//
[2005] VSC 231
General information, not legal advice.
Supreme Court of Victoria
2005-06-30
HARGRAVE J
Original judgment source is linked above.
STATUTORY INTERPRETATION - Decision of Building Appeals Board to affirm decision by municipal surveyor to make a Building Order under s.111 of the Building Act 1993 (Vic.) - Whether Building Order adversely affected or interfered with property rights - Whether statutory power to make a Building Order authorised municipal surveyor to make an order which affected existing property rights - Building Act 1993 (Vic.), Part 8, ss., , , , , , , .
1 On 20 December 2004 Master Wheeler granted to the appellant ("Ms Beech") an order for review under the Administrative Law Act 1978 to review a determination of the first respondent ("the Board") made on 22 November 2004 ("the Determination").
2 By clause 15(3)(c) of Schedule 3 of the Building Act 1993 ("the Act") the Board is expressly bound to act in accordance with the rules of natural justice. The Determination by it is therefore a decision which is subject to review under the Administrative Law Act.[1]
3 Determinations of the Board can be reviewed under the Administrative Law Act.[2] In an application of this kind, the actual Board members are appropriate respondents[3], and they are collectively named as the first respondents in this proceeding. In this regard, the Victorian Government Solicitor, has advised the Court that the Board does not intend to take any active role in the proceeding.
4 The active respondents to the proceeding are the second respondent ("City of Yarra") and the third and fourth respondents who own a property which is contiguous to the property of Ms Beech ("the neighbours").
5 The Determination of the Board was made in respect of two matters. First, the Board heard and determined an appeal by Ms Beech against the decision of the building surveyor of the City of Yarra ("the building surveyor") to serve a Building Order dated 26 November 2003 on her (the "Building Order"). The Building Order required Ms Beech to carry out certain building works to her property at 128 Vere Street, Abbotsford, Victoria ("128"). The Board determined to dismiss the appeal of Ms Beech and to affirm the decision of the building surveyor as set out in the Building Order.
6 Secondly, the Board determined an application by Ms Beech under s.158 of the Act. By that application, Ms Beech sought from the Board an adjudication pursuant to s.158 of the Act as to the appropriate cost of rectifying a party wall ("the party wall") between 128 and the adjoining property at 128A Vere Street, Abbotsford, Victoria ("128A") and as to the amount (if any) which each owner of 128 and 128A ought to contribute to the cost of rectifying the party wall. In this regard, the Board ordered that the appropriate cost of rectifying the party wall was the cost of performing certain works proposed by the neighbours and that Ms Beech should bear all of those costs.
7 Ms Beech is the registered proprietor of 128. It is a single storey double-fronted brick dwelling which shares a common boundary with the property owned by the neighbours at 128A. The building on 128A is double storey.
8 There is a party wall easement between 128 and 128A ("party wall easement").
9 There is a carriageway easement over 128A in favour of 128 ("carriageway easement"). This carriageway easement runs, in part, under three brick arches which provide partial support for the second storey of the building on 128A.
10 In late 1996, before Ms Beech had become the owner of 128, building works were undertaken within 128. These works involved the removal of certain ceiling joists in 128.
11 On 1 September 2003, the building surveyor carried out an inspection of the party wall between 128 and 128A at the request of Ms Beech ("the inspection"). The reason for the inspection was that the party wall was bulging and encroaching into some of the rooms in the building on 128.
12 Following the inspection, the building surveyor issued the following documents:
(1) Pursuant to s.102 of the Act, an Emergency Order dated 3 September 2003 addressed to the neighbours ("Emergency Order"). The Emergency Order required the neighbours to prop one of the brick arches on 128A, being a brick arch which is laterally and vertically supported by the party wall ("the arch").
(2) Pursuant to s.106 of the Act, a Building Notice dated 3 September 2003 addressed to the neighbours ("the 128A Building Notice"). The 128A Building Notice required the neighbours to show cause why rectification work should not be carried out to both the arch and the party wall.
(3) Pursuant to s.106 of the Act, a Building Notice dated 4 September 2003 addressed to Ms Beech ("the 128 Building Notice"). The 128 Building Notice required Ms Beech to show cause why rectification works should not be carried out to the party wall.
13 Each of the Emergency Order, the 128A Building Notice and the 128 Building Notice stated that it was the opinion of the building surveyor that the building referred to therein was "a danger to life, safety or health of any ... person using the building."
