//
[2011] VSC 79
General information, not legal advice.
Supreme Court of Victoria
2011-03-11
OSBORN J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Judicial review - Building Appeals Board - Whether failure to consider relevant considerations - Whether reasons demonstrate failure to have regard to relevant considerations - Whether failure to provide natural justice - Whether failure to give adequate reasons - Whether deficient reasons vitiate decision-making process - Sherlock v Lloyd [2010] VSCA 122.
ADMINISTRATIVE LAW - Judicial review - Building Appeals Board - Refusal to exercise jurisdiction - Construction of (Vic) - Whether siting regulations apply to finished occupied buildings - Power to modify regulations - Modification potentially provides a change in circumstances relevant to enforcement provisions - (Vic) , , , , , , - (Vic) r 417.
PRACTICE AND PROCEDURE - Building Appeals Board - Standing - Meaning of 'any other party concerned' - Procedural fairness - Building Act 1993 (Vic) sch 3 cls 13, 14.
For the Secondnamed, Thirdnamed and Fourthnamed Respondents
1 Section 16 of the Building Act 1993 ('the Act') provides that a person must not carry out building work unless a building permit has been issued in respect of the work and remains in force and the work is carried out in accordance with the Act, the Building Regulations 2006 ('the Regulations') and the permit.
2 In late 2007 the appellants as owner-builders ('the owners') commenced construction of a two storey timber extension to a dwelling in Murrumbeena.
3 The work was commenced without a building permit, although the owners maintain they believed one had issued as a result of advice from their architect.
4 The works also failed to comply with building regulations requiring specified setback separations from the southern side boundary of the owners' property.
5 The most significant of these requirements was that of reg 417, which imposes additional setback requirements where a north facing habitable room window of an existing dwelling on any adjoining allotment is within three metres of the boundary of the allotment on which the building is to be constructed.
6 Regulation 417 required setbacks in accordance with the following table:[1]
Minimum setback from side or rear boundary at that point
1m plus an additional distance calculated at the rate of 600mm for every metre of height over 3·6m
3m plus an additional distance calculated at the rate of 1m for every metre of height over 6·9m
7 The regulation further provided by cl 6:[2]
(6) The report and consent of the relevant council must be obtained to an application for a building permit in relation to a design that does not comply with this regulation.
The following diagram illustrates the operation of aspects of regulation 417.
Regulation 417: Solar access to existing north-facing habitable room windows
8 No report or consent of the relevant council ('the council') had been obtained at the date of commencement of the works. Nor was consent subsequently obtained (a matter to which I shall return). Accordingly, the relevant building surveyor had no power to issue a building permit at the time the works commenced or indeed as they progressed.
9 The relevant building surveyor was a private building surveyor engaged under s 78 of the Act. Notice of his retainer was given to the council under s 80 of the Act on 17 October 2007. Thereafter he had the function of issuing building permits and carrying out inspections of buildings and building works under Parts 3 and 4 of the Act.[3]
10 In December 2007, the council raised with the building surveyor the fact that works had commenced without a building permit. The building surveyor responded to the commencement of the works on 21 January 2008 when he issued a building notice pursuant to s 106 of the Act. The notice stated in part:
11 It is common ground that the permit situation was not rectified within the subsequent 30 days. On 4 April 2008, the building surveyor issued a building order pursuant to s 111 of the Act. This stated in part:
(i) Remove/demolish all works constructed with out [sic] a building permit as required by the Act.
13 The Board may affirm, quash, or vary the decision under appeal. It may set aside the decision and substitute its own decision or remit the decision to the decision maker for reconsideration in accordance with directions or recommendations.[6] It has all the powers of the decision maker in relation to the decision under appeal.[7]
14 By solicitor's letter of 11 February 2009, the owners stated to the Board that the grounds of the appeal were that 'the matters specifically required to be done under the Building Order are inappropriate given all the circumstances.' The nature of the relief sought was that 'the Board make a determination under s. 149 of the Act to either quash, vary or set-aside the Building Order as deemed appropriate.'
15 On the hearing of the appeal, counsel for the owners of the neighbouring property (whose dwelling had habitable windows to the south of the owners' extension) sought an order to have them joined as parties. The Board refused this request but indicated that it would hear them pursuant to its power to obtain information. Schedule 3 cl 15(3)(b) of the Act provides that the Board may inform itself in any manner it thinks 'fits' [sic] and that it is not bound by any rule or practice as to evidence.[8] The Board is bound by the rules of natural justice.[9] Further, it must proceed with as little formality and technicality and with as much expedition as the requirements of the Act and the Regulations and the proper consideration of the matter before it permit.[10]
16 The owners' case was put by their solicitor on two principal bases. Namely that construction had occurred when the owners believed that they had the requisite permit and that the breach of the regulation was minimal. It was submitted that the Board's discretion was broad enough to let the breach 'go through to the keeper' and allow the extension to remain rather than ordering demolition or rectification.
17 In the course of the hearing the building surveyor produced a letter from the municipal building surveyor of the relevant council which analysed the relevant underlying breach of the setback regulations. The building surveyor also produced an elevation depicting spatially the extent of the breach at the front elevation of the owners' dwelling. The neighbours' counsel also tendered photographs of shadowing in the as built situation including photographs taken on 8 April 2008 (ie some 17 days after the equinox).
