ADMINISTRATIVE LAW - Judicial review - ADJR Act - certificate of occupancy and use - power to revoke - statutory interpretation - statutory power of Constructions Occupations Registrar to issue a certificate of occupancy and use - whether decision to grant certificate amounts to an exercise of a power to make a statutory instrument - whether registrar has power to revoke such a certificate - whether Building Act 2004 (ACT) exhibits a manifest contrary intention - Building Act 2004 (ACT) s 69 - Legislation Act 2001 ss 6, 46.

STATUTORY INTERPRETATION - Certificate of occupancy and use under Building Act 2004 (ACT) - whether capable of revocation - no express power to revoke in Building Act - whether an "instrument" - revocation of instrument - whether manifest contrary intention appears in Building Act - Legislation Act 2001 (ACT) ss 6, 46 - Building Act s 69.

Acts Interpretation Act 1901 (Cth) s 33(3)

Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5

Building Act 2004 (ACT) ss 69, 77, 136(1)

Construction Occupations (Licensing) Act 2004 (ACT) s 104(2)

Legislation Act 2001 (ACT) ss 6, 7, 13(1)(a), 46, 47, 180

Planning and Development Act 2007 (ACT) ss 1.20(2), 7(1)(d), sch 1, Div 11.3.4, ss 355, 358, 361, 399(a), sch 2 item 3(a)

Planning and Development Regulation 2008 (ACT) Part 1.3

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Collector of Customs v Lawlor [1979] FCA 21; (1979) 2 ALD 1

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Fieldhouse v Federal Commissioner of Taxation [1989] FCA 397; (1989) 25 FCR 187

Hughes v Australian Capital Territory Planning & Land Authority (2004) 136 LGERA 420; [2004] ACTSC 132

Kazakova v Queensland Fire and Rescue Service [2011] QCA 328

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

O'Donnell v Environment Protection Authority (2012) 192 LGERA 1; [2012] ACTSC 140

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1982) 57 FLR 368

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189

Macquarie Dictionary Online (September 2013, Macmillan Press Australia)

Oxford English Dictionary Online (September 2013, Oxford University Press)

1. The controlled activity order made by the first defendant pursuant to s 355(2)(a) of the Planning and Development Act 2007 (ACT) be set aside.
2. The application be otherwise dismissed.
3. The stay of the decision to revoke the certificate of occupancy and use granted by the Master on 23 November 2012 be continued until 7 November 2013.
4. Costs be reserved.

1. This is an application for judicial review of two decisions, one made by the ACT Planning and Land Authority ("ACTPLA") and the other by a delegate of the construction occupations registrar ("registrar"). Both decisions were made on 18 October 2012. As it happens, the decision-maker in each case was the same person.
2. The decisions relate to residential premises situated at 4 Hackett Gardens (also known as Block 20 Section 27) in the suburb of Turner ("the property"). The first decision (made by ACTPLA) concerns the making of a controlled activity order. The second (made by the deputy registrar as the registrar's delegate) is a decision to revoke a certificate of occupancy and use ("certificate of occupancy"). The basis for each decision was essentially the same: that the premises were developed as a multiple occupancy residence without development approval. On 23 November 2012 the Master granted a stay of both decisions until further order.
3. The application is brought under the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("ADJR Act"). It was supported by an affidavit sworn by the third plaintiff, Michael Luongo.
4. The right to bring such an application vests in a person aggrieved by a decision to which the Act applies: ADJR Act, s 5. "A decision to which this act applies" is relevantly defined in the Dictionary to the Act as a decision of an administrative character made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in schedule 1. "Enactment" is relevantly defined to mean an act or subordinate law. An "Act" is an act made by the Legislative Assembly of the Australian Capital Territory: Legislation Act 2001 (ACT), s 7. The relevant decisions were made under the Planning and Development Act 2007 (ACT) ("Planning Act") and the Building Act 2004 (ACT) respectively and are not excluded from the operation of the ADJR Act by schedule 1. There is no dispute and there could be no doubt that the plaintiffs are persons aggrieved by the decisions.

1. The plaintiffs, Agostino, Giuseppa, Michael and Rebecca Luongo, hold the property as lessees under a Crown lease. The Crown lease contains a covenant that the building erected on the land will be used only as a single unit private dwelling house.
2. On 25 July 2011 a building approval certificate was issued. Approval was given for a residence and garage to be built on the block. The approved plans were for the construction of an eight-bedroom house with an ensuite attached to each bedroom, two kitchens and a laundry. The approval was later amended to accommodate changes to the layout of windows and doors.
3. The building approval certificate records the BCA (Building Code of Australia) occupancy class for the residence as 1a(i). Part A.3.2 of the Building Code of Australia (applied to the ACT by the Building Act) defines a class 1a building as "a single dwelling house" being "a detached house" or "one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit". Building apparently commenced on 18 August 2011.
4. An audit of the approved plans was carried out in December 2011 and the plans were found to be compliant with the rules of the Single Dwelling Housing Code.
5. In January 2012 ACTPLA inspectors attended the property to determine whether the dwelling was being built in accordance with the approved plans. At the time of the inspection all the building work with the exception of the painting had been completed. The evidence given on behalf of ACTPLA is that the building "appeared in accordance with the approved plans".
6. On 29 October 2011 a complaint was made to ACTPLA that the property had been developed without approval or not in accordance with an approval and was being used unlawfully. In substance the complaint was that the adjacent premises at 6 Hackett Gardens were being used as a boarding house and that the property at 4 Hackett Gardens was likely to be used for the same purpose. The complainant alleged that the building was designed so that it was effectively two separate four-bedroom houses with a door in between. The complainant expressed concerns that the building was likely to be used for a purpose not allowed under the lease purpose clause and would at least require a development application so that neighbouring residents would have an opportunity to see the proposal and to voice their objections. Two similar complaints were made the following month.
7. These complaints triggered an investigation into whether "a controlled activity has or is occurring on [the property]". Schedule 2 of the Planning Act contains a table of controlled activities. Relevantly, the table includes "undertaking a development for which development approval is required ... without development approval" (s 399(a) and sch 2, item 3(a)).
8. In the course of the investigation ACTPLA sought information from the Luongos' real estate agent about the number and purpose of the keys issued to each occupant and whether each occupant would sign a tenancy agreement or there would be one agreement over the whole dwelling. The agent advised that there would be one agreement over the whole dwelling and one house key and one room key for each occupant.
9. In the meantime, on 27 January 2012 the Luongos applied for a certificate of occupancy. A certificate of occupancy is a certificate issued under s 69 of the Building Act when building work involving the creation or alteration of a building has been completed in accordance or substantially in accordance with the prescribed requirements for the work and is fit for occupation and use as a building of the class in the approved plans for the work.
10. On 17 February 2012 Sam Moysey, a Deputy Constructions Registrar, wrote to Agostino Luongo "in regard to the development" of the property and specifically in relation to his application for a certificate of occupancy. Mr Moysey stated that the registrar was not satisfied that Mr Luongo was intending to use the dwelling "as per the proposed class under the [BCA]". He referred to the approval for the dwelling indicating that it would be built as a class 1a structure and to the definition of a class 1a structure under the Code. He stated that the registrar had reason to believe that the dwelling was intended to be used as a class 2 or 3 structure. He pointed out that a class 2 structure was a building containing two or more dwelling units (such as flats or apartments) and a class 3 structure a residential building for a number of persons (such as a large scale boarding house or hostel). He sought a written undertaking from Mr Luongo about the use of the dwelling. On 22 February 2012 Mr Luongo provided such an undertaking. He wrote:

