APPLICANTS Gerard Borghesi and Bronwyn Borghesi (Subject Land owners)

RESPONDENT Municipal Building Surveyor for the Shire of Mornington Peninsula

FIRST INTERESTED PARTY Mornington Peninsula Shire Council

INTERESTED PARTIES Paul Willigenburg and Denise Willigenburg (Adjoining Property owners)

ADJOINING PROPERTY Unit 3, 613 Point Nepean Road, McCrae

BEFORE Members E Riegler (Chairperson) and H Hodges

CITATION Borghesi & Anor v Municipal Building Surveyor for the Shire of Mornington Peninsula [2025] VBAB 60

Having considered all the submissions and information placed before it, the Building Appeals Board (the BAB) determines and orders that:

1. The preliminary question; namely, whether the Respondent was jurisdictionally empowered to make the building orders and the emergency order, the subject of these proceedings, is answered in the negative.
2. For the avoidance of doubt, the BAB finds and declares that:

(a) building order number BO-004/24 dated 4 April 2024 and building order number BO-005/24 dated 4 April 2024 (the Building Orders) were not made following service of jurisdictionally valid building notices, as required under s 111(1) of the Building Act 1993 (Vic) (the Act); and

(b) emergency order number EO-152/22 dated 18 November 2024 (the Emergency Order) was not made in respect of the type of structures or land prescribed under s 102(a) to (c) of the Act.

1. Having regard to the BAB's determination set out in the preceding paragraphs, the appeal proceedings are listed for an administrative mention on 16 May 2025, by which date the parties must advise the BAB and each other in writing as to their recommendations for the further conduct of the appeal proceedings.
2. If by 16 May 2025, none of the parties advises the BAB as to their recommendations for the further conduct of the appeal proceedings or that they wish to proceed with any outstanding matters, the following determination and orders will be made without further notice:

(a) the decision to make the Building Orders is set aside and remitted to the Respondent for reconsideration in accordance and having regard to the Reasons attached to the determination and orders dated 30 April 2025 and pursuant to s 149(1)(d)(ii) of the Act; and

(b) the decision to refuse to cancel the Emergency Order is quashed pursuant to s 149(1)(b) of the Act.

(c) Pursuant to s 149(4) of the Act the BAB further orders:

(d) Any application for the costs of the proceedings is reserved subject to any application being made within 14 days of the date hereof.

_______________________ ________________________

1. The Applicants are the owners of a property located at 10-12 View Point Road, McCrae (the Property). On 14 November 2022, the Property and/or surrounding properties experienced a landslip. Debris from the landslip transferred from the Property to adjoining properties located below the Property (the Adjoining Properties).[1]
2. On or about 15 November 2022 and because of the landslip, the municipal building surveyor for Mornington Peninsula Shire (the MBS) made and served emergency orders under s 102 of the Building Act 1993 (Vic) (the Building Act) on the Applicants and the owners of the Adjoining Properties prohibiting occupation of the dwellings located on the Property and on the Adjoining Properties.
3. The emergency order dated 15 February 2022 issued to the Applicants was subsequently cancelled and substituted with a revised emergency order dated 18 November 2022, which prohibited entry or occupation of a select area within the Property (the Emergency Order).
4. During the period December 2022 until August 2023, the Applicants engaged building practitioners, specifically geotechnical engineers, to investigate and prepare a scope of remedial work aimed at mitigating the risk of future landslips.
5. After considering the expert opinion of the building practitioners engaged by the Applicants, the Applicants formed the view that the landslip was caused by the failure on the part of Mornington Peninsula Shire (the Council) to adequately maintain the drainage system and kerbs on View Point Road, which in turn lead to an unreasonable seepage of water onto the Property. Consequently, the Applicants informed the Council that they would not be undertaking remedial work.
6. On 7 February 2024, the MBS served two building notices numbered BN-001/24 and BN-002/24 (the Building Notices) on the Applicants. Building notice BN-00 1/24 required the Applicants to show cause why they should not undertake stabilisation works to the area affected by the landslip. Building notice BN-002/24 required the Applicants to show cause why the following work should not be undertaken:

Remove all the landslip debris from Penny Lane in accordance with geotechnical recommendations after first obtaining the Council permits and approvals.

1. After considering the Applicants' responses to the Building Notices, the MBS made Building Orders numbered BO-004/24 and BO-00 5/24 both dated 4 April 2024 (the Building Orders).
2. On 3 May 2024 the Applicants filed these proceedings appealing the Building Orders and the Emergency Order.