18 The owners relied on shadow diagrams showing the difference in modelled impact of shadow effects caused by a structure complying with the regulations and the as built structure as at the equinox.
19 I am satisfied that the evidence as a whole plainly demonstrated that the breach of the Regulations was not 'minimal'.
20 I am also satisfied that the case put to the Board at that time was not one that the standard comprised in reg 417 should itself in the circumstances of the case be varied. Such an application could be made under s 160 of the Act, but was not made at that time.
21 The Board may determine under s 160 that a provision of the Regulations apply to a building or land in a modified form.[11] The power to do so is constrained both procedurally and by a requirement as to necessary preliminary opinions conditioning the relevant discretion. In particular, the Board must consult any authority that would be a reporting authority if the application were an application for permit (which in this instance would include the council).[12] It must also not determine that a provision of the Regulations applies in a modified or varied form unless it is satisfied that to do so is reasonable and not detrimental to the public interest.[13]
22 It is clear that the initial application determined by the Board was not a s 160 application. Theoretically, s 160 might potentially provide a mechanism for a site specific determination of the appropriateness of the application of reg 417.
23 Subsequent to the determination of the s 142 application (and to the institution of proceedings in this Court with respect to that determination) separate application was made to the Board by the owners pursuant to s 160. The Board declined to hear that application stating that it did not have power to hear such an application with respect to a completed building.
24 For reasons I shall explain I have reached the view that this refusal was wrong in law and that the s 160 application should be referred back for hearing by the Board.
25 It may be that the determination of that application will render strictly unnecessary the determination of the application for review in respect of the Board's first decision under s 142. This is because s 116 of the Act provides that an owner required to comply with a building order may, if there is a change in circumstances after the service of the order, request the relevant building surveyor to amend or cancel the building order.[14]
26 Accordingly, if the s 160 application were successful it would provide a change of circumstances, in reliance upon which the owners might seek modification of the building order. In turn if modification were refused such refusal would itself be appellable to the Board. A successful s 160 application thus has the potential to provide the basis to overcome the building order.
27 Nevertheless, for the sake of completeness it is necessary to also resolve the first application for review. If the s 160 application fails before the Board then the correctness of the Board's first decision will be determinative of the continuation of the building order.
28 For reasons I shall explain I have also reached the view that the Board's first decision should not be set aside on the grounds pursued before me because:
(a) I am not satisfied the Board failed to have regard to matters relied upon by the owners;
(b) although I accept the Board failed to give adequate reasons for its decision, I do not accept that the deficiency warrants interference with its determination in the circumstances of the case; and
(c) I do not accept that the Board failed to give the owners natural justice in respect of documents produced before it in the course of the hearing.
29 In summary, I have concluded that the challenge to the Board's decision on the s 142 appeal fails, but that the owners' application pursuant to s 160 should be remitted for hearing on the merits by the Board.
30 I will now elaborate my reasons in respect of both the first and second applications for review.
31 The first appeal to the Board was refused by a determination which included the following statement:
Nature of Appeal
Appeal pursuant to Section 142(2)(a) of the Building Act (the Act) between the owner of the building or land and the relevant building surveyor (RBS) against the making of a building order under section 111 of the Act.
Decision/s of the Panel
Having considered all the submissions and information placed before it, the Board determines pursuant to section 149(1)(a) of the Act, to affirm the making of the building order dated 11 April 2008.
Reason/s of the Panel
The Board was satisfied that the original decision of the RBS was correct and appropriate in the circumstances.
The extension to the building has been constructed without a building permit, does not comply with the Building Regulations 2006 and the Appellant has not obtained Council approval for any dispensation.
It is noted that:-
The documentation provided on behalf of the Appellant subsequent to the Hearing has not been considered by the Board in accordance with the Board's advices to the parties at the conclusion of the Hearing that no further submissions would be considered unless further information was requested by the Board.
32 It is this decision which is the subject of the first application for review pursuant to the provisions of the Administrative Law Act 1978. An order nisi was granted by Daly AsJ on 16 November 2009 which raises a series of extended and detailed allegations of error of law.
33 When the matter came before me the owners' case was, however, confined to a series of propositions falling within the order nisi but of more limited ambit.[15] It was acknowledged by counsel for the owners that the grounds of the order nisi went beyond those pursued before the Court. I confine my reasons to those matters only which were prosecuted before me. Counsel's outline of submissions stated:
2 The grounds upon which the applicants rely are as follows:
(a) The BAB failed to have regard to relevant considerations, being:
(i) The applicants' submissions and evidence that they believed a building permit had been obtained and that the breach of the Building Act was inadvertent, not deliberate;
(ii) The applicants' submissions and evidence constituted by shadow diagrams that the impact of the breach of regulation 417 of the building regulations was minimal;
(iii) That the registered building surveyor who had issued the building order was satisfied with the standard of construction of the building, and the only concern which lead him to issue the order was the non-compliance with regulation 417;
(iv) The gravity of the effect of the building order on the applicants, as it would require them to completely demolish the two storey extension to their home.
