. é JUDGMENT No. b54/. 21. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION BETWEEN: MINUTE OF ORDER NOT FOR DISTRIBUTION ) ) ) ) No. ACT G 64 of 1987 ) ) ) BEVERLEY ENID O''NEILL, BERNARD JOSEPH EDWARD COLLAERY, GERALDINE GEORGE, RICHARD BAKER and JOAN DUNCAN THWAITES Applicants PETER WYRDEMAN ' First respondent NATIONAL CAPITAL DEVELOPMENT COMMISSION Second respondent THE UNITING CHURCH IN AUSTRALTA (AUSTRALIAN CAPITAL TERRITORY ) PROPERTY TRUST Third respondent JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 6 October 1987 WHERE MADE : Canberra THE COURT ORDERS THAT: l. The application for interlocutory injunctive relief against the third respondent be dismissed. 2. The applicants pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G 64 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISION BETWEEN: BEVERLEY ENID O'NEILL, BERNARD JOSEPH EDWARD COLLAERY, GERALDINE GEORGE, RICHARD BAKER and JOAN DUNCAN THWAITES Applicants AND: PETER WYRDEMAN First respondent NATIONAL CAPITAL DEVELOPMENT COMMISSION Second respondent THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST Third respondent CORAM: Neaves Jd. DATE: 6 October 1987 REASONS FOR JUDGMENT The applicants, Beverley Enid O'Neill, Bernard Joseph Edward Collaery, Geraldine George, Richard Baker and John Duncan Thwaites, seek an interlocutory injunction restraining the third respondent, The Uniting Church in Australia (Australian Capital Territory) Property Trust, a body corporate established by the Uniting Church in Australia Ordinance 1977 (A.C.T.) ("the Uniting Church Ordinance"), its servants and agents from carrying on, or permitting to be carried on, any s wea , tee peter ce me ee ree ap ok te en ar eenier See 2. building, site or excavation work on certain land known as Section 75, Division of Narrabundah in the Australian Capital Territory. The building, site or excavation work in question is work associated with the construction onthe land of a dwelling house and garage for use, so the third respondent asserts, as a manse, that is to say, as a residence for a minister of the Uniting Church in Australia and her family. The injunction is sought pending the hearing and determination of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") pending in the Court at the suit of the applicants against Peter Wyrdeman, who was at the relevant time the Building Controller appointed under the Building Ordinance 1972 (A.C.T.) ("the Building Ordinance"), the National Capital Development Commission established under the National Capital Development Commission Act 1957 (Cth) and the third respondent. The application under the Judicial Review Act was filed on 23 September 1987. Peter Wyrdeman was the only respondent named in that application. However, on the hearing on that date of an application for interlocutory relief, Everett J. gave leave to the applicants to join the National Capital Development Commission and The Uniting Church in Australia (Australian Capital Territory) Property Trust as, respectively, the second and third respondents to the application. The application filed on 23 September 1987 sought an order of review in respect of what was described as the decision of the (first) respondent, Peter Wyrdeman, made on 27 vet ATR ry ee atone > wenn, octane rrr a ee ee - +, 3. July 1987 to issue a building permit under s.35 of the Building Ordinance for the work to be carried out on the land. At the conclusion of the hearing on that date, his Honour granted an interlocutory injunction against the third respondent and adjourned the matter until 25 September 1987. On the latter date, the interlocutory injunction was, by consent, dissolved and the matter further adjourned until 1 October 1987. When the matter came before the Court on 1 October 1987 the applicants foreshadowed the filing of an amended application under the Judicial Review Act joining as an additional respondent one Howard Lipscombe, who was at the relevant time an officer of the Department of Territories of. the Commonwealth, and identifying further decisions in respect of which the applicants sought orders of review. It will be necessary to refer to those decisions later in these reasons but, before doing so, the circumstances which have given rise to the present proceeding should be further addressed. What follows, however, should not be read as constituting definitive findings of fact. It is rather a summary of what is to be gleaned from the material at present before the Court. It is necessary to make this reservation as the facts have not been fully investigated for the purpose of the present interlocutory application and some of the material before the Court has not been the subject of formal proof. That material has been placed before the Court, without objection, but for the purpose only of the interlocutory application. alien red 3- ror . a 4, The land is triangular in shape having an area of approximately 1 acre 1 rood 36 3/4 perches. It is bounded on the west and south by Wylie Street and on the north-east by Brockman Street. On 14 May 1960, a lease of the land was granted by the Commonwealth of Australia to the Presbyterian Church (New South Wales) Property Trust pursuant to the Leases (Special Purposes) Ordinance 1925 (A.C.T.) for a term of ninety-nine years commencing on 22 December 1959. Clause 1 of the lease contained the following covenants by the lessee - fa "(c) that the lessee