STAN Constructions Pty Ltd v Williams

High Court of Australia Gibbs CJ Mason, Murphy, Aickin and Brennan JJ. STAN Constructions Pty Ltd v Williams

ORDER Appeal dismissed. No order as to costs.

Judgment reserved.

Gibbs CJ, Mason, Murphy, Aickin and Brennan JJ.

THE COURT delivered a joint judgment. In the Supreme Court of the Australian Capital Territory, Blackburn J., as he then was, refused the appellant an order nisi for a prerogative writ to challenge the validity of a notice given to it by the respondent as building controller on 4th February, 1975. The notice required the appellant to restore a building containing residential fiats to the condition in which it stood before some alterations were carried out by the appellant's predecessor in title. By s 46(1)(a) of the Building Ordinance 1972-1974 ACT, the respondent was empowered to give such a notice if the alterations had been carried out without a permit having been issued under the Canberra Building Regulations. No permit had been issued in respect of those alterations under the Canberra Building Regulations in force at the time when the alterations were made. Subregulation 11(1) purported to require a written permit to authorize the altering of a building, but the appellant challenged the validity of that subregulation and sought relief on the ground that there was no valid provision of the Canberra Building Regulations which required a permit to authorize the altering of an existing building.

To ascertain whether the Canberra Building Regulations in force at the relevant time required a permit to authorize the altering of an existing building, it is necessary to find a pathway through a maze of statutory instruments, and to inquire into the effect which a series of ordinances have had upon a set of regulations made on 16th October, 1924. The instruments which must be examined to discover what regulations govern alterations to buildings in Canberra are needlessly complex. Litigation in the Supreme Court in 1973 in Agua Marga Pry Ltd v. Minister of State for the Interior (1973) 22 F.L.R. 136 exposed their complexity and the present lengthy litigation adds its testimony to the costs and inefficiency which attend the absence of a contemporary building code.