(b) That the BAB failed to give adequate reasons for its decision contrary to schedule 3 clause 16(6) of the Building Act, which constituted an error of law.
(c) That the BAB failed to give the applicants natural justice, by considering written submissions from the 5th and 6th respondents, without giving the applicants an adequate opportunity to consider and respond to them.
34 It is submitted that the Court should infer that the Board failed to have regard to the matters set out in subparagraphs (a)(i) to (iv) above because it fails to refer to them in its statement of reasons.[16] Those reasons were requested pursuant to cl 16(5) of sch 3 of the Act[17] and also pursuant to the provisions of the Adminstrative Law Act itself.[18]
35 When requested to provide reasons, the Board indicated that it relied upon the reasons stated in its determination which I have quoted above. It is convenient to deal with the matters agitated by the owners in reverse order to that in which they are listed in counsel's outline. I turn first to the allegation that the Board failed to have regard to the gravity of the effect of the building order.
36 I do not accept that it can sensibly be inferred that the Board did not have regard to the effects of the order. The determination of the Board records that it considered all the submissions and information placed before it. The starting point of its jurisdiction was the building order and the terms of the building order were explicitly addressed before it. The possibility of an application for approval for a modified building order was also expressly raised by it. The reasons ultimately affirm the original decision of the building surveyor. I am not persuaded that it can be inferred the Board did not have regard to the plain terms of the building order in issue and their potential consequences.
37 Likewise, I am not satisfied the Board failed to have regard to the position of the building surveyor. The non-compliance which was contentious was that with the setback requirements of reg 417. The position of the building surveyor was expressly stated by him to the Board in response to enquiries by it. In particular, he had no concerns as to the adequacy of the structure and made clear that his only concerns were the detail of the architectural drawings and the siting of the building. I see no reason to reject the Board's statement that it considered the information before it. The transcript makes clear that it proceeded on a clear understanding of the position of the building surveyor.
38 I turn then to the aspect of this ground upon which most reliance was placed. As I have stated, the owners' case was presented on the basis that the breach of the standards contained in the regulations in issue was minimal. As the chairman put it back to the owners' solicitor:
... your argument is that given - you acknowledge that it does breach the guidelines but you would argue that it's minimal breach and therefore we should take a practical position and say - and just let it go.
39 Particular reliance was placed upon the consequences of the breach for overshadowing upon existing windows in the neighbouring dwelling.
40 As I have indicated, I do not accept that in fact it was open to regard the non-compliance as minimal.
41 The building surveyor produced to the Board a letter from the municipal building surveyor in substance as follows:
[omitting formal parts]
I refer to your application of 12 February 2008 (additional information 26 March 2008 - neighbour objection received) for Council report (only) pursuant to Regulation 417(6) of the Building Regulations, 2006.
Report:
Council is normally required to consider whether a variation of the siting requirements meets the relevant 'ResCode' Objective, which is 'to allow adequate solar access into existing north-facing habitable room windows'. Council must report as to whether the encroachment meets the Decision Guidelines specified by the Minister's Guideline No.MG/12 issued on June 2006 (Council is only permitted to consent - to an application to construct - if the proposal meets the guidelines).
Site and neighbouring allotment comments:-
The subject 563m2 site had a single-storey timber and pitched (gable-end) tile roof period-style dwelling setback 1.8m minimum from the southern side boundary with a 6.0m maximum (gable-end) wall height* (4.6m wall height* at the rear), incorporating a 0.55m eave overhang (including spouting). Minimal vegetation adjoins the high timber paling/trellis dividing boundary fence. Vehicle access is provided on the northern side. The dwelling has recently undergone major renovations which included the construction of a second-storey addition following the existing setback encroaching into the southern (solar access) side setback. The neighbouring allotment to the south at No.9 has a single-storey dwelling setback 2.57m minimum from the side boundary, with five habitable-room windows facing the northern side boundary (which have 1.14m-1.9m sill heights & 2.54m-3.3m head heights) beneath a 0.4m eave/spouting overhang, generally facing the second-storey addition. Vehicle access is provided on the northern side - vehicle access is possible beside the dwelling into the rear yard (no on-site undercover carparking is provided). Their private open space is to the south-west behind the dwelling in the rear yard.
Relevant Guideline Comments:
(a) the building will not impact on the amenity of existing dwellings on nearby allotments.
With regard to the above Guideline, it is considered that the siting, length and height of the second-storey addition results in uncharacteristic visual bulk which dominates the neighbouring allotment, and is quite inconsistent with residential height/setback expectations being more likely to restrict future development options. The Regulations would seek to achieve a 4.3m minimum separation between the dwellings/eaves - the addition achieves a 3.42m separation between the eave/spouting overhangs. Councils' Shadow diagram analysis (contrary to the inaccurate diagrams submitted) confirms that the upper-storey significantly increases the overshadowing of the neighbours' (raised sill height) habitable-room windows which must impact on daylight and amenity to the affected rooms - it is noted that the eave overhang further exacerbates the restriction on daylight. Moreover, concern is expressed regarding the magnified affect of daylight and amenity caused by overshadowing during the winter period. It is also noted that the 7.2m maximum wall height* encroaches into the required 2.3m minimum side boundary setback pursuant to Regulation 414(2) - no mention has been made of this siting breach.