1. By these proceedings, the Applicants contest, in part, that the MBS was not jurisdictionally empowered to issue the Emergency Order and the Building Orders. In other words, the Applicants challenge the validity of the Emergency Order and the Building Orders.
2. Consequently, these proceedings were listed for a preliminary hearing to consider the jurisdictional validity of the Emergency Order and the Building Orders prior to any hearing of the technical merits of the appeals.
3. In essence, the Applicants contend that it is a precondition to the exercise of the power to make a building order under s 111 of the Building Act that a building surveyor (in this case the MBS) must first serve a valid building notice. The Applicants contend that the Building Notices were jurisdictionally invalid and by extension, a nullity. Consequently, they contend that was no power to make the Building Orders in reliance thereon.
4. Specifically, the Applicants contend, within the context of these proceedings, that s 106 of the Building Act only applies to land on which building work is being or is proposed to be carried out and not to land simpliciter. As no building work was being carried out or was proposed to be carried out on the Property, the Applicants submit that there was no jurisdiction to serve a building notice relating to the land forming part of the Property.
5. Similarly, the Applicants contend that the jurisdiction to make an emergency order under s 102 of the Building Act, insofar as it applies to land simpliciter only crystallises where there is land on which building work is being or is proposed to be carried out. Again, as no building work is being carried out or proposed to be carried out on the land forming part of the Property, the Applicants submit there is no power to make an emergency order relating to the land.
6. The challenge to the validity of the Building Notices and by extension, the power to make the Building Orders and the Emergency Order, raise the following questions for consideration:

(a) Is the power to make a building order under s 111 of the Building Act conditional upon a building surveyor first issuing a jurisdictionally valid building notice under s 106 of the Building Act?

(b) Does the reference to land in s 106(d) of the Building Act have the same meaning as the reference to land in the chapeau of s 106 of the Building Act; namely, land upon which building work is being or is proposed to be carried out?

(c) In the context of these proceedings, does the reference to land in s 102 of the Building Act mean that the power to make an emergency order only crystallises where the MBS is of the opinion that the order is necessary because of a danger to life or property arising out of the condition of land on which building work is being or is proposed to be carried out?

1. For ease of reference, the relevant provisions of the Building Act under consideration are set out as follows:

A municipal building surveyor may make an emergency order under this Division if the municipal building surveyor 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 -

(b) the land on which building work is being or is proposed to be carried out; or

(c) a place of public entertainment.

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 of 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.

(1) A building notice may require the owner of a building, land or place of public entertainment to show cause within a specified period -

(a) why entry to, or the use or occupation of the building, land or place should not be prohibited; or

(b) why the owner should not evacuate the building.

(1A) A building notice may require the owner of a building, land or place of public entertainment to show cause within a specified period why the owner should not carry out building work, protection work or work required by the regulations in relation to the building, land or place.

(1B) If a municipal building surveyor or a private building surveyor is of the opinion that -

(a) a circumstance referred to in section 106(d) exists in relation to a building, land or place of public entertainment or building work that is being or is proposed to be carried out on the building, land or place; and

(b) certain action is necessary to remove or to wholly or partially reduce, or to contribute to removing or to wholly or partially reducing, the circumstance -

a building notice caused to be served by the relevant building surveyor under section 106 may require the owner of the building, land or place to show cause within a specified period why the owner should not take the action that is necessary and is specified in the notice.

IS A BUILDING ORDER CONDITIONAL UPON A VALID BUILDING NOTICE?

1. We note that the Building Act specifically outlines a process which is both prescriptive and substantive for building notices and building orders, given that:

(a) s 106 of the Building Act describes the party which must be served with the building notice if the building surveyor is of the opinion that particular circumstances exist;

(b) s 108 of the Building Act outlines the content and form of the building notice. Section 108 further directs the show cause process which can be undertaken as part of the building notice process;

(c) s 109 of the Building Act enshrines the right of an owner to make representations about the matters contained in the building notice;

(d) s 110 of the Building Act empowers the relevant building surveyor to cancel a building notice if appropriate after considering the representations made under s 109;

(e) s 111 of the Building Act provides that a building order may be made after the end of the time allowed in the building notice for making representations;

(f) s 114 of the Building Act confirms the form and service requirements of the Building Order; and

(g) regs 179 and 181 of the Building Regulations 2018 (Vic) (the Regulations) requires a building notice or building order to provide reasons why the notice or order was made.

