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[2015] VSC 120
General information, not legal advice.
Supreme Court of Victoria
2015-04-01
VICKERY J
Original judgment source is linked above.
BUILDING - Effect of determination of the Building Appeals Board - Demolition work proposed - Risk to adjoining owner and the public - Whether risk to public relevant in determining appropriate protection works - Appeal to Building Appeals Board from determination of relevant building surveyor - Building Act 1993 ss 84; 85; 87; 141(a); 149; 166; and Schedule 3 - regs 101; 602; 604 and 607 - Construction of determination of Building Appeals Board - Uncertainty - Ancillary or incidental orders possible under s 149(4) - Correction of errors possible under clause 18 of Schedule 3
1 On 13 March 2015 I stated a further question for hearing on 16 March 2015 and determination pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules (2005) (the 'Rules'). The question set down for determination by the Court on this occasion was:
What is the effect of the determination of the Building Appeals Board (the 'Board') dated 30 June 2014, as amended on 18 July 2014 (reference number 446544) (the 'Board's Determination')?
2 The background facts giving rise to the statement of this question are set out in earlier decisions.[1] By way of summary:
(a) The Plaintiff, CES-Queen (Vic) Pty Ltd ('CES-Queen') is the owner of a property situated at 150 Queen Street, Melbourne ('CES-Queen's Land'); a planning permit has been issued to build a 71 storey residential tower on CES-Queen's Land, to be known as 'Tower Melbourne'; Tower Melbourne cannot be constructed until the existing building at 150 Queen Street has been demolished; building permits have been issued which permit the demolition; as part of a first phase of the demolition works CES-Queen proposes the demolition of the plant and lift motor room on the roof of 150 Queen Street (the 'Initial Demolition Works');
(b) The Second Defendant, Colonial Range Pty Ltd ('Colonial') is the owner of two adjoining properties known as 140 Queen Street and 21-27 McKillop Street, Melbourne ('Colonial's Land'); a planning permit has been issued to build an hotel and retail premises on Colonial's Land.
3 Disputes have arisen between Colonial and CES-Queen as to protection works which are necessary to protect the building on Colonial's Land from damage caused by the proposed demolition on CES-Queen's Land at 150 Queen Street. Colonial is principally concerned that, unless adequate protection works are undertaken, vibrations arising from the demolition work to be undertaken on CES-Queen's Land will cause the façade of its building at 140 Queen Street to collapse. The concern is the possibility of vibration causing material damage to the neighbouring property at 140 Queen Street and the risk of damage to the public through falling debris onto the street below, stemming from the vibration which is anticipated or feared.
4 This concern immediately arises from the fact that the Initial Demolition Works involve the demolition of the plant and lift motor room on the roof of 150 Queen Street, which is in contact with the roof of 140 Queen Street.
5 The Board's Determination resulted from an appeal pursuant to s 141(a) of the Building Act 1993 (the 'Act') initiated by an adjoining land owner, which was the Second Defendant Colonial Range Pty Ltd ('Colonial Range'), arising from a determination made by the relevant private building surveyor, Mr Shane Leonard, dated 5 February 2014 under s 87 of the Act as to the appropriateness of protection work in respect of Initial Demolition Works (the 'Leonard Determination').
6 CES-Queen, by its Further Amended Originating Motion dated 13 March 2015 seeks a declaration that the Board's Determination substituted the protection works determination comprising the Leonard Determination with its own determination, requiring all the 'proposed protection works' defined in the Leonard Determination [to be undertaken] and in addition requiring that the façade of 140 Queen Street be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the façade from impacting on the street below.
7 Colonial opposes the declaration, principally on the ground that the Board's Determination did not have the effect contended for by the Plaintiff, and accordingly, could not found the declaratory relief sought.
Building Act and Regulations
8 I set out below some of the provisions of the Act which are relevant to this proceeding. These provisions have been well summarised by Kaye JA in Supple & Anor v Building Appeals Board and Ors,[2] and for convenience, I will repeat the relevant substance of them here.
9 Part 7 of the Act contains provisions relating to the protection of adjoining property during proposed building works. Section 84(1) requires that an owner, who is required by the regulations to carry out protection work in respect of an adjoining property before or during the carrying out of building work, for which a building permit is required, must first, serve on the owner of the adjoining property, and the 'relevant building surveyor', notice of the proposed building work. Section 85(1) provides that the adjoining owner must, within 14 days, give notice to the owner agreeing to the proposed protection work, or give notice to the owner and the relevant building surveyor either disagreeing with the proposed protection work or requiring more information. Section 87(1) provides that on receipt of a notice under s 85(1)(b), the relevant building surveyor must examine the proposal for protection work and make a determination as to the appropriateness or otherwise of the work.