I confirm that the ... property is to be used as a class 1(a) premises as per the BCA and that there is no intention to use the same as a class 2 or 3 structure.

1. Only three weeks earlier, however, an advertisement for the property had appeared on the allhomes.com.au website describing the property as two separate houses. The advertisement read:

Excellent share accommodation opportunity available for professionals or students, in Hackett Gardens Turner, across the road from the ANU and a few meters from the bus stop route to Canberra University.

Available - two brand new 4 bedroom houses.

Each bedroom has its own private ensuite and built in wardrobe. Large common areas and plenty of available parking.

Happy to rent either a room, a house (4 rooms), or the entire property (8 rooms). Rent is negotiable based on number of rooms and length of tenancy.

Contact Agostino on ... for further information.

1. On 22 February 2013 (less than three weeks after the advertisement was first displayed on allhomes.com and 11 days before the undertaking was given) the property was rented to nine apparently unrelated individuals. There were, however, no separate residential tenancy agreements. All nine tenants signed the one residential tenancy agreement. The agreement bound the tenants jointly and severally to pay rent of $9,277.10 monthly in advance.
2. By Notice of Decision dated 28 March 2012 the delegate decided to grant a certificate of occupancy subject to two "conditions". A breach of either condition, he stated, would be grounds for revocation of the certificate:

(a) That the dwelling only be used as a class 1a building as per the detailed plans of building approval; and

(b) That the dwelling not be used as a dual or multiple occupancy residence.

1. In the reasons for his decision the delegate noted:

Evidence gathered by my inspectors raised grounds to believe that the lessee could use the dwelling for purposes other than a single dwelling. The Planning and Development Regulation 2008 states that a single dwelling is exempt if it complies with Schedule 1 1.00, however, 1.17 states that a structure can only be exempt if it does not increase the number of dwellings on the block to two or more. Therefore if the dwelling is to be used for other than single residential (sic) a development application would need to be lodged and a building approval would need to be sought to change the class of the structure.

1. On 13 April 2012 Mathew and Samuel Bond (both inspectors within the Investigations Unit of the Environment and Sustainable Development Directorate of ACTPLA) carried out a second inspection of the building. The inspectors were given entry by an occupant who identified himself only as "Summit". I infer from the tenancy agreement that this was probably Sumit Chakravarty. Mathew Bond asked Mr Chakravarty how many people lived on the premises. He replied that there were "mostly single persons" and "some families". He said that the majority were university students.
2. Amongst other things, the inspection revealed that locks had been installed on the bedroom doors and the doors had been numbered 1-8. The locks consisted of a lockable handle as well as a deadlock. There was also a lockable door in the hall, which, when closed, separated the building into two dwellings, each with a kitchen, bathroom, laundry and four bedrooms. There were two electric circuit breaker boards. On one board the words "House A" had been written and on the other "House B". Samuel Bond took photographs of the interior and exterior of the property.
3. While the inspection was taking place a woman emerged from one of the bedrooms and walked to the second kitchen. Mathew Bond spoke to her. During that conversation she told him that she lived at the premises with her husband and that there was one other family also living there.
4. About a month after this inspection, on 14 May 2012, the registrar issued a certificate to Rebecca Luongo. The certificate was issued in accordance with s 69(2) of the Building Act on the ground that "the building work ... had been completed substantially in accordance with the prescribed requirements and [was] considered fit for occupation and use". It recorded, amongst other things, that as a class 1a(i) building the residence was "DA exempt". In other words, it was exempted from the need to obtain development approval. The certificate contained the following "important note":

This certificate is issued subject to the following conditions being met:

1. The dwelling is used only as a class 1a building as per the detailed plans of building approval B20117766.
2. The dwelling shall not be used as a dual or multiple occupancy residence.

A breach of conditions 1 or 2 would be grounds for revocation of the certificate of occupancy and use.

