Page 2878 - Week 09 - Thursday, 27 September 2007
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Waramanga couple received permission to extend their home. Twenty seven years later, it continued, the work was incomplete and frustrated neighbours had almost given up hope that they would ever see it finished. The Chairman of the Weston Creek Community Council described the block as a building site and had been in that condition for almost living memory.”
After the Tribunal handed down its decision the lessees chose to appeal that decision to the ACT Supreme Court. The lessees were advised at that time that unlike the Tribunal the ACT Supreme Court is a cost jurisdiction and that should they be unsuccessful in their claim they would be liable for the full cost of both parties.
The ACT Supreme Court upheld the decision of the Tribunal and remitted the matter back to the Tribunal to adjust the dates in the schedule to allow for the time taken for the scheduling and hearing of the appeal.
Justice Crispin in handing down his decision said of the section of the order dealing with the bamboo
“In the present case I see no difficulty in the interpretation of this order. It seems to me to have been phrased with commendable clarity and the objections to it really seem to have been based on a reluctance to comply with it”.
The Tribunal revised its order and changed the dates for compliance with the Order from August 2003 to 6 December 2004 and from November 2004 to 5 March 2005.
(2) No.
However it should be noted that the matter in question, specifically what does the term “to the satisfaction of the Territory” mean with respect to this matter were dealt with during the hearing in the ACT Supreme Court. Justice Crispin in his decision wrote that:
“The eighth ground of appeal alleged:
8. The Tribunal erred in the orders made, which are incapable of compliance by reason of imprecision and/or exposing or requiring the appellants to commit civil or criminal wrongs in order to effect compliance.
84. The first of the substituted directions requires the lessees to “comply with the terms of the approval in plans 26446 D, E, and F (or in amended plans that may be approved in writing by the Territory) to construct extensions to the existing residence and related works on block 45, section 37 Waramanga …”. As I have mentioned, there were no explicit terms in the approval and, if these words had to be construed without reference to their context, some confusion could arise. However, the words were immediately followed by the direction “all the works to be completed by 5 November 2004 or within such further time as may, prior to that date, be agreed in writing by the Territory”. In this context it seems relatively clear that that compliance requires completion of the works approved by that date. Furthermore, perusal of the reasons for judgment reveals, as I have already mentioned, a debate about the words “terms of approval” and extensive discussion
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