14 As a result of the issue of the Emergency Order and the 128A Building Notice, the neighbours immediately engaged an engineer, Michael Finn of Parkhill Freeman. On 4 September 2003, Mr Finn provided a specification for temporary propping of the arch ("the props"). By 5 September 2003, the props had been installed to the satisfaction of Mr Finn. The work was performed at a cost of $2,090 to the neighbours. Pursuant to s.104 of the Act, on 9 September 2003 the building surveyor cancelled the Emergency Order.
15 In compliance with the 128A Building Notice, the neighbours provided to the building surveyor a report prepared at their request, and cost, by Parkhill Freeman. This report was prepared by Mr Finn. In it, Mr Finn expressed his opinion that the arches on 128A had settled and cracked as a consequence of the lateral movement of the party wall following the removal of the ceiling joists in 128. Further, Mr Finn was of the view that the bulging in the party wall was caused by the removal of the ceiling joists in 128.
16 Mr Finn recommended that building work be carried out within the building on 128 by installing steel wall restraint beams horizontally along the party wall for the length of the second and third bedrooms in 128 ("the restraint beams"). Mr Finn recommended that the restraint beams be located between the former ceiling level and the window head level. This would provide lateral restraint against further bulging of the party wall. I will refer to the works recommended by Mr Finn of Parkhill Freeman as "the Parkhill Freeman design solution".
17 The neighbours obtained a quotation for the carrying out of the Parkhill Freeman design solution, in the sum of $4,200.
18 In a further report by Mr Finn dated 18 November 2003, he opined that the props which had already been installed under the arch were adequate to permanently support the arch.
19 In response to the 128 Building Notice, Ms Beech submitted to the building surveyor a one-page report dated 3 October 2003 from an engineer, Charles Snashall. Mr Snashall had been involved in the certification of the building permit which led to the removal of the ceiling joists in 128. In his report, Mr Snashall opined that the bulging in the party wall was caused by structural inadequacies in the arches. He recommended that the arches be demolished or buttressed prior to any repair or reinstatement of the party wall.
20 Following the receipt of the reports of Mr Finn and Mr Snashall, the building surveyor obtained expert engineering advice. Following receipt of that advice, the building surveyor requested further submissions from Ms Beech and the neighbours. The neighbours provided further submissions as requested. Ms Beech did not do so, either within the time specified or at all. In any event, it is apparent that the building surveyor determined to accept the Parkhill Freeman design solution.
21 On 26 November 2003, the building surveyor, acting pursuant to the power given to him in s.111 of the Act, made the Building Order. The Building Order requires Ms Beech to carry out building work within the building on 128 by installing the restraint beams, as recommended in the Parkhill Freeman design solution.
22 The Building Order was served on Ms Beech under cover of a letter dated 26 November 2003 from the building surveyor. The letter stated:
"I have made the Building Order because I am of the view that the Boundary Wall is a danger to the life, safety or health of any member of the public (namely, a person using s.128A Vere Street) or to any person using the building on your property. I have formed this view on the basis of independent advice, received from a structural engineer engaged by the Council, which confirms representations made to me on behalf of the owner of 128A Vere Street. I note that you have not provided me with any information to contradict the advice or the representations."
23 Also on 26 November 2003, acting pursuant to s.110 of the Act, the building surveyor cancelled the 128A Building Notice. This cancellation was by letter dated 26 November 2003 from the building surveyor to the neighbours ("the 26 November letter"). In the 26 November letter, the building surveyor also advised the neighbours of the Building Order. He stated that, in his view, the party wall was a danger to the life, health or safety of any person using the building on 128 and that it would be appropriate for the owner of 128 to be required to carry out the rectification work described in the Parkhill Freeman design solution.
24 The building surveyor concluded the 26 November letter with the following statement:
"Finally, you should note that even though [the 128A Building Notice] is being cancelled, you are still required to maintain the existing propping to the brick arches on your property (or otherwise ensure the stability of the arches). This is the case regardless of whether the rectification work required by the Building Order is carried out or not." (Emphasis added).
25 Ms Beech did not comply with the Building Order. Instead, she exercised her right under s.142(2) of the Act to appeal to the Board against the Building Order. Further, pursuant to s.158 of the Act, Ms Beech referred the dispute about the party wall and the cost of repairs to it, to the Board.
