JUDICIAL REVIEW - Application for leave to appeal from decision of trial judge on judicial review of decision of Building Appeals Board to affirm building order issued by first respondent - Applicant reconstructed raised deck attached to dwelling without building permit - Council advised applicant that permit not required - Building order issued requiring demolition of deck on basis deck reconstructed and extended without permit and lacked screening to prevent overlooking adjoining property - Whether judge erred in concluding respondents not estopped by Council advice - Whether judge erred in concluding building permit required - Whether judge erred in concluding screening required to prevent overlooking adjoining property - Whether judge erred in concluding Building Appeals Board did not deny plaintiff procedural fairness - Whether trial judge's decision showed prejudice against applicant and denied him a fair trial - Leave to appeal refused.

Building Act 1993, ss 3, 16, 37, 37A, 106, 111, 118A.

Building Regulations 2018, regs 23, 84, 233, sch 3.

1. Mark Morris, the applicant, owns and lives in a property in Shepherd Street, Surrey Hills.
2. In 2021, Mr Morris had a raised timber deck (approximately one metre above ground level) on his property reconstructed and extended. Mr Morris says that he was advised by the building surveyor's assistant of the City of Whitehorse ('the Council') in January 2021 that he did not need a building permit for the extension. Accordingly, he proceeded to reconstruct the deck without a permit.
3. In June 2022, the first respondent, the Municipal Building Surveyor ('the MBS') for the Council, issued a notice and then made an order requiring the demolition of the deck. It did so on the basis that the deck had been reconstructed and extended without a building permit and that it lacked screening to prevent overlooking an adjoining property. The MBS relied on aerial photographs and observations (with photographs) from premises next door in deciding to make the Building Order, as there was a dispute as to access to the property.
4. Mr Morris appealed to the Building Appeals Board ('the Board'), the second respondent, which, in December 2022, affirmed the order.[1] Mr Morris refused the Board access to his property, and it relied upon the same material as the MBS had.
5. Mr Morris then sought judicial review of the Board's decision. That application was heard in March 2024, and on 14 June 2024, Harris J dismissed it.[2] Mr Morris now seeks leave to appeal that decision.

1. Mr Morris wrote by email of 21 January 2021 to the Council ('the Morris email'):

I would like to extend a deck by 1 metre, which increases the total deck size by about 7 sq. metres. I've been told by a tradie that I won't need a building permit as the extension is less than 10 sq. metres. Is that correct?

1. An administrative officer of the Council responded, requesting that he identify the address of his property 'for the building surveyor to provide you with ... correct information'. Mr Morris duly provided his address.
2. A person identified as 'Building Surveyor's Assistant' of the Council replied, by email of 22 January 2021 ('the Council email'):

I can confirm, based on the information provided to me that a building permit is not required for proposed deck extension.

1. Mr Morris then proceeded to construct the deck extension ('the works').
2. On 16 February 2022, the Council wrote to Mr Morris advising that it had been brought to the Council's attention 'that there may have been structure built in the rear yard without a building permit' at Mr Morris' address. The letter advised that the Council's compliance officer proposed to conduct an inspection on the morning of 28 February 2022 and requested that access to the property be made available at that time.
3. On 21 February 2022, Mr Morris responded with a series of questions in relation to the proposed inspection, including:

Contrary to your letter, no structure was erected in the rear yard of my property. I have undertaken repairs to my dwelling which included replacing and extending the wooden deck on the rear side of my dwelling.

1. In a subsequent email on 25 February 2022, Mr Morris advised that the property could not be inspected on 28 February as neither he nor his wife would be at home. He also said that if the Council wished to have access to his property, it should provide reasonable grounds for concluding that 'contrary to its earlier advice, a structure requiring a building permit was erected on my property without a permit' and it should 'call to arrange a suitable day and time for a visit'.
2. The Council did not respond to that email. Rather, on 28 February 2022, a Council building inspector carried out an inspection of the property from adjoining premises. He observed that:

(1) a timber deck/balcony had been recently constructed and attached to the rear of the existing dwelling;

(2) the deck/balcony was slightly lower in height than the roof of the garage adjoining the western property boundary;

(3) the deck/balcony had new posts some of which extended above the handrail height, a new handrail and balustrades and new decking boards; and

(4) no screening had been installed on the western side of the deck/balcony to prevent overlooking.

1. He took a number of photographs from the property on the western side of the deck and obtained aerial photographs depicting the deck before and after the extension. Three are reproduced below:

1. On 1 March 2022, the MBS issued a building notice ('the Building Notice') to Mr Morris under s 106 of the Building Act 1993 ('the Act'). It identified the following reasons for the notice:
   1. The following building work has been carried out on the building/land without a building permit as required by the Building Act 1993:

1.1 The raised deck/balcony to the rear of the dwelling has been reconstructed and extended, without a Building Permit first being obtained in contravention of Section 16 of the Building Act 1993, as indicated in Sketch SK1 attached.

1. Building work has been carried out on the building/land in contravention of the Building Regulations 2018.

2.1 The raised deck/balcony to the rear of the dwelling has been reconstructed and extended and has not been provided with screening to prevent overlooking to adjoining properties, without the consent of Council in contravention of Regulation 84 of the Building Regulations 2018.

