APPLICANTS Anthony Mancuso and Jorelyn Mancuso (Subject Land owners)

FIRST INTERESTED PARTY Rocco Di Raco (relevant building surveyor)

CITATION In the matter of 344 Heaths Road, Hoppers Crossing (No 1) [2025] VBAB 83

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

1. The following question is answered in the affirmative:

Is Exemption (1) of the governing requirement A6G1 a provision of the Building Regulations 2018 within the meaning of section 160(1) of the Building Act 1993, that is can the BAB modify or vary the Exemption (1) of governing requirement A6G1(1) of the Building Code of Australia 2022, Volume Two in an application made pursuant to s 160(2)(b) of the Act?

1. The proceeding is referred to a modifications panel for consideration of whether to grant the relief sought.
2. Liberty to apply.

_______________________ ________________________

1. The Applicants are the owners of the land at 344 Heaths Road, Hoppers Crossing, Victoria (Subject Land).
2. The Applicants have made an application to the Building Appeals Board (BAB) pursuant to s 160(2) of the Building Act 1993 (Act) as follows:

To modify Clause A6G1 Exemption 1 of the Building Codes [sic] of Australian [sic] Volume 2 2022, which permits a part of a building that has been designed, constructed or adapted for a different purpose and is less than 10% of the floor area of the storey it is situated on, to adopt the classification of the other part of the storey and apply the classification to the whole storey, applying to a Class 1a building, namely; to permit the proposed salon to adopt the same building classification as the remainder of the dwelling, being Class 1a, whilst being equivalent to 19.5% of the floor area of the storey it is situated on, in lieu of less than 10%, as indicated in the submission. The proposed salon will be 27.37m2 in lieu of the maximum of 14.039m2 required to comply with the exemption under Clause A6G1.

1. This proceeding has been referred to me for the determination of a preliminary question, namely:

Is Exemption (1) of the governing requirement A6G1 a provision of the Building Regulations 2018 within the meaning of section 160(1) of the Building Act 1993, that is can BAB modify or vary the Exemption (1) of governing requirement A6G1(1) of the Building Code of Australia 2022, Volume Two. (the Question)

1. As noted above, this application is made pursuant to s 160(2) of the Act. Section 160(2) provides:

An application may be made to the Building Appeals Board for a determination that a provision of the building regulations -

(a) does not apply; or

(b) applies with the modifications or variations specified in the application -

to a building or land specified in the application.

In this section provision of the building regulations means -

(a) a provision of a regulation made under Part 2 or of a local law made under those regulations; or

(b) a provision of a regulation or local law made under Division 3 of Part III of the Building Control Act 1981; or

(c) a provision of a regulation or by-law made under Division 2 of Part XLIX of the Local Government Act 1958; or

(d) any other regulation or by-law that, by virtue of a provision of this Act or a corresponding previous enactment, applies or applied at a material time to building work; or

(e) a provision of a document applied, adopted or incorporated by reference in an instrument referred to in paragraphs (a) to (d); or

(f) a provision of a document referred to in paragraphs (a) to (e) as modified by the Building Appeals Board under this Part, the building referees under the Building Control Act 1981 or the referees under the Thirty-Third Schedule of the Local Government Act 1958 or a corresponding previous enactment.

1. Part 2 of the Act is titled 'Building Standards' and provides, in s 7(1):

(1) The Governor in Council may make regulations for or with respect to prohibiting or regulating -

(a) the construction, use, maintenance, demolition and removal of buildings;

(b) any matter relating to the safety of buildings and places of public entertainment;

(c) the use and maintenance of places of public entertainment.

1. Further, s 9(1) of the Act, which is in Part 2 of the Act, provides:

The building regulations may apply, adopt or incorporate, either wholly or in part and with or without any modification, any matter contained in the Building Code of Australia or any other document as in force or as issued or published or adopted at a particular time or as in force or as issued or published or adopted from time to time.

1. Regulation 2 of the Building Regulations 2018 (Regulations) states that the Regulations have been made under ss 7, 9, 15A, 261 and 262 of the Act as well as under Sch 1 to the Act. As such, the reference in s 160(1)(a) of the Act to 'a provision of a regulation made under Part 2' of the Act is a reference to those regulations made under ss 7, 9 and 15A of the Act, as these sections are contained in Part 2 of the Act, while ss 261 and 262 of the Act are contained in Part 14 of the Act.
2. Part 2 of the Regulations is titled 'Building Code of Australia'. Regulation 10 of the Regulations provides:

The BCA is adopted by and forms part of these Regulations as modified by these Regulations.

1. As such, reg 10 of the Regulations, which incorporates the BCA into the Regulations, was made under either or both of ss 7(1) and 9(1) of the Act, both of which are in Part 2 of the Act, without the need to rely on the heads of power under ss 15A, 261 or 262 of the Act
2. Regulation 5(1) of the Regulations defines 'BCA' as 'the Building Code of Australia'. The Regulations do not define 'Building Code of Australia', however, pursuant to s 23 of the Interpretation of Legislation Act 1984 (ILA), that expression is to have the same meaning as it has in the Act. The Act defines 'Building Code of Australia' as follows:

Building Code of Australia means the Building Code of Australia comprising -

(a) Volume One of the National Construction Code including any Victorian variations or additions set out in that Volume; and

(b) Volume Two of the National Construction Code including any Victorian variations or additions set out in that Volume.

