Select Structures Pty Ltd v Bojan Sekara (in the Capacity as a Building Inspector for the Building Act 2004) (Appeal)
[2022] ACAT 71
•30 August 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SELECT STRUCTURES PTY LTD v BOJAN SEKARA (IN THE CAPACITY AS A BUILDING INSPECTOR FOR THE BUILDING ACT 2004) (Appeal)
[2022] ACAT 71
AA 7/2022 (AT 114/2021)
Catchwords: APPEAL – administrative review – ACT Planning and Development Act 2007 – statutory interpretation – merits review of decision to issue stop notice – whether alterations are an exempt development – rule 12 of the Single Dwelling Housing Development Code – meaning of ‘dwelling’ – meaning of ‘association’ – meaning of ‘setback’
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
ACT Planning and Development Act 2007 ss 51, 133
Building Act 2004 ss 28, 52, 53, 128
Legislation Act 2001 ss 38, 40, 126, 130, 136
Territory Plan 2008
Subordinate
Legislation cited: Planning and Development Regulation 2008 ss 5, 20,
Sch 1
Single Dwelling Housing Development Code
National Health Construction Code
Cases cited:Allen v ACT Planning and Land Authority [2021] ACAT 88
Mansour v Dangar [2017] ACAT 49
McArdle v ACT Planning and Land Authority [2013] ACAT 29
Tribunal:Presidential Member H Robinson
Date of Orders: 30 August 2022
Date of Reasons for Decision: 30 August 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 7/2022
BETWEEN:
SELECT STRUCTURE PTY LTD
Appellant
AND
BOJAN SEKARA (IN THE CAPACITY AS A BUILDING INSPECTOR FOR THE BUILDING ACT 2004)
Respondent
APPEAL TRIBUNAL: Presidential Member H Robinson
DATE:30 August 2022
ORDER
The Tribunal orders that:
The appeal is dismissed.
………………………………..
Presidential Member H Robinson
REASONS FOR DECISIONS
This is an application for appeal of a decision of the Tribunal (the Original Tribunal) of 21 March 2022. The appellant alleges that the Original Tribunal erred in law in its interpretation of Rule 12 (Rule 12) of the Residential Zones – Single Dwelling Housing Development Code (SDHDC), and hence erred in confirming the respondent’s decision to issue a stop notice under section 53(5) of the Building Act 2004 (the Building Act) in relation to an alleged breach of that Code. The facts are not contested and nor is what law is applicable. What is in dispute is how Rule 12 is to be interpreted and applied to the circumstances of this case.
Background
The appellant is the building certifier appointed by owners to issue building approval for the proposed renovation and extension works on a corner block in Red Hill (the works). The respondent is a building inspector in the Access Canberra Rapid Regulatory Response Team appointed as a delegate of the building inspector pursuant to section 128 of the Building Act.
On 10 November 2021 the respondent issued a stop notice under section 53(1)(f)(i) of the Building Act prohibiting the carrying out of the works on the basis that it did not allow for a minimum three metre setback from the north-eastern side boundary designated as side boundary 1 for the purposes of Table 5 of Rule 12.
The block is a corner block with front boundaries to the north-west and south-west. Located on the block are:
(a)a free-standing brick structure that all agree meets the definition of a class 1 building (i.e., a house) under the National Construction Code[1] which is located around the centre of the block (the class 1 building);
(b)a free-standing brick garage, being a class 10a building, that is located adjacent to the southern side boundary of the block with a setback of 0.16 metres at the front corner and 0.145 metres at the back corner (the garage); and
(c)a free-standing brick building, also being a class 10a building, located to the east of the garage, setback about 1.5 metres from the southern boundary, labelled ‘Rendered Granny Flat & Tiled Roof’ on the survey plan and ‘Existing Sunroom’ on the architectural plans with a setback of 1.5 metres (the granny flat).
[1] Under the National Construction Code A6.1
The granny flat is not approved, but all other structures were built with the requisite approvals.
The building work prohibited by the stop notice relates to a proposed alteration to the class 1 building comprising an extension to be built parallel to the north-eastern side boundary of the block and an extension to an existing porch (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.