Obviously, scope was available to increase the addition/eave setback without significant detriment to the use of the upper-storey rooms - Council would have considered a revised partial encroachment of the upper-storey including a complementary eave overhang (given the setback of the neighbouring dwelling) - it may have been that a 2.3m minimum setback in accordance with Regulation 414(2) was possible although the extent of the eave overhang would likely have been restricted.
Notwithstanding the above, concern is expressed regarding the circumstances which have lead to this application. The fact that building works commenced and were allowed beyond frame stage, before the breaches were identified, or Council consent was sought, is unacceptable - continuation of the works to completion before resolution of the matter being quite disturbing - it is the obligation of the Builder and Building Surveyor to ensure compliance. Moreover, the inaccurate drawings which do not show correct building heights and ground levels, as well as the lack of detail regarding conditions on the neighbouring allotment are also a concern - in particular the fact that the inaccurate Shadow diagrams were produced after the siting irregularities were identified. The breaches are significant departures from the siting requirements in the Building Regulations and are well in excess of residential height/setback expectations.
Conclusion;
Council would have resolved to refuse the siting of the timber & pitched tile roof second-storey addition to the existing dwelling at No.7 Rosella Street, Murrumbeena, setback 1.8m minimum from the southern side boundary (having a 7.2m maximum wall height* and a 0.55m maximum eave/spouting overhang), in lieu of 3.3m minimum setback (no eave overhang) where north-facing habitable-room windows on an adjoining allotment are within 3.0m of the boundary as required by Table 417 pursuant to Regulation 417(2) of the Building Regulations, 2006.
Council being of the opinion that the siting height and design does not meet the relevant Decision Guidelines specified by the Minister's Guildline No.MG/12, and in particular does not maintain appropriate neighbourhood character, causing significant loss of amenity and daylight to the adjacent dwelling, private open space and streetscape, despite making efficient use of the site.[19]
42 The building surveyor also produced a plan bearing the council stamp showing in diagrammatic form the extent of non-compliance at the façade of the owners' building.
43 In addition the neighbours produced photographs showing actual shadowing of their home and the juxtaposition of visual bulk with their north facing windows.
44 The evidence made it plain that despite the overshadowing diagrams produced on behalf of the owners, the non-compliance was not minimal. Nor was its impact upon the neighbouring property minimal.
45 That this is in fact so is further confirmed by the terms of the subsequent application which the owners have made for variation of reg 417:
To permit the as-built two storey dwelling addition to remain with a wall height of approximately 7.0 metres and side setback of approximately 1.8 metres in lieu of the required side setback of 3.1 metres (the eave encroaches within this setback).
Note: This is the worst case scenario and occurs at the south-west corner of the dwelling (refer attached plans ... shadow diagrams ...).
46 Moreover, the transcript records the members of the Board directly engaging with those before it concerning the submissions and evidence relating to shadow impact. Once again, I do not accept that the Board's statement that it considered all the material put to it should be rejected. I do not infer that the Board failed to have regard to the owners' submissions and evidence to the effect that the impact of the breach of reg 417 was minimal.
47 The second matter which the owners' solicitor emphasised during the hearing before the Board was that the construction of the extension occurred as a result of an honestly mistaken belief by the owners that they had a building permit.
48 I doubt that such a belief could in itself ever be more than contextually relevant to the exercise of discretion in issue. It cannot be that an owner-builder could rely on the failure of his or her agent to obtain a building permit as itself sufficiently excusing non-compliance with the Act. Senior counsel for the owners accepted as much in discussion during the hearing before me. If however the non-compliance were regarded as minimal, I accept that the fact of honest mistake might be an additional factor favouring the positive exercise of the Board's discretion.
49 More fundamentally however, I am not persuaded that the Board's reasons properly found the inference that the Board did not have regard to this consideration. The transcript demonstrates that the Board engaged directly with this aspect of the case.
50 There is no reason to reject the Board's statement in its determination that it considered all the matters put to it. Accordingly, the first ground of review fails.
51 I turn then to the second ground of review namely that the Board failed to give proper reasons in accordance with sch 3 cl 16(6) of the Act. I accept that the specific statutory requirement to provide reasons places this case in a different category from that of Sherlock v Lloyd & Ors.[20]
52 The reasons contained in the determination do not in terms respond to either of the primary submissions made on behalf of the owners. They do not in terms respond to the basis on which the owners sought a favourable exercise of the Board's discretion. The statement that the Board was satisfied that the original decision of the building surveyor was correct and appropriate in the circumstances does not tell the owners why their case was rejected. Nor does it tell the public.[21] No extensive reasons were necessary but the basis for the rejection of the owners' case should have been stated in summary form. I would adopt what Nettle JA has said in another context:
...reasons are not intelligible if they leave the reader to wonder which of a number of possible routes have been taken to the conclusion expressed. A fortiori they are inadequate when they leave out altogether discussion and resolution of major issues and the role if any which they have been accorded in the ultimate determination.[22]
53 The Board's reasons should have responded to the submissions made that the minimal nature of the breach and the honest mistake of the owner justified the exercise of the Board's discretion with respect to the order in issue.
