APPEAL 2 - Appeal made under s 142(2)(d) of the Building Act 1993 (the Act) by the owner of the building or land against the failure by the relevant building surveyor, within a reasonable time, to amend or cancel a building order dated 28 June 2024.

APPEAL 3 - Appeal made under s 142(2)(d) of the Act by the owner of the building or land against the failure by the relevant building surveyor, within a reasonable time, to amend or cancel a building order dated 2 November 2023.

APPLICANTS Ellen Glenton and Timothy Glenton (Subject Land owners)

RESPONDENT Municipal building surveyor for the Golden Plains Shire

RELEVANT MUNICIPALITY Golden Plains Shire Council

BEFORE Members J Shaw (panel chair) and G Woolcock

CITATION Glenton & Anor v Municipal Building Surveyor for the Golden Plains Shire [2025] VBAB 69

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

1. Pursuant to s 149(1)(d)(i) of the Building Act 1993 (the Act), the building order dated 19 July 2024 made by the Respondent is set aside, and substituted with the decision of the BAB as follows:

(a) By 31 July 2025, the Applicants must carry out such building work as is necessary to bring the building under construction located on the north-east corner of the land at 24 William Court, Berringa, Victoria (Subject Land), into substantial compliance with the requirements of a class 10a building pursuant to the Building Code of Australia, 2022 edition, noting that the Applicants must first obtain a building permit pursuant to Part 3 of the Act for any building work for which such a permit is required;

(b) By 31 July 2025, the Applicants must remove the two sheds which are located in the south-east corner of the Subject Land.

1. Pursuant to s 149(1)(b) of the Act, the building order to stop work dated 28 June 2024 made by the Respondent is quashed.
2. Pursuant to s 149(4) of the Act, the building order to stop work dated 28 June 2024 made by the Respondent is cancelled.

1. Pursuant to s 149(1)(b) of the Act, the building order to stop work dated 2 November 2023 is quashed.
2. Pursuant to s 149(4) of the Act, the building order to stop work dated 2 November 2023 made by the Respondent is cancelled.

1. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days from the date of these determinations.[1]

_______________________ ________________________

1. The Applicants are the owners of the land at 24 William Court, Berringa, Victoria (Subject Land).
2. The Respondent is the Municipal Building Surveyor for the Golden Plains Shire Council (MBS).
3. Apart from the buildings and other structures that are the subject of these proceedings, the Subject Land is vacant.
4. At some stage, the Applicants have constructed, or have had constructed, on the Subject Land:

(a) a building of approximately 90m2 in the north-east corner (Building);

(b) two pre-fabricated steel sheds in the south-west [confirm] corner, each of approximately 9m2 (Sheds).

(c) sleeper retaining walls (Retaining Walls);

(d) two rows of posts in and adjacent to a dam in the north-west corner (Posts);

(e) planter boxes (Planter Boxes).

1. To the extent that any of the above work involved the carrying out of building work for which a building permit pursuant to the Building Act 1993 (Act) was required, no building permit was ever issued.
2. As a result of the MBS becoming aware that no building permit had been issued in respect of the above work, he caused to have issued on the Applicants a number of building notices and orders pursuant to Division 2 of Part 8 of the Act. Those documents include:

(a) a building order to stop work dated 2 November 2023 issued pursuant to s 112 of the Act (November 2023 Stop Work Building Order);[2]

(b) a building notice dated 3 November 2023 made pursuant to s 106 of the Act (November 2023 Building Notice);[3]

(c) a building order to stop work dated 28 June 2024 issued pursuant to s 112 of the Act (June 2024 Stop Work Building Order);[4]

(d) a building order dated 19 July 2024 served pursuant to s 111 of the Act (July 2024 Building Order).[5]