10 As earlier stated, it was the determination of the relevant building surveyor (Mr Leonard) which was the subject of an appeal, by the Second Defendant Colonial Range, to the Board in this case.
(a) a determination under section 87 as to the appropriateness of the work; or ...
12 Section 166(1) establishes the Board as an entity. Section 166(6) provides that Schedule 3 has effect with respect to the membership and procedure of the Board.
13 Clause 8(1) of Schedule 3 provides that, for the purposes of performing any of its functions, the Board may be constituted by one or more panels of its members.
15 Clauses 8(6)(a), 8(7) and 9 are relevant to the submissions made by the parties. They provide:
8(6) If, after a proceeding has commenced before a panel of two or more members, a member of the panel becomes unavailable -
(a) if the parties to the proceeding agree, the proceeding may be continued and completed before the remaining members of the panel;
...
8(7) If the parties do not agree to continue a proceeding under subclause (6) the chairperson of the Building Appeals Board must arrange for the matter to be reconsidered by another panel, and that other panel may have regard to the earlier proceedings.
9 An act or decision of a Board is not invalid only because -
(a) of a defect or irregularity in the appointment of a member or acting member; or
(b) of a vacancy in its membership; or
(c) the occasion for the appointment of an acting member has ceased to existed.
16 Clause 16 of Schedule 3 is concerned with determinations by the Board and the reasons given for those determinations. Clause 16(1) provides that a determination of the Board must be in writing. Clauses 16(5) and (6) provide as follows:
16(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.
16(6) The Building Appeals Board must comply with a request received under subclause (5) without delay after receiving it.
17 The Act therefore differentiates between the 'determination' of the Board, and the 'reasons' for a determination. This was the subject of analysis by Kaye JA in Supple & Anor v Building Appeals Board and Ors[3] where his Honour observed:
The short answer to that submission is that the proceeding, consisting of the appeal to the Board under s 141 of the Act, was complete (apart from the resolution of the question of costs) upon the delivery by the panel of its determination on 30 June 2014. It is the determination which finalises the rights of the parties who were the subject of the appeal. Reasons, subsequently provided for that determination, cannot alter or qualify the determination, or the orders made in it. Rather, the reasons do no more than reveal the path of reasoning of the panel for its decision. Thus, the process provided by clause 16, for a party to request reasons, and for the Board to provide those reasons, does not constitute a continuation of the proceeding in which the reasons for a determination are sought.
18 Further, the Building Regulations 2006 (the 'Building Regulations') have been made pursuant to the general regulation-making powers provided for in s 261 of the Act. Set out below are relevant parts of Building Regulations rr 101, 602, 604 and 607.
19 Relevant objectives of the Building Regulations are set out in r.101 and include (b) and (f) as follows:
(b) to prescribe standards for the construction and demolition of buildings;
(f) to prescribe standards and matters relating to the maintenance of fire safety and safety measures;
20 Regulation 602(1) provides for the protection of adjoining property before and during the carrying out of any building work, in the following terms:
(1) Protection work must be provided in respect of an adjoining property, before and during the carrying out of any building work, if required by the relevant building surveyor.
21 'Building work' is defined by s 3 of the Act to include 'demolition or removal of a building'.
22 Regulation 604 provides for protection of the public, and prescribes:
(1) Precautions must be taken before and during building work to protect the safety of the public if required by the relevant building surveyor.
(2) The precautions must be approved by the relevant building surveyor before building work is commenced.
(3) Before and during the carrying out of building work all excavations must be fenced or otherwise guarded against being a danger to life or property.
(4) The report and consent of the relevant council must be obtained to an application for a building permit relating to the erection of precautions over the street alignment unless a local law requires the taking of precautions and the precautions comply with the local law.
23 Regulation 607(1) provides specifically for demolition, in the following terms:
(1) Precautions must be taken before and during demolition in accordance with AS 2601 - 2001 The demolition of structures, published 13 September 2001, as published from time to time and the following -
(a) the demolition must not be commenced until the precautionary measures have been inspected and approved by the relevant building surveyor; and
(b) no part of any external wall on or within 3m of a street alignment may be pulled down except during the hours that the relevant building surveyor directs; and
(c) protective outriggers must be installed where necessary to guard against danger to life or property or when required by the relevant building surveyor; and
(d) the site must be cleared of all debris.