1. On 4 September 2012 ACTPLA gave written notice of its intention to make a controlled activity order with respect to the property. The reason set out in the notice is "undertaking a development for which development approval is required without development approval". The Luongos were invited to show cause why such an order should not be made.
2. Through their solicitors the Luongos replied on 14 September 2012. They stated that a controlled activity order should not be made because the dwelling was being used as a single dwelling only.
3. Mr Moysey was unpersuaded and, on 18 October 2012, in his capacity as a delegate of ACTPLA, he made a controlled activity order. The grounds on which the order was made were listed in the order itself. They read:
   1. Agostino Luongo, Giuseppa Luongo, Michael Luongo and Rebecca Luongo are the lessees and registered proprietors of the [property], which is leased from the Commonwealth under Crown lease registered Volume 554 Folio 65 (the lease).
   2. The lessees are conducting the following controlled activity:-
      • (i) Item 3 (a) undertaking a development for which development approval is required without development approval.
   3. The above activity is listed in Schedule 2 of the PDA and is subject to the controlled activity order process under the PDA.

lodge a development application to change the Building Code of Australia (BCA) occupancy class of the building or cease using the building as a class other than 1(a).

1. The order was expressed to take effect on 23 October 2012. The Luongos were required to comply with the direction within 35 days.
2. At the same time Mr Moysey also decided (in his capacity as deputy registrar) to revoke the certificate of occupancy.

1. By an amended application for judicial review the Luongos challenged the two decisions on a number of grounds, several of which were abandoned during argument. Ultimately, the following contentions were advanced.
2. In the case of the decision to make a controlled activity order:

(a) There was no evidence on which ACTPLA could conclude that there had been an alteration which changed the class of the building (ADJR Act, s 5(1)(h));

(b) The decision was so unreasonable that no reasonable decision-maker could exercise the power (ADJR Act s 5(1)(e) and (2)(g));

(c) The decision was an improper exercise of the power under which it was made in that the result of its exercise is uncertain because the order does not identify the conduct or circumstances which give rise to the controlled activity, and does not specify with reasonable certainty, or at all, the actions required to ensure compliance with the order (ADJR Act, s 5(1)(e) and (2)(h)).

1. In the case of the decision to revoke the certificate of occupancy:

(a) The deputy registrar had no jurisdiction to revoke the certificate of occupancy because the decision to do so was not authorised by the Building Act, being the enactment under which it was purportedly made (ADJR Act, s 5(1)(d)).

(b) By taking into account the use to which he perceived the building was being put, the deputy registrar "exceeded his jurisdiction [and] erred in law" (ADJR Act, s 5(1)(f)).

(c) There was no evidence upon which the deputy registrar could conclude that there had been an alteration which changed the class of the building (ADJR Act, s 5(1)(h)).

1. Mr Moysey's reasons for both decisions are contained in the one document which was entitled "Notice of decision - controlled activity order, section 355 Planning and Development Act 2007". This is unfortunate because the statutory bases upon which the two decisions could be made were not necessarily the same. No real attempt was made to separate or distinguish what information was relevant to which decision and why.
2. Mr Moysey stated (at [9]):

An inspection by ESDD officers documented evidence for the building being used as a class other than 1(a). The Planning and Development Regulation 2008 Schedule 1, 1.20(2)(a)(i) states that a development is not exempt if it changes the building class under the building code. Therefore a development application must be lodged to change the class of building to reflect the current use.

1. He referred to s 77 of the Building Act which makes it an offence for a person to occupy or use a building or part of a building other than as the class stated in the approved plans, or to allow someone else to do so.
2. He also noted that the certificate of occupancy only allowed for the building to be used for the purposes of a class 1a dwelling.
3. Mr Moysey said he had considered the following evidence (without alteration):
   • A lease agreement signed and dated by the lessor on 11 February 2012 showing 9 tenants on 16 February 2012 and a further tenant on 34 April 2012.
   • Photos obtained during an inspection that shows bedroom doors numbered 1-8. Each bedroom has its own lock, the lock is a key lock of a kind normally used for the main entry to a dwelling.
   • The building has two separate sub-boards for electricity labelled named "House A" and "House B" and door that can be locked in a hallway that separates the house into two distinct areas.
   • The building approval shows no separating fire wall at the point where the building can be separated into two dwellings.

1. He noted the definition of a class 1a dwelling in the Building Code:

The BCA defines a class 1(a) as a single dwelling or attached dwellings (eg: a terrace, duplex, etc) where each dwelling is separated by a fire wall, a class 2 is defined as, a building containing 2 or more dwelling units (eg: flats, apartments) and a class 3 is defined as, a residential building for a number of persons such as a large scale boarding house, guest house, hostel, the residential part of a hotel, motel, school, etc.

1. His reasons for the decisions then followed. He wrote (again without alteration):
   1. On the bases of the evidence I am satisfied that the building is not being used as a class 1(a) building. The use of the building other than a class 1(a) raises issues of safety for the occupiers of the building such as the higher fire safety requirements that would be required for class 2 or 3 buildings.
   2. I am satisfied that the alteration to the building, although minor, would change the class of the building as used and that a controlled activity order is warranted.
   3. I am also satisfied that the alterations and use of the building are a breach of the condition of the [certificate of occupancy] and would warrant revocation of the [certificate of occupancy]. The [certificate of occupancy] will be revoked 20 working days from the date of this decision.

1. In an affidavit filed on the first day of the hearing Mr Moysey explained that the evidence gathered during inspections to which he had had regard was the evidence given by the Messrs Bond and referred to in various paragraphs of their affidavits as well as certain parts of the evidence given by two other witnesses and the annexures to their affidavits. This was an unorthodox way of putting before the court the material upon which the decision-maker made his decision, but counsel for the Luongos did not take any point about it. In the result it was common ground that the observations of the inspectors, the information they had obtained and the documents to which they referred were all before the defendants before the decisions were made.

Was there evidence on which ACTPLA could conclude that there had been an alteration which changed the class of the building?

1. Part 1.3 of the Planning and Development Regulation 2008 (ACT) ("Planning Regulation") lists "exempt developments", div 1.3.1 exemptions for minor building works. Section 1.20(2)(a)(i) relevantly exempts from the need for development approval "a designated development for the internal alteration of a building" which does not change the building's class under the Building Code.
2. "Designated development" is relevantly defined in s 1.2 of sch 1 of the Regulation to mean:

Building, altering or demolishing of a building or structure on the land.