1. Therefore, Volume Two of the National Construction Code, with any Victorian variations or additions (NCC Volume Two), forms part of the 'BCA' defined in the Regulations.
2. As a result of the above provisions of the Act and the Regulations, it is clear that the BCA, which incorporates NCC Volume Two, 'is adopted by and forms part of [the] Regulations as modified by [the] Regulations',[1] and further that the BCA comes within the definition of 'building regulations' in s 160(1)(e) of the Act.
3. However, the Question I have been asked to determine is whether 'Exemption (1)' contained in clause A6G1 of NCC Volume Two (Exemption (1)) is a 'provision of the building regulations' as defined in s 160(1) of the Act, notwithstanding that it is contained in the BCA and therefore forms part of the 'building regulations' referred to in s 160(1) of the Act. The issue the Question seeks to have answered is whether some parts of the 'building regulations' are a 'provision of the building regulations' as defined in s 160(1) of the Act', and some parts are not. The focus, therefore, of these Reasons is on the word 'provision' as it is used in s 160(1) of the Act. Clearly, the discussion below only relates to those 'building regulations' that are included in the definition of a 'provision of the building regulations' as defined in s 160(1)(a)-(f) of the Act. As set out above, Exemption (1) falls within a 'building regulation' as defined in s 160(1)(e) of the Act - the Question seeks to answer whether it is also a 'provision' of those 'building regulations'.
4. Part A1 of NCC Volume Two is titled 'Interpreting the NCC'. Clause A1G4(3)(f) provides:

An "Exemption" statement is mandatory and is provided to specify where or when a requirement or provision does not need to be complied with.

1. Although the above clause appears to draw a distinction between a 'requirement' and a 'provision' within the BCA, this distinction, if there be one, does not assist in the interpretation of the word 'provision' as it is used in s 160(1) of the Act - that is, language used in a subordinate instrument cannot be used in aid of the construction of the statute authorising the instrument.
2. When interpreting words of a statute, the aim is to determine and give effect to the intention of Parliament as disclosed by the language used.[2]
3. In Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd & Anor,[3] the Court of Appeal set out principles of statutory construction. Such principles can be summarised, relevantly, as follows:

(a) the primary object of statutory construction is to construe the relevant provisions so that they are consistent with the language and purposes of all the provisions of the statute;

(b) to properly construe the relevant provisions, it is necessary to identify the legislative purpose of the Act as a whole and whether the relevant provision can be interpreted in a manner harmoniously with that purpose. In order to do that, consideration is to be given to the text of the relevant provision and the whole of the instrument and the provisions with which the relevant provision interacts. In order to understand the context, one must examine the "existing state of the law, the history of the legislative scheme and the mischief which the statute sought to remedy";

(c) to identify the legislative purpose of the Act, consideration may be given to extrinsic material, but only after exhausting the application of ordinary rules of statutory construction, and such material cannot be relied on to displace the clear meaning of the text;

(d) where the ordinary meaning of the text is consistent with the legislative purpose, the court will apply that as the legal meaning;

(e) similarly, if the text permits more than one possible construction, a construction that promotes the purpose or object of an Act is preferred over one that would not.

1. Further, the meanings given to words should prima facie be their 'natural and ordinary meaning'.[4] The 'ordinary' meaning of a word can be said to be the 'ordinary usage of society',[5] while its 'natural' meaning is its 'grammatical' meaning in the context in which it appears.[6]
2. The above principles are also consistent with principles set out in s 35 of the ILA as follows:

In the interpretation of a 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 -

1. all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
2. reports of proceedings in any House of the Parliament;
3. explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament;

1. Section 1 of the Act sets out its purposes. Among the purposes listed are the following:[7]

(a) to regulate building work and building standards; and

(b) 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;

1. The Act's objectives are identified in s 4. Included among the objectives are:

(a) to protect the safety and health of people who use buildings;

(b) to enhance the amenity of buildings;

(c) to facilitate the adoption and efficient application of national building standards;

(d) to facilitate the cost effective construction and maintenance of buildings;

(e) to aid the achievement of an efficient and competitive building industry.

1. While the Minister's second reading speech for the Building Bill 1993 does not refer to the BAB's power to modify the regulations pursuant to s 160 of the Act specifically, the Minister stated that the introduction of the Act was intended to be a major reform to Victoria's system of building standards regulation. The Minister stated:[8]

It follows a major review of the existing Building Control Act which aimed to free up the regulatory process and produce legislation which will be compatible with the current and future requirements of the construction industry.

It is proposed to enhance the existing functions of the building referees boards by establishing a new Building Appeals Board to be responsible for all appeal matters under the new legislation. The non-legalistic approach of the former building referees boards will be, and must be continued.