26 Ms Beech was unsuccessful before the Board in all respects. As I have said, the Board determined to affirm the decision of the building surveyor to make the Building Order and ordered that all of the cost of carrying out the building works pursuant to the Building Order should be paid by Ms Beech.
27 The Determination is in writing. The Board found, among other things:
(1) "Following perusal of numerous expert reports and such experts providing information orally to this Board, the Board finds, as a matter of fact, that the party wall is unsafe and presents sufficient danger to warrant the Board exercising its discretion to require the appellant to carry out the building works prescribed by the Council's Building Order."
(2) "Having carefully considered the expert reports and their information provided to this Board under pain of section 246 of the Act, this panel prefers the conclusions advanced by Messrs. Connard, Finn and Gibney. Hence, the Board's conclusion is that the removal of the ceiling joists within the building at 128 Vere Street by Ms Kat's agents[4] ultimately removed lateral support to the party wall causing it to subside and to become dangerous."
(3) "The Board is also satisfied, as an issue of fact that the building works prescribed by the Council in the Building Order is [sic] the most appropriate method to rectify the damage caused to the wall.
The Board is fortified in its view by the evidence and reports prepared by Messrs. Finn, Connard and Gibney who each preferred the Council's solution to that propounded by Mr. Moore for the appellant."
28 I was informed by counsel during the hearing of the case that Ms Beech has still not performed the works required by the Building Order.
29 Ms Beech seeks from this Court an order in the nature of certiorari quashing the Determination and requiring that Ms Beech's appeal against the Building Order, and her application under s.158 of the Act, be remitted to a newly constituted Building Appeals Board (i.e. not including any of the members of the Board who made the Determination) for a re-hearing de novo.
30 It is apparent that Ms Beech seeks to have a re-hearing before a differently constituted Building Appeals Board because she desires to avoid the factual findings made by the Board and referred to above as to the cause of the failure of the party wall.
31 Mr Levin, QC and Mr Laird, who appeared on behalf of Ms Beech before me, submitted that the effect of the Building Order if complied with by Ms Beech, will be to permanently affect her property rights because:
(1) The Building Order does nothing to rectify the existing bulges in the party wall, which encroach upon the property at 128;
(2) The works required by the Building Order will cause further encroachment into the property at 128, by the construction of the restraint beams;
(3) The construction of the restraint beams will create a de facto easement of support in favour of 128A provided by the owner of 128. This is because each of the restraint beams is required by the Building Order to be fixed to two cross-walls within 128 to provide the necessary structural strength to ensure that the restraint beams can bear the load of any further failure of the party wall, however caused; and
(4) The Building Order perpetuates the encroachment of the props onto the carriageway easement.
32 By reason of these matters, it was submitted that the Building Order requires building works which will have the effect of altering title in a manner adverse to Ms Beech as the owner of 128. In other words, Ms Beech will be deprived of a vested property right.
33 It was further submitted on behalf of Ms Beech that none of the provisions of the Act authorised the building surveyor, or the Board, to make or confirm the Building Order. It was submitted that the provisions of the Act which authorise the making of building orders do not evince an intention by Parliament to authorise a building surveyor, or the Board, to make building orders which infringe upon vested property rights. Accordingly, the building surveyor and the Board did not have jurisdiction to make or affirm the Building Order.
34 Mr O'Brien, who appeared on behalf of the City of Yarra, and Mr Oliver, who appeared on behalf of the neighbours, submitted that:
(1) Compliance with the Building Order will not affect any property right of Ms Beech. Her property rights will remain unaffected and, subject to any possible arguments which the neighbours might raise concerning issue estoppel, Ms Beech remains free to pursue against the neighbours any remedies to which she may be entitled under the law. For example, an action for nuisance. Further, Ms Beech can, if she so wishes, apply for a permit to have the party wall demolished and reconstructed so as to remove any encroachment on 128 caused by the bulges.
(2) Alternatively, if the works required by the Building Order will have the effect of depriving Ms Beech of vested property rights, the power to make a Building Order with that result was intended by Parliament. To hold otherwise would undermine the clear intention expressed in the Act to give power to a building surveyor to make building orders to protect the safety and health of people who use buildings.
35 In my opinion, the arguments of the respondents should be accepted at both levels. The building works required by the Building Order will not have the effect of depriving Ms Beech of vested property rights. If I am wrong about this, it is my view that the Act does authorise a building surveyor to make a building order which affects property rights, at least in circumstances where, in the opinion of the building surveyor, there is a danger to the safety of people who use the building which is the subject of the order.