Following a complaint about the proposed work made on or around 8 November 2021, the respondent investigated the matter and issued a stop notice (the decision). In the statement of reasons provided, the decision maker explained his reasons as follows:
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
The substantive question on review was whether the garage was ‘associated’ with the class 1 building or otherwise needed to be considered when the appellant (then the applicant) nominated setbacks 1 and 2 for the purposes of Table 5 of the SDHDC. The Original Tribunal held that it did, and therefore confirmed the decision under review, being the stop notice.
Relevant legislation
Section 53(1)(f) of the Building Act is set out in the quote at paragraph 8, above. Effectively, section 53(1)(f) and 52(2) provide that the construction occupations registrar, a building inspector, or a certifier may issue a ‘stop notice’ where building work is conducted without development approval.
The PD Act establishes a system for development approval in the Territory. Section 133 of that Act provides that certain development may be ‘exempt developments’, which do not require approval. This includes developments exempted under a regulation.[2]
[2] PD Act section 133(1)(c)
Section 20(1) of the Planning and Development Regulation 2008 (the Regulation) provides that:
20 Exempt developments—Act, s 133, def exempt development
(1)Development that complies with schedule 1 (Exemptions from requirement for development approval) is exempt from requiring development approval.
This matter concerns section 1.100 of Schedule 1 of the Regulation. This exemption 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 1 Relevant rules, for a development proposal—see the Act, dictionary. See also s (2).
Note 2 Other territory laws, including the Heritage Act 2004, must be complied with (see s 1.4 and s 1.14).
Section 5 of the Regulation defines ‘dwelling’ to mean:
5 Meaning of dwelling
(1) In this regulation:
dwelling—
(a)means a class 1 building, or a self-contained part of a class 2 building, that—
(i)includes the following that are accessible from within the building, or the self-contained part of the building:
(A)at least 1 but not more than 2 kitchens;
(B)at least 1 bath or shower;
(C)at least 1 toilet pan; and
(ii)does not have access from another building that is either a class 1 building or the self‑contained part of a class 2 building; and
(b)includes any ancillary parts of the building and any class 10a buildings associated with the building.
(2) In this section:
kitchen does not include—
(a)outdoor cooking facilities; or
(b)a barbeque in an enclosed garden room.
Rule 12 is a ‘relevant rule’ of the SDHDC for the purposes of section 1.100.1(c) of the Regulation and provides, relevantly in relation to ‘large blocks’ such as the block in issue:
1.10 Side and rear setbacks – all blocks
This rule applies to one of the following:
i) single dwelling blocks that are not part of an integrated housing development parcel
ii) single dwelling blocks in an integrated housing development parcel that adjoin residential blocks that are not part of that parcel.
Side and rear setbacks for:
a)large blocks - comply with table 5
…
In relation to the tables referred to in this rule, side boundary 1 and side boundary 2 are nominated by the applicant unless otherwise specified in this code or in a precinct code
Note: Ordinarily a corner block has two front boundaries, one of which is the secondary frontage, two side boundaries, but no rear boundary.
Table 5 then provides:
Table 5: Side and rear setbacks – large blocks (refer appendix 1 diagrams 1, 2 and 3)
Minimum side boundary setback within the primary building zone
Minimum side boundary setback within the rear zone
Minimum rear boundary setback
Side boundary 1
Side boundary 2
Side boundary 1
Side boundary 2
Lower floor level – external wall
3m
1.5m
3m
1.5m
3m
Upper floor level – external wall
3m
3m
6m
6m
6m
Upper floor level – unscreened element
6m
6m
6m
6m
6m
Garage or carport
3m
nil* ^
3m
nil* ^
3m
* See R 14
^ does not apply to that part of a wall with a window of any sorts
The original hearing
The Original Tribunal heard the matter on 21 March 2022. Both parties were represented, the appellant by Mr McGilvray, a solicitor with Lexmerca Lawyer, and the respondent by Ms Gasser, a solicitor with the ACT Government Solicitor. The parties filed an agreed statement of facts and detailed written submissions. After hearing from the parties, the Original Tribunal confirmed the decision under review and published reasons sometime later.