54 Despite this conclusion however I do not regard the decision-making process as having been vitiated by the failure to give further reasons in circumstances where as I have said:
(a) the underlying non-compliance with the building regulations was not minimal; and
(b) the owners' mistake could not of itself excuse non-compliance; and
(c) the Act provides for another form of application which enables the merits of non-compliance with the regulations to be addressed in accordance with an appropriate procedure and by reference to specific criteria.
55 There is in my view no point in remitting the matter for reconsideration pursuant to s 142 and/or for requiring further reasons from the Board. It is also unnecessary to resolve which of these alternatives would otherwise be justified by a finding of inadequate reasons. I note however that this is not a case in which the statutory duty is to provide reasons as part of the notification of the decision to the parties, but rather by way of response to a subsequent request for it.[23]
56 The third ground of review relates to an alleged failure to provide natural justice in accordance with sch 3 of the Act. As I have stated, the Board is bound by the rules of natural justice pursuant to cl 15(3)(c) of sch 3 to the Act.
57 It is submitted that it was a denial of natural justice to consider written submissions relied on by counsel for the neighbours at the hearing before the Board. There are, I think, three answers to this ground. First the written submissions were in large part directed to the application to have the neighbours joined as parties to the appeal. That application was rejected. The complaint can only relate to the schedule of factual submissions attached to the submissions.
58 Secondly, the schedule to the submissions did contain contentions that:
The construction works carried out at 7 Rosella have involved renovations and extensions to the original single level dwelling which has resulted in a massive building bulk which interferes with the use and enjoyment of the interested parties' property and their property rights and interests by its;
(a) contravention of the minimum setback requirements of Regulation 417 for solar access for the interested parties' north facing windows - a report from Glen Eira Council concluded that the constructed wall height of 7 Rosella of 7.2 m incorporating a 550 mm eave required a minimum setback of 3.3m with no eave projection to comply with Regulation 417. A setback of 3.3 m has not been provided;
(b) construction of eave encroachments into the required minimum setback taken from the boundary line in contravention of Regulation 417;
(c) contravention of Regulation 418 by the overshadowing of the interested parties' private open space;
(d) contravention of Regulation 419 with respect to the overlooking into the interested parties' property from the second floor bedrooms;
(e) causing a diminution in the value of the interested parties' property.
59 Nevertheless the Board made clear that it was interested only in the submissions concerning reg 417. The owners' solicitor was also provided with a copy of the submissions and invited to respond to them.
60 In turn, the extent of the contravention of reg 417 was demonstrated by the evidence before the Board. There is no basis for concluding the Board proceeded by reference to matters other than that which were expressly identified and discussed during the hearing. It was not improper for the submissions to use phrases such as 'massive building bulk'. It was for the Board to address the evidence as to the facts of the matter.
61 Thirdly, the evidentiary bite in the submissions was principally constituted by reference to the letter from the municipal building surveyor which the relevant building surveyor had in any event produced to the Board, and by the photographs taken by the neighbours and attached to the submissions produced to the Board. The import of these documents was plain. They were produced during the hearing. There was no failure to give the owners an opportunity to address them. If the owners' solicitor had so desired, he could have requested an adjournment or asked that the matter be stood down to consider the material. Neither course was adopted. A forensic choice was made as to the manner of the presentation of the owners' case. Likewise, when the neighbours gave brief evidence at the suggestion of the Board they were not cross-examined about the photographs.
62 The requirements of natural justice are flexible[24] and I do not accept that the owners have shown the hearing was unfair.
63 The hearing concluded on the basis that the Board indicated that if it required further information it would seek it. Once again this approach (to which the owners' solicitor agreed) was not a denial of natural justice. It is not for a tribunal to run a party's case for it.[25]
64 It follows that the first application for review should be dismissed.
65 For completeness I record that it was submitted the building surveyor (the first respondent) should not have been joined as a party to the first application for review. I do not accept this submission. The building surveyor was a party to the appeal before the Board as the primary decision maker by virtue of cl 13(3) of sch 3 of the Act,[26] despite the provisions of s 115.[27] In turn he was properly named as a party to the first application for review.
66 By consent order made on 24 March 2010 the hearing of the first order for review proceeding was adjourned to enable the owners to make a discrete application to the Board pursuant to s 160 of the Act for an order that the Regulations be modified or varied. That application was made on 19 May 2010. The application was to vary regs 414 and 417. The Board refused the application and reasons for the refusal were provided on 7 July 2010 in response to a request. Those reasons stated:
The Panel has been consulted and I have been asked to advise as follows:
4. The applicants rely upon the following grounds:
(a) That the Board was wrong in deciding that it was not able to consider modification of the siting regulations because the building in question is a finished occupied building;
(b) That the BAB took into account irrelevant considerations being:
(i) That the BAB had previously affirmed the building order relating to the building;
(ii) That the authenticated order of the Supreme Court made on 24 March 2010 under other matters noted that the adjournment was to enable the applicants to make a discrete application to the Board pursuant to rule 160 of the Building Act 1993 on or before 7 April 2010, whereas the application was made on 24 May 2010.