1. "Class" is defined in the dictionary to the Regulation as "the class of building or structure under the building code". "Building code" is defined in the Legislation Act 2001 (ACT) as the building code under the Building Act, s 136(1), which in turn defines it as the Building Code of Australia. "Alteration" is not defined in the Regulation or the Legislation Act. Its ordinary English meaning is change or modification.
2. In other words, there is no need to obtain development approval for an internal alteration involving the building, altering or demolishing of a building or structure when that alteration does not change the BCA class.
3. At no point in his reasons did Mr Moysey identify what it was he regarded as an alteration.
4. The Luongos contended that there was no evidence of an internal alteration because all the things to which the delegate referred in his reasons were already in place at the time that the building was approved for occupancy. They are right. But the Luongos' contention assumes that the alteration with which the regulation is concerned must be effected after a decision has been made to issue a certificate of occupancy. I do not see why that is necessarily so. There is no reason to think that the regulation was intended to exclude a relevant alteration that was made at any time after the building was erected. Be that as it may, there is no evidence to indicate what, if any, alterations were made at any such time. Assuming the delegate was referring to the installation of the locks, the separate electricity boards and the lockable door in the hallway, there is no evidence to suggest that they were not in place at the time of the first inspection. The evidence ACTPLA called shows that Samuel Bond attended both inspections. His affidavit contains his findings on the occasion of the second inspection but not the first. He did not say that anything he noticed on the second inspection was not there on the first. ACTPLA accepted that there was no evidence upon which it could conclude that there had been an alteration to the building.
5. This ground must therefore be upheld. But it is by no means the end of the story. It begs the question as to whether the decision was made on this basis - or solely on this basis. The parties were at cross purposes about what the reasons for the decisions actually were. In no small measure the success of the application turns on how they should be interpreted.

Was the decision so unreasonable that no reasonable decision-maker could have made it?

1. The Luongos argued that the decision to issue a controlled activity order was illogical and was not a decision that any reasonable decision-maker would have made. They submitted that it was unreasonable to issue the controlled activity order where there were no alterations of any consequence made to the building to justify the order being made.
2. This ground of review is derived from the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and for this reason it is often referred to as Wednesbury unreasonableness. The test is a stringent one. It is clear enough that if the decision is one upon which reasonable minds might disagree it will not be satisfied. In Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18 ("Li") at [28] French CJ observed:

After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

1. The plurality in Li (Hayne, Kiefel and Bell JJ) said at [76] that "unreasonableness [in this sense] is a conclusion which may be applied to a decision which lacks an evident and intelligible justification".
2. The decision to make the controlled activity order does not meet these descriptions. It was not arbitrary or capricious. It was not lacking in common sense. Neither does it lack "an evident and intelligible justification".
3. I accept that a decision to make a controlled activity order based on the premise that there had been alterations to a building which changed the class of the building, when there was no evidence that any alterations had been made, might well satisfy the test. The problem with the decision and the source of confusion is Mr Moysey's purported reliance on sch 1, s 1.20(2) of the Planning Act (the exemption for internal alterations which do not change the building's class). Despite the reference to this provision, ACTPLA submitted that Mr Moysey did not rely on the evidence as amounting to internal alterations that changed the building from one class to another but as part of the evidence on which ACTPLA reasonably concluded that the development was not being used in accordance with its permitted use as a class 1a building. He pointed to the fact that in para 16 of his reasons Mr Moysey had said that the alterations would change the class of the building "as used". It is not entirely clear what he meant by this. But the reasons of an administrative decision-maker should be read beneficially in accordance with the principles discussed in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.
4. The controlled activity order was purportedly made under s 355(2)(a) of the Planning Act, which relevantly provides that ACTPLA may decide to make a controlled activity order in relation to a controlled activity mentioned in the show cause notice. The reasons should therefore be read together with the show cause notice. The show cause notice described the controlled activity in the following terms:

Schedule 2, Item 3 of the Act, Undertaking a development for which development approval is required - (a) without development approval

The dwelling at the above mentioned parcel of land is approved as a Building Code of Australia (BCA) class 1a building. On 7 September 2011 a building approval was issued by Certified Building Solutions for a development approval exempt BCA class 1a residence and attached 10a Garage.

On 27 January 2012 an application for certificate of occupancy and use was lodged under section 69(2) of the Building Act 2004. On 28 March 2012 David Middlemiss, Constructions Occupations Registrar issued a notice of decision in relation to the application for certificate of occupation and use. The notice permitted the issuing of a certificate of occupancy and use provided that the dwelling is only used as a class 1a building as per the approved plans.

An inspection by ESDD officers indicated that the building is being used as a class other than 1a. The Planning and Development Regulation 2008 Schedule 1 1.20(2)(a)(i) states that a development is not exempt if it changes the building class under the building code. Therefore a development application must be lodged to change the class of building to reflect the current use; a building approval will also be required to change the class of the building.

The use of the building for a purpose other than class 1a is a breach of the conditions set out in the notice of decision for the certificate of occupancy and use and is grounds for the revocation of the certificate.

(Emphasis added.)

1. The effect of s 355(2) is that a controlled activity order could only be made on the ground that the Luongos were undertaking a development for which development approval was required without development approval. It is common ground that the property was only exempted from development approval because it was designated as a class 1a building.
2. ACTPLA submitted that at the time the controlled activity order was made it was reasonably open to the deputy registrar to conclude from the information to which he referred in his reasons that the Luongos were "undertaking a development". "Development in relation to land" is defined in s 7(1)(d) of the Planning Act to include "using ... a building ... on the land". To use a building on the land is broadly defined in s 8 of the same Act to mean any of the following:

(a) begin a new use of the ... building ...;

(b) continue a use of the ... building ...;

(c) change a use of the ... building ... whether by adding a use, stopping a use and substituting another use or otherwise.