will within twelve months from the commencement of the said term or within such further time as may be approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth for that purpose submit to the Commonwealth or the Minister on behalf of the Commonwealth a complete building scheme for the said land including:- (i) a plan or plans showing all buildings (including a _ church) which the lessee proposes to erect on the said land and also the approximate positions on the said land in which such buildings are to be erected; (ii) a statement in respect of each building shown on such plan of - (a) the minimum cost at which it is proposed to erect such building; (b) the purpose for which the lessee proposes to use such building; (c) the respective times within which it is proposed to commence to erect and to complete such building; (d) (e) (f) 5. if the Minister does not approve of the building scheme so submitted and notifies the lessee of the matter or matters of which he does not approve and of the manner in which he requires the building scheme to be amended the lessee shall within six months after the date of any such notice amend the said building scheme in accordance with such notice and submit the amended buiiding scheme to the Minister for his approval; that the lessee will commence' to erect each building shown on the said plan or plans within the time stated in the statement referred to in sub-clause (c)(ii) of this Clause as the time within which it is proposed to commence to erect that building or within such further time as may be approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth for that purpose in a position on the said land approved by the Commonwealth or the Minister on behalf of the Commonwealth and in accordance in ail material respects with the building scheme approved by the Minister as provided in sub-clause (c) of this Clause and with plans and specifications prepared by the lessee and previously submitted to and approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth and that the lessee will complete the erection of such building within the time stated in the said statement as the time within which it is proposed to complete such building or within such further time as may be approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth for that purpose at a cost no less than the cost stated in the said statement to be the minimum cost at which it is proposed to erect such building or at a cost approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth and in accordance with the said plans and specifications and every Statute Ordinance and Regulation applicable thereto; that the lessee will not erect any building or buildings on the land or any part thereof additional to the buildings contained in the plan or plans referred to in sub-clause (c) of this Clause ener eae =e aaa ea) " (h) 6. without the prior consent in writing of the Commonwealth or the Minister on behalf of the Commonwealth and will erect any building in respect of the erection of which consent has been so given in accordance with plans and specifications thereof to be previously submitted to and approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth and in accordance with every Statute Ordinance and Regulation applicable thereto; to use the said land only for the purposes of a church a church hall and a manse." — Clause 3, so far as material, provided: "3. IT IS MUTUALLY COVENANTED AND AGREED as follows - (a) that if - (i) .... (ii) the lessee fails to comply with the covenants contained in sub-clause (e) of Clause 1 of this lease; or (iii) after completion of any building as aforesaid such building is at any time not used for a period of one year for the purpose of a church a church hall and a manse or for some other purpose approved in writing by the Minister; the Commonwealth or the Minister on behalf of the Commonwealth may determine this lease but without prejudice to any claim which the Commonwealth or the Minister on behalf of the Commonwealth May have against the lessee in respect of any breach of the covenants on the part of the lessee to be observed or performed; wee ene 4 weep cee 7. (d) that in this lease the expression 'Minister" shall mean the Minister of State of the Commonwealth for the time being administering the Leases (Special Purposes) Ordinance 1925-1943 including any amendments thereof or of any Statute or Ordinance substituted therefor or the Member of the Executive Council of the Commonwealth for the time being performing the duties of such Minister and shall include the Authority or person for the time being authorised by the Minister or by law to exercise the powers and functions of the Minister under the Leases (Special Purposes) Ordinance 1925-1943 including any amendments thereof or any Statute or Ordinance substituted therefor; " " ose en Section 4 of the Leases (Special Purposes) Ordinance provides that land leased under the Ordinance is not to be used for any purpose other than the purpose specified in the lease. There is evidence before the Court that, in or about August 1960, a plan (Exhibit "C") described as a tentative site plan for the land was prepared on behalf of the lessee. This envisaged the construction on the land of a church, a church hall, a kindergarten hall, a manse, a tennis court and car parking areas. Except, possibly, in so far as the plan referred to a church hall, it may properly be