is to confirm the decision under review.

………………………………..

Senior Member M Orlov

Date of hearing:	21 March 2022
Solicitors for the Applicant:	Mr R McGilvray, Lexmerca Lawyers
Solicitors for the Respondent:	Mr D Ager, ACT Government Solicitor