Moreland City Council v Building Appeals Board [2000] VSC 84

11. The fourth and fifth respondents John Perich and Sioban McGrory (incorrectly named in the title to the proceeding as Sioban McGregory) are the owners of the land at 1345-1349 Sydney Road, Fawkner.

14. Running along the rear of the land is a drainage and sewerage easement some 1.83m. in width. The easement runs along the rear of a number of other properties in Sydney Road. Located on the easement is a stormwater pipe serving approximately 24 properties.

17. The diameter of the pipe over the land at 1345-1349 and 1351 Sydney Road is 225mm.

20. Because the owners of both allotments of land wished to construct buildings on their land which would be over the easement, they made applications to the Council pursuant to Regulation 2.4(1) of the Building Regulations 1994 for the Council's consent to the proposals. Regulation 2.4(1) reads:

"The consent and report of a council, drainage authority, electricity supply authority, sewerage authority, or gas supply authority, must be obtained to an application for a building permit to construct a building over an easement vested in the council or authority."

24. In due course Bof (through the second respondent Bill Jacobs Pty. Ltd.) and Perich and McGrory made applications to the Council for the consents.

27. On 6 October 1999 the Council refused the applications.

30. The applicants appealed against the refusals to the Building Appeals Board pursuant to the provisions of the Building Act 1993.

33. The section in the Act dealing with the powers of the Board is s.149 the relevant sub-sections of which read:

"149. What action can be taken on appeal? (1) The Building Appeals Board must consider and determine an appeal and by its determination may - (a) affirm the decision under appeal; or (b) quash the decision under appeal; or (c) vary the decision under appeal; or (d) set the decision under appeal aside and - (i) substitute its own decision; or (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 take any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal."

37. On 26 November 1999 the Board upheld the appeal in relation to the land at 1345-1349 Sydney Road, and on 2 December it upheld the appeal in relation to the land at 1351 Sydney Road.

"Having considered all the information placed before the Board and following further enquiry regarding access rights through railway land to VicTrack Access the Board determines that the appeal be upheld subject to the following occurring prior to the building works being constructed in or over the easement:- * The existing stormwater pipe located in the easement being upgraded to 450mm. diameter and pits being constructed adjacent to each of the northern and southern boundaries. * Access to the abovenamed pits being available from the rear of the property (Railway Reserve)."

44. On 21 December and in reply to a request by the Council for written reasons for its decisions, the Board wrote a letter to the Council's building surveyor. In my view the content of the letter could hardly be described as "reasons" for the Board's decisions. However, no point was made of that aspect of the matter during the course of the hearing before me.

47. I should add that it was hardly surprising that the Board allowed the appeals. In late 1998 it had allowed a similar appeal in relation to the property at 1355 Sydney Road, that property also being affected by the easement. See the penultimate page of Exhibit "JL1" to the affidavit of Joanne Lardner sworn 17 January 2000 and Exhibit "JWP3" to the affidavit of John William Perich sworn 6 March 2000.

50. When the matter came before me on 10 March for hearing there was no appearance by the Board, Bill Jacobs Pty. Ltd. and Bof. Those parties had previously indicated that they did not wish to be heard in relation to the matter and would abide the order of the Court.

53. During the course of the hearing the solicitor for the respondents Perich and McGrory challenged the Board's authority to hear the appeals from the Council's determinations in the first instance on the ground that there was no evidence before the Board that the easement in question was vested in the Council.

56. That issue was never raised before the Board. The two appeals were conducted before it on the basis that the easement was vested in the Council. See in particular the page numbered 5 in each of Exhibits "JL5" and "JL6" to Lardner's affidavit.

59. Because it was never raised as an issue before the Board, none of the parties produced any evidence to the Board in relation to the matter. It may well be that had it been raised as an issue, the Council would have adduced appropriate evidence concerning it.

62. As it was not raised before the Board, and as the Council was completely taken by surprise by the contention, I do not consider it is in the interests of justice that such a matter be ventilated at this late stage of the dispute between the parties and I do not propose, therefore, to entertain the submission.

65. I turn then to the question of law identified by the Master.

68. The first point to note is that pursuant to s.s.(2) of the section the Board possessed all the powers of the Council in relation to its decisions.

71. When the Council was asked to give its consent to the construction of buildings over an easement vested in it I consider that the Council was empowered to do one of three things. Firstly, it could have given its consent, secondly, it could have refused to give its consent, or thirdly, it could have given its consent but subject to the applicants complying with certain conditions.

74. In my opinion there is nothing in the regulation which limits a Council's power in that regard and every good reason why it should have that power. If, for example, the nature of a proposal to erect a building over an easement is such that were the erection of the building to proceed in accordance with the proposal damage could be caused to a drainage or sewerage pipe on the easement, the Council must surely be entitled to say - yes, we will give our consent to the proposal but only on the condition that the proposal is modified so that the footings or foundation of the building do not rest on the pipe thereby causing damage to it.

77. To possess and exercise that right would be consistent with the common law rights of the Council as the owner of the easement. See Sellers v. Mayor etc. of Hawthorn[1].

80. It was argued on behalf of the Council that in exercising the power given to it by s.149, the Board was required to either dismiss the appeal or allow the appeal, set aside the decision of the Council and give consent; that it had no power to impose any conditions in the matter.

83. In my opinion to interpret the section in that way would be to ignore the provisions of s.s.(4) of the section and for that matter clause 16(3) of Schedule 3 to the Act.

86. Section 166 of the Act deals with the establishment and membership of the Board. Sub-section (6) of the section reads:

"(6) Schedule 3 has effect with respect to the membership and procedure of the Building Appeals Board."

90. Clause 16 of Schedule 3 deals with the Board's determinations and reasons. Sub-clause (3) reads:

"The determination may include any other incidental order or direction that the Building Appeals Board considers necessary."

94. In my opinion the order of the Board to upgrade the stormwater pipe on the easement can properly be described as an order incidental to the principle order whereby the Board gave the necessary consent to the owners of 1345-1349 Sydney Road and 1351 Sydney Road to build over the easement.

97. It was said on behalf of the Council that by imposing the condition it did the Board has imposed a financial obligation upon the Council insofar as the cost of the upgrading is concerned.

100. In my opinion that is not so. The Board has made it perfectly clear that it is the owners who are required to upgrade the pipe and pay for such work, not the Council.

103. Finally, it was said that as the upgraded sections of the pipe will be larger in diameter than those sections of the pipe on the easement which as yet have not been upgraded, water will collect in the pipe thereby causing problems.

106. If steps are taken to ensure that the base of the new sections of the pipe is laid at the same level as the base of the old sections there should be no problem in that regard.

109. In my opinion the Board made no error in the matter and each order for review will be dismissed.

112. I order that the applicant pay the respondents Perich's and McGrory's costs of the proceeding.