Does the Building Order interfere with the property rights of Ms Beech?
36 In my opinion, none of the four reasons advanced on behalf of Ms Beech as to why the Building Order interferes with her property rights should be accepted. I will take each of these reasons in turn.
37 First, it was submitted that the Building Order does nothing to rectify the existing bulges in the party wall and the encroachment of those bulges into the property at 128. This may be correct. However, this does not mean that the Building Order does anything to affect the title of Ms Beech to the property at 128. It is not the purpose or effect of the Building Order to rectify the encroachment. The purpose of the Building Order is to protect the life, safety or health of those using the buildings at 128 and 128A. The Building Order says nothing about, and has no effect upon, any common law right which Ms Beech may have to pursue an action against the neighbours for trespass, nuisance or any other remedy arising out of the encroachment of the party wall into 128.
38 Secondly, it is submitted on behalf of Ms Beech that the Building Order interferes with her property rights because it requires works to be done which will cause further encroachment into the property at 128, by the construction of the restraint beams. I do not accept this. The title of Ms Beech to the property at 128 will remain with her. The Building Order says nothing about this. Property in the restraint beams will be that of Ms Beech.
39 Thirdly, it is argued for Ms Beech that the construction of the restraint beams will create a de facto easement of support in favour of 128A provided by Ms Beech as owner of 128. I do not accept this submission. Such an easement may possibly arise in the future under the common law if the restraint beams remain in place indefinitely. However, there is nothing to prevent Ms Beech, or any subsequent owner of 128, applying for a permit to demolish and re-build the party wall, thus removing the need for any restraint beams. The Building Order does not create any easement. It simply orders that works be performed which may possibly, in the future, form the basis of a claim for an easement of support.
40 Fourthly, it is argued on behalf of Ms Beech that the Building Order perpetuates the encroachment of the props on to the carriageway easement. In my opinion, the Building Order does nothing of the sort. It makes no reference to the props or the carriageway easement. The props were erected pursuant to the Emergency Order. That order was cancelled on 9 September 2003. There has been no appeal against the cancellation of the Emergency Order. Nor has there been any appeal against the cancellation of the 128A Building Notice.
41 The requirements of the City of Yarra regarding the maintenance of the arches are wholly irrelevant to the Building Order. This is expressly stated in the 26 November letter, as referred to above.
Does the Act authorise a Building Order which interferes with property rights?
42 As I have said, even if I am wrong on the first issue discussed above, and the Building Order does interfere with the property rights of Ms Beech, I am of the view that the Act authorised the making of the Building Order in the circumstances of this case.
43 It is first necessary to consider the relevant provisions of the Act. I begin with the purpose and object of the Act. On behalf of Ms Beech, it was submitted that the purpose of the Act is contained in s.1. Section 1 of the Act provides:
The main purpose of this Act is to provide for the regulation of building and building standards."
44 However, the objects of the Act are more fully stated in section 4. In particular, I note the object specified in s.4(c):
(c) to enhance the amenity of buildings and to protect the safety and health of people who use buildings and places of public entertainment;"
This object of protecting the safety and health of people who use buildings is, in my view, central to the interpretation of Part 8 of the Act. It is Part 8 of the Act which authorises emergency orders, building notices and building orders to be made, served and enforced.
45 Division 1 of Part 8 deals with emergency orders. By s.102(1) a municipal building surveyor is authorised to make an emergency order where there is danger to life. Section 102(1) provides:
(1) A municipal building surveyor may make an emergency order under this Division, if he or she is of the opinion that the order is necessary because of a danger to life or property arising out of the condition or use or proposed use of a building, the land on which building work is being or is proposed to be carried out or a place of public entertainment."
46 Under s.103(1)(c), an emergency order may require the owner of a building to carry out building work or other work necessary to make the building safe.
47 Section 104 of the Act provides that an emergency order remains in force until it is complied with or it is cancelled by the municipal building surveyor under s.105 or by the Building Appeals Board under s.142.
48 In argument, counsel for Ms Beech conceded that there was a clear statutory intent to authorise the making of an emergency order which would interfere with property rights. This concession was made because, so it was submitted, an emergency order was something intended to be interim in nature and not permanent. However, there is nothing in Division 1 of Part 8 which indicates that this is so, at least insofar as an emergency order requires a building owner or occupier to carry out building work. Section 103(2) provides that, insofar as an emergency order prohibits the occupation of a building, that prohibition must not exceed a period of 48 hours. There is no equivalent provision with respect to an emergency order which requires building work to be carried out in order to ensure that a building is safe.