1. By letter dated 9 October 2024, the Applicants' solicitor wrote to the MBS requesting that, by reason of a change in circumstances, the July 2024 Building Order be cancelled (9 October 2024 request).[6] The MBS's solicitor responded to the October 2024 request by letter dated 25 October 2024 (25 October 2024 response).[7] The Applicants' solicitor wrote a further letter dated 31 October 2024 (31 October 2024 letter).[8] The MBS's solicitor wrote another letter dated 20 November 2024 (20 November 2024 letter).[9]
2. By further letter dated 28 November 2024, the Applicants' solicitor wrote to the Respondent requesting that, by reason of a change in circumstances, the November 2023 Stop Work Building Order and the June 2024 Stop Work Building Order be cancelled (November 2024 request).[10] The MBS did not respond to the November 2024 request.
3. The Applicants have, pursuant to s 142(2)(d) of the Act, appealed the failure of the Respondent to, within a reasonable time, amend or cancel:

(a) the July 2024 Building Order, which is referred to as 'Appeal 1' in the 'Nature of Proceedings', and is the appeal in proceeding number 456356;

(b) the June 2024 Stop Work Building Order, which is referred to as 'Appeal 2' in the 'Nature of Proceedings', and is the first appeal in proceeding number 456436;

(c) the November 2023 Stop Work Building Order, which is referred to as 'Appeal 3' in the 'Nature of Proceedings', and is the second appeal in proceeding number 456436.

1. By Directions and Orders made on 21 January 2025, proceeding 456356 and proceeding 456436 were consolidated and ordered to be heard together.
2. The Applicants have filed and served the following documents and submissions in support of the appeals:

(a) A document titled Applicant's [sic] Statement of Contentions dated 28 November 2024 in respect of Appeal 1 (Applicants' Appeal 1 Contentions);[11]

(b) A document titled Applicant's [sic] Statement of Contentions dated 14 January 2025 in respect of Appeal 2 (Applicants' Appeal 2 Contentions);[12] and

(c) A further document titled Applicant's [sic] Statement of Contentions dated 14 January 2025 in respect of Appeal 3 (Applicants' Appeal 3 Contentions);[13]

1. The MBS has filed and served the following documents and submissions in opposition to the appeals:

(a) A document titled Respondent's Statement of Contentions dated 24 January 2025 in respect of Appeal 1 (MBS's Appeal 1 Contentions);[14] and

(b) A document titled Respondent's Statement of Contentions (Appeals 2 and 3) dated 7 February 2025 in respect of Appeal 2 and Appeal 3 (MBS's Appeal 2 & 3 Contentions).[15]

1. In response to the above documents filed by the MBS, the Applicants filed and served a document titled Applicants [sic] combined Statement of Reply to the Respondents [sic] Statement of Contentions dated 14 February 2025 (Applicants' Reply).[16]

1. Before proceeding to consider and determine the three appeals, as we are required to do pursuant to s 149 of the Act, we must determine whether the BAB has jurisdiction in respect of those appeals.[17]
2. As set out above, each of the appeals is brought pursuant to s 142(2)(d) of the Act, which provides:

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

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

1. Therefore, in order for the BAB to have jurisdiction to consider and determine the appeals brought pursuant to s 142(2)(d) of the Act, the Applicants, being the owners of the Subject Land, must have requested the MBS, as the relevant building surveyor (RBS) who made the three building orders the subject of these appeals, to amend or cancel those building orders, and the MBS must have failed to amend or cancel the orders.
2. The requirement in s 142(2)(d) of the Act for a 'failure' to amend or cancel the orders is to be compared with the jurisdiction granted to the BAB in s 142(2)(c) of the Act where an appeal lies against the 'refusal' of the RBS to cancel or amend a building order. In the context of s 142(2) of the Act, a refusal refers to an act of the RBS to refuse the amendment or cancellation, while a failure refers to the absence of an act of the RBS to amend or cancel the relevant building order.
3. It is clear to us, and we find, that the Applicants requested the MBS to cancel the November 2023 Stop Work Building Order and the June 2024 Stop Work Building Order in the November 2024 request. Further, it was conceded by the MBS's solicitor that there had been no response to the November 2024 request. Therefore, we find that there has been a failure of the MBS to cancel the November 2023 Stop Work Building Order and the June 2024 Stop Work Building Order, and consequently that the BAB has jurisdiction to consider Appeal 2 and Appeal 3 pursuant to s 142(2)(d) of the Act. We also note that as the proceeding for Appeal 2 and Appeal 3 was commenced on 6 January 2025, it was brought within the 60-day appeal period set out in reg 271(1)(u) of the Building Regulations 2018 (Regulations).
4. It is also clear, and we find, that the Applicants requested the MBS to cancel the July 2024 Building Order in the 9 October 2024 request. However, given the existence of the 25 October 2024 response and the 31 October 2024 letter, we must examine these documents to be satisfied that there has been a failure of the MBS to cancel the July 2024 Building Order in order for the BAB to have jurisdiction under s 142(2)(d) of the Act.
5. Further, as the request to cancel was made in the 9 October 2024 request, and given that Appeal 1 was commenced on 28 November 2024, an appeal pursuant to s 142(2)(d) of the Act would have been commenced within the 60-day appeal period specified in reg 271(1)(u) of the Regulations. However, if the 25 October 2024 response constituted a refusal to amend or cancel the 25 July 2024 Building Order, Appeal 1 would have been commenced outside the 30-day appeal period for an application pursuant to s 142(2)(c) of the Act as set out in reg 271(1)(r) of the Regulations.
6. In the 9 October 2024 request, the Applicants' solicitor stated:[18]