1. A class 1a building, it will be recalled, is defined in the building code as "a single dwelling ..." in contradistinction to the classes of building contained in classes 2 and 3. In Kazakova v Queensland Fire and Rescue Service [2011] QCA 328 Chesterman JA, with whom Muir JA agreed, said at [24]-[26]:

[24] The definition in the Code of a class 1a building is not without difficulty. What is a "single" dwelling? The choice of adjective is meant, presumably, to differentiate such a dwelling from a multiple dwelling. The point of distinction thus appears to be between a detached house used as a habitation for one person, or one group of persons, which may be regarded as an aggregated unit of persons, and a habitation of unconnected persons, or multiple households. Thus understood it accords with the primary judge's understanding that a single dwelling is the habitation of one discrete household the members of which are permanent residents. A single dwelling is therefore likely to be occupied by a relatively small group of people the members of which will remain stable over a sustained period of time. Its members will be bound by ties of affection and kinship.

[25] The Code makes it clear that a class 1a building, and its use as such, is different to a boarding house, guesthouse, hostel, lodging house or backpackers accommodation. These uses fall within class 1b or 3. What they have in common, is that the number of residents is likely to exceed that found in a conventional family household, and the composition of the group of residents will tend to change frequently. Residency is likely to be transient and residents will have only their address in common.

[26] When one has regard to the Code's purposes of classification of buildings, one can see the importance of these concepts. A building used for a large number of residents who are strangers to each other, and who might occupy a building for brief periods and therefore not become familiar with its floor plan and means of egress, will have a greater need for a fire safety management plan than those who live in their own home and are familiar with it, and between whom ties of affection are likely to lead to a greater degree of assistance in the event of a fire than would be the case with a transient population of a boarding house.

1. McMurdo P expressed the view (at [2]) that a shared household with co-tenants would satisfy the definition of a "single dwelling". The plaintiffs relied on this opinion but her Honour's opinion is a minority one. As I am not convinced that the decision of the majority on this question is plainly wrong, I am required to follow it: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].
2. In the present case the building was advertised for rent as two separate houses. It apparently had two separate electricity supplies. The sub-boards were labelled for two houses. There was a door in a hallway that could be locked to separate the building into two houses. There were apparently no ties of affection or kinship to bind the various tenants. It was open to the deputy registrar to conclude that the property was being rented to a collection of strangers, used as a habitation of unconnected persons or multiple households. That is not to say that there was no evidence pointing in the opposite direction. But this is not a review of the merits of the decision.
3. There was therefore evidence to support the conclusion that the Luongos had begun to use the building as two separate dwellings and/or as a residential building for a number of persons such as a large scale boarding house or hostel before the controlled activity order was made. Thus, the finding in para 15 of the decision that the building was not being used as a class 1a building was certainly open. I therefore accept that at the time he made the controlled activity order it was reasonably open to Mr Moysey to conclude that the Luongos were undertaking a "development in relation to land" and one for which development approval was required but had not been obtained. That is an activity mentioned in sch 2 of the Planning Act which authorises the making of a controlled activity order. Consequently, the decision to issue the order was not unreasonable, let alone so unreasonable no reasonable decision-maker could have made it.
4. For these reasons the ground must fail.

Was the decision an improper exercise of the power under which it was made?

1. The Luongos also contended that the decision to make the controlled activity order was an improper exercise of the power under which it was made. The contention is made on two bases: first, the result of its exercise is uncertain because the order does not identify the conduct or circumstances giving rise to the controlled activity and secondly, the order does not specify with reasonable certainty or at all the action that is required to ensure compliance with the order. This ground has substance.
2. Division 11.3.4 of the Planning Act deals with controlled activity orders. A controlled activity order may direct a person to do or refrain from doing certain activities. Section 358 relevantly provides:

(1) A controlled activity order must state -

(a) that it is a controlled activity order under this Act made by the planning and land authority; and

(b) each person to whom the order is directed; and

(c) the terms of the order and the premises in relation to which the order applies; and

(d) the grounds on which the order is made; and

(e) when the order takes effect

...

(3) A controlled activity order may direct anyone to whom it is directed to do 1 or more of the following:

(a) not to begin a development without development approval;

(b) not to carry out a development without development approval;

(c) to comply with a lease provision or development agreement;

(d) to restore any land, or a building or structure on the land, that has been altered, damaged or fallen into disrepair in breach of a lease provision or development agreement;

(e) to comply with the terms of a development approval to undertake a development;

(f) to carry out a development in accordance with a condition under the development approval that approved the development;

(g) to demolish a building or structure, or a part of a building or structure, that has been constructed without development approval or permission required under a territory law;

(h) to demolish a building or structure, or a part of a building or structure, that encroaches onto, over or under unleased territory land without approval granted under a territory law;

(i) to restore any land, building or structure that has been altered without development approval or permission required under a territory law;

(j) to replace with an identical building or structure any building or structure that has been demolished without development approval or permission required under a territory law;

(k) to apply for development approval for a building or structure, or part of a building or structure, that has been constructed without development approval;

(l) to clean up a leasehold and keep it clean;

(m) if the person to whom the order is directed is bound by a land management agreement - to comply with the land management agreement;

(n) not to do anything that is a controlled activity whether or not a controlled activity order has been, or could be, made under paragraphs (a) to (m).

