City of Boroondara v Building Appeals Board [2000] VSC 546

Local Government Act 1989; ss 202, 203.

Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259.

2. This is the return of an order under the Administrative Law Act 1978 ("the Administrative Law Act") made on 24 October 2000 by Master Wheeler for review of a decision of the first respondent ("the Board") made on or about 3 August 2000 in the following terms:

a) Having considered all the information and submissions placed before it the Board determines that the conditions set out in the building order issued 11 February 2000 be set aside and be substituted with the following:

1. [The applicant] ("the Council") shall immediately repair any present damage to the glass lights, the subject of this appeal, and shall within a reasonable time after being notified, repair any future damage to any glass lights.

2. The Council is to maintain the glass lights, the subject of this appeal, upon their repair.

3. Alternatively to orders 2 and 3, the Council may replace all existing glass lights with any opaque material which has similar properties of light transmission. The Council is to maintain any such replacement; and

b) The Board determines that there is no order as to costs and each party is to bear its own costs.

By the order of Master Wheeler the decision under review was stayed for an unstated period pursuant to section 6 of the Administrative Law Act.

11. The Victorian Government Solicitor, acting for the Board, notified the Court that his client did not intend to take an active role in the proceeding but would abide the decision of the Court, save that if an application was made for an order for costs against it, it would wish to be heard.

14. The Board, in making the decision under review, was, by virtue of sub-clause 15(3)(c) of Schedule 3 of the Building Act 1993 ("the Act") required to observe the rules of natural justice, so as to constitute a "tribunal" for the purposes of the Administrative Law Act. I am satisfied that the decision was a "decision" and the Council a "person affected" within the meaning of that Act. Accordingly, the decision was such as to be reviewable on the application of the applicant under the Administrative Law Act.

17. The "glass lights" in question have been described in various ways, but are conveniently referred to as "glass tiles". They are inserted in a steel grate in the footpath of Burke Road and Cookson Street, Camberwell, along the street frontages of a building known as 718-22 Burke Road and 1 Cookson Street ("the building"), which is owned by the second respondent ("JLD") and is situated at the south-west corner of those two streets. There are eleven sets of glass tiles along the Cookson Street frontage and five along the Burke Road frontage, one of which has been paved over. The purpose and effect of the glass tiles is to allow the transmission of daylight to rooms in the basement of the building.

20. It is to be noted, in that context, that the Board appears to be under a misapprehension about the meaning of the word "opaque", but nonetheless the meaning of condition 3 of its decision is clear: that the intention of the Board is that any replacement material must maintain the translucency presently provide by the glass tiles.

23. It was common ground that the description of "pavement lights" in clause 290 of the City of Camberwell By-law 68: Buildings, which was gazetted on 3 May 1939, correctly described, in principle, the manner of installation of the glass tiles. It was also common ground (in the absence of evidence) that the building was probably erected in or about 1925, and accordingly that the by-law had no necessary relevance to the actual glass tiles in question. Clause 290 reads:

Pavement lights to areas extending under footways shall be enclosed by solid walls of masonry brickwork or other approved materials and covered with approved floor lights not exceeding 4 inches square or less than ¾ inch thick set in metal frames level with the surface of the footway and secured to the kerbing by being run in with lead zinc or other approved material. Prisms set in reinforced concrete may be used subject to the approval of the Building Surveyor. No such light or area shall extend beyond the building line under the footway more than 1 foot 6 inches or be more than 4 feet in length unless supported by iron or steel joists.

A shaft, rectangular in section, formed of plastered brickwork, extends straight down under the footpath from each set of glass tiles to about half way down the outside wall of the basement. One side of the shaft is open, so as to form a light well, transmitting daylight down into the basement from the glass tiles. The glass tiles are thus connected to the building. However, they are not situated within the land comprised in the Certificate of Title to the building, Volume 8189 Folio 619.

