(c) Build Over Easement consent has been granted by Great Western Water on 6 December 2022 who also has an asset vested in the easement (extension of time also grated and dated 6 March 2024).

(d) There is an existing grade level paving and timber boarding currently over the easement so no further footings or underground works will be necessary.

(e) The existing deck has been built on a grade over an existing paving slab and therefore the spa load over the easement will be spread out evenly over a large surface area reducing the direct loading onto the easement assets.

(f) The drawings of the existing verandah footing clearly show that there is no additional load via transfer of angle of repose footing onto the storm water asset. This is confirmed by a consulting building surveyor by letter dated 23 March 2012.

(g) The spa is portable and can be easily drained/removed in the unlikely event that access to the underground services are required.

(h) The deck subfloor level is approximately 600mm above the existing sewer and stormwater drainage pipes at the lowest point as required by Greater Western Water. It may therefore be reasonable to consider a similar approach to councils storm water pipes.

(i) Greater Western Water has agreed to the build over easement on 6 December 2022.

(j) There is currently a 173 agreement (AJ742248X) in place for the verandah encroaching into the easement refer to appendix D. Further to this the owner is supportive of agreeing to an additional 173 agreement

1. The Applicant has enclosed a copy of letter dated 29 August 2024. The letter contains a statement that it relates to:

The letter references a request for a review of the decision to refuse the Building Over Easement (BOE) application. Furthe the Respondent states that it upholds its earlier decision to refuse the BOE application and that should the Applicant be dissatisfied they can choose to appeal with the Building Appeals Board.

RESPONDENT'S SUBMISSIONS ON JURISDICTIONAL QUESTIONS

1. The Respondent provided the following submissions in relation to the Jurisdictional Questions:

(a) In Moonee Valley, Council is the drainage service authority, and all drainage is vested to Council under Section 198 of the Local Government Act 1989. The Respondent has a responsibility to provide this service to current and future developments. The Respondent manages over 528 km of drainage pipes and more than 22,000 drainage pits.

(b) Council must ensure that drainage and easements vested are kept clear of permanent structures to maintain uninterrupted access for urgent maintenance works, protect assets, and meet current and future demands and developments.

(c) Generally, an easement gives someone/service authority the right to use a section of land for a specific purpose, even though they are not the landowner.

(d) As a drainage authority, we face many challenges in providing and continuing service due to factors such as housing demand, population increase, proposed activity centres, flooding, and climate change.

(e) To protect council drainage assets, Council has adopted a Build Over Easement policy/procedures, providing a clear decision-making framework to determine what structures are appropriate to be built over or next to the easement/council drainage assets. This is consistent with other councils and Melbourne Water. Information and guidelines are available on the website for applicants to refer to before submitting applications.

(f) The Respondent has listed three refusals of the BOE application dated 21 June 2023, 25 October 2023 and 27 July 2024. The Respondent notes the letter dated 29 August 2024 responding to a request mad to the Council Mayor seeking assistance. The letter dated 29 August 2024 on 4 September 2024 with background information for clarity and was not a fresh decision. The email was sent to the Applicant's representative and the Applicant on 4 September 2024. In support of its position the Respondent notes the section 157 referral was signed on 8 October 2024.

(g) The section 157 referral was signed on 8 October 2024 and the Respondent believes the appeal was not lodged on time.

(h) The Council has decided under section 198 of the Local Government Act 1989, Council Local Law and related policies and procedures and believes the decision may not fall within the BAB's jurisdiction.

(i) The Respondent requests the appeal be struck out and Council's refusal be affirmed.

1. The Respondent has enclosed an email dated 13 August 2024 to the Council Mayor. The Applicant appears to be making a complaint about the handling of the application before the Respondent. In particular, the email contains the following statement:

Council refused, we said we were going to the Building Appeals Board and then they said they would re-consider.

1. The Respondent has provided a copy of the email dated 4 September 2024 which provides the following statement:

Thanks for your email, attached is the Council final decision of refusing the BOE application for 97 Rim Cross Drive Avondale Heights after a re-consideration.

1. The purpose of this Determination is to consider the Jurisdictional Questions.
2. I consider it appropriate to review each Jurisdictional Question independently as they contain separate and distinct issues.

Jurisdictional Question 1: Whether the appeal has been lodged in time?

1. I note that the proceeding has originally been recorded as a referral of a matter pursuant to s 157 of the Act. As noted to the parties the proceeding has previously been amended to an appeal pursuant to s 144(1) of the Act.
2. Under reg 271(v) of the Building Regulations 2018 (Regulations), the Applicant has 30 days to lodge an appeal of the Respondent's decision.
3. In order to consider whether the appeal has been lodged within time, the date the Applicant was served with the decision letter and the appeal lodgement date must be determined. There is also a dispute over whether the letter in question is a decision capable of being appealed. I will look at each element prior to determining whether the appeal has been brought within the prescribed 30 day period of time.