1. Both the Building Act and Regulations prescribe what information must be provided to the person to whom the notice and order is directed. The substantive and prescriptive elements required under the building notice or order enable the party to whom the notice or order is directed to understand why the notice and subsequent order has been made.
2. Both the Building Act and Regulations require the same information to be provided for a building order made under ss 111, 112 or 113 of the Building Act.
3. The above process for providing clear information regarding the issuing of any building notice or order assists in achieving several of the stated purposes and objectives of the Building Act such as:

(a) 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;[2] and

(b) to protect the safety and health of people who use buildings and places of public entertainment.[3]

1. The Building Act mandates that a building order can be made after the end of the time allowed by the building notice for making representations and a consideration of representations made by the owner concerned.
2. The authority for making a valid building order is therefore contingent upon a valid building notice first being served and the relevant building surveyor's consideration of any material provided under the 'show cause process'. Only once the process for the building notice and show cause process has been completed; can the building order be made under s 111 of the Building Act.
3. In our view, if the Building Notices were not issued substantially in accordance with the requirements of s 106 and s 108 of the Building Act, then the decision to serve the Building Notices could be affected by jurisdictional error. Whilst the BAB does not exercise judicial review, a decision to serve the Building Notices, effected by material jurisdictional error, could result in a finding that the decision lacks legal foundation and is properly regarded, in law, as no decision at all.
4. This proposition was considered by the High Court of Australia in Minister for Immigration and Multicultural Affairs and Bhardwaj (Bhardwaj),[4] where the Court stated the following in relation to 'invalidity' considerations:

Decisions involving jurisdictional error: the general law

1. There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all [33]. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.
2. The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:

"As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ...

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law."

In the same case, his Lordship cited with approval a statement by McLachlin J that:

"as a matter of logic and on the authorities ... a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision".

1. In our view, logic and legal principle both direct conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.
2. The Bhardwaj decision was later applied in Plaintiff S157/2002 v The Commonwealth (S157),[5] where Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated:

... This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all".[6]

1. The decision in Bhardwaj was qualified by the Full Court of the Federal Court of Australia in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care.[7] In that case, Gray and Downes JJ, stated:

42 In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ...[8]

1. Whilst we accept that jurisdictional error may result in there being no decision made at all, the current approach to determining whether the jurisdictional error creates an invalid decision will largely depend upon the enabling enactment. Specifically, in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (Project Blue Sky).[9] the Court stated:

A better test ... is to ask whether it was a purpose of the legislation that an act done in breach of [a] provision should be invalid ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'.[10]

1. The Building Act prescribes the power given to the relevant building surveyor to serve a building notice and make a building order. The Building Act imposes limits upon the relevant building surveyor's authority to determine whether a building notice can be served. If the content of a building notice exceeds the limits of the relevant building surveyor's power, then it may be that the building notice was not validly served. To do so would be at odds with Building Act and the language of the Act itself - which sets the limits of the relevant building surveyor's power by reference to the prescribed grounds for serving a building notice.
2. In other words, it could not be said that a building notice invalidly served would meet the purpose of the Building Act relating to proper administration and enforcement of building and safety matters. In short, it would fail the test as set out in Project Blue Sky.
3. Having regard to the stated purpose and objectives of the Building Act, and being informed by the authorities referred to above, we find that a building notice which suffers from material jurisdictional error will have no effect at law. If there is no lawful basis to serve the building notice, then it follows that there is no lawful basis to make a building order under s 111 of the Building Act. In essence, if the building notice is a nullity, then there is no valid power to make a building order in reliance thereupon.

DOES LAND IN S 106(D) OF THE BUILDING ACT HAVE THE SAME MEANING AS LAND IN THE CHAPEAU OF S 106 OF THE BUILDING ACT?

1. The jurisdictional questions require us to interpret the meaning of ss 102 and 106 of the Building Act, by reference to their text, context and purpose in accordance with principles which are well understood and not in dispute. Those principles were summarised by the High Court of Australia in Project Blue Sky, where the plurality of the Court said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"... Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which is the subordinate revision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing the statutory provision must strive to give meaning to every word of the provision ...

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[11]

1. It is also well-established that the starting point in construing a legislative provision must begin with a consideration of the text itself. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[12] the High Court stated:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[13]

1. Section 35 of the Interpretation of Legislation Act 1984 (Vic) further mandates that an interpretation that promotes the purpose or object underlying the principal Act is to be preferred to an interpretation that would not promote that purpose or object. The provision states:

In the interpretation of the provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to -

(i) all indications provided by the Act or subordinate instrument punctuation;

(ii) reports of proceedings in any House of the Parliament;

(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.