The Original Tribunal’s reasons
The Original Tribunal’s reasons are a concisely written eleven pages. Because they are so concise, it is no simple matter to summarise them. While I have attempted to do so, reference should be made to the full reasons.
Importantly, one of the Original Tribunal’s starting point was that:
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.
In other words, the Senior Member proceeded on the basis that the ‘dwelling’ included the garage as a “class 10a building associated with the dwelling.” This point is crucial to the appeal.
The Original Tribunal then summarised the appellant’s argument as follows:
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.
The applicant says that 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…
… 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.
In other words, the appellant argued that Rule 12 permitted it to nominate the boundary with the garage on it as setback 2 (that is, the smaller setback) because only the class 1 building (as altered by the development) needed to be considered.
The Original Tribunal further summarised the applicant’s argument as follows:
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 applicant’s interpretation of R12.
In other words, the appellant argued that Rule 12 expressly states that the “side boundary 1 and side boundary 2 are nominated by the applicant unless otherwise specified in this code or in a precinct code.” As there is nothing to the contrary specified in the SDHDC or the Red Hill precinct Code, on a plain language reading of Rule 12, the choice is an unfettered one that may be made without reference to the class 10a structures that also exist on the premises.
Having summarised this argument, the Original Tribunal rejected it:
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.
The Original Tribunal then considered what those setback requirements were in the context of “altering a single dwelling … on a block” for the purposes of the exemption in regulation 1.100. Having regard to the definition, the Senior Member opined that:
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’.
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.
In reaching this conclusion, the Original Tribunal looked to the explanatory statement for section 1.100(1), when it was first substituted into the Regulation by way of section 7 of the Planning and Development Amendment Regulation 2009 (No 5) (repealed). The explanatory statement, the senior member concluded, supported the view 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.
The Original Tribunal noted the applicant’s concession 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 Rule 12, because whether the north-eastern or southern boundary is nominated as side boundary 1, the buildings on the other boundary that form part of the dwelling would not comply with the side setback requirements for side boundary 2. The Senior Member also rejected the proposal that each stage of the development could be treated as ‘the alteration’ and assessed for compliance with section 1.100(1) without regard to any existing associated buildings on the site. This would effectively circumvent the evident purpose of the side setback requirements in Rule 12 – “a perverse result”. The Senior Member also noted that appellant had not demonstrated any basis upon which the resulting dwelling would be a compliant single dwelling.
The Senior Member concluded that: “I am not persuaded that such an interpretation is available when the text, purpose and context of section 1.100(1) is considered.” However, even:
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.
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.
On this basis, the Original Tribunal was satisfied, for these reasons, that the proposed development does not comply with Table 5 of Rule 12 and is not exempt from requiring development approval. Accordingly, the senior member confirmed the decision under review.
The appeal
The appellant says that the Original Tribunal fell into error for two reasons:
(a)It incorrectly interpreted the garage as being ‘associated with the building’ and therefore as falling within the definition of ‘dwelling’ for the purposes of section 1.100 of Schedule 1 of the Regulation.
(b)Its application of the rules of statutory interpretation were incorrectly applied, because it failed to give appropriate consideration and weight to:
(i)the text in Rule 12 of the SDHDC; and
(ii)the context of Rule 12 when read in light of the SDHDC as a whole.
The role of the Appeal Tribunal
The hearing proceeded as a review or ‘rehearing’ under section 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). There were no questions of fact in dispute, only questions of law. The Appeal Tribunal’s determination on a question of law is determinative.[3]
Alleged error 1 – “associated with the building”
[3] Mansour v Dangar [2017] ACAT 49 at [22]
Section 1.100(1)(c) of Schedule 1 of the Regulation effectively requires the “dwelling or alteration”, as built, to comply with the SDHDC in order to be exempt. The Original Tribunal concluded that in this context:
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.
The Original Tribunal proceeded on the basis that the garage was one such class 10a building.