said to have recorded little more than a vision for the future. It provided a guide to the proposed location on the site of the various buildings and amenities in contemplation as future developments but it did not descend into any detail. Under the plan, the proposed church hall was sited towards the north-west corner of the land, the future church — 8. at the south-west corner, the future kindergarten hall and tennis court to the east of the future church and the future manse further again to the east in the vicinity of the more southerly junction of Wylie and Brockman Streets. The car parking areas were shown as located north of the future church with vehicular access from Brockman Street. It can be said of the plan that it provided for the retention of none of the natural features of the land which the present applicants find so attractive and desirable. a It may be a matter for debate thether the plan answered the description in clause l(c) of the lease of a complete building scheme for the land including a plan or plans showing ail buildings (including a church) which the lessee proposed to erect on the land and the approximate positions on the land in which the buildings were to be erected. But, however that may be, the plan was apparently submitted to the Commonwealth and the proposals therein were "considered satisfactory" by the National Capital Development Commission (see the Commission's letter dated 14 March 1961 to the Secretary, Department of the Interior). There is nothing in the material before the Court to suggest that the then lessee of the land complied with that part of clause l(c) of the lease which required it to submit to the Commonwealth or the Minister on behalf of the Commonwealth a statement in respect of each building shown on the plan of the minimum cost at which it was proposed to erect such building and the respective times within which it ere woes cer es N 9. was proposed to commence to erect and to complete such building. Nor is there anything in the material to suggest that the time of twelve months from the commencement of the term of the lease fixed by clause l(c) for the submission of that statement was ever extended. It appears that detailed plans and specifications for one of the buildings, that described as a church hall, were subsequently prepared and approved. That building was erected in 1962 and is at present being used as a church, St - Aidan's Church, Narrabundah. It would seem, on the evidence, that no detailed plans and specifications for any of the other buildings shown on the tentative site plan were prepared. None appears to have been approved. Apart from the church hall, none of the other buildings shown on the plan have been erected. On 22 June 1977 the unexpired term of the lease vested in the third respondent by operation of law ~ see the Presbyterian Church Trust Property Ordinance 1971 (A.C.T.), s.8, the Presbyterian Church (Proposals for Union with other Churches) Ordinance 1972 (A.C.T.), s.3, and the Uniting Church Ordinance, s.11(5). The third respondent has since 1 December 1980 been registered as the proprietor of the lease. The third respondent is said to hold the lease on trust to be utilised in accordance with the decisions of the appropriate decision-making bodies within the Uniting Church - ow oes a 77 Se oe eee on Wo ee were 10. in Australia, those bodies being the Parish Council of the Canberra Central Parish, the Presbytery of Canberra and the New South Wales Synod of the Church. It is further said that all necessary decisions and approvals have been given ' within the Uniting Church in Australia for the construction on the land in question of a residence for the Reverend Gwen Masters, an ordained minister of the Church who was called to a position as a second minister of the Canberra Central Parish with effect from the beginning of February 1987, and for members of her family. During 1986 the third respondent put forward a plan of development for the land which provided for - (a) the retention of the existing building used as a church and church hall; (b) the setting aside of an area of land for the future extension of that building when that should become necessary; (c) the erection of a minister's residence or manse on the south-east corner of the land; and (d) the erection of what were referred to as "aged care units" on the eastern portion of the land comprising 16 units, some of one storey and some of two storeys in height. It was then envisaged that the erection of the manse and the "aged care units" would be implemented during the financial year 1987-1988. It may be noted in passing, that a circular letter dated 5 January 1987 and signed by the Chairman of the St Aidan's Property Committee of the Uniting Church asserts, quite incorrectly, that the plan of development "is 7 ee hahha aT ll. consistent with the purpose clause relating to the lease of the property". It is clear that the purpose clause of the lease (clause l(h), the text of which is set out above) does not permit the erection of "aged care units" on the land. In a letter dated 19 February 1987 addressed to one of the applicants, the National Capital Development Commission stated that it had been informed by the Department of Territories that the original lease issued under the Leases (Special Purposes) Ordinance is to be surrendered and two new leases are to be issued, being a lease under that