RESPONDENT Municipal building surveyor for the Shire of Cardinia

BEFORE Members J Shaw (panel chair) and P Jolly

CITATION Marshall & Anor v Municipal Building Surveyor for the Shire of Cardinia [2025] VBAB 72

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

1. Pursuant to s 149(1)(b) of the Building Act 1993 (the Act), the decision of the Respondent to make the building order dated 24 October 2024 is quashed.
2. Pursuant to s 149(4) of the Act, the building order dated 24 October 2024 made by the Respondent is cancelled.
3. 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 this determination.[1]

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1. The Applicants own the land at 82 Downey Road, Dewhurst (Subject Land). They became the registered joint proprietors of the Subject Land on 1 May 2023.
2. The Respondent is the municipal building surveyor for the Cardinia Shire Council (MBS).
3. Well before the purchase of the Subject Land by the Applicants, a shed had been constructed on it (Shed).
4. On 11 October 2024, the MBS served on the Applicants a building notice pursuant to s 106 of the Building Act 1993 (Act) (Building Notice). The Building Notice referred to an inspection having been undertaken of the Shed by a building inspector on behalf of the MBS on 2 October 2024. The Building Notice stated that it had been issued because the Shed, being a Class 10a building under the Building Code of Australia (BCA), had been 'converted to a second dwelling' because bedrooms, a dining room and a living room had been constructed, a bathroom had been added, and a mezzanine floor with an additional room had been built (Building Work). The Building Notice stated that the Building Work had been carried out without a building permit under the Act being in place, and that it was carried out in contravention of the Building Regulations 2018 (Regulations). The Building Notice required the Applicants to show cause as to why, inter alia, the mezzanine floor and internal fit-out of the Shed should not be demolished or removed in order to return it back into a Class 10a building.
5. By a building order made on 24 October 2024 under s 111 of the Act (Building Order), the MBS ordered that, by 31 January 2025, the Applicants must carry out:

1.1 Demolish/remove the internal fit-out (mezzanine floor, stair stringers, internal walls, facilities and services (toilet, shower, laundry, food preparation area, characteristic to a Dwelling) to the second dwelling, and return it back to its legal use (Garage only).

1.2 Obtained documents to certify that any part of the building/s to remain, complies with the Building Regulations 2018 ("Regulations") and the Building Code of Australia (BCA).

1.3 Where required, carry out rectification work on the building, in accordance with a relevant building permit issued by your appointed private building surveyor.

1. The Applicants appealed to the Building Appeals Board (BAB) under s 142(2)(a) of the Act against the making of the Building Order.

1. In the hearing on 6 February 2025, the Applicants stated that they had not undertaken the Building Work, which had already been completed when they purchased the Subject Land. Indeed, in the course of their interactions with the MBS, the Applicants were provided with a letter dated 23 October 2014 from the then municipal building surveyor of Cardinia Shire Council (former MBS) to the previous owner of the Subject Land (October 2014 letter) which referred to a building notice dated 3 December 2013 (December 2013 Notice) and building order dated 11 August 2014 (August 2014 Order) which the letter confirmed had been cancelled. The October 2014 letter stated:

Councils [sic] records indicate that you have carried out alterations and ceased occupation of the shed as a dwelling. Records also provide that you have provided confirmation in writing that:

- The shed will now remain as a single storey non habitable structure.

- The aim and future function of the shed is only to provide ancillary storage.

- This structure will not be converted back into a dwelling.