1. The requisite level of certainty will depend to some extent on the consequences of non-compliance with an order: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1982) 57 FLR 368 ("Pyneboard") at 374 and Fieldhouse v Federal Commissioner of Taxation [1989] FCA 397; (1989) 25 FCR 187 ("Fieldhouse") at 208 per Hill J. Here, s 361 of the Planning Act makes it an offence to contravene the order. The maximum penalty is 60 penalty units ($8,400 for an individual). The offence is one of strict liability. These features of the statutory scheme demand a reasonable level of precision in the description of the activity and the order which was lacking in this case.
2. In Pyneboard the Full Court was concerned with a notice issued under s 155 of the Trade Practices Act 1974 (Cth), failure to comply with which was punishable by imprisonment for three months or a fine of $1000. Relevantly, a s 155 notice is a notice in writing requiring the production of certain information and documents. The Court said (at 374) that in a context where refusal or failure to comply with a notice is punishable in this way, it is an implicit condition of validity that the notice conveys, "with reasonable clarity", to the recipient what information s/he is required to furnish and what documents s/he is required to produce. Fieldhouse concerned a notice issued under s 264 of the Income Tax Assessment Act 1936 (Cth) requiring the recipient to furnish the Commissioner of Taxation with certain information. Hill J (with whom Burchett J agreed) summarised the approach to the validity of s 264 notices at 208:

Where information is required by the section to be furnished, the request for information should be so framed as to be sufficiently clear to convey to the addressee what information is sought and a notice which was unintelligible would obviously be bad. However, it does not follow from this that the question of ambiguity should be approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it. Rather the approach to be adopted is to ask in respect of any particular request whether a reasonable man in the position of the addressee of the notice can fairly comply with it and not be there by exposed to the possibility of penalty for non-compliance having regard to the manner in which the notice is formulated.

1. It seems to me that these principles apply with equal force to a controlled activity order made under s 355 of the Planning Act.
2. In my opinion, the order in the present case does not identify with sufficient particularity the conduct or circumstances giving rise to the controlled activity. The order does not specify the development for which development approval is required. In other words, the order does not inform the persons to whom it is directed of the acts which ACTPLA considered constituted the development. It requires the Luongos to speculate or guess what ACTPLA had in mind and therefore to work out for themselves why they should be required to seek development approval. A controlled activity order should describe with clarity what the activity is, so that a reasonable person is able to comply with it. It is not sufficient simply to recite the words of the statute. It is also necessary to identify the particular conduct that fulfils the statutory description.
3. "Development" is defined in s 7 of the Planning Act to mean a variety of things. Relevantly, it includes building or altering a building ((a)). It also includes using a building ((d)). And it includes varying a lease ((f)). Which was it here? Was the controlled activity order directed to the way in which the building was erected? Or was it directed to some alteration to the building? If so, what was the alteration?
4. "Use" is also defined in the Act. Section 8 provides that to "use land, or a building or structure on the land, means any of the following":

(a) begin a new use of the land, building or structure;

(b) continue a use of the land, building or structure;

(c) change a use of the land, building or structure, whether by adding a use, stopping a use and substituting another use or otherwise.

1. If the order was directed to the use of the building, which particular use did ACTPLA have in mind? Was this a new use? Was it a change of use? If so, what are the acts that constituted the new use or the change of use?
2. I will assume that the circumstances in which the order was given might be taken into account (cf. Pyneboard at 375), so that the question of uncertainty may be resolved by reference to the show cause notice and the reasons for the decision. But the uncertainty is not removed if regard is had to either of those documents. Neither document identifies the conduct with a sufficient level of particularity to enable the Luongos to clearly understand the allegation levelled against them. If anything, the reasons served to confuse, not elucidate.
3. The uncertainty as to the grounds upon which the order was made flows through into the order. Part 4 of the order reads:

This order directs the entity outlined in part 1 to:

Lodge a development application to change the Building Code of Australia (BCA) occupancy class of the building or cease using the building as a class other than 1(a).

1. Without being told precisely what it is that they are doing that qualifies as an impermissible use, how are the Luongos to know what it is that they must cease doing?
2. This ground of review should therefore be upheld.

Did the deputy registrar have authority to revoke the certificate?

1. The first question related to the certificate of occupancy is whether the deputy registrar had the power to revoke it. The contention is that the decision to do so was not authorised by the enactment under which it was purportedly made. The contention is essentially based on the terms of the Building Act. The question is not free of difficulty but I have concluded that there is such a power.
2. The Building Act does not contain an express revocation power. The registrar did not suggest, however, that the Building Act was the source of the power. Originally, he sought to support his decision by reference to s 180 of the Legislation Act, which provides that a power given by a law to make a decision includes the power to reverse or change it. Section 180 is a "non-determinative provision". That is to say it is a provision which may be displaced expressly or by a contrary intention: s 6(3). The Luongos submitted that the contrary intention can be gleaned from the terms of the Building Act. It is not necessary to deal with this submission, as reliance on s 180 was abandoned during oral argument.
3. The registrar ultimately relied on s 46 of the Legislation Act, which, in contrast to s 180, is "a determinative provision". Section 6(4) of the Legislation Act provides that:

The declaration of a provision as 'determinative' indicates that it is the intention of the Legislative Assembly that, if the provision is to be displaced at all in a particular case, a more deliberate displacement is required than if the provision were a non-determinative provision.

(Emphasis added.)

1. Section 6(2) provides that a determinative provision may be displaced "expressly or by a manifest contrary intention".
2. Section 46 is in the following terms:

Power to make instrument includes power to amend or repeal

(1) Power given under an Act or statutory instrument (the "authorising law") to make a statutory instrument includes power to amend or repeal the instrument.

(2) The power to amend or repeal the instrument is exercisable in the same way, and subject to the same conditions, as the power to make the instrument.

(3) Despite subsection (1), a form that is a legislative instrument may be repealed or repealed and remade (with or without changes), but may not be amended.

(4) This section is a determinative provision.

1. "Make an instrument" is defined in the Dictionary to include "issue and grant the instrument". "Repeal" is defined in the Dictionary to include revoke the statutory instrument or part of it.
2. Section 13(1)(a) of the Legislation Act defines a statutory instrument as an instrument made under an Act (defined in s 7 to mean an Act of the Legislative Assembly) and s 14 defines an instrument as "any instrument in writing or other document". "Instrument" is not otherwise defined in the Legislation Act. The Oxford English Dictionary Online (September 2013) defines an instrument as:

A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form, so as to be of legal validity.