Ordinance for the area on which the building used as a church and church hall is erected and a lease under the City Area Leases Ordinance 1924 (A.C.T.) for the area to be used for the manse and the aged persons' housing. Those leases have not yet been granted. It appears that the National Capital Development Commission informed the third respondent that it supported the proposal in principle. Thereafter, on 13 October 1986 an application ~for design and siting approval for what was described as the "St Aidan's Manse & Retirement Village" was submitted to the Commission. The application stated that the "Design and Siting of the Manse and the Retirement Village have been integrated to read as a unified development carried out in similar architectural character and building materials". pore yoaex 12. By letter dated 3 December 1986 the Commission informed the architects for the project that sketch plans for the proposed development of aged persons' units on the land had been considered and there would be no objection to them proceeding to the preparation of working drawings subject to certain amendments or further work on the aspects of the design identified in the letter. It appears that a final design for the units has not been determined and detailed plans and specifications have not been prepared. On 9 February 1987 the National Capital Development Commission, pursuant to the Buildings (Design and Siting) Ordinance 1964 (A.C.T.) ("the Design and Siting Ordinance"), gave design and siting approval for the construction of a dwelling house and garage in accordance with the plan submitted on 13 October 1986 (Plan No.5752/C). The plan itself was approved by the Building Controller on 3 April 1987 but the third respondent subsequently decided it was not suitable. A revised plan (Plan No.5752/D) was submitted and that plan ahd a further revised plan (Plan No.5752/E) were given design and siting approval by the National Capital Development Commission on 24 dune 1987. On or about 19 May 1987 the third respondent entered into a building agreement with Jennings Industries Limited for the construction on the land of the dwelling house and garage. Sot te rr ape oe wae 13. On 25 June 1987 Howard Lipscombe, describing himself as adelegate of the Minister for Territories, signed a notation as follows: "APPROVAL GRANTED pursuant to clause 1(f) of the Crown Lease for the proposal outlined in Plan No.5752/D" No similar endorsement in relation to the revised Plan No.5752/E or the further revised Plan No.5752/G is in evidence. On 24 July 1987 the plans No.5752/D and No.5752/E were approved under s.33(1) of the Building Ordinance by one Noel Richard Cope, an officer of the Department of Territories. On 27 July 1987 a building permit under s.35(1) of the Building Ordinance was granted in respect of the erection of the dwelling house and garage by one Frances Mc Devitt, also-an officer of the Department of Territories. I Both Mr Cope and Ms McDevitt are said to have been performing the duties of a Deputy Building Controller under the Building Ordinance. The documents by which authority is said to have been conferred upon them respectively to approve the plans and issue the building permit (see Building Ordinance, s.7(4)) are not in evidence but nothing turns on that for present purposes. oo sy ey rg ee ewe pee aan aha eliaen parteadine 14. On 18 August 1987 the applicants, pursuant to s.13 of the Judicial Review Act, requested a statement of reasons in relation to the decision to issue a building permit in respect of the work. That statement was not provided to the applicants until 24 September 1987. On 3 September 1987 design and siting approval was given by the National Capital Cevelopment Commission toa further revised plan WNo.5752/G. The variations effected by this revised plan were approved by Mr Cope on 7 September 1987. On 8 September 1987 the third respondent sought a variation of its lease to enable the erection of residential units on the land. No decision has been made on that application. The decisions in respect of which the applicants seek orders of review may now be identified. They are - ~ (a) The decision made on 25 June 1987 by Howard Lipscombe as delegate of the Minister for Territories granting approval pursuant to clause 1(f) of the lease for the proposal outlined in Plan No.5752/D, that is the proposal.for the construction of the dwelling and garage. (b) The decisions made on 24 June 1987 and 3 September 1987 by the National Capital Development Commission under the Design and Siting Ordinance granting design and siting approval for the erection of the dwelling and garage on the land. (c) The decision attributed by the applicants to Peter Wyrdeman but in fact made by Frances McDevitt on 27 July 1987 ~ cee earn ny ripe ey en cor or =v a a aed es eee — 15. under s.35(1) of the Building Ordinance granting a building permit in respect of the work. (d) The decision made by the National Capital Development Commission on or about 3 December 1986 to approve sketch plans for the development of a retirement village on part of the land. (e) The decision of the third respondent, said to be a decision under the Uniting Church Ordinance, to submit to the Commonwealth or the Minister on behalf of the Commonwealth a building scheme with respect to the land. The applicants also seek an order of review in respect of the failure of the third respondent to