1. The December 2013 Notice and the August 2014 Order had not, as at the hearing held on 6 February 2025, been provided to the Applicants nor filed with the BAB.
2. In any event, it became apparent that at some stage prior to December 2013, building work had been carried out on the Shed to construct the mezzanine, internal walls and rooms to convert it to contain habitable dwelling spaces. Notwithstanding this building work, the former MBS had decided to cancel the December 2013 Notice and the August 2014 Order on the basis that the habitable rooms had been removed and that the Shed would 'not be converted back into a dwelling'.
3. It also appears that, contrary to the requirements set out in the October 2014 letter, the previous owner had carried out or caused further building work to be carried out to convert the Shed back into a habitable dwelling.
4. The Applicants stated that they were unaware that the arrangement of the Shed with habitable spaces and the mezzanine was not permitted under the original building and occupancy permits until the MBS commenced enforcement actions in late-2023 and early-2024.
5. On the basis of the submissions made by the Applicants, we are satisfied that they did not carry out the Building Work, and that at the time of their purchase of the Subject Land the Shed was arranged as it was when inspected by the MBS or his delegates.
6. The MBS made a building notice and building order in early-2024, however, due to issues concerning the inspection not having been carried out in accordance with the Act, those documents were cancelled by the MBS, and the Building Notice and Building Order were subsequently issued.
7. The Applicants stated that prior to the issue of the Building Order they had removed all items from the mezzanine, which they had previously used for storage, and that now the mezzanine is empty. Further, they have removed the stairs and boarded up the stairway, so that there is no access to the mezzanine.
8. Subsequent to the service of the Building Order, the Applicants have removed the kitchen and cooking facilities from the Shed, including kitchen cabinetry. They also stated that they had disconnected the electrical services back to the switch-board and that the plumbing to the kitchen had been capped.
9. The Applicants stated that they have no intention of using the Shed as a dwelling. They stated that at some stage in the future they would like to obtain structural certification for the mezzanine and stairway, so that they can use the mezzanine, but that at the moment they could not afford that certification and therefore had removed access.
10. The Applicants also submitted that, as far as it was possible to determine, the Shed had been returned to the same state as it had been in when the August 2014 Order had been cancelled. On that basis, they submitted that the MBS should not have made the Building Order, or at least that it should now be cancelled.
11. The MBS, on the other hand, submitted that notwithstanding the steps taken by the Applicants to return the Shed to a class 10a building, there was no structural certification of the mezzanine, and therefore in the absence of such certification it should be removed. Further, although the MBS conceded that it was not necessary for a class 10a building, he submitted that the electrical and plumbing services should be disconnected entirely from the Shed, and not simply 'capped'. The MBS also submitted that he was concerned that the proposal by the Applicants to remove internal walls of the Shed may affect the structural adequacy of the mezzanine, although no inspections have been undertaken to identify the mezzanine's structure.
12. The Applicants' submission clarified that they had previously offered to remove some internal walls, but having been advised that this was not necessary for a class 10a building, they no longer propose doing that.
13. The inspector who inspected the Shed, Mr Gulenc, stated that on his two inspections he did not observe any damage or distress to the mezzanine structure, and that he did not observe any cracks.
14. We are satisfied that the Applicants have taken sufficient steps to return the Shed to a class 10a building. They have removed those features that are normally associated with a dwelling, such as the kitchen, and the Shed is being used solely for storage. Further, they have prevented access to the mezzanine, and it is empty.
15. We do not accept the MBS's submissions that structural certification of the mezzanine is required before the Building Order can be cancelled. As noted, the mezzanine is empty, there is no access available to it, and there are no signs of distress. Further, it appears that the state that the mezzanine is in is the same state it was in when the August 2014 Order was cancelled.
16. The Applicants submitted that on a number of occasions they had attempted to discuss with the MBS or his delegates what steps were required in order to return the Shed to a class 10a building, but that on each occasion the MBS refused to meet with them, and instead issued the Building Notice and Building Order.
17. We consider it unfortunate that, in all the circumstances set out, that the MBS did not engage with the Applicants to explain what steps could be taken by the Applicants to avoid the Building Order being issued.
18. Given our conclusions set out above, we find that the Shed has been returned to a class 10a building. Therefore, pursuant to s 149(1)(b) of the Act the Building Order will be set aside, and, pursuant to s 149(4) of the Act, to the extent necessary, it will be 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'.