The appellant says that the Original Tribunal’s use of the word ‘residence’ here, rather than ‘building’, is indicative of the tribunal having been led into error:
By using the word residence, as opposed to building, … the tribunal has purported to alter or expand the scope of the meaning of the word building…using broader notions of residence, which are analogous to home or hour, is the reasoning why the Senior Member said the garage is associated with the dwelling.[4]
[4] Transcript of proceedings 2 June 2021 page 5
In other words, appellant submits that by viewing the class 1 as a ‘residence’, the Senior Member impermissibly coloured or altered the word “introduce[ing] broader notions of a ‘home’ or ‘house’ in lieu of ‘building’” and it is within that context – that of the uses to which the buildings were put – that the Original Tribunal incorrectly determined that the garage as being associated with the class 1 building. The applicant contended instead for a more objective definition that looks to the structure of the building, not to the purpose to which the building is then put:
The appellant submits that section 5 of the Regulation properly interpreted provides that any class 10a buildings associated with the building, not the residence, must be compliant with the SDHDC.
The appellant submits that the garage is not part of “any class 10a building associated with the building” [emphasis added] meaning it does not fall within the definition of ‘dwelling’.
The garage is a detached and separate structure physically removed from the building. The building stuff exists, it is still habitable, it has a kitchen, shower and toilet pan that are all accessible, irrespective of the proximity of the garage to the building or its existence at all. If the garage, or hypothetically a garden shed (also a class 10a structure), were situated at the far end of a 20-acre lot, it cannot reasonably be interpreted that they are in any way associated with the building. Further the garage (or in a hypothetical case a garden shed) is in no way relevant to the structural integrity of the building.
Hence, the appellant’s point is not that the garage is unattached to the building (although that is a factor) but rather it is that the class 1 building meets the definition of ‘dwelling’ without regard to the garage, and they have no necessary structural, physical or other necessary connection. They are separate structures that are not ‘associated’ with each other as buildings, other than the use or purpose to which they must be put by owner or occupiers. In other words, the appellant’s argument it is buildings must be ‘associated’, not their purposes.
For its part, the respondent would appear to contend the opposite to this - “in any event a garage can be associated with the building when you look to what the building is. And that building in this instance is a residence”. In its submissions, the respondent sets out a series of grounds upon which the class 1 building and the garage can be ‘associated’, including:
(a)To the extent there is dispute, the National Construction Code contemplates that class 10a buildings may not be attached or structurally reliant on class 1 buildings.[5]
(b)In this case, both buildings are located on the same block; neither may be accessed without accessing the land on which the other is built; and the owner or occupant of the dwelling may prohibit access to the garage.
(c)The garage provides amenity to the owner or occupant of the dwelling.
(d)‘Associated’ buildings are not the only things included in paragraph 1(b) of the definition of ‘dwelling’. It also includes ‘ancillary’ parts of the building. The word ‘ancillary’ may be suggestive of a physical connection, but clearly there must be some distinction between the words ‘ancillary’ and ‘associated’, as ‘ancillary’ must have some work to do.
[5] National Construction Code, section A6.1 – see diagram at Fig 3 which shows a class 1 and a class 10a building being structurally unconnected.
Unfortunately, there is no definition of ‘associated’ in the PD Act, the Regulation, or the Code. So, what does it mean?
Two interpretative principles established under the Legislation Act 2001 (Legislation Act) are relevant. First, in working out the meaning of an Act or statutory instrument[6], the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.[7] Second, the provisions of the Act must be read in the context of the Act as a whole.[8]
[6] Section 136
[7] Section 139(1)
[8] Section 140(1)
The PD Act deals with land and planning in the Territory, including establishing a requirement for development approvals. As noted above, section 113(1)(c) of the PD Act permits some developments to be exempted from the approval process by regulation. Section 20(1) of the Regulation provides that a development that complies with Schedule 1 is so exempt.
Section 1.100 of the Regulation establishes the exemption in issue. It is titled “compliant single dwellings – old residential land”. It sits in Division 1.3.7, which is entitled “Exempt developments – other exemptions”. A heading to a division or subsection of an Act or statutory instrument is part of the instrument.[9] Accordingly, as the Original Tribunal observed[10], both headings are part of the Regulation and provide some of the context in which the legislative provisions must be interpreted.
[9] Legislation Act 2001 section 126(2) – noting that the Regulation was enacted after 1 January 2000.