1. The Applicant has stated the decision under appeal is the decision outlined in letter dated 29 August 2024.
2. The Respondent states the letter dated 29 August 2024 was not in effect a decision as it was simply a response raised after correspondence was sent to the Council Mayor.
3. Under the Act, the term decision is defined as:

decision, in relation to a matter in relation to which an application for review or appeal can be made to the Building Appeals Board, the Authority or VCAT, includes failure to decide;

1. I note that Australian Courts have drawn distinctions in relation to administrative decisions made under an Act between a decision and conduct engaged in for the purpose of making a decision. The courts have found that a decision has a 'final or operative and determinative' quality[1]. This is appropriate when considering the decision made by the Respondent which is in the nature of an administrative rather than judicial decision.
2. The letter dated 29 August 2024 provides statements

I refer to your request for Council review its decision to refuse your BOE Application on 21/06/2023 to Jason Holmes, Jason's email on 07/07/2023 and Council reconfirming it is position on 25/10/2023, Jason's email on 25/03/2024 requesting to reconsider the decision before going to Building Appeals Board (BAB), Council reconfirming the refusal on 26/07/2024, John's request status on 26/07/2024 and Sarah Barbaro's email to the Mayor on 13/08/2024 for a demountable spa to be constructed on the easement E-2 on PS447797H, which is an easement for drainage purpose in favour of all lots on PS447797H.

In this instance, Council upholds its earlier decision to refuse the BOE application for the spa to be installed on easement E-2 on PS447797H. Your efforts in seeking Council approval with respect to this matter is appreciated, I am sorry that we could not assist with a more favourable outcome. Should you be dissatisfied with this decision to refuse your application, you may choose to appeal the decision to the Building Appeals Board.

1. The Respondent provided a copy of the email dated 4 September 2024 which provides the following statement:

Thanks for your email, attached is the Council final decision of refusing the BOE application for 97 Rim Cross Drive Avondale Heights after a re-consideration.

1. The letter states particularly that there has been a request to review a decision. The Council then goes on to clearly advise that it is upholding the earlier decision.
2. The email enclosing the letter is also consistent with the Respondent having made a final decision of refusing the BOE application after re-considering the matter.
3. The material provided supports a conclusion that the letter was in fact intended to be a final decision of the Respondent. This is notwithstanding the Respondent having provided a previous view of its position, did not treat this prior expressed view as a final decision and was prepared to provide a review of the decision - stating the decision under cover of email dated 4 September 2024 was a 'final decision'. The prior correspondence may be considered a necessary step to the prior decision but apparently it was not a final decision. In considering whether this decision can be appealed, I note that the Respondent itself has stated in the covering email that this decision is a "...final decision of refusing the BOE application....after re-consideration". The decision letter itself further states that the if the Applicant was dissatisfied with the decision to refuse the application, they could choose to appeal the decision to the Building Appeals Board. The Respondent contemplates that this decision letter can in fact be appealed which is a further indicator of it being a final decision.
4. Given this, I find that the letter dated 29 August 2024 is written in terms stating that it is a final decision, and this final decision was a decision capable of being appealed by the Applicant.

1. The email purporting to serve the decision dated 29 April 2024 is dated 4 September 2024. The Applicant has not confirmed the date of receipt for the decision letter. Further, he has not raised any substantive concern over potential non-receipt of the email or indicated any issues with the email address or any reason the email could not be retrieved.
2. I note Section 13A of the Electronic Transactions (Victoria) Act 2000 is produced above in this Determination.
3. The BAB is entitled to accept that the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee.
4. There is no evidence explaining why the email was not capable of being retrieved by the Applicant at the relevant email address on 4 September 2024. Given this, I accept that the date of receipt was the same date of sending, being 4 September 2024.

1. Clause 13 of Schedule 3 of the Act states clearly that:

(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.

(2) A document commencing a proceeding -

(i) the nature of the proceeding; and

(ii) the grounds for commencing the proceeding; and

(iii) the relief sought; and

(b) must be in accordance with the regulations (if any).

1. The Applicant states that he lodged the appeal on 25 September 2024 whilst the Respondent has noted the date of the document on the e-brief is dated 8 October 2024.
2. Under Clause 15(3) of Schedule 3 to the Act the Board 'may inform itself in any manner it thinks fit'. Accordingly, I have sought confirmation from the Registry of the date of lodgement for the appeal. This information has been exchanged with the parties to the proceeding and an opportunity provided to file and serve further submissions was granted.
3. The Registry has provided the following information:

(a) An electronic lodgement was received by the Registry of the BAB on 25 September 2024.