28. It was common ground at the hearing that Burke Road and Cookson Street are public highways, and thus vested in the Council in fee simple by virtue of section 203(1) of the Local Government Act 1989 if not otherwise, and that the vesting is, in terms of section 203(2), "free of all mortgages, charges, leases and sub-leases". (I assume that had either of those roads come within the provisions of section 202 or section 203(3), so as not to be affected by section 203(1), this would have been a matter within the knowledge of the Council officers and would have been brought to the attention of the Court.) No evidence was before me as to whether the Council is registered as the proprietor of an estate in fee simple in those roads, but if not, it is entitled to be so registered (if the roads are under the operation of the Transfer of Land Act 1958) and it is in any case the owner of the fee. It is thus the "owner" of those roads within the meaning of the definition in section 3 of the Act.

31. Mr Jennings, an advanced dental technician, has carried on his business from one of the premises in the basement of the building since 1 November 1945. The light well to his laboratory provides, in his words, "a good amount of natural light into the laboratory", although he also uses artificial lights. He said in a written statement which was put before the Board that during his occupation of the building, the glass tiles have broken from time to time. Whenever a glass tile broke, he would ring the Council and a person engaged by the Council would come and fix the glass. This would happen about once or twice a year, and other tenants had had the Council come about the same number of times in the year. He would never talk to the owner of the building about repair of the glass tiles, and so far as he could remember none of the previous owners had repaired them. He certainly had never repaired them himself, and was not aware that any other tenant had done so. Mr Jennings said further that in the last two or three years the glass tiles had been breaking much more often. He attributed this in part to vandalism and in part to the effect of the Council's mechanical street sweeper loosening the mortar between the tiles, and chipping and cracking the tiles.

34. It appears that Mr Jennings gave oral evidence to the Board as well as producing the written statement referred to in the preceding paragraph No evidence as to the content of that oral evidence was before the Court.

37. Mr Goddard, the municipal building surveyor appointed by the Council deposed that after some complaints regarding the condition of the glass tiles he arranged for an inspection by a member of his staff, who reported to him that they were broken and cracked. He formed the opinion that they were a danger to persons using the footpath. On 31 August 1999 he issued a building notice pursuant to section 106 of the Act to the registered proprietor of the building, requiring cause to be shown why the glass tiles (referred to in the building notice as "basement lights") should not be repaired or removed and the footpath reinstated. On being informed that JLD was in the process of purchasing the building, he forwarded to it a copy of the building notice on 13 September 1999. On 9 November 1999, as no cause had been shown, he issued to the registered proprietor a building order pursuant to section 111 of the Act, the operative portion of which read:

You are hereby ordered within 30 days to reinstate basement lights along the west and south boundaries of your building to a safe and satisfactory condition,

On 11 February 2000, having become aware that JLD had completed the purchase of the building, Mr Goddard served a similar building order ("the building order") on JLD. On 10 March 2000 JLD lodged with the Board a notice of appeal against the building order, pursuant to section 142(2)(a) of the Act.

44. The Board heard the appeal on 13 July 2000, and submissions were made by lawyers on behalf of the Council and JLD. The decision of the Board, set out in paragraph 1 above, was received by Mr Goddard on 4 August 2000. He sought written reasons for the decision, and on 11 September he received a letter from the Registrar of the Board, who set out the Board's reasons in the following terms:

The Council for ninety odd years has undertaken maintenance of the pavement lights.

The Board considered it unreasonable for Council to deny owner long standing enjoyment of light to basement.

It was felt that Council has not availed itself of any other mechanism available to it whereby owner can be required to contribute to costs.

