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

Select Structure Pty Ltd applied to the Administrative Appeals Tribunal (ACAT) for a merits review of a decision made by Bojan Sekara, a building inspector for the Building Act 2004, to issue a stop notice prohibiting the carrying out of building work on a corner block in Red Hill due to non-compliance with Table 5 of Rule 12 of the Single Dwelling Housing Development Code. The applicant, appointed as the building certifier by the owners, had determined that the proposed work was an 'exempt development' and issued a building approval. However, following a complaint, the matter was referred to the Access Canberra Rapid Regulatory Response Team for investigation. Mr Sekara issued a stop notice on 10 November 2021, and the applicant sought review of this decision on 8 December 2021.

The primary legal issue was whether the development proposal was exempt from requiring development approval under section 1.100 of the Planning and Development Regulation 2008, specifically concerning the minimum side setback requirements of Rule 12 of the Single Dwelling Housing Development Code. The applicant argued that existing structures need not be considered when nominating side boundaries for the purposes of Rule 12, as the development proposal involved altering the class 1 building only. However, the Tribunal held that all structures on the block must be considered to ensure the resulting dwelling is a compliant single dwelling. The Tribunal concluded that the proposed development did not comply with Table 5 of Rule 12 and was not exempt from requiring development approval.

The Tribunal confirmed the decision under review, substituting Bojan Sekara as the respondent and varying the decision to identify him as the decision-maker. The Tribunal made orders confirming the decision under review.