[10] Paragraph 26
Section 1.100 applies where an applicant is building ‘a single dwelling’ or altering ‘an existing single dwelling’. It sets out certain requirements that need to be met[11] for the development to be exempted. Amongst other things, the alteration must comply with the SDHDC if the development were not exempt.[12] The development must also be in a residential zone.[13]
[11] Section 1.100 (1)(c)
[12] Section 1.100(1)(c)
[13] Section 1.100(1)(d)
Having regard to the terminology used in the Act, including the headings, section 1.100 is establishing an exemption for a compliant single ‘dwelling’ on residentially zoned land. This was recognised by the Original Tribunal.[14]
[14] Paragraph 27
‘Dwelling’, for all relevant purposes, is defined in section 5 of the Regulation. This definition, extracted above, does two things:
(a)It sets out the minimum requirements for a building to be considered a ‘dwelling’ under the Regulations (one or two kitchens, toilet pan, bath or shower); and then
(b)it expands that definition to include “any class 10a buildings associated with it” (and also ancillary parts of the building).
In summarising this provision, the Original Tribunal substituted the word ‘residence’ for ‘dwelling’. The concept of a ‘residence’ is different to the concept of a ‘dwelling’, at least in the statutory sense. But the use of the word ‘residence’ here does not suggest a misunderstanding of the meaning of ‘dwelling’. The Senior Member appears to have simply used the word to distinguish the class 1 building from the granny flat and sunroom extension. It is of no consequence to the reasoning.
The more contentious question is what is meant why the word ‘associated’ and whether the Original Tribunal erred in concluding that the class 1 building and the garage met the requirements of this term.
There is little authority on the meaning of ’associated’ in this context– the respondent identified the tribunal case of Allen v ACT Planning and Land Authority[15] as offering some consideration. In that case, the tribunal accepted that a row of carports near a unit block were ‘associated buildings’[16], but it is not clear whether any arguments were advanced about the issue. The tribunal also accepted that a four garage/studio was an ‘associated building’ to a class 1 house for the purposes of a review in McArdle v ACT Planning and Land Authority[17], but the question in that case was whether that structure met the definition of a ‘dwelling’ by itself. Neither of those cases address the point in this one.
[15] [2021] ACAT 88
[16] [2021] ACAT 88 at [81] and [86]-[88]
[17] [2013] ACAT 29 at [18]-[19]
In the absence of any statutory definition, one can look to the ‘ordinary’ meaning of the related verb ‘associate’ in the Macquarie Dictionary, being relevantly:
1. To connect by some relation, as in thought.
2. To join as a companion or partner or ally.
3. To unite; combine: coal associated with shale.
Briefly stated, in ordinary language, an ‘association’ requires some relationship between things. The difficulty, of course, is that the ordinary meaning of the word may not be what was intended by the Regulation, so caution must be exercised.
The appellant has suggested looking simply at whether there is a ‘relationship’ between the buildings. The respondent says that the purpose to which they are put are also relevant.
Looking at the legislative scheme as a whole, it is apparent that what is being regulated is not just a ‘building’, but a ‘dwelling’, a class 1 building (or self-contained part of a class 2A building) consisting of a shower, toilet and kitchen, and located in a residential zone.
The use of the word ‘dwelling’ in the Regulation is not accidental; it reflects both the NCCC definitions, and the fact that what is being regulated are not just abstract buildings with certain characteristics, but places where persons ‘dwell’, or ‘abide’.[18] To divorce that purpose from any consideration of whether a class 10a building is ‘associated’ with that dwelling is not consistent with the purpose of the legislation.
[18] Macquarie Dictionary; definition ‘dwell’
It its submissions, the respondent identified a number of grounds upon which it says that the garage is ‘associated’ with the class 1 building, which I have summarised above. I agree with them. There is no statutory basis for the assertion that a class 10a building need to be ‘associated’ with a class 1 building in a structural sense or divorced from the purposes for which they are intended to be used. The legislation calls for an assessment of what class 10a structures are associated with the dwelling. Clearly, the garage, located as it is on the block, and being used by the owners or occupiers of the dwelling, is an associated building in the ordinary meaning of the word.
The respondent submitted that:
If the garage, or hypothetically a garden shed (also a class 10a structure) were situated at the far end of a 20-acre lot, it cannot reasonably be interpreted that they’re in any way associated with the building. Further, the garage (or in the hypothetical case a garden shed) is in no way relevant to the structural integrity of the building.