51. The grounds of the order for review, as appearing in the Order of Master Wheeler, are as follows (with some changes in nomenclature) :

The Board acted beyond jurisdiction and/or failed to take into account relevant considerations and/or took into account irrelevant considerations and/or acted unreasonably and/or made errors of law, as follows:

a) In determining that the building order be amended to require the Council to carry out certain repairs and maintenance of the basement lights, the Board misconstrued the operation of the Act including sections 106, 111 and 118 and in so doing acted outside its jurisdiction.

b) In determining that the building order be amended to require that the Council repair and maintain the basement lights, the Board failed to take into account relevant considerations including the following:

i) that the Act does not provide for a building order to require someone other than the person to whom the [building] notice is directed, to carry out work;

ii) that the Council, as a public authority, is not bound by Part 8 of the Act; and

iii) that the Act does not provide for a building order to require maintenance in perpetuity.

c) In relying in its reasons on the Council's ownership of certain land the Board took into account an irrelevant consideration.

d) The Board [failed] to take into account a relevant consideration namely that in determining the validity of the building order the Board was required to determine who was the owner of the building and not make a determination as to land ownership.

e) In making a finding that the Council maintained the pavement lights for "ninety odd years" the Board acted unreasonably in that no reasonable Building Appeals Board could have reached that conclusion based on the evidence before it.

f) In considering it unreasonable for the Council to deny the owner long standing enjoyment of light to the basement, the Board took into account an irrelevant consideration.

g) In considering it unreasonable for the Council to deny the owner long standing enjoyment of light to the basement, the Board failed to take into account relevant considerations including:

i) section 195 of the Property Law Act 1958 which prevents any right to access or use of light coming into existence by reason of enjoyment or user for any period;

ii) that any ongoing maintenance undertaken by the Council, if it did occur, does not establish an obligation on the Council to repair the pavement for the benefit of the building owner.

h) In relying in its reasons that [sic] "it was felt" that the Council had not availed itself of any other mechanism available to it whereby the owner could be required to contribute to the costs of repair of the basement lights the Board took into account an irrelevant consideration.

i) In determining that the building order be amended to substitute a requirement that the Council repair and maintain the basement lights, the Board acted ultra vires.

j) The determination of the Board involves an error of law in that such reasons as have been provided to the Council (notwithstanding its request for reasons) do not constitute adequate reasons for the determination.

71. The relevant provisions of the Act are set out below.

Part 1

(1) In this Act

"building" includes structure, temporary building, temporary structure and any part of a building or structure;

"building work" means work for or in connection with the construction, demolition or removal of a building;

(a) build, re-build, erect or re-erect the building; and

"council" means a council within the meaning of the Local Government Act 1989

"decision-maker", in relation to a matter in respect of which an appeal can be made to the Building Appeals Board, means the person or body whose decision may be the subject of that appeal;

"municipal building surveyor" means a person for the time being appointed, employed or nominated by a council as its municipal building surveyor for the purposes of this Act;

(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

(b) in relation to land which has been alienated in fee by the Crown and is land in an identified folio under the Transfer of Land Act 1958 or land not under the operation of the Transfer of Land Act 1958, means the person who is the owner, or the persons who are the owners, of the fee or equity of redemption; and

(c) in relation to Crown land reserved under the Crown Land (Reserves) Act 1978 and managed or controlled by a committee of management, means the Minister administering that Act; and

(d) in relation to any other Crown land, means the Minister or public authority that manages or controls the land;

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

(i) underpinning, including the provision of vertical support, lateral support, protection against variation in earth pressures, provision of ground anchors and other support for adjoining property; or

(iii) overhead protection for adjoining property; or

(iv) other work designed to maintain the stability of adjoining property or to protect adjoining property from damage from building work; or

(b) any work or use of equipment necessary for the provision, maintenance and removal of work referred to in paragraph (a)-

whether or not the work or equipment is carried out or used on, over, under or in the air space above the land on which the building work is or is to be carried out or the adjoining property;

"public authority" means a body established for a public purpose by or under an Act and includes a council;

Except to the extent set out in Division 6 of Part 12, this Act does not bind the Crown in right of the State of Victoria or a public authority.

Part 8

. . . 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 -

(a) building work has been carried out on the building, land or place without a building permit required by this Act, or in contravention of a building permit or this Act or the building regulations;

(b) the use of the building or place contravenes this Act or the building regulations;

(c) the building or place is unfit for occupation or for use as a place of public entertainment;

(d) the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property.