24 In considering the function of Building Regulations rr 602, 604 and 607 in the present context, it is useful to commence with the jurisdiction of the Board to deal with the appeal in this case pursuant to s 141(a) of the Act, pursuant to which the owner required to carry out protection work or an adjoining owner is entitled to appeal to the Building Appeals Board against a determination under s 87 as to the appropriateness of the work. [Emphasis added]
25 This jurisdiction on an appeal to the Board, which focuses on the 'appropriateness of the work', has its source in s 87(1), which requires the relevant building surveyor to examine the proposal for protection work and determine the appropriateness or otherwise of the work. [Emphasis added]
26 The wide powers which can be exercised by the Board on appeal are set out in s 149 of the Act, and include a power to set the decision under appeal aside and remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate. Further, as provided in s 149(2) in considering and determining an appeal, the Board has in addition to its other powers, all the powers of the decision-maker in relation to the decision under appeal. So it effectively has power to step into the shoes of the original private building surveyor in making its determination, including the s 87(1) power to undertake an examination of the proposal for protection work and determine the appropriateness or otherwise of the work. [Emphasis added]
27 Pursuant to s 84(1) an owner who is required by the building regulations to carry out protection work in respect of an adjoining property before or during the carrying out of building work for which a building permit is required must, before commencing the building work, serve on the owner of the adjoining property and the relevant building surveyor notice of the proposed building work. This in turn invokes r 602, which requires that protection work must be provided in respect of an adjoining property, before and during the carrying out of any building work, if required by the relevant building surveyor. [Emphasis added] This has the effect of conferring the determination of the necessary protection work upon the relevant building surveyor.
28 What is necessary protection work under the Act and the Regulations goes beyond considering what may be necessary to protect adjoining properties, it also opens up a consideration of the public and its safety. This is invoked by the requirement under the Act and the Regulations for the relevant building surveyor, and on any appeal from his or her decision, the Board, to undertake an examination of the proposal for protection work and determine the appropriateness or otherwise of the work. [Emphasis added] If the proposed protection work failed to adequately protect the public, and provide for its safety, it could hardly be said that such work could be regarded as 'appropriate', even if it was adequate to protect the adjoining property.
29 In this way, the Act and the Regulations in determining the appropriateness of protection work properly require a relevant building surveyor, and on any appeal the Board, to have reference to the evident intention and purpose of the broader statutory scheme, and in so doing apply the requirements of r 604 and adopt measures to protect the safety of the public in addition to protecting adjoining properties.
30 In relation to demolition, r 607 which is a component of the statutory scheme, is also something that the relevant building surveyor, and on any appeal the Board, would be required to take into account when considering the appropriateness of protection work.
31 In this case the Board which made the relevant determination on the appeal was a panel constituted by two members, Mr Bryan Thomas and Mr Stephen Kip (the 'Panel').
32 Mr Kip has since ceased to be a member of the Board, but Mr Thomas remains a member.
33 The hearing of the appeal was conducted over 5 days on 7, 9, 10, 17 and 24 April 2014.
34 A substantial volume of the documentation before the Panel and considered by it, comprised evidence and written submissions relating to the adequacy of the protection works proposed by Mr Leonard.
35 Pursuant to Clause 16(1) of Schedule 3 to the Act, the Board's Determination was in writing.
36 Although there is a facility provided for in Clause 16(5) and (6) of Schedule 3 to the Act for the Building Appeals Board to provide reasons for its determination, it was not required to provide reasons unless this was requested by one of the parties to the appeal within one month of being served with the Board's Determination pursuant to Clause 16(5) of Schedule 3. This did not happen and no request for reasons was made.
37 At the commencement of its written determination, under the subheading 'Nature of Appeal', the Panel set out the four matters that were before it in the appeal, namely:
(1) An appeal, pursuant to s 141(a) of the Act, by Colonial against the determination by the relevant building surveyor, Mr Leonard, under s 87 of the Act as to the appropriateness of the protection work.
(2) A dispute, pursuant to s 152 of the Act, between Colonial and CES-Queen, about the nature and amount of the cover to be provided under the proposed contract of insurance under s 93 of the Act.
(3) A dispute, pursuant to s 153 of the Act, between Colonial and CES-Queen, about how and when a survey is to be carried out under s 94 of the Act, or a dispute about the adequacy of a survey carried out under that section.
38 Under the subheading 'Determination of the Panel' the determination then set out the determination that the Panel made, as follows:
Determination of the Panel
Application under Section 155 of the Act
1. The Board does not have jurisdiction to determine this matter
Application under Sections 141, 152 and 153 of the Act
3. Accordingly the Leonard Determination is quashed.
(a) the appropriateness of the protection work determined by the RBS
(b) the adequacy of the survey of the adjoining buildings, and
(c) the adequacy and amount of the insurance coverage.
5. The Board therefore finds as follows -
(a) the protection work proposed by the owner was not appropriate,
(b) the survey of the adjoining property was a full and adequate survey,
(c) the amount of insurance cover at $20 million is adequate, and
(d) the contract of insurance did not comply with s 93 of the Act.