1. With those principles in mind, we turn to consider the second question extrapolated above.
2. It is common ground (or at least not contested) that s 106 of the Building Act empowers a municipal building surveyor to serve a building notice on three classes or types of persons (or corporate entities); namely:

(a) an owner of a 'building';

(b) an owner of 'land' on which building work is being or is proposed to be carried out; and

(c) an owner of a place of public entertainment

if one of the circumstances set out in sub-sections 106(a) to (d) exist.

1. It is also common ground that the Applicants are owners of a building. However, the question arises whether any of the circumstances set out in s 106(d) exists. In other words, is the building, land or place or building work on the building, land or place... a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property.
2. As indicated above, the parties each advance a different meaning to the word 'land' as it appears in s 106(d) of the Building Act. Specifically, the Applicants contend that the word 'land' in s 106(d) has the same meaning as 'land' as it appears in the chapeau to s 106. Conversely, the MBS contends that the meaning of 'land' in s 106(d) is not the same as it appears in the chapeau to s 106. The MBS submits that the reference to 'land' in s 106(d) is not defined or informed by the chapeau to s 106 - it simply means land simpliciter.
3. In the chapeau to s 106, 'land' precedes the words 'on which building work is being or is proposed to be carried out'. It is common ground (or at least not contested) that these words are to be read conjunctively, so that the word 'land' is defined by or limited by the words that follow. In other words, the meaning of 'land', as it appears in the chapeau, only relates to land when building work is being or is proposed to be carried out. Land, as it appears in the chapeau, does not mean land simpliciter. As a starting point, we accept that proposition.
4. However, the word 'land', as it appears in s 106(d) is expressed differently. It does not say, for example, 'land on which building work is being or is proposed to be carried out'. It singularly states 'land'.
5. Mr Germano of counsel, who appeared on behalf of the MBS and the First Interested Party, submitted that the settled approach to statutory interpretation focuses first on the text of the provision and second, on the context in which the provision exists. In his written submissions, he states:
   1. Accordingly, first, the central focus is on the text of the provision. This directs attention to the natural and ordinary meaning of the words - that is, the grammatical meaning of the provision read as a whole.
   2. The words are to be given their primary and natural significance. If general words are used, they will be given their plain and ordinary meaning unless the contrary is shown. The explanation of the "ordinary" meaning of the word is the "ordinary usage in society" and its "natural" meaning is its "grammatical" meaning in the context in which it appears.
   3. All words have meaning and effect. The courts are not at liberty to consider any word or sentence as superfluous, void or insignificant. All words must be given some meaning and effect. This rule applies with greater force if the provision has been added by amendment.
   4. Next, when a court or tribunal focuses on the text of the provision, the focus is not simply on the meaning of individual words. It is necessary to focus on the text of the relevant provision as a whole...
   5. The primary focus on the text accords with some settled rules of construction, including the following rule. Where a statute expressly excludes one thing, it can be assumed that it excludes other things of the same kind not mentioned. Accordingly, an implication cannot be made on a topic in respect of which express provision has been made.[14]
6. Mr Germano drew our attention to several authorities where the Courts considered the meaning of various provisions within the Building Act, having regard to the purpose or objects of that Act. For example, in Rodwell v Building Practitioners Board,[15] Hollingworth J stated:
   1. The main purpose of the [Building] Act is to provide for the regulation of building and building standards: s 1. The objects of the Act include: to establish, maintain and improve standards for the construction and maintenance of buildings; to protect the health and safety of people who use buildings; and to regulate building practitioners: s 4. The Act establishes a number of separate entities to achieve its purpose and objects.
7. Further reference was made to the judgment of Hargrave J in Beach v Building Appeals Board,[16] where his Honour stated:

In my opinion, Parliament has clearly manifested its intention, by unmistakable and unambiguous language, to grant to the 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.[17]

1. Finally, Mr Germano referred to the recent Victorian Supreme Court of Appeal judgment in City of Port Phillip v Shout Rock Café's Pty Ltd,[18] where the Court considered the meaning of s 113 of the Building Act and specifically, the words "building work, protection work or other work required by the regulations ". At first instance, the trial division of the Supreme Court determined that those words were to be read conjunctively so that both 'building work' and 'protection work' was part of 'work required by the regulations'. The Court of Appeal rejected that conjunctive interpretation. It held that those words should be read disjunctively, such that there were three categories of work; namely:

(a) building work (simpliciter);

(b) protection work; and

(c) other work required by the regulations.

1. Conversely, there are a number of considerations which support the view that the conjunctive construction should not be adopted.