To facilitate this, we request that pursuant to s 116 of the Building Act 1983 the above building order be cancelled, and if appropriate a new building order be issued. In support of this we say that the change of circumstances includes the notice being served at the incorrect address. Furthermore, we note there was an unaccompanied site inspection on Monday 7 October 2024 which will have provided Council a good deal of additional information.

1. In the 25 October 2024 response, the MBS's solicitor stated:[19]

As matters currently stand in relation to the Interim Dwelling, Council does not agree to cancel any of the notices or orders it has issued. Your clients should immediately provide to Council copies of the plans and other documents that accompany the building permit issued by Mr. Reardon, together with an explanation of how the building will be brought into compliance and the current contravening use will be discontinued. Council will assess those documents and then consider what the appropriate next steps should be.

1. The 31 October 2024 letter from the Applicants' solicitor attached further documents relevant to the Building, and stated in response to the 25 October 2024 response:[20]

At paragraph 20 of your letter you indicate that as matters currently stand in relation to the Interim Dwelling, Council does not agree to cancel any of the notices or orders as issued. Could you please clarify if this means that upon further review of the materials provided Council will reconsider its position. We believe it is important to clarify this as appeal rights to the BAB have time limits, which must be adhered to.

1. The 20 November 2024 letter from the MBS's solicitor refers to a number of matters, and concludes by stating:[21]

In these circumstances, given that your client has no lawful way of living on the property until her permanent dwelling is constructed, Council sees itself to have no alternative but to continue to investigate this matter with a view to taking enforcement action under the Building Act. Accordingly, Council's investigators will be in contact with you or your client shortly.

1. In the Applicant's Appeal 1 Contentions, the Applicants submit that in the 31 October 2024 letter, their solicitor 'sought clarification whether "as matters currently stand" meant they would further review their position upon further information being provided.'[22] Further, the Applicants stated that '[t]o date Council has not clarified its position, nor has the Respondent provided a response, hence this application for appeal pursuant to section 142(2)(d) [of the Act] is made'.[23]
2. The MBS's Appeal 1 Contentions refer to the above correspondence.
3. In the Applicants' Reply, it is submitted that the 20 November 2024 letter 'does not indicate directly that the Council is refusing to withdraw the [July 2024] Building Order.'[24] Further, the Applicants' submit:[25]

This information was being sought to clarify whether there had been a

refusal, pursuant to section 142(2)(c) of the Act upon which an application for appeal could be made, or whether the Applicants needed to wait for a failure within a reasonable time to occur so as to apply pursuant to 142(2)(d). Ultimately the Applicants relied on 142(2)(d).