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

(a) why occupation of the building or place or its use for public entertainment should not be prohibited; or

(b) why the owner should not do either or both of the following things -

(ii) carry out building work, protection work or work required by the regulations in relation to the building, land or place.

(2) A building notice must be in writing and must contain any matters required by the regulations.

(1) .. .. .. , a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.

(2) Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.

(b) prohibit the occupation of a place of public entertainment or its use for public entertainment; or

(c) require the owner of a building, land on which building work is being or is proposed to be carried out or place of public entertainment to do either or both of the following things within a specified time or times -

(ii) carry out building work, protection work or other work required by the regulations or to carry out a program of that work as directed in the order.

A building order remains in force, and, if amended, remains in force as amended, until -

(b) it is cancelled by the relevant building surveyor or the Building Appeals Board.

118. Contravention of emergency order or building order

(1) A person to whom an emergency order or building order is directed must comply with that order.

Penalty: 100 penalty units, in the case of a natural person.

500 penalty units, in the case of a body corporate.

Part 10

(2) The owner of a building or land may appeal to the Building Appeals Board against -

(a) the making of a building order under Division 2 of Part 8 applying to that building or land; or

(b) the imposition of any condition in that order; or

(d) a failure, within a reasonable time, to amend or cancel that order; or

(e) a requirement under Division 3 of Part 8 that the building order be fully complied with.

This Division is in addition to and does not take away from any other provision of this Act about the powers or procedure of the Building Appeals Board.

(1) An appeal under this Part is in the nature of a re-hearing.

(2) On an appeal the Building Appeals Board may consider matters not raised before the decision under appeal was made.

(1) The Building Appeals Board must consider and determine an appeal and by its determination may -

(ii) remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.

(2) In considering and determining an appeal, the Building Appeals Board has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal.

(4) The Building Appeals Board may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal.

Part 12

217. Application of Act to the Crown and public authorities

(1) . . . Parts 2, 3, 4, 5, 7, 9, 10, 11, and 12A and section 201 and this Division -

(a) bind the Crown in right of the State of Victoria and, so far as the legislative power of Parliament permits, the Crown in all its other capacities; and

174. The effect of the decision of the Board is to set aside the building order directed to JLD by Mr Goddard on 11 February 2000, requiring either reinstatement of the glass tiles to a safe and satisfactory condition or removal of the glass tiles and reinstatement of the footpath, and to substitute a building order directed to the Council containing the three requirements set out in the Board's paragraphs 1, 2 and 3.

177. I note that the decision is in fact expressed as setting aside "the conditions set out in" the building order and substituting those three paragraphs. It is not clear why the decision was expressed in this way, given that neither the building order nor the notice of appeal refers to "conditions". However, the intention of the Board is clearly to exercise the power conferred on it by section 149(1)(d)(i) of the Act to set aside the decision to issue the building order and substitute its own decision. The High Court said in Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2:

When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic Enterprises Pty Ltd [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language . . . nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued:

"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

In the present case, those remarks are equally apposite to the way in which the decision itself is expressed.

184. By virtue of section 149(2) of the Act, the Board has, in determining an appeal, "in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal". Counsel were not able to direct me to any "other power" of the Board which was relevant to the issue before me. The power to "make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal" conferred by section 149(4) does not, in my view, extend the powers of the Board beyond the powers of the decision-maker whose decision is under appeal. For example, in all the circumstances of a particular appeal, the Board might well consider it necessary to give effect to its determination, that a particular tradesman, considered by it to be incompetent, not be employed on the building site in question, or that, for security reasons, the Victoria Police control operations on that site. But Parliament cannot have intended to give the Board power to control employment, or to order the dispositions of the Victoria Police, and those matters would need to be dealt with, if at all, by some means other than an order of the Board.