In relation to the first point, the appellant may be correct that remoteness plays a part in any assessment, but the situation before the Appeal tribunal has little in common with his scenario. The SDHDC concerns residential land, of which only the most extraordinary would be more than an acre or so, let alone twenty. Distance is not a consideration in this case. In respect of the second, it would be a rare class 10a building that is relevant to the structural integrity of the class 1 building, and the appellant gave no examples of the kind of matters that would be considered, but even putting that to one side, there is nothing in the Act that requires that the class 10a building be associated by reason of being attached or being necessary to ensure the class 10 building meets the definition of ‘dwelling’.
In summary, I agree with the Original Tribunal’s reasons and conclusion that the garage is a class 10a building that is associated with the ‘residence’ for the purpose of section 5(1)(b) of the Regulation.
Accordingly, this ground of appeal is dismissed.
Ground 2 – Principles of statutory interpretation
The appellant submits that the Original Tribunal erred in its interpretation of the plain and ordinary meaning of Rule 12 because it did not give consideration to the plain words used in the Code:
In relation to the tables referred to in this rule [r12], the side boundary 1 and side boundary 2 are nominated by the applicant unless otherwise specified in this code or precinct.
Put another way, the appellant says that such on a plain and ordinary reading of Rule 12, the appellant may simply nominate which boundary is side boundary 1 and which is side boundary 2, subject only to something “specified” in the SDHDC or the Red Hill precinct Code. If it was intended that an applicant be required to consider compliance with Table 5 as part of its nomination of side boundary 1 or side boundary 2, it would say so. It doesn’t and so, the appellant says, “R12 allows an applicant to nominate SB1 or SB2 in an unfettered manner”.
The appellant submits further that the correct interpretation of the plain and ordinary meaning of Rule 12 is supported by the context when the SDHDC and the Regulation are considered as a whole, and points to a number of parts of the SDHDC where, he says, the provisions require consideration to be given to existing features on the premises, while Rule 12 does not. In this regard, he points to:
(a)Criteria 25(b)(vii).
(b)Rule 26(d)(ii).
(c)Criteria 26(b)(vii).
(d)Rule 27(d)(ii).
(e)Criteria 27(b)(vii).
The respondent rejects this and agrees with the Original Tribunal’s observation that:
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.[19]
[19] At [22]
In weighing these arguments, it is useful to start with Rule 12 itself. On its face, Rule 12 allows the appellant to nominate side boundary 1 and side boundary 2, subject to the requirements of the SDHDC code or the precinct code (in this case the Red Hill Precinct Map).
Under Rule 5, a lower floor level external wall must have a setback from side boundary 1 of 3 metres, and a setback of side boundary 2 of 1.5 metres. However, where there is a garage or carport, there must be a 3 metres setback from side boundary1, but there need by no setback from side boundary 2.
On the respondent’s argument, the setbacks have effectively been determined by previous developments on the block – because there is a garage already, and that garage is merely 14 to 16 centimetres from the boundary, the southern side of the property with the garage must be taken to be “SB2”. The previous development on the property of the garage has locked the appellant out of any other choice, because the alternatives would result in a non-compliant development. To decide otherwise would be to permit the appellant to use the minimum setback twice – the setback permitted for a garage on the southern side of the development, and the 1.7 metres setback for the new development on the eastern side.
The appellant says the fact a non-compliant development may be the result of his proposed interpretation is largely irrelevant to the question of whether it is the correct interpretation, given the plain and ordinary meaning of the words ‘side boundary 1 and side boundary 2 are nominated by the applicant’ and the absence of any relevant caveats conditions, exemptions or ‘requirements’ on them.[20] To read it as requiring such consideration would, the respondent says, require that the tribunal read Rule 12 to instead say:
in relation to the tables referred to in this rule, subject to any existing structures on the block otherwise complying with this code, side boundary 1 and side boundary 2 are nominated by the applicant.