1. On balance, we do not consider that the 25 October 2024 response from the MBS constitutes a cancellation of the July 2024 Building Order. Although it states that 'as matters currently stand... Council does not agree to cancel any of the notices or orders it has issued', it then requests the Applicants to provide further information for the MBS to consider and assess the 'appropriate next steps'. In our view, the Applicants were justified in requesting clarification in the 31 October 2024 letter, and the 20 November 2024 letter from the MBS's solicitor does not specifically address the July 2024 Building Order or the Applicants' request to cancel it. Therefore, we find that the MBS has failed to amend or cancel the July 2024 Building Order within a reasonable time, and therefore the BAB has the jurisdiction to consider and determine the appeal in Appeal 1 brought pursuant to s142(2)(d) of the Act.

1. Appeal 1 is concerned with the failure to cancel the July 2024 Building Order. The July 2024 Building Order orders the Applicants to carry out the following 'work as required by' the Regulations:

1.1 Demolish and remove the building under construction located on the north-east corner of the allotment; and

1.2 Demolish and remove the two sheds which are located on the south-east corner of the allotment.

1. As such, the order contained in paragraph 1.1 of the July 2024 Building Order relates to the Building, and paragraph 1.2 relates to the Sheds.
2. We can deal immediately with the order in respect of the Sheds - in the hearing, the Applicants' solicitor stated that one of the Sheds had been removed, and that the other Shed would be removed shortly. Therefore, once the second of the Sheds has been removed, the appeal in respect of paragraph 1.2 of the July 2024 Building Order falls away. Therefore, the only live issue is the order in paragraph 1.1 of the July 2024 Building Order.
3. In the 9 October 2024 request, the Applicants' solicitor requested cancellation of the July 2024 Building Order pursuant to s 116 of the Act. Section 116 of the Act provides:

116 Amendment or cancellation of certain building orders

(1) An owner who is required to comply with a building order may, if there is a change in circumstances after the service of the order, request the relevant building surveyor to amend or cancel the building order.

(2) On a request being made, the relevant building surveyor may -

(3) The relevant building surveyor is taken to have refused a request under this section if he or she has not decided the request within the prescribed time.

(4) The relevant building surveyor must inform the owner in writing without delay of the relevant building surveyor's decision under subsection (2).

1. In the 9 October 2024 request, the Applicants' solicitor relies on two matters as having been a relevant 'change of circumstances' required by s 116(1) of the Act, namely that:

(a) the July 2024 Building Order was served at 'the incorrect address'; and

(b) an 'unaccompanied site inspection' took place on 7 October 2024 'which will have provided Council a good deal of additional information', and that as a result of the inspection the MBS may 'wish to include further matters in a re issued/new s 111 building order; or issue a new building notice [sic]'.

1. In the hearing, the Respondent accepted that there had been a relevant change in circumstances in respect of Appeal 1 so as to require the MBS to make a decision to amend or cancel the July 2024 Building Order.
2. Neither the July 2024 Building Order nor the November 2023 Building Notice upon which it is founded make any statement about the alleged BCA classification of the Building. The July 2024 Building Order simply alleges that the Building should be demolished because it was constructed without a building permit being in place.
3. However, both the Applicants and the Respondent structured their submissions around the classification of the Building pursuant to the BCA, with the Applicants submitting that the correct classification is class 10a, while the Respondent submits that it is properly considered a class 1a. The BCA defines a class 1a building as a dwelling, while a class 10a building is a 'non-habitable building including a private garage, carport, shed or the like'. It is relevant to consider the classification of the Building pursuant to the BCA in order to consider whether demolition is an appropriate course of action.
4. The Applicants submit that the Building should be considered to be a Class 10a building pursuant to the BCA, and therefore that the focus should be on bringing it into conformity with the requirements of a building of that BCA Class. They submit that they have provided information that would enable the Building to be brought into conformity with the Act, the Regulations and the BCA, and that this building work should be permitted to be undertaken. They also submit that demolition of the Building 'will be oppressive, onerous and ...inconsistent with the purposes of the Act' to 'provide an efficient and effective system for administering and enforcing ...building and safety matters and resolving building disputes'.
5. In the MBS's Appeal 1 Contentions, the Respondent submits that the Building had been 'designed and was being constructed for the purpose of being used as a Class 1a dwelling'. The Respondent submits that a building's classification is to be determined by reference to Clause A6G1 of part A6 of the BCA Volume 2. Clause A6G1 of the BCA Volume 2 provides:

(1) The classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used.