(c) That the BAB failed to have regard to relevant considerations, by failing to consider the merits of the application as contained in the application and supporting material.
68 I take the critical conclusion of the Board to be that first stated by it, namely that it is not able to consider the application. I do not, with respect, accept that this is correct. In order to demonstrate why, it is necessary first to consider the construction of s 160 and secondly its application to the particular regulations which are in issue. Section 160(2) of the Act provides:
(2) An application may be made to the Building Appeals Board for a determination that a provision of the building regulations -
(a) does not apply; or
(b) applies with the modifications or variations specified in the application -
to a building or land specified in the application.[28]
building includes structure, temporary building, temporary structure and any part of a building or structure;[29]
70 The words 'building or land' are, as a matter of plain English, broad enough to include an existing building and the existing setback provided upon a particular parcel of land. The statute does not use the phrase 'proposed building'.
71 There is obvious utility in giving s 160 a broad interpretation. The Building Commission constituted by pt 12 of Act has issued a practice note with respect to s 160 applications. It instances two examples of application by way of sample forms of application contained in an appendix. The first example relates to a proposal to construct a new building which does not comply with the Regulations. The second example, however, is 'a new dwelling has recently been constructed. On final inspection it has been identified that the structure has incorrect [stair] riser dimensions'. The sample application for modification contained in the appendix exemplifies the type of case in which after construction it is obviously desirable that the scheme of the Regulations be flexible enough to accommodate the endorsement of varied standards.
72 If such a variation occurs it will not render lawful the previously unlawful construction, but the structure will no longer be non-compliant with the relevant standard. This concept has been articulated by the Victorian Civil and Administrative Tribunal and its predecessors in the context of planning approvals:
'Of course, the hearing of an appeal does not excuse illegal conduct which has taken place before the appeal notwithstanding that a permit is directed to issue. The Tribunal is bound to hear the appeal on its planning merits, but if illegal activity has taken place, the person responsible for the breaches of the relevant law remains liable for the consequences of their illegal conduct.'[31]
73 It also seems clear (and was not disputed in argument by counsel for the neighbours) that a modification of an illegally constructed building would enliven the application of the s 160 discretion in respect of the building as a whole. This possibility encourages the view that it would be artificial to preclude consideration of the applicable standard by reference to the form of an existing structure.
74 It is useful to refer to two New South Wales decisions relating to applications for building approval in respect of the modification of previously constructed unlawful works. In Hooper & Anor v Lucas & Ors[32] Hemmings J considered a situation in which works were not constructed in accordance with a building approval required under the Local Government Act 1919 (NSW). Approval was subsequently sought for modified works which incorporated in part the pre-existing unauthorised works. His Honour held that a permit could be granted in such circumstances, noting that the statutory scheme contemplated that in some circumstances unauthorised buildings might be retained.
Whilst Pt XI provides for the need for the consent of Council prior to the erection of buildings, it also makes a number of provisions which specifically apply to buildings erected without such consent. That Part clearly contemplates in some circumstances the continuation of unauthorised buildings. Section 317B(1A) provides that if a building is erected or altered without the approval of Council having been obtained therefor beforehand, the Council may by notice in writing order the owner to demolish the building. As an alternative, Council may order the owner to carry out such work specified in the notice as is necessary to make the unauthorised building, or the building as altered, comply with the Act and ordinances. In my opinion, Council is under no duty to take any action with respect to unauthorised buildings and it is not mandatory that such buildings be demolished.[33]
75 Similar reasoning supports the conclusion in the present case that the Act does not make it an absolute requirement that buildings previously constructed unlawfully be demolished.
76 In Dennis Foster Insurance Brokers Pty Ltd v Sydney City Council[34] Talbot J considered the question whether, assuming demolition work and building work in an area where a proposed use was intended to be conducted had been carried out without approval, such matters were relevant matters to be considered in the determination of a development application for proposed use under the New South Wales legislation. His Honour concluded:
[26] The Court has not been referred to any authority that persuades it that any approval or consent given to development necessarily overcomes any existing breach of the law. At best, development consent can only authorise what occurs in the future. It cannot authorise what it does not encompass. This was expressly recognised by Hemmings J in Hooper. The effect of the subsequent approval did not provide any authority for the maintenance of the building erected earlier without consent. It was only because the council had been satisfied on the evidence before it that the pre-existing structure was acceptable in a relevant way that, by the exercise of the Court's discretion, it was allowed to remain.
[27] Applying those principles to the present case, if the Court cannot be satisfied that the building in its present state is safe and suitable for the use, then it has an undoubted discretion to refuse the application. It may be lacking the confidence it might otherwise have in the integrity of the building if all other statutory approvals are in place. In that sense, the fact that demolition work and building work were carried out without approval may be a relevant matter to the extent that it directs the Court to an avenue of inquiry it may in other circumstances find it unnecessary to pursue.
[28] It is only in that latter sense that the carrying out of demolition and building work without approval can be relevant. The Court is not satisfied that the absence of an approval on its own is a relevant matter which has determinative value.