1. In Collector of Customs v Lawlor [1979] FCA 21; (1979) 2 ALD 1 a Full Court of the Federal Court of Australia held that the analogous provision in s 33(3) of the Acts Interpretation Act 1901 (Cth) was directed at the power to make, grant or issue an instrument and not the manner of the exercise of the power. Consequently, the Court considered there was a distinction to be made between the conferral of the power to make, grant or issue the instrument, the exercise of which would create particular legal rights or liabilities, and the conferral of a power to create legal rights or liabilities which may be exercised by the making or issue of an instrument. The Court held that s 33(3) only applied in the former case.
2. In my view a certificate of occupancy is a statutory instrument within the meaning of the Legislation Act. It is a formal document issued under an Act. Self-evidently, the issue of the certificate gives the holder the legal right to occupy and use the building according to the terms of the certificate.
3. It was not in dispute that the deputy registrar had the power to grant the certificate and I have no doubt he did. The registrar is a public servant appointed by the director-general under the Construction Occupations (Licensing) Act 2004 (ACT) ("COL Act"). The registrar's functions are listed in s 104. Relevantly they include any function given to the registrar under that act or another territory law: COL Act, s 104(2). The Building Act (s 69) gives the registrar the power to grant a certificate of occupancy. It follows from s 46(2) of the Legislation Act that, absent an express term displacing it or a manifest contrary intention, there was a power to revoke the certificate.
4. Neither was there a dispute that if the registrar had the power, so too did Mr Moysey as his deputy. As a deputy registrar Mr Moysey had the power to exercise the functions of the registrar in relation to the construction occupation for which he was appointed: COL Act, s 106(3). The instrument of appointment discloses that Mr Moysey was appointed as deputy registrar in respect of all construction occupations.
5. It is common ground that s 46(2) of the Legislation Act is not expressly displaced by any provision of the Building Act. The question, then, is whether the Building Act discloses "a manifest contrary intention". So what is meant by the expression "manifest contrary intention"? It goes without saying that a contrary intention is not enough.
6. Some assistance is gleaned from the Legislation Act which provides by way of illustration an example of a determinative provision displaced by manifest contrary intention. The example is s 79(3) of the hypothetical Motor Repairers Act 2001, which provides that a regulation "may apply ... an instrument or provision of an instrument as in force from time to time" (emphasis added). In contrast, s 47(3) of the Legislation Act states that a relevant instrument "may make provision about [a] matter by applying ... an instrument, as in force from a particular time" (emphasis added). The note goes on to explain:

Section 79(3) illustrates a provision displacing this Act, s 47(3), a determinative provision, by a manifest contrary intention because s 79(3) clearly contradicts s 47(3).

1. As Penfold J observed in O'Donnell v Environment Protection Authority (2012) 192 LGERA 1; [2012] ACTSC 140 at [140]:

Although examples are not exhaustive, and may extend but do not limit the meaning of the relevant provision (s 132(1) of the Legislation Act), it is useful, in considering whether a determinative provision has been displaced by a manifest contrary intention, to ask whether the ... law "clearly contradicts" the determinative provision concerned.

1. This reflects the ordinary English meaning of the word "manifest", relevantly defined in the Oxford English Dictionary Online (September 2013, Oxford University Press) as "clearly revealed to the eye, mind, or judgement; open to view or comprehension; obvious" and in the Macquarie Dictionary Online (September 2013, Macmillan Press Australia) as "readily perceived by the eye or the understanding; evident; obvious; apparent; plain: a manifest error". A manifest contrary intention will arise where two provisions contradict or are inconsistent with each other; they cannot stand together.
2. It follows that, for s 46(2) of the Legislation Act to be displaced, it must be clear or obvious from the terms of the Building Act that the registrar could not under any circumstances revoke a certificate of occupancy once it is issued. Where are the contradictory provisions?
3. The Luongos were unable to point to any section of the Building Act that exhibited such an intention. They nonetheless argued that a power to revoke a certificate of occupancy was inconsistent with the following features of the legislative scheme:
   • It is a strict liability offence to occupy or use or to allow someone else to occupy or use a building or a part of a building:
     • if the registrar has not issued a certificate of occupancy (s 76); or
     • as a building or part of a building of a class other than the class stated in the most recent approved plans (s 77(1)(a)(i)); or
     • the registrar has not given written approval for the occupation and use (s 77(1)(b));
   • Following a conviction for an offence against s 76 the registrar may require the building to be vacated and a failure to comply with a notice to vacate is also a strict liability offence (s 79);
   • Copies of certificates of occupancy must be kept in the registrar's office and anyone has the right to inspect them (s 80).
4. In their written submissions the Luongos described the consequences for innocent third parties of a conclusion to the contrary as "potentially catastrophic". Their counsel, Mr Arthur, said during oral argument:

there may be not a single provision like in the example that clearly contradicts section 46. But when one looks at what is required by section 80 and then goes through the policy of the act and looks at all the other provisions that all come together and focus upon that as the pinnacle of the whole scheme, then one sees a manifest contrary intention.