(2) Each part of a building must be classified according to its purposes and comply with all the appropriate requirements for its classification.

1. The Respondent submits that he was required to determine the classification of the Building by reference to Clause A6G1 of the BCA, and that he concluded that it should be classified as a Class 1a building to the BCA by inferring the purposes for which the Building was designed and construed from:

(a) the features of the building;

(b) the features that are associated with the Building;

(c) the timing and location of its construction; and

(d) the use of the Building by the owners.

1. Features that the Respondent submits are relevant include the large front verandah, the existence of internal rooms with doors, the existence of large cedar casement and awning windows on the north, east and west elevations and a sliding glass door on the north elevation, glass bricks to the windows above the bath, the installation of a hot water service and reticulated gas connection, and a hob structure onto which a bath has been installed. The Respondent submits that these features not only point to the Building being a Class 1a building, but are inconsistent with the Building being used as a shed, particularly if the shed were to be used for the storage of fruit and vegetables, which the Applicants have stated is the case. The Respondent also asserts that the Applicants actually used the Building 'for living purposes as an adjunct to the caravan which was situated beside it' in 2024.
2. The Respondent submits that the building work proposed by the Applicants 'will not change the specific features of the Building which led [the MBS] to conclude that the Building should be classified as a class 1a dwelling'. However, the Respondent concedes that the 'proposed building work appears to bring the Building into compliance in a structural sense', but goes on to state that it does not 'adapt the features of the [Building] so that the features are consistent with that of a shed purpose.
3. In the Applicants' Reply, they submit, inter alia:

(a) the Building is 'no longer used in conjunction with or [in] association with a caravan that was previously sited' on the Subject Land;

(b) the Building 'is not and could not be a place of abode nor a dwelling as it does not contain operational cooking facilities, toilet facilities or bedrooms';

(c) the electricity that has been observed in the Building is supplied to an external meter box, and internal electricity is obtained by the use of extension cords. The Applicants notes that there is no internal wiring within the walls of the Building;

(d) in reaching the conclusion that the Building is a class 1a building, the Respondent failed to make any enquiries of the Applicants and did not reach the conclusion with the assistance of any building plans.

1. In the hearing, the First Applicant, Ms Ellen Glenton, gave evidence as to the intended use of the Building. Ms Glenton said:

(a) she considers the Building to be a shed, and that there is a 'significant movement for women having 'she -sheds';

(b) she intends to use the Building for a number of crafts;

(c) one such craft involves soaking animal hides in water in a bath, perhaps also containing fire ash, in order to tan the hides and to make shamanic drums with them;

(d) the fridge and shelving are for preserves and meat products produced on the Subject Land;

(e) the middle area of the Building is to be used to dry her extensive range of herbs in a relatively dust and dirt-free environment;

(f) there is a space for drying hoops for the samanic drums, and she intends to install shelving to place the hoops while they cure;

(g) the larger space is intended as an area to roll the hoop around a mould and to clamp them down;

(h) the couch is in the Building because it would not fit into the container she has.