(a) Part 8 is concerned with the enforcement of both safety and building standards. The provisions relating to emergency orders and building orders other than BOMWs make this clear. The conjunctive construction does not give effect to the safety hazards objective. As the Council submitted, it is inherently unlikely that the legislature intended to constrain the operation of s 113 in situations of concern for safety. > > (b) The parties accept that the relevant phrase 'building work, protection work or other work required by the regulations' must be given the same meaning in ss 111(5) and 113. When regard is had to ss 106(c) and (d) , it is apparent that building orders may potentially be made with respect to buildings (including parts of buildings) which are unfit for occupation or which are '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' without reference to the regulations. The purposes identified are ones of public interest and, the powers given to achieve them should be upheld and given full effect. > > (c) ...

These possibilities support the view that s 111(5) and s 113 are intended to form part of a flexible system of discretionary powers which are subject to checks and balances. As such, they should not be read down in the manner for which Shout Rock contends. The minimisation of the burden upon owners will result from the proper and parsimonious selection of the appropriate remedy in a particular case. It will not necessarily result from limiting the remedies available to a building surveyor. On the contrary, the conjunctive construction will almost inevitably result in the imposition of orders to vacate and cease the occupancy of buildings under s 111 in circumstances where this may be, as a matter of practical reality, a disproportionate response to the problem and issue.

1. Mr Germano also referred to recent amendments to the Building Act, enacted on 13 November 2024. The amendments incorporate a new subsection s 108(1B) and s 111(5A). Both subsections refer back to a circumstance referred to in s 106(d) and purport to clarify the powers of a building surveyor in relation to the making of a building notice and building order. For example, s 108(1B) states:

(1B) If a municipal building surveyor or a private building surveyor is of the opinion that -

(a) a circumstance referred to in section 106(d) exists in relation to a building, land or place of public entertainment or building work that is being or is proposed to be carried out on the building, land or place; and

(b) certain action is necessary to remove or to wholly or partially reduce, or to contribute to removing or wholly or partially reducing the circumstance -

a building notice caused to be served by the relevant building surveyor under section 106 may require the owner of the building, land or place to show cause within a specified period why the owner should not take the action that is necessary and is specified in the notice.

1. In our view, the authorities referred to above and the amendments to the Building Act highlight the purpose or objects of the Building Act and specifically, the objective to protect the safety and health of people who use buildings and places of public entertainment. However, none of the authorities, nor the amendments made to the Building Act, specifically or directly address the question as to the meaning of 'land' in s 106(d).
2. In other words, the reference to 'land' in s 108(1A) and (1B) relate to the content or form of a building notice not the power that is conferred on the relevant building surveyor. That power is contained in s 106, being the provision which empowers a building surveyor to cause a building notice to be served. We do not accept that the amendments to s 108 widen that power. Those amendments do not extend or redefine the chapeau to s 106. They merely prescribe the scope of a building notice but do not enlarge the category of persons upon whom a building notice may be served. In our view, s 106 and s 108 address two distinct concepts and it would be incorrect to conflate what the legislation prescribes as to the content or form of a building notice with what the legislation describes as the category of person or entity that is capable of being served with a building notice.
3. We note that Parliament did not amend the chapeau to s 106 by deleting the words 'on which building work is being or is proposed to be carried out' when amendments were introduced in 2024. On one view, this may reinforce the notion that the legislature did not intend to expand the scope of the categories of persons or entities upon which a building notice can be served, notwithstanding that other amendments were made to s 108 of the Act to clarify or expand the contents and form of building notices.
4. Nevertheless, Mr Germano submitted that there was no textual warrant to give the word 'land', as it appears in s 106(d), a meaning other than its natural and ordinary meaning. In other words, land simply means, for example: any tract of ground capable of being owned as property.[19]
5. We do not accept that proposition. In our view, the authorities referred to above focus on a different aspect of the Building Act. Specifically, the discourse over whether a phrase is to be read disjunctively or conjunctively concerns a collection of words within the one phrase. For example, the expression 'building, land or place or building work on the building, land or place'. There is no question that this phrase or collection of words relates to separate and distinct elements and so is to be read disjunctively. However, the question under consideration is different. Here, the MBS contends that the word 'land' in s 106(d) has a different meaning to the same word as it appears in the chapeau to s 106. It is not so much a question of whether the provision is to be read disjunctively or conjunctively but rather, whether the reference to 'land' is the same land as referred to in the chapeau to s 106. The recent amendments to the Building Act do not, in our opinion, answer that question.
6. In our view, giving the word 'land' what is referred to as its natural and ordinary meaning ignores the words in the chapeau to s 106. In other words, there would be no requirement to qualify the word 'land' with the words 'in which building work is being or is proposed to be carried out'. The chapeau could simply state 'land'. Those qualifying words must have some meaning or purpose. The legislature must have intended to exclude the powers of the municipal building surveyor to serve an owner of land simpliciter with a building notice. Further, we are of the opinion that s 106(d) cannot be read in isolation to the chapeau. Indeed, that subsection starts with the word 'the', meaning that [the] building, land or place or building work on the building land or place has an earlier reference. In this case, that earlier reference is the chapeau. Otherwise, what land is being referred to in s 106(d)? If the word 'land' in s 106(d) is devoid of any reference to the chapeau of s 106, then the powers of the MBS to deal with land are unconstrained and could mean any land, whether owned by the owner or not.
7. The same reasoning can be applied to the word 'place' as it appears in the chapeau to s 106 and again in s 106(d). Specifically, in the chapeau it is described as 'a place of public entertainment'. However, in s 106(d), there is only a reference to the word 'place'. The words 'of public entertainment' are not repeated in s 106(d), which in our view reinforces the notion that the word 'place' in the chapeau to s 106 is one and the same as the word 'place' in s 106(d). Otherwise, the word 'place' would have no practical meaning as it appears in s 106(d). Such an interpretation would lead to uncertainty and ambiguity, which clearly would be at odds with the objectives and purpose of the Building Act.
8. Finally, Mr Germano submitted that by including the words 'or building work on the building, land or place' in s 106(d) reinforces that the legislature drew a distinction between land simpliciter and land on which building work is being or is proposed to be carried out. He submitted this lent weight to the proposition that the reference to 'land' in s 106(d) is separate and distinct to the reference to 'land' on which building work is being or is proposed to be carried out.
9. We do not accept that proposition. In our view, the reference to 'all building work on the building, land or place' simply means that the building surveyor can tailor or fashion the building notice so that it is specific to the land in which building work is being or is proposed to be carried out or alternatively, to the building work itself on the land in which building work is being or is proposed to be carried out.