[20] Respondent’s written submissions 8 March 2022 at [7]-[9]; [27]-[42]
I agree with the respondent that, taken in abstract, there is nothing in the words ‘side boundary 1 and side boundary 2 are nominated by the applicant’ that denote ambiguity or suggest consideration should be given to existing structures or the dwelling being compliant. However, within the interpretative framework established by the Legislation Act, that is not the end of the story.
As identified by the Original Tribunal, the consequence of the plain and ordinary reading suggested by the respondent is perverse. Assuming that the development included the garage, if this development had been a new development, it could not comply with Rule 12, because whichever boundary is nominated as side boundary 1, the other cannot meet the requirements for side boundary 2. Yet by undertaking this development in stages, which each alteration nominating a side boundary 1 and side boundary 2, the development could be compliant with Rule 12, notwithstanding that the building, taken as a whole, cannot comply with it.
As is set out above, in working out the meaning of an Act or statutory instrument[21], the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.[22] The result contemplated by the appellant would lead to planning outcomes that are inconsistent with the purpose of the Act and indeed are manifestly absurd and unreasonable. Consequently, were this interpretation available, it would not be the preferred one.
[21] Legislation Act section 136
[22] Legislation Act section 139(1)
Additionally, section 138 of the Legislation Act provides that:
working out the meaning of an Act means—
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
Working out the meaning of an Act may involve displacing an apparent meaning a more reasonable meaning when the apparent one is absurd.
In my view, the interpretation advanced by the respondent, and applied by the Original Tribunal, is both the correct meaning of Rule 12 and, if there is any doubt, the preferred meaning. There are several reasons for this.
First, the SDHDC is a part of the Territory Plan[23], and should be interpreted consistent with that instrument.
[23] Planning and Development Act 2007 section 51(1)(d)
The Territory Plan defines ‘setback’ in the following terms:
Setback means the horizontal distance between a block boundary and the outside face of any building or structure on the block including:
a)a building wall,
b)a post that supports a roof,
c)a balcony, deck or verandah.[24]
[emphasis added]
[24] 13.1 Definitions
This definition means that to assess a ‘setback’ for the purposes of the Territory Plan, it is necessary to apply the distance from the closest outside point of any structure, to the respective side boundary. There is no distinction between class 1 and class 10a buildings.
The Territory Plan suggests that there may potentially be many setbacks on a block, but Rule 12 is concerned with the two minimum of those. There is nothing in Rule 12 that either requires a decision-maker, when assessing compliance with Rule 12, to ignore existing structures, nor is there anything requiring that they consider them. However, to ignore them means to bypass the definition of ‘setback’ used in the rest of the Territory Plan, which clearly contemplates a range of structures being considered when assessing setbacks.
I do not accept the appellant’s argument, summarised at paragraph 59 of these reasons, that certain other rules expressly require consideration of other structures, while Rule 12 does not. The provisions nominated by the appellant as examples of express requirements to consider other structures are not comparable, being:
(a)Criteria 25(b)(vii), Criteria 26(b)(vii) and Criteria 27(b)(vii) require that the design of courtyard walls on large, medium blocks and compact respectively, protect, amongst other things, “existing desirable landscape features”.
(b)Rule 26(d)(ii) and Rule 27(d)(ii); requires that courtyard walls be finished to match or complement the existing dwelling house.
I am satisfied that the purpose of Rule 12 is to ensure that developments observe the minimum side and rear setbacks as set out in Table 5, with the appellant being given a discretion as to how to meet those where there are options available. The purpose of the words is to grant a choice, where available, not to enable an appellant to effectively ignore those requirements and still comply with the SDHDC.
Accordingly, I agree with the Original Tribunal that Rule 12 simply requires that a development on a large block must comply with Table 5.
The appellant has advanced a clever, literal interpretation, but ultimately I am not satisfied that his reasoning has disclosed any error on the part of the Original Tribunal.
No error of law having been established, the appeal must be dismissed.
Conclusion
The orders of the Original Tribunal are confirmed and the appeal is dismissed.
………………………………..
Presidential Member H Robinson
| Date(s) of hearing: | 2 June 2022 |
| Solicitors for the Appellant: | Richard McGilvray, Lexmerca Lawyers |
| Solicitors for the Respondent: | Sonja Gasser, ACT Government Solicitor |
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