1. I disagree. While these matters would certainly bear upon whether the Act evinced a contrary intention, whether considered individually or collectively, in my opinion they do not exhibit a clear or obvious intention to displace the power conferred by s 46(2) of the Legislation Act. What if the certificate of occupancy were issued mistakenly, for example, to the wrong person? I doubt very much whether in these circumstances the parliament would have intended that the certificate of occupancy remain in force. What if the certificate were issued corruptly or as a result of fraud? "Fraud unravels everything" or almost everything (SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [14] ff).
2. The Luongos argued, however, (without reference to authority) that if there were a power to revoke, it would only authorise the reversal of the original decision on a reconsideration of the basis for that decision. Their contention was that Mr Moysey had not reversed the original decision in this way but had in fact substituted another decision made in different circumstances. In substance, they submitted that the certificate was revoked for a breach of the conditions attached to it and that was impermissible. I doubt that the power is so confined. The effect of s 46(2) of the Legislation Act is that the power is exercisable in the same way and subject to the same conditions as the power to grant the certificate.
3. The Luongos argued, however, that a certificate could not be granted conditionally, "let alone on conditions designed to facilitate a revocation". The power to grant the certificate is conditioned on, amongst other things, the building's fitness for occupation and use as a building of the class stated in the approved plans. If, therefore, it transpired that the building was not, or was no longer, fit for occupation and use as a building of that class, the registrar would have the power to revoke it.
4. Quite apart from the absence of any reason to think that the conditions were imposed for the purpose of "facilitating a revocation", the Luongos' argument creates a real problem for them. If the certificate could not be granted "conditionally", then unless the conditions were severable, the decision to grant it would lack a legal foundation and would be regarded in law as no decision at all: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] per Gaudron and Gummow JJ. It would not matter whether the registrar had the power to revoke the certificate because the certificate would have been invalid in the first place.
5. The registrar sought to uphold the certificate. He did not contend, however, that he had any power to issue a certificate which imposed conditions. Rather, he submitted that despite the language in which the certificate was couched no conditions were in fact imposed. That is because the so-called conditions did no more than state what was either explicit or implicit in the certificate of occupancy, namely, that the Luongos could use the dwelling only as a class 1a building and, in particular, as a "single dwelling", not as a different class of dwelling such as a dual or multiple occupancy residence. The registrar submitted that he cannot have exceeded his jurisdiction by placing conditions on a certificate of occupancy which had no effect on the holder's rights and obligations under the certificate. In other words the conditions were superfluous. The certificate of occupancy only allowed the holder to use the premises as a class 1a dwelling.
6. Regardless of how they are characterised, it seems tolerably clear that the certificate would not have been issued absent the so-called conditions. These considerations went to the root of the decision to grant the certificate and to sever them would fundamentally alter the nature of the certificate. That means that unless the registrar had the power to impose conditions or to restrict the use to which the building was to be put, the certificate would be invalid. Whether or not he had the power to impose conditions, he plainly had the power to restrict the use to use as a building of the class stated in the development approval.
7. The certificate was issued under s 69(2) of the Building Act. Section 69(2) relevantly provides:

If building work involving the erection or alteration of a building as completed is not strictly in accordance with the prescribed requirements for the building work but is substantially in accordance with the requirements, the construction occupations registrar may on application made by the owner of the parcel of land where the building work has been carried out, issue a certificate that the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work.

1. No question arose as to the conditions for the exercise of the power in this subsection. Where, then, the building work was substantially, but not strictly, in accordance with the prescribed requirements, the registrar had the power to issue "a certificate that the building ... is fit for occupation and use as a building of the class stated in the approved plans for that building work" (emphasis added). The "conditions" do no more than authorise the use of the building for this precise purpose. It would have been preferable for the registrar to use the words of the section to say this. But his failure to do so does not invalidate the certificate.
2. I am not therefore satisfied that for any of the reasons advanced on behalf of the Luongos the decision to revoke the certificate was beyond power. I would emphasise, however, that no issue was raised that, in the event that the Court were to find there were such a power, the certificate holder had a right to be heard before it was exercised and if so, whether that right had been infringed. Whether the registrar is required to provide an opportunity to be heard before any decision is made to revoke the certificate is at least arguable, but it was not argued in this case. I refrain from making any observations on the subject in the circumstances.

Did the registrar exceed his jurisdiction or err in law by taking into account the use to which he perceived the building was being put?

1. The Luongos contended that it was impermissible for the registrar to take into account the building's use in deciding to revoke the certificate of occupancy. This argument was based on the notion that "the anticipated misuse of the building" is irrelevant to the issue of the certificate. The Luongos submitted that that was clear from the "peremptory" terms of s 69 of the Building Act.
2. I reject the Luongos' contention for two reasons. First, it presupposes that the certificate was issued on the basis that the registrar anticipated that the building would be misused. In the face of the undertaking given by Agostino Luongo, that inference should not be drawn. Secondly, as I have already explained, the power to grant the certificate was the power conferred by s 69(2) to issue a certificate that "the building as erected ... is fit for occupation and use as a building of the class stated in the approved plans or that building work". That class was class 1a. The registrar therefore had the power to revoke the certificate if it was not fit for use as a building of that class. That it was being used in a way that was apparently inconsistent with the terms of the certificate is not irrelevant to the question of whether it was fit for use on those terms.
3. There was therefore no excess of jurisdiction or error of law as alleged.

Was there no evidence upon which the registrar could conclude that there had been an alteration which changed the class of the building?

1. I repeat what I said earlier. It was common ground there was no such evidence and so this ground must be upheld. I am not satisfied, however, that the decision to revoke the certificate of occupancy was made for this reason or, at least, solely for this reason. Relief is undoubtedly discretionary. See, for example, Hughes v Australian Capital Territory Planning & Land Authority (2004) 136 LGERA 420; [2004] ACTSC 132. As the decision is supportable on the independent ground that the building was not being used in accordance with the terms of the certificate, I would not set it aside on this account.

1. The decision to make a controlled activity order should be set aside on the ground that it was an improper exercise of the power given by the Planning Act (the enactment under which it was purported to be made) because the result of its exercise is uncertain.
2. Otherwise the application should be dismissed. Accordingly, the stay imposed on the decision to revoke the certificate of occupancy should be lifted but I will extend it for another month to enable those affected by the decision to make appropriate arrangements.
3. I will reserve the question of costs but, in the circumstances, my provisional view is that ACTPLA should pay the Luongos' costs as agreed or taxed and the Luongos should pay the registrar's costs on the same basis. I will make orders to that effect unless within 14 days I receive a written request for a different order, which, in default of agreement, is accompanied by submissions in support (of no more than three pages in length) and, if appropriate, affidavit evidence. In that event I will make further orders for submissions from the other party and in reply. I will deal with any dispute about costs on the papers.

I certify that the preceding 106 (one hundred and six) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Katzmann.

Solicitor for the Respondents: ACT Government Solicitor