make a decision under the Uniting Church Ordinance to submit to the Commonwealth or the Minister on behalf of the Commonwealth a complete building scheme for the land including a plan or plans showing all buildings (including a church) proposed to be erected on the land. Each of the applicants claims to be either resident in Wylie Street or Brockman Street, Narrabundah or a person having a proprietary interest in premises in one of those streets. Some claim to answer both descriptions. As such, they claim to be persons aggrieved by the decisions sought to be reviewed. The respondents dispute that the applicants or any of them are persons aggrieved within the meaning of that expression in s.5 of the Judicial Review Act and have given notice that the issue will be raised at a later stage of the proceeding. I need not now consider the matter further. soe ure 16. The respondents also, quite properly, have given notice of their intention to submit at an appropriate time that the proposed amended application, in so far as it seeks orders of review in respect of decisions other than the decision to issue a building permit in respect of the work, was not filed within the period prescribed by s.11(3) of the Judicial Review Act. The respondents draw attention to the fact that no material has been placed before the Court by the applicants to justify the granting of an extension of time within which to file that application. Much of the evidence which the applicants sought to adduce on the hearing of the application was' clearly directed to the question whether the proposed "St Aidan's Manse and Retirement Village" was a desirable development having regard to the situation and nature of the site, the desirability of preserving on the site what have been described as "mature eucalypts (some more than 100 years old)", the suggested unsuitability of the site for aged persons' housing, the alleged disconformity between the proposal and the guidelines for aged persons' housing approved by the National Capital Development Commission and the perceived adverse effect of the development upon the residential amenity of the area, the value of neighbouring properties, the streetscape in Wylie and Brockman Streets and the landscape generally. The concerns which the applicants have expressed may be very real. They may be well founded and they may be worthy of detailed consideration. However, they are not matters which touch on mney wr we pe ree 4, ta powrice my = wees wy onere q ee eee me eee ee ee ee he "danalidduneaiaaenateinaiad samaienaneianedamainaamar eka maaenen a a we 17. any issue which the Judicial Review Act commits to the decision of the Court. They are matters for those who, under the appropriate legislation, are charged with the duty of determining what (if any) development should be permitted on the land. The issue for the Court is simply whether the decision-making process has been carried out according to the applicable legal rules. Because of the Court's limited role, the evidence directed to the above matters was rejected as inadmissible except in so far as 1t was relevant to the issue whether the applicants were "persons aggrieved" by the decisions sought to be reviewed. The applicants rely on two matters as showing that there is a serious question to be tried on the hearing of the substantive application such as to warrant the granting of interlocutory injunctive relief. First, the applicants say that there has been a failure to comply with the relevant requirements of the lease under which the land is held. It is submitted that what the lease requires before any work may be permitted on the site is the submission by the third respondent to the Commonwealth or the Minister on behalf of the Commonwealth of a complete building scheme for the whole of the land and the approval of that scheme by the Commonwealth or the Minister on its behalf. In the absence of such an approved complete building scheme, the decisions relating to the erection of a dwelling house and garage on the land are, so the argument runs, contrary to law and should be set aside. ee ": ¥ Sli i ceeatate auaieiereremeent wer we an ae yp re oe aM gay pre een ee 18. It is apparent that this submission relies heavily on clause l(c) of the lease, the text of which has already been set out. It 1s, of course, obvious that a complete building scheme for the land which included buildings to be used for aged persons' housing would not be a_ scheme complying with that clause as the use of the land for such purpose would he outside the purposes permitted by clause 4h). Clause l(c) is expressed to impose an obligation on the lessee to submit a complete building scheme including the specified plan or plans and statement "within twelve months from the commencement of the said term or within such further time as may be approved in writing by the Commonwealth or the Minister on behalf of the Commonwealth for that purpose". But it is said that the clause has a continuing operation throughout the term of the lease (ninety-nine years) and, presumably, during any extension of the term pursuant to clause 3{c). Clause 1(f) of the lease provides a procedure whereby buildings may be erected on the land "additional to the buildings contained in the plan or plans referred in sub-clause (c)". I have already referred to the circumstance that consent to the erection of the dwelling and garage, a consent which in my opinion was necessary, has been given under that clause. That consent was given by Mr Lipscombe acting as a delegate of the appropriate Minister (see clause 3(d) of the lease) and no challenge is made to ease ee ants gton - 19. his authority to do so. The applicants, however, submit that clause l(f) offers no assistance to the third respondent as its operation is dependent upon the approval of a complete building scheme under clause l(c). The applicants also point to s.8 of the Design and Siting Ordinance which provides, inter alia, that the Building Controller shall not, except in accordance with par.