(b) The Application form, payment details and supporting documentation was received.

(c) Clarification was sought which resulted in the filing of documentation dated 8 October 2024.

(d) The Registry considers that the appeal was lodged on 25 September 2024.

1. The lodgement of the material dated 25 September 2024 included an Application for Appeal. I note this would meet the requirements for filing an application/ notice of appeal as required under clause 3 of Schedule 3 of the Act. Further, a contemporaneous email to the Respondent also confirmed the appeal had been filed on 24 September 2024. This email is consistent with Registry records.
2. Based on the above material, I find that the lodgement date was 25 September 2024.

1. The evidence demonstrates that the letter dated 29 August 2024 is a final decision letter in relation to the BOE application. Further, the Applicant was served with the decision letter on 4 September 2024 and the commencement of the appeal against this final decision letter is taken to have occurred on 25 September 2024.
2. Given this, the appeal was commenced within the prescribed 30 day time frame.

Jurisdictional Question 2: Whether the BAB can amend the proceeding to an appeal or consider an appeal relating to reg 130 of the Building Regulations 2018?

1. The proceeding has previously been converted to an appeal. Accordingly, the first portion of Jurisdictional Question 2 falls away. The remaining question is whether the BAB has jurisdiction to consider an appeal relating to reg 130 of the Regulations.
2. Regulation 130 of the Regulations forms part of the original regulations enacted in 2018 rather than a subsequent amendment.
3. The Building Regulations 2018 specifically state the Regulations are made under sections 7, 9, 15A, 261 and 262 of, and Schedule 1 to, the Building Act 1993.
4. Sections 261 and 262 of the Act outline general and additional regulation making powers. Section 15A relates to swimming pools.
5. Sections 7 and 9 of the Act fall within Part 2 of the Act. Section 7 is particularly broad and relates to prohibiting or regulating the construction, use or maintenance, demolition and removal of buildings.
6. Given this, reg 130 of the Regulations appears to have been made under section 7 Part 2 of the Act together with any additional powers relating to s 261-262 of the Act.
7. I further note that reg 130 of the Regulations relates to the report and consent for building over easements which is to be obtained from the Service Authority. The definitions (outlined above) confirm that the Council can be deemed a Service Authority. The BAB routinely considers report and consent matters in which an Applicant has appealed a Council's decision. The power to consider appeals of other types of report and consents would be consistent with the powers exercised by the BAB.
8. The Respondent's original submission stated that the BAB may not have jurisdiction to hear the appeal.
9. The Respondent was asked to address this issue in the Directions and Orders but simply reiterated its prior submission without further addressing why the BAB does not have jurisdiction under the Act and its Regulations to determine this matter.
10. Section 98 of the Local Government Act 1989 provides:

(1) The following are vested in the Council and are under the management and control of the Council -

(a) public sewers and drains within the municipal district;

(b) sewers and drains in and under roads in the municipal district;

(c) Works and materials relating to (a) and (b).

(2) This section does not apply to any sewers and drains vested in another Council or a Minister, the Crown or any public body.

1. I note that this provision of the Local Government Act 1989 simply vests the Council with relevant management and control of sewers and drains.
2. Reg 130 of the Regulations deals with reports and consent from the relevant service authority to build over an easement.
3. I have already confirmed that the Respondent can be deemed a Service Authority under the Act and its Regulations.
4. I further note that the decision made by the Respondent relates to the building over an easement vested in the Respondent as a Service Authority. The Respondent is vested with control of the easement relating to public sewers and drains as confirmed by section 98 of the Local Government Act 1989.
5. This leads to a conclusion that the decision relating to building over an easement actually falls within the remit of reg 130 of the Regulations. Only reg 130 of the Regulations gives power to the Respondent to deal with report and consent over the easement. Section 198 of the Local Government Act 1989 does not provide this power to the Respondent.
6. I further note that the decision letter itself refers the Applicant to the Building Appeals Board strongly suggesting that the Respondent believed the BAB did in fact have jurisdiction to hear an appeal of that decision. This reinforces my view that the BAB has the jurisdiction under the Act to hear an appeal of a decision relating to building over an easement.
7. Given this, I conclude that the decision made by the Council relating to building over an easement is to be deemed that of a Service Authority for the purposes of reg 130 of the Regulations. The BAB accordingly does have jurisdiction to consider this matter.

[1] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337.