DOES THE REFERENCE TO LAND IN S 102 OF THE BUILDING ACT ONLY MEAN LAND ON WHICH BUILDING WORK IS BEING OR IS PROPOSED TO BE CARRIED OUT?

1. It is stated in the Emergency Order that the order is necessary because:
   1. Danger to life arising out of the condition of the land that has been impacted by a landslip.
2. The Emergency Order contains a satellite photograph of the land and the relevant part of the land, which is the subject of the order is highlighted in yellow.
3. We accept the evidence of the Applicants that no building work is currently being carried out or proposed to be carried out on this area of the land or generally.
4. The text of s 102 of the Building Act is materially different to s 106 of the Building Act. Nevertheless, our observations and findings as to how s 106(d) of the Building Act is to be interpreted are apposite when considering the meaning of s 102 of the Building Act.
5. The chapeau to s 102 provides that the Respondent may make an emergency order if the Respondent first forms the opinion that the order is necessary because of a danger to life or property arising out of the condition or use of or proposed use of:

(a) a building; or

(b) the land on which building work is being or is proposed to be carried out; or

(c) a place of public entertainment.

1. In that sense, the danger to life or property cannot be separated from the condition or proposed use of the land on which building work is being or is proposed to be carried out. In our view, there is no basis to read the provision to mean the condition of land simpliciter, as s 102(b) qualifies what is 'land', for the purposes of that provision.
2. Moreover, there is no inconsistency between the chapeau and s 102(b) of the Building Act, notwithstanding that the word 'land' is qualified in s 102(b).
3. Section 102 of the Building Act is the enabling provision which empowers a municipal building surveyor to make an emergency order. In contrast, s 103 and the provisions which follow, deal with the content or scope of an emergency order, rather than defining what conditions must exist before an emergency order can be made. Within s 102, subsection (b) is the only reference to 'land'.
4. The reference to 'land' is limited to land 'on which building work is being or is proposed to be carried out'. In our view, this qualification constitutes a precondition to the exercise of jurisdiction to make an emergency order, as it relates to 'land'.
5. We find that there is no overarching or general power under s 102 of the Building Act to issue an emergency order for land simpliciter. The power to make an emergency order in relation to land does not crystallise unless there is work being or proposed to be carried out on the land in question.
6. As already noted, it is not submitted that work was being conducted on the land or proposed to be carried out on the land Given this, we find there was no jurisdiction to make the Emergency Order pursuant to s 102(b) of the Building Act. That Emergency Order was premised solely on the condition of the land because of the land slip and not because of the condition or use or proposed use of land where building work is being or is proposed to be carried out.
7. We have also taken into consideration the Respondent's submission that the Emergency Order captures the grounds outlined in s 102(a) of the Building Act. Specifically, the Respondent's written and verbal submissions referenced a deck/staircase as the 'building', which gave rise to the need to issue the Emergency Order.[20]
8. We accept that a deck/staircase may fall within the definition of a 'building' under s 3 of the Building Act. Further, we acknowledge that a danger arising out of the condition of such a building could be grounds to make an emergency order pursuant to s 102(a) of the Building Act.
9. However, the Emergency Order has not referenced s 102(a) of the Act nor does it mention any building structure. The wording of the Emergency Order further fails to direct the owners or occupiers of this 'building' to evacuate or to prevent access to the same. Further, there was no identification of the danger created by this building structure. Reg 177 of the Building Regulations 2018 (the Regulations) states than an Emergency Order made under s 102 of the Act must include