187. The powers of the decision-maker, that is, the municipal building surveyor (defined in section 3 of the Act) in respect of building orders, derive from section 111 of the Act. It is not in issue that Mr Goddard is the municipal building surveyor, that the building notice issued by him complied with section 106, and that no representation had been made within the prescribed time, so that he was empowered by section 111 to issue a building order.

190. The relevant portion of section 111 is paragraph (3)(c), which should be read with the definitions of "building" (a definition which I take to be intended to extend the ordinary meaning of the word), "building work" and "protection work" in section 3. Section 111(3)(c), set out in a way which may facilitate comprehension, reads:

s land on which building work is being or is proposed to be carried out, or

The glass tiles are not "land on which building work is being or is proposed to be carried out". Nor, needless to say, are they "a place of public entertainment". The only relevant person to whom a building order may be directed is thus "the owner of a building".

200. The balance of section 111(3)(c) provides that a building order may require the owner of a building to carry out building work, protection work or other work not here relevant.

203. I now turn to consider the decision of the Board in the light of the matters set out in the preceding five paragraphs.

206. The Council owns the footpath in which the glass tiles are embedded (see paragraph 7 above). It is trite law that the test of whether a chattel has become a fixture so as to form, for legal purposes, part of the freehold, turns on the degree and object of its annexation thereto. (Holland v Hodgson (1872) LR 7 CP 328 at 334.) The degree of annexation of the glass tiles may be said to be complete. The object of their annexation is to enable light to pass through what would otherwise be an opaque surface in order to illuminate the basement. The attainment of that object requires them to be fixed in the footpath. Thus on the basis of both the degree and the object of their annexation, the glass tiles are fixtures and form part of the footpath, which, as has been said, is a public highway vested in the Council. However, neither the footpath nor the glass tiles can be described as a "building". The glass tiles, as I have said (see paragraph 6 above) are connected to the building, which is owned by JLD, but are not part of the building. Thus a building order requiring repair of the tiles cannot be directed to the Council, which is not, in this context "the owner of a building".

209. If the glass tiles were part of the building, then their repair would constitute "construction" by virtue of the definition of "construct" in section 3. That is the only basis on which the repairs could be said to constitute "building work" in terms of the definition of that expression. However, while connected to the building by the shaft, they are part of the footpath, which, as I have said, cannot be described as a "building". Thus the repair of the tiles is not "building work". Nor does it fall within the definition of "protection work". Thus the work purportedly required to be done by the building order as substituted by the Board is not work which the owner of the building, whoever it might be, can be required to do by a building order.

212. The effect of section 5 of the Act is that Part 8, containing sections 106 and 111, which confer on the municipal building surveyor the power to serve building notices and building orders, does not bind the Council, which is a "public authority" by virtue of the definition in section 3. That would appear to mean that the decision-maker, that is, the municipal building surveyor, has no power to serve a building notice or a building order on the Council. Section 217 provides that Part 10, which contains the provisions relating to the Board, does bind a public authority. However, that provision cannot extend the power of the Board beyond the power of the decision-maker. The Board's only power in connection with building orders is to make a decision on an appeal from a building order. It is not a primary decision-maker. The building order issued by the municipal building surveyor was not directed to the Council. That building order cannot be converted by the Board into a building order directed to the Council, the issue of which would have been beyond the power of the primary decision-maker.

215. In summary, a building order cannot be directed to the Council which is not, in the present context, "the owner of a building", and which is, in any case, a "public authority", not subject to Part 8 of the Act. Further, the work purportedly required to be done by the building order as substituted by the Board is not work which the owner of the building, whoever it might be, can be required to do by a building order. For all of these reasons I find that the Board did not have power to make the decision under review.

218. Having reached that conclusion, it is not necessary for me to consider the arguments raised as to the reasons given for the Board's decision, and I do not do so. Further, I say nothing about the validity of the building order, a matter which is not before me, although some of my findings may be relevant to that question.

221. I would welcome submissions from counsel as to the appropriate orders to be made as a result of my conclusion, and as to the stay ordered by Master Wheeler.