[29] It follows therefore that a strict answer to the question as it is finally framed should be in the negative.[35]
77 For like reasons I accept that the modification of the setback standard applicable to the building and land at the site, will not render lawful what has occurred unlawfully.[36] It will however constitute a change of circumstances which may be agitated as a basis for variation or cancellation of the building order because of the provisions of s 116. It will enliven discretions of the type referred to by Hemmings J in Hooper. Those discretions will fall to be exercised by the building surveyor and on further appeal by the Board.
78 In turn, the fact that the regulations in issue speak prospectively of requirements governing the construction of a building does not preclude their modification by reference to the dimensions of an existing building. Modification will not make lawful the completed construction but it may still have work to do under the scheme of the Act.
79 Part 4 of the Building Regulations provides for the siting of buildings on land. Division 2 of pt 4 deals with single class one buildings (ie dwellings or attached dwellings) and associated class 10a buildings (ie garages, carports, etc). Regulations 414 and 417 are contained in div 2 and reg 407 provides that div 2 applies to the construction of a single class one building and associated class 10a buildings on an allotment.[37]
80 The siting requirements of div 2 thus affect only buildings constructed after the commencement of the regulations. Moreover they state siting requirements for proposed buildings. Regulation 417 commences:
(1) This regulation applies if -
(a) a building is to be constructed on an allotment...[38]
81 Nevertheless, the fact of the construction of a building in breach of the requirement does not mean a modification of the Regulations cannot be expressed by reference to the dimensions of the constructed building nor that the modification cannot have work to do in respect of the ongoing discretion of the building surveyor under s 116 with respect to any relevant building order.
(a) to regulate building work and building standards; and
...
(c) to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; ...[39]
83 Section 160 permits modification of the standards applicable to a particular building or land. It also potentially facilitates the resolution of building disputes.
84 It follows that I accept the first and fundamental ground of the second application for review is made out. The Board should not have refused to consider the modification simply because the building under consideration is finished and occupied. That fact may bear on the Board's view of the appropriateness of making a modification order in all the circumstances of the case, but it could not entitle the Board to refuse to exercise jurisdiction.
The Building Appeals Board must consider and determine a matter referred or application made to it under this Act or any other Act and may make any order that it considers appropriate in the circumstances.[40]
86 The matter must be remitted to allow the Board to consider it. The further grounds of review do not add to this primary conclusion. I do not take the further matters noted by the Board to be intended to provide independent bases for declining to deal with the application. It is unnecessary to further address the grounds for review directed to them save to say that the previous determination of the s 142 appeal could not preclude a s 160 application. Putting aside other matters, the conceptual basis of the two proceedings is, as I have said, entirely different.
87 One final consideration of substance does however arise. Schedule 3 cl 13(1) and (3) of the Act provide for the service of documents relating to the proceeding upon affected parties.
(1) A person may commence a proceeding before the Building Appeals Board by serving on the Board an application, a notice of appeal or a notice of referral of a matter to the Board, as appropriate.
...
(3) The person who serves a document commencing a proceeding must without delay serve a copy of that document on -
(a) the decision-maker, if the proceeding is an appeal; and
(b) in the case of a matter referred to the Building Appeals Board, any other person with a right to refer that matter to the Board; and
...
(d) any other party concerned.[41]
88 Clause 14 provides that a person entitled to be served is a party to a proceeding.
89 It is desirable that I express a view as to whether the neighbours should be joined as parties to the s 160 application, in order to avoid the possibility of future dispute on this question.
90 The current proceeding is neither an appeal in terms of cl 13(3)(a), nor as a matter of ordinary language 'a matter referred to the Board' in terms of cl 13(3)(b). Division 3 of pt 10 of the Act relates to disputes and contains a series of provisions about different classes of disputes which may be referred to the Board. Sections 150, 151, 152, 153, 154, 155, 156, 157 and 158 each specifically provide that a particular class of matter may be referred to the Board. On the other hand s 160 simply provides for application to be made to the Board for a determination. In such cases the phrase 'any other party concerned' must be given a meaning which potentially defines the class of persons who then become parties to the proceeding pursuant to cl 14.
91 Sections 162(1) and (1A) provide a framework for consultation in respect of s 160 applications:
(1) Before determining an application under section 160 the Building Appeals Board -
(a) must consult -
(i) any authority that would be a reporting authority if the application were an application for a permit; and
(ii) the Commission, if the application discloses that any aspect of the matter has been considered by it; and
(iii) if the application shows that any aspect of the matter relates to a building permit, the relevant building surveyor; and
(c) may consult the municipal building surveyor;
(d) may consult any other body or person.
...
(1A) The Building Appeals Board must, on the application of any party to the proceedings, make available a copy of any report or information obtained under subsection (1)(d).[42]
92 Nevertheless I am satisfied that the Act contemplates that a person other than the applicant may be a 'party concerned' in the application. By reason of cl 15(1)[43] of the Act parties have rights which a person consulted under s 162 does not have. The question is whether such class of persons extends to the neighbours in the present case.