(a) thereof, refuse an application for an approval or permit under the Building Ordinance by reason of the external design or the siting of a proposed building except where the Building Controller is satisfied that it is necessary to do so "in order to prevent a contravention of a provision of that Ordinance or of some other law 'or the terms and conditions of a lease or tenancy granted by the Commonwealth". The applicants contend that the application for a building permit in respect of the work to be carried out on the land should have been refused under this provision in order to prevent a contravention of clause l(c) ~ of the leases on the part of the third respondent. I In my opinion, the applicants seek to give to clause l(c) of the lease an operation which its language will not sustain. The clause cannot, I think, be read as imposing the continuing obligation throughout the term of the lease which is essential if the applicants' submissions are to be accepted. Whether the lessee at the time ik 20. fulfilled its obligations under clause l(c) may, as I have already said, be debatable. Its failure to do so, or to comply with its obligations under clause 1l(e) as to the time within which the approved buildings were to be erected, may have provided grounds for the determination of the lease but no action in that regard was, in fact, taken. But, whether the lessee fulfilled those obligations or not cannot, so it seems to me, effect the legality of decisions made in 1987 permitting work to proceed for the erection on the land of a dwelling and garage to be used for a purpose clearly within the purpose clause of the lease, namely as a manse. The lack of substance in the submission was, I think, demonstrated by the way in which it was first formulated by counsel for the applicants. He described what had occurred as amounting to "a breach of the spirit" of the requirements of the lease. That way of putting the matter falls far short of a contention that what is being done is in contravention of the terms of the lease. ~. The second matter upon which the applicants rely is an apprehended breach in the course of the approved building operations of the provisions of s.3 of the Roads and Public Places Ordinance 1937 (A.C.T.} which relevantly provides that, subject to the section, the Minister may fix or alter the level of any public road and, further, that the level of any public road is not to be fixed or altered before an opportunity is given to persons interested in such fixation an es wee es wlob eee es ye yng er 2 2l. or alteration to be heard in relation thereto. Provision is made for the giving of notice of the Minister's intention to fix or alter the level of a public road and for interested persons to be heard. "Public road" is defined in s.2 to mean any street, road, lane, thoroughfare, footpath or place open to, or used by, the public. The contention is that the contours of the land adjoining Wylie Street, Narrabundah at the place where a driveway is to be constructed giving access from Wylie Street to the garage to be erected on the subject land are such that an excavation of the nature strip will be necessary to permit the driveway to he constructed at an acceptable gradient. It is further contended that, the nature strip being within the above definition of "public road" and the procedures prescribed by the Ordinance not having been carried out, the decision to issue a building permit in respect of the work was not lawfully made. The short answer to this contention is that the approved plan for' the driveway does not authorise or permit any excavation of the nature strip in the course of constructing the driveway. Further, the evidence does not show or suggest that the driveway will be constructed otherwise than in accordance with that approved plan. It follows from what I have said that, in my opinion, the applicants have failed to establish that there 22. is a serious question to be tried on the hearing of the substantive application such as to warrant the grant of an interloctuory injunction restraining the third respondent from having constructed on the site the dwelling and garage for use as a mMmanse. The application is, therefore, dismissed. The applicants must pay the respondents' costs of the application. I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein.of the Honourable Mr Justice Neaves. . Vicky Rtowr Associate Dated: 6 October 1987 Mr S.L. Walmsley Mr B. Collaery Counsel for the applicants Solicitor for the applicants Counsel for the First and Mr C. Erskine second respondents Solicitor for the 'first and second respondents Counsel for the third Mr I.W. Nash respondent Solicitors for the third respondent Date of hearing 1 October 1987 oe Australian Government Solicitor Macphillamy Cummins & Gibson reece oer