1. When considering the meaning of the word 'provision' as it is used in s 160 of the Act, it is permissible to consider a dictionary definition. The Concise Oxford English Dictionary defines 'provision' as, relevantly:

a legal or formal statement providing for something.

1. While dictionary definitions are a useful starting point for the meaning of a term used in legislation, they are not determinative of the meaning.[9] The above definition is broad enough to cover any part of a statute, and does not assist greatly in determining whether the use of the word 'provision' in s 160(1) of the Act includes all parts of the 'building regulations' defined.
2. Implicit in the Question is whether there are categories of sections of an Act or legislative instrument that are to be treated differently from each other. An example of such a category is definition clauses within statutes. Such clauses are 'an aid to the construction of a statute [that] do not operate in any other way'.[10]
3. In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ contrasted definition clauses with other 'substantive provisions',[11] the implication being that the definition clauses were non-substantive provisions.
4. As noted above, NCC Volume Two expressly states that an '"Exemption" statement is mandatory'. If such a clause were not to be considered a 'provision of the building regulations', then the question arises as to what criteria are to be applied to determine what parts of the BCA are, or are not, 'provisions' within the meaning of s 160(1) of the Act.
5. As noted, definition clauses are an example of provisions of a statute that are not substantive. Notwithstanding that, I cannot discern any intention on the part of Parliament to exclude such a provision that appears in a 'building regulation', as defined in s 160(1)(a)-(f) of the Act, from provisions intended to be included in the phrase 'provision of the building regulations'.
6. Further, even if provisions of a statute that could be categorised as non-substantive were to be excluded from the phrase 'provision of the building regulations' as defined in s 160(1) of the Act, I cannot see a basis to exclude parts of a subordinate instrument, such as the BCA, that are mandatory, as Exemption (1) is.
7. An interpretation of the word 'provision' to include all parts of the 'building regulations' as defined in s 160(1) of the Act is, in my view, consistent with the purposes and objectives of the Act. An approach that considers all parts of the 'building regulations', as defined in s 160(1)(a)-(f) of the Act, to be capable of an application pursuant to s 160 of the Act creates certainty, as there would be no need for an initial assessment of the particular section in question prior to making an application to determine whether it is a 'provision'. Such an approach supports the purpose set out in the Minister's second reading speech that the BAB should be 'non-legalistic'. Clearly every application to the BAB pursuant to s 160 of the Act requires consideration of whether the regulation in question is a 'building regulation' as defined in s 160(1)(a)-(f) of the Act. However, if each such application were also to require the preliminary determination of whether a particular clause of the 'building regulations' is a 'provision', then that leads to a legalistic analysis involving difficult questions of statutory construction. The certainty created by including all parts of the 'building regulations', as defined, is consistent with the purpose set out in the Act of having an efficient system for 'administering and enforcing related building and safety matters'.[12]
8. The above conclusion does not mean that every 'provision of the building regulations' is necessarily capable of being the subject of a successful application to the BAB under s 160 of the Act. Section 162 of the Act sets out parameters for the BAB's powers under s 160 of the Act. As such, pursuant to s 162(2) of the Act, the BAB 'must not determine that a provision of the building regulations does not apply to a building or land unless satisfied that, in the particular circumstances, the provision is inappropriate.' Further, pursuant to s 162(3) of the Act, the BAB 'must not determine that a provision of the building regulations applies to a building or land in a modified or varied form unless satisfied that to do so is reasonable and not detrimental to the public interest'.
9. I consider that the assessment of whether, in any particular application made pursuant to s 160 of the Act, a provision of the building regulations should be held not to apply, or be varied or modified, should be assessed on a case by case basis. That assessment necessarily requires a decision to be made as to whether, for example, it is reasonable and not detrimental to the public interest for a particular provision to be varied or modified. In my view, the parameters for applications under s 160 of the Act set out in s 162 of the Act offer ample scope for the assessment of whether the application in respect of any particular provision of the 'building regulations' should succeed.
10. Therefore, for these reasons I find that Exemption (1) of cl A6G1 in NCC Volume Two is a 'provision of the building regulations' pursuant to s 160(1)(e) of the Act, and is therefore capable of being the subject of an application to the BAB pursuant to s 160(2) of the Act.

[2] Dixon v Todd [1904] HCA 52; (1904) 1 CLR 320.

[3] [2016] VSCA 328, [47]-[55].

[4] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, 148-149.

[5] Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541, 560.

[6] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 305.

[7] Building Act 1993, s 1(a) and (c).

[8] Victoria, Parliamentary Debates, Legislative Assembly, 11 November 1993, p. 1689 (Mr McLellan, Minister for Planning).

[9] See Perry Herzfeld and Thomas Prince, Interpretation (Lawbook Co. 2nd Ed, 2020), [2.130].

[10] Gibb v Federal Commissioner of Taxation (1966) 118 CR 628, 635.

[12] Section 1(c) of the Act.