1. When Ms Glenton was asked why the Building had so many windows, a verandah and a sliding door if it was intended to be used as a shed, she responded that she had built the type of shed that she wanted, and also that she was using it as a 'leaning experience' for the construction of the future dwelling on the Subject Land, which she intends to construct as an owner-builder. Ms Glenton was adamant that the Building was not being used as a dwelling.
2. We accept that the number of windows, the veranda and the sliding door make the Building an unusual shed. However, in order to determine the Building's classification we must determine the 'purpose for which it is designed, constructed or adapted to be used'.[26] Unlike the Respondent, we have had the benefit of hearing directly from Ms Glenton as to the purpose for which the Building was designed and constructed, and the purpose for which it is to be adapted.
3. On balance we accept the evidence of Ms Glenton that she intends to use the Building as a shed to carry out her various craft-based activities. In reaching this conclusion, we also accept that the Building does not contain many of the things that are associated with a dwelling, such as a toilet or a kitchen with a sink and cooking facilities. As a consequence, we accept and find that, as it is currently intended to be used, the Building should be classified as a BCA class 10a building.
4. Given the above conclusion, the question is whether the order in the July 2024 Building Order requiring demolition and removal of the Building should stand.
5. The Applicants filed documents evidencing the appointment of James Reardon, a registered building surveyor employed by West Side Building Surveying (Aus) Pty Ltd, as the relevant building surveyor (RBS) for the Building. In a letter dated 22 March 2024 from the RBS to the MBS notifying the MBS of his appointment, the RBS identifies the building work to which his appointment relates as being 'building permit to bring the illegal shed into compliance and complete the structure'.
6. The Applicants also filed a building permit dated 14 October 2024 issued by the RBS for the purposes of bringing the Building into compliance with the BCA (Building Permit), as well as supporting documents. The building permit identifies the Building as a class 10a building pursuant to the BCA. Those documents include design drawings, including drawings indicating additional structural work that is required, and a certificate of compliance dated 3 June 2024 issued by a registered civil engineer in respect of the structural design of the Building (certificate of compliance), and attaching calculations in respect of that structural design.
7. On the basis of the documents provided, and in particular the certificate of compliance, we consider that the Building has been constructed to a standard that would permit it to be brought substantially into compliance with the BCA in respect of a class 10a building. We accept that the Respondent has some misgivings as to whether the building work set out in the Building Permit will be sufficient to bring the building into compliance, but we are of the view that the Applicants should be permitted to carry out the building work necessary for substantial compliance with the BCA.
8. Therefore, we will set aside the July 2024 Building Order and substitute the decision of the BAB, requiring:

(a) the Applicants to carry out such building work as is necessary to bring the Building into compliance with the BCA with respect to a class 10a building. We note that if such building work requires a building permit, then the Applicants must first obtain such a permit;

(b) the Applicants to remove the Sheds.

1. We will require the above matters to occur by 31 July 2025 but note that the Applicants can apply to the Respondent for an extension of time to comply if the circumstances warrant such an extension.

1. Appeal 2 is an appeal against the failure of the MBS to amend or cancel the June 2024 Stop Work Building Order within a reasonable time pursuant to s 142(2)(d) of the Act.
2. In the MBS's Appeal 2 & 3 Contentions, the Respondent submitted that there had not been any relevant change in circumstances to require the Respondent to act pursuant to s 116(2) of the Act. However, the November 2024 request stated, inter alia, that the Retaining Walls are exempt from the requirement to obtain a building permit because they were less than 1m in height. In the hearing the Respondent's solicitor conceded that the provision of information is sufficient to constitute a change in circumstance for the purposes of s 116(1) of the Act. We find that the November 2024 request provided such information to the Respondent in a manner that is sufficient to constitute a change in circumstances pursuant to s 116(1) of the Act, thereby requiring the Respondent to make a decision in respect of the June 2024 Stop Work Building Order pursuant to s 116(2) of the Act. The Respondent failed to make such a decision, and therefore we find that such a failure allows the Applicants to appeal pursuant to s 142(2)(d) of the Act.
3. The June 2024 Building Order requires the Applicants to stop building work in respect of:
   • 1.1 the construction of planter boxes surrounding the retaining wall; and
   • 1.2 the construction of the deck/structure within the dam; and
   • 1.3 any alterations to the retaining wall that has already been constructed; and
   • 1.4 any other Building Work at the property.
4. The June 2024 Stop Work Building Order identifies as reasons for the making of the order that building work was carried out without a building permit in circumstances where a building permit pursuant to s 16 of the Act was required because:

(a) the construction of the Retaining Walls is greater than 1m in height;

(b) the construction of the Planter Boxes and retaining wall exceeds 1m in height; and

(c) the Poles in the dam had been constructed for the purposes of supporting a deck.