1. The Emergency Order states it was made due to the condition of the land impacted by the landslip. The Emergency Order makes no reference to any building structure or to s 102(a) of the Building Act. Given that the Regulations make clear that an emergency order must include the reason or reasons why the order was made, we find that, to the extent that the Emergency Order is premised on the condition or use or proposed use of a building, it is misconceived. It suffers from a material omission as it bears no connection to any building structure. In those circumstances, the decision to make the Emergency Order and the resultant form of the Emergency Order is substantially at odds with the legislative purpose or objects of the Building Act, and for that reason, the Emergency Order (insofar as it relates to a building) cannot be said to be the valid exercise of power under s 102(a).
2. Given our finding, it is unnecessary to consider the Respondent's alternative submission that the 'building' does not need to be the same as that belonging to the owner and could relate to the building located on the Interested Parties' property. Nevertheless, and for completeness, we make the following observations in response to that submission.
3. First, we accept that s 102 of the Building Act does not distinguish between the category or types of owners, in the same way that s 106 of the Building Act does.
4. Sections 103 and 104 of the Building Act provide further detail in relation to emergency orders. Section 103 of the Building Act prescribes that an emergency order may direct an owner or occupier to evacuate a building or land or place of public entertainment within a specified time or times.
5. We accept that s 105 of the Act states the emergency order must cause an emergency notice to be served on the person to who it is directed without delay after it is made. However, reg 177 of the Building Regulations 2018 specifically states that for the purpose of s 105 of the Act, the emergency order made under s 102 of the Building Act must contain the name of the owner, occupier or builder to whom the order is directed.
6. The context of s 102 and the surrounding provisions of the Building Act and Regulations, are premised on the emergency order being addressed to an owner or occupier to evacuate or prevent access to a building or land on which building work is being undertaken or proposed to be undertaken.
7. The Building Act relevantly defines an owner under s 3 as:

**owner - **(a) in relation to land which has been alienated in fee by the Crown and is under the operation of the Transfer of Land Act 1958, (other than land in an identified folio under that Act) means the person who is registered or entitled to be registered as proprietor, or the persons who are registered or entitled to be registered as proprietors, of an estate in fee simple in the land; and

owner in relation to a building, means the owner of the land on which a building is situated(2);

The definition of owner in relation to a building is then qualified by the following notation:

(2) In Part 7 a reference to the owner is a reference to the owner of land on which building work is proposed to be or is carried out.

1. The Applicants are the owners of the Subject Land and of any structures affixed to the Subject Land. Further, the term 'owner' in relation to a building means the owner of the land on which a building is situated.
2. When considering s 102 of the Building Act within the context of its surrounding provisions and having regard to the definition of 'owner' as set out above, we find that the Emergency Order can only be made against the owner or occupier of the building or land on which building works are or are proposed to take place or place of public entertainment. If the reference to owner is in relation to a building; for example, under s 102(a) of the Building Act, then the definition of owner in relation to the subject building means the owner of the land on which a building is situated. We do not accept that the wording of s 102 of the Building Act can extend to a building on land over which the Applicant has no ownership or control.

1. In reviewing the Building Orders we found that if the Building Notices upon which the Building Orders were premised were a nullity, then the Respondent did not have power to make the Building Orders.
2. Although not strenuously argued during the hearing or in written submissions, we note that the Applicants have taken issue with the form of Building Notice BN-002/24,[21] which required the following:

Remove all the landslip debris from Penny Lane in accordance with geotechnical recommendations after first obtaining the Council permits and approvals.