49 Division 2 of Part 8 deals with building notices and building orders. I note that the power to make a building order only arises after the service of a building notice and the consideration by the municipal building surveyor of any representations made by the owner of the building concerned.
50 Section 106 of the Act authorises a municipal building surveyor to serve a building notice on the owner of a building in certain specified circumstances. One of those circumstances is contained in s.106(d), which provides:
Subject to section 107, a municipal building surveyor or a private building surveyor may cause a building notice to be served on an owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment if the building surveyor is of the opinion that any one of the following circumstances exists -
(d) the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property."
This requirement reflects the public safety object of the Act specified in s.4(c). Each of the 128 Building Notice and the 128A Building Notice, and also the Emergency Order and the Building Order, was served in the circumstance specified in s.106(d) of the Act.
51 By s.108(1)(b)(ii) of the Act, a building notice may require the owner of a building to show cause within a specified period why the owner should not carry out building work in relation to the building. Each of the 128 building notice and the 128A building notice contained such a requirement.
52 By s.109 of the Act, a building owner may make representations to the relevant building surveyor about the matters contained in the building notice. This occurred in this case.
53 By s.110 of the Act, the relevant building surveyor who issues a building notice may cancel it if he or she considers it appropriate to do so after considering any representations made under s.109. This is what happened in this case in respect of the 128A building notice.
(1) Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.
(2) Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.
(b) prohibit the occupation of a place of public entertainment or its use for public entertainment; or
(c) require the owner of a building, land on which building work is being or is proposed to be carried out or place of public entertainment to do either or both of the following things within a specified time or times -
(ii) carry out building work, protection work or other work required by the regulations or to carry out a program of that work as directed in the order."
55 By s.111(1) of the Act, a municipal building surveyor is authorised to make a building order after the end of the time allowed by the relevant building notice for making representations. That is what happened in this case in respect of the 128 building notice.
56 Section 111(2) of the Act provides that, before making a building order, the relevant building surveyor must consider any representations made by the owner of the building concerned. That happened in this case. Representations were made by or on behalf of Ms Beech before the Building Order was made.
57 By s.111(3)(c)(ii) of the Act, a building order may require the owner of a building to carry out building work. That is what the building order did in this case.
58 In my opinion, when construed as a whole, Part 8 of the Act expressly and unambiguously authorises the making of any building order which the relevant building surveyor considers necessary to protect the health and safety of persons using a building which, in the opinion of the building surveyor, is a danger to the life, safety or health of any person using the building. It would defeat the public safety purpose and object of the Act, and in particular, the provisions of Part 8 of the Act, to read down the power to make a building order in such circumstances to exclude any building order which has the effect of altering property rights.
59 On behalf of Ms Beech, it was submitted that it is a basic presumption of statutory interpretation that a statute is not intended to alter common law doctrines, either by extension or limitation, unless that intent is expressed clearly and unambiguously. It was submitted that the mere use of general words in a statute does not provide the requisite authority to override fundamental legal principles, infringe rights or depart from the general system of law.
60 I accept that there is a presumption that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so.[5] I note that the strength of the presumption has, in recent times, been doubted.[6] Notwithstanding these doubts as to the strength of the presumption, I accept its continued applicability.
61 The presumption requires that I should not impute to the legislature an intention to interfere with fundamental rights, such as property rights, unless that intention is "clearly manifested by unmistakable and unambiguous language".[7]
62 In my opinion, Parliament has clearly manifested its intention, by unmistakable and unambiguous language, to grant to a municipal building surveyor the power to make a building order which may adversely affect the property rights of a person. There is no ambiguity in any of the language of the Act referred to above. Further, in my opinion, it would defeat the public safety object of the Act expressed in s.4(c) - "to protect the safety and health of people who use buildings" - to use the presumption against statutory interference with fundamental rights to limit the power of a municipal building surveyor to the making of orders which do not adversely affect the property rights of any person.
63 It follows that the order for review of the determination of the Board must be discharged. I will order as follows:
Beech
Building Appeals Board [2005] VSC 231
(1908) 7 CLR 277
(1910) 11 CLR 258
(1990) 171 CLR 1
(1994) 179 CLR 427
(2001) 204 CLR 290
(2003) 214 CLR 269