1. In the hearing, the Respondent stated that the order in paragraph 1.1 of the June 2024 Stop Work Building Order was no longer pressed.
2. Considering the other paragraphs of the June 2024 Stop Work Building Order in turn:

(a) Construction of the deck/structure within the dam: The Applicants submit that the Poles that have been installed in or adjacent to the dam because the Applicants had had excess concrete on site when they constructed the retaining walls. They submit that they had no intention as to what the Poles were to be used for when they installed them, but they say that there is no intention to construct a deck. The Applicants submit that the Respondent simply assumes that a structure will be constructed on the Poles, yet that is not the Applicants' intention. The Applicants also submitted that if they form an intention to construct a deck or similar structure at some point in the future, then they understand that a building permit would be required for that. On balance we accept the Applicants' submissions that no building permit was required to the installation of the Poles, and we also accept their submissions that they have no intention to construct a deck or similar structure on those poles. Therefore, we will cancel the June 2024 Stop Work Building Order in respect of the Poles in and adjacent to the dam. However, the Applicants clearly must obtain a building permit for any structure that is built in the future using the Poles that have been installed.

(b) Retaining walls: The Applicants submit that the Retaining Walls have been completed, and therefore there is no building work to stop. Further, they submit that in any event the height of the Retaining Walls is less that 1m, meaning that no building permit for their construction was required. The Respondent submits that the height of the Retaining Walls is greater than 1m, meaning that a building permit should have been in place prior to their construction. We accept the submissions of the Applicants that the Retaining Walls are complete, and therefore there is no building work to stop. For that reason alone we are satisfied that the June 2024 Stop Work Building Order in respect of the Retaining Walls should be cancelled. Further, it appears to us that the height of the Retaining Walls is around 1m maximum, and that the extent to which this height is exceeded is limited, both in terms of the height and the length of the wall that exceeds 1m. in these circumstances it is not clear to us that the Retaining Walls actually required a building permit prior to their construction. In any event, it seems to us that the appropriate course of action, should the MBS be concerned about the structural integrity of the Retaining Walls, would be to serve a building notice and building order in respect of those structures pursuant to ss 106 and 111 of the Act, rather than a building order to stop work.

(c) 'any other Building Work': The Applicant objects to the breadth of the order in paragraph 1.4 of the June 2024 Stop Work Building Order, in that, the Applicants submit, it prevents any building work being carried out on the Subject Land. The Respondent submits that paragraph 1.4 needs to be read in context with the other paragraphs, and those other paragraphs define the building work referred to in paragraph 1.4.

We accept the Applicants' submissions, and consider that paragraph 1.4 lacks specificity, as it does not refer to the particular building work required to be stopped, and because it, on its face, applies to any building work on the Subject Land. Therefore, we will cancel paragraph 1.4 of the June 2024 Stop Work Building Order.

1. Given our above conclusions, we find that the June 2024 Stop Work Building Order should be quashed, and to the extent necessary, cancelled.

1. Appeal 3 relates to the November 2023 Stop Work Building Order which requires work to stop on the Building. The Respondent conceded that the Building Permit represents a relevant change in circumstances for the purposes of s 116(1) of the Act.
2. The November 2023 Stop Work Building Order clearly pre-dates the July 2024 Building Order. The Applicants stated in the hearing that no further building work had been carried out on the Building since service of the November 2023 Stop Work Building Order.
3. We consider that the issues relating to the Building have been dealt with in the July 2024 Building Order, which is the subject of Appeal 1. There is no utility keeping the November 2023 Stop Work Building Order on foot in circumstances where orders will be made with respect to the Building in Appeal 1.
4. Therefore, the November 2023 Stop Work Building Order will be quashed, and to the extent necessary, cancelled.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.

[8] The 31 October 2024 letter (at TB 483-485) is marked 'without prejudice', but in the Applicants' Reply they waive that privilege (to the extent that it applies to the document) (TB 147). In the MBS's Appeal 1 Contentions, the MBS does not assert that he maintains any privilege over the document, and states that the 'Applicant [sic] should not be permitted to rely on the 31 October 2024 letter unless the letter is fully disclosed in the proceeding' (TB 122). On the basis of the above statements by the parties, we will allow the 31 October 2024 letter to be relied on, and we will take it into consideration in our determination.

[17] Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226, [128]; Mirvac Victoria Pty Ltd v Building Appeals Board [2024] VSC 782, [64].

[26] Building Code of Australia - Volume 2, cl A6G1(1).