39 In the determination, the Panel then set out under the subheading 'Reasons of the Panel', what it said were its reasons for its determination.
40 Of importance to the present proceeding, is what is said under the subheading 'DETERMINATION 4(a)'. Properly construed, I take this to provide reasons for item 4(a) of the 'Determination of the Panel' set out above, namely '(a) the appropriateness of the protection work determined by the RBS' (the RBS being relevant building surveyor, who was Mr Leonard).
41 I reject the submission that the reasons expressed as item 4(a) were mistakenly described and were in fact reasons for the finding made under item 5(a) under the subheading 'Determination of the Panel'. The reasons for the determination under item 4(a) were as follows:
42 Colonial submitted first that the Board did not adopt the Lennard determination. Secondly it submitted that the Board concluded that the protection works proposed by the owner were not appropriate.
43 Accordingly, Colonial submitted that the determination of the Board relevantly did one thing, and one thing only, namely - it determined under finding 5(a) that:
a) the protection work proposed by the owner was not appropriate,
44 It said that there were three principal reasons for this, namely:
(1) The precise and deliberate wording of the finding made in sub-paragraph 5(a) of the determination is clear and unambiguous. The Board's Determination, according to its text, was limited to quashing the decision of Mr Leonard and went no further. In particular the Board did not in any way purport to substitute its own decision for that of Mr Leonard, either with the additional element of its own making, requiring that the façade of 140 Queen Street be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the façade from impacting on the street below, or at all.
(2) Regulation 604 sits outside a determination made under s 87 of the Act.
(3) Likewise, Regulation 607 sits outside a determination made under s 87 of the Act.
In other words Regulation 604, a regulation designed for the protection of the public, and Regulation 607, which incorporates the Australian Standard, operate separately and discretely from s 87 of the Act. Accordingly, paragraph 30 of the Board's determination, relating to the protection of the public, was an observation which did not relate to the s 87 question before it.
45 On the other hand, CES-Queen submitted that when the Board's Determination is read as a whole, and in the context of a hearing which analysed the appropriateness of the relevant building surveyor's protection works, what the Board did by its determination amounted to not only quashing Mr Leonard's determination, but also by necessary inference, it also substituted its own determination for that of Mr Leonard.
46 It was submitted that the Board's substituted determination consisted of the whole of Mr Leonard's determination but with the addition of the Board's own formulation found in paragraph 30 of its determination, namely:
47 In my opinion, it is likely that the Board by its determination intended to not only quash Mr Leonard's determination, but it also intended to substitute its own determination for that of Mr Leonard.
48 It was also likely that the Board intended that its substituted determination consisted of the whole of Mr Leonard's determination but with the addition of the Board's own formulation found in paragraph 30 of its determination, namely:
49 This was the likely intention of the Board, inferred from parts of the text of its determination which tend to point in this direction.
50 As earlier observed, the Board said this in its determination:
(a) the appropriateness of the protection work determined by the RBS
51 It then proceeded to provide reasons for the above paragraph 4(a) of its determination, which have been earlier noted.
52 The Board specifically noted in its reasons at paragraph 30:
53 However, in its determination the Board also said things which cast some doubt as to what its intention actually was, particularly where it said, without qualification or addition:
54 There is a level of uncertainty in the expression of its determination as to what the Board actually intended to do. The following alternatives are open:
(a) Either the Board merely intended to quash the Leonard determination without more; or
(b) the Board intended to quash the Leonard determination and substitute its own decision which consisted of the Leonard determination, but with the addition of a requirement that the facade of 140 Queen Street should be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the facade from impacting onto the street below.
55 By reason of the uncertainty as to the meaning and effect of the Board's Determination, and the gravity of the consequences which may flow from it, at least for the present, I decline to grant the declaration sought by the Plaintiff, CES-Queen.
56 However, there is power for the Board, properly re-constituted in accordance with Clause 8 of Schedule 3 of the Act, under s 149(4) of the Act to make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal. It would appear that this power may also be exercised either on the Board's own initiative or at the request of a party.
57 There is also power for the Board, properly re-constituted in accordance with Clause 8 of Schedule 3 of the Act, either on its own initiative or at the request of a party, to correct an earlier determination in the event that there has been any accidental slip or omission in a determination (See: Clause 18 of Schedule 3 of the Act).
58 If the necessary clarification is provided by the Board by either or both of these mechanisms, the Court may consider afresh the question of any declaration which may be necessary, and its terms.
[1] Colonial Range Pty Ltd v Victorian Building Authority and Ors [2014] VSC 272; and [2014] VSC 602.
[2] [2015] VSC 83 [19]-[24].
[3] [2015] VSC 83 [47].
CES Queen (Vic) Pty Ltd
Thomas & Ors