93 The statutory framework is different from that which pertained at the time of the determination of The Queen v Building Regulations Committee.[44] That case concerned the interpretation of the phrase 'parties concerned' in the context of an appeal with respect to a council's decision to grant a building permit upon a substandard site. The current provisions deal with proceedings of categories which go beyond appeals. They use the phrase 'party concerned' to define a category which then becomes a party to the proceeding before the Board. There is no prior proceeding by which to define the concept of 'party concerned' in cases such as the present.
94 In my view, the notion of procedural fairness which has been developed in a series of decisions by the High Court should inform the content ascribed to the concept of 'party concerned'.
95 In FAI Insurance v Winneke[45] Mason J, as he then was, stated:
The fundamental law is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power. The application of the rule is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or privilege or which deprives a person of a 'legitimate expectation', to borrow the expression of Lord Denning MR in Schmidt v Secretary for Home Affairs, in circumstances where it would not be fair to deprive him of that expectation without a hearing.[46]
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of contrary statutory intention. [48]
97 The duty applies to decisions which affect 'rights, interests or expectations of the individual citizen in a direct and immediate way'.[49]
98 In Annetts v McCann Mason CJ, Deane and McHugh JJ stated:
It can now be taken as settled that when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the course of that power unless they are excluded by plain words or necessary intendment.[50]
99 The determination of the s 160 proceeding will potentially directly affect the neighbours' enjoyment of their property rights and modify a regulation expressly directed to the control of the relationship of development upon adjoining land with their dwelling. The neighbours have a direct interest in the determination by the Board of the preliminary issues raised by s 162(3) and in the exercise by the Board of its ultimate discretion. In my view, the neighbours are to be regarded as parties concerned in the s 160 application in the requisite sense and are entitled to be served with copies of the documents commencing the proceeding before the Board and to be parties to that proceeding.
100 For the above reasons the first application for an order for review fails but the second application succeeds. The decision of the Board with respect to the s 160 application will be set aside. I will direct that the Board consider that application in accordance with law and I will further direct that the neighbours be joined as parties to that application.
[1] Building Regulations 2006, r 417.
[2] Building Regulations 2006 r 417(6).
[8] Building Act 1993, sch 3, cl 15(3)(d).
[9] Building Act 1993, sch 3, cl 15(3)(c).
[10] Building Act 1993, sch 3, cl 15(3)(f).
[15] One of the grounds not pursued was that the Board's decision was manifestly unreasonable.
[16] See Sherlock v Lloyd & Ors [2010] VSCA 122, [69]-[72].
[17] Building Act 1993, sch 3, cl 16(5):
(5) Within one month after being served with a copy of the Building Appeals Board's determination, or within any further time allowed by the Board, a party to a proceeding may request the Board to give to the party written reasons for its determination.
[18] Administrative Law Act 1978 (Vic), s 8.
[19] Emphasis in original. * footnote in original - 'Height definition: vertical distance between the natural ground level at the base of the wall, and the point at which the outer wall....'
[21] See Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442, per Meagher JA.
[22] Hunter v Transport Accident Commission & Anor [2005] VSCA 1, [35].
[23] Cf Lothian and Borders Police v Gemmell [2005] Scot CS CSOH 32 (1 March 2005).
[24] National Companies and Securities Commission v News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296, per Gibbs CJ 311 following; Brousaard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, 481
[25] Rana v Australian Federal Police (2006) 44 AAR 151; (2006) FCAFC 169, [37]; Brousaard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, 481.
[26] Cf Keller and Anor v Bayside City Council [1996] VicRp 23; [1996] 1 VR 356.
[27] Building Act 1993, s 115 provides:
115 Failure to comply with order by private building surveyor
(1) If a person fails to comply with a building order made by a private building surveyor, the private building surveyor must refer the matter to the Commission and must take no further action in respect of the matter under this Part.
(2) A referral under sub_Building Act 1993_ (1) must be made within 14 days after the final date for compliance specified in the order.
[30] Wilson v Shire of Winchelsea (1988) 1 AATR 26.
[31] Sibilia & Ors v Monash CC [2001] VCAT 277 (28 February 2001), [35]. Citations omitted. See also Thorne v Doug Wade Consultants Pty Ltd [1985] VicRp 48; [1985] VR 433, 473, per O'Bryan J and the authorities there cited.
[36] Section 16 of the Building Act 1993 makes it an offence to carry out building work without a building permit and s 118 makes it an offence to fail to comply with a building order.
[37] Building Regulations 2006, reg 407.
[38] Building Regulations 2006, reg 417.
[41] Building Act 1993, sch 3 cls 13(1) and (3).
[42] Building Act 1993, ss 162(1) and (1A).
[43] Building Act 1993, sch 3, cl 15(1) provides:
(1) The Building Appeals Board must give the parties to the proceeding reasonable opportunity to make -
(b) written submissions in the case of a proceeding that is not a hearing.
[49] Ibid. See also Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.
[50] [1990] HCA 57; (1990) 170 CLR 596, 598.
Anstee & Anor
Eyers & Ors [2011] VSC 79
(1997) 48 NSWLR 430
(1984) 156 CLR 296
(1989) 21 FCR 472
(1982) 151 CLR 342
(1985) 159 CLR 550
(1992) 175 CLR 564
(1990) 170 CLR 596