1. As we have already observed, the defined term 'owner' is tied to the particular title of the land, the subject of the building notice. The Building Notice BN-002/24 has referenced work to be carried out on land which is not owned by the Applicants. We consider the content of this Building Notice falls outside of the Respondent's power, as it relates to Penny Lane, which is land beyond the title boundaries of the Applicants' land.
2. Consequently, we find that, to the extent Building Notice BN-002/24 purports to direct the Applicants to show cause why they should not carry out work in Penny Lane, it is invalid. Consequently, there was no power to make the Building Order upon which that Building Notice is premised.

ADDENDUM - Livingspring Pty Ltd v Building Appeals Board

1. On 25 March 2025, the Supreme Court of Victoria handed down its judgment in Livingspring Pty Ltd v Building Appeals Board (Livingspring),[22] which considered, amongst other things, the jurisdiction of a municipal building surveyor (and by extension the BAB) to make a building order.
2. Because of that decision, we made orders dated 1 April 2025, inviting the parties to file any supplementary written submissions as to the relevance of Livingspring. Both parties filed supplementary submissions in accordance with those orders.
3. Livingspring concerned a multilevel apartment building which comprised both private sole occupancy units (SOUs) and SOUs which were offered as short-term rental apartments. Between 2007 and 2013, the municipal building surveyor (the MBS) issued a series of building notices and made building orders requiring fire safety prevention works to be undertaken. The decisions of the MBS where the subject of appeals before the BAB, which ultimately determined that the building order/s be varied and that the owners corporation (the OC) carry out certain building work. That determination was upheld in Livingspring.
4. In Livingspring, the OC challenged the jurisdictional validity of the MBS to make a building order in reliance upon the power in s 106(a) and (d) of the Building Act.
5. In Livingspring, Ginnane J applied the reasoning of the Court of Appeal in City of Port Phillip v Shout Rock Café Pty Ltd,[23] to find that the words in s 106(a) 'in contravention of a building permit or this Act or the building regulations' are to be read disjunctively, so that each of those circumstances were independent of the other and each gave the municipal building surveyor power to make a building order. The respondent submitted that the same interpretation should be extended to the balance of s 106, including s 106(d) of the Building Act.
6. For the reasons set out above, we do not accept that the question for determination is whether a 'building, land or place' is to be read disjunctively. We accept that those elements are to be read disjunctively. Rather, the critical question before us is what does the reference to 'land' in s 106(d) mean?
7. Consequently, we accept the submission made by the Applicants that:
   1. The Applicants submit that the factual matrix in Livingspring is distinguishable from this case in a key respect, in that Livingspring considered the scheme of the Act and the interpretation of 106 of the Act, specifically in relation to whether a Municipal Building Surveyor (MBS) has the power to serve a building notice and make a building order where building work has been constructed in accordance with building permits (see [13] and [16]) but where there might nonetheless be non-compliance with the Act and regulations (see [92]-[93]), and concludes that the MBS has that power (see [115]), whereas this proceeding concerned a case where no building work to recurring or foreshadowed.[24]
8. Having considered the Court's judgment in Livingspring and the supplementary written submissions filed by the parties, we find that the observations and findings of Ginnane J in Livingspring are distinguishable and do not alter our findings set out above.

[1] 3 Penny Lane, McCrae and 5 Penny Lane, McCrae.

[2] Building Act 1993, s 1(c).

[3] Building Act 1993, s 4(a).

[4] [2002] HCA 11; (2002) 209 CLR 597, [51]-[53].

[5] [2003] HCA 2; (2003) 211 CLR 476, 506.

[6] [2003] HCA 2, [76].

[7] [2003] FCAFC 288, [42].

[9] [1998] HCA 28, [93].

[12] [2009] HCA 41; (2009) 239 CLR 27.

[14] Outline of Submissions of the Respondent & Responsible Authority, 23 January 2025, 11-12.

[15] [2009] VSC 146; (2009) 21 VR 683, 685.

[16] [2005] VSC 231.

[18] [2023] VSCA 327.

[19] The New Collins Dictionary, Collins (definition # 5).

[20] Outline of Submissions of the Respondent & Responsible Authority, 23 January 2025, [75-80].

[21] Applicants' Further Submission, 7 May 2024, [45] - [49].

[22] [2025] VSC 134.

[23] [2023] VSCA 327.

[24] Applicants' Submissions in Relation to relevance of judgment in Livingspring Pty Ltd v Building Appeals Board [2025] VSC 134, 14 April 2025, [3] (footnotes omitted).