1. The Building Notice required Mr Morris to show cause why 'the raised deck and balcony' should not be demolished, and access to the deck and balcony secured by screwing the doors closed. The covering letter identified what Mr Morris should provide if he wished to retain the works built without a building permit. This included:

(a) engaging a Registered Building Practitioner in the category of Building Surveyor, to inspect and report on the works and provide a Certificate of compliance in accordance with reg 126 of the Building Regulations 2018 ('the Regulations'), together with referenced endorsed 'as built' drafted drawings from that building surveyor to verify that the works were built in accordance with the Regulations and the Building Code of Australia ('the Code');

(b) a complete set of architectural and structural drawings for the work already carried out including a site plan showing all boundaries and setbacks, easements, original building, recent works and North point, elevations of the building, section detail through the building work showing footing construction method, construction methods, framing details and other relevant general specifications;

(c) complete structural certification, computations, and plans as required by a building surveyor; and

(d) a recent copy of title and an approved plan of subdivision or title plan.

1. Mr Morris did not provide the requested information.
2. On 4 March 2022, Mr Morris emailed the MBS advising among other things that the Council had acted unconscionably given its 'earlier decision that a building permit was not required'; that 'the increase in the size of the dwelling footprint' on the property was minimal; and that the deck 'does not give rise to any shading issues for neighbours and gives rise to minimal (if any) privacy issues' to one neighbour, who had 'removed the screen (two large trees) between our respective dwellings and respective decks'.
3. Mr Morris also said that he disputed the Building Notice and required the Council to withdraw it or confirm that the Council would be responsible for all costs incurred in complying with it.
4. There was then an exchange of emails between the MBS and Mr Morris. Mr Morris continued to dispute the terms of the Building Notice and the Council's interpretation that the Regulations required a building permit for the work he had carried out. He claimed that the Council was estopped by the contents of the Council email from applying its interpretation of the nature and extent of the extension.
5. On 21 March 2022, the MBS advised Mr Morris that the Building Notice would be reviewed on 11 April 2022. On 22 March 2022, Mr Morris replied, disputing the validity of the Building Notice and concluding:

Until such time as Whitehorse City shows it has proper grounds for issuing the [Building] Notice, I will not permit the inspection on 11th April 2022 or any other date and nor will I comply with the [Building] Notice. That is, unless a court order is obtained after I have been given the opportunity to argue my case.

1. On 4 April, in a detailed reply to Mr Morris, the MBS said as follows:

It is acknowledged that you do not permit Council's proposed inspection to occur on 11 April 2022; Council officers will not enter your land on this date. The Building Notice remains open and allows you to provide additional representations in relation to if the structure complies with the legislation

1. Mr Morris was also advised that the builder who constructed the deck extension was not a registered building practitioner.
2. On 14 April 2022, the MBS informed Mr Morris in writing that in view of the ongoing communications, the show cause period under the Building Notice had been extended to 16 May 2022. The letter also:

(a) reiterated that the building permit was required because the works did not meet the exemption requirements of Schedule 3 of the Regulations because the deck had increased in floor area, and works had occurred which may affect the structural soundness of the building. Further, the works resulted in non-compliance with reg 84, relating to overlooking;

(b) noted Mr Morris' view that the works complied with the Regulations, and requested that he provide evidence of compliance, for example, a Certificate of Compliance from a registered Building Surveyor; and

(c) noted that Mr Morris was willing to address the concerns identified in the Building Notice with respect to structural soundness and, in order to satisfy the Building Notice and retain the structure, requested he provide the documentation identified in the letter of 1 March 2022, which had been sent with the Building Notice, for consideration.

1. On 26 April 2022, Mr Morris responded, disputing that the Council had a proper basis to issue the Building Notice. He asserted that the MBS' opinion that the works required a building permit was insufficient unless there was a reasonable basis for it, and that the Council had neither identified the reasonable basis nor the measurements of the structure it used to determine that a building permit was required.
2. The Council, in turn, responded, stating that the estimated area of the extension to the deck was 24 m2, which required a building permit. This calculation appears to have been based on the aerial photographs.
3. On 1 June 2022, the MBS issued a Building Order ('the Building Order') under s 111 of the Act. It directed Mr Morris to:

Demolish and remove the raised deck/balcony to the rear of the dwelling, and secure all access points from the dwelling to this raised deck/balcony in the closed position by installing 3 screws through the doors and frames, at the top, middle and bottom of the door, to the satisfaction of the Municipal Building Surveyor.

The Building Order identified the reasons for making the order in the same terms as those in the Building Notice.[4]

1. The letter accompanying the Building Order informed Mr Morris that the Building Order could be cancelled if he provided the documents which had been identified in the covering letter to the Building Notice.
2. On 28 June 2022, Mr Morris appealed the Building Order to the Board. He provided detailed written submissions in support of the application. The MBS provided a statement of contentions in response, which included photographs of the deck which had been taken from outside the property, and Mr Morris provided detailed submissions in reply.
3. Prior to the determination of the appeal, the Board wrote to Mr Morris and advised that the Board panel members intended to undertake a site inspection involving unrestricted access to the external parts of the building. Mr Morris responded stating that he was away from Melbourne until 26 October 2022 and asked for the legal basis for the Board to require access. He stated that he did not recall any facts that were in dispute.
4. The Board advised that cl 15(3)(b) of sch 3 to the Act permitted the Board to 'inform itself in any manner it thinks fit'; advised that conducting a site inspection was one method of informing itself; and stated that the reason for doing so was that the facts were in dispute. The Board requested that Mr Morris confirm that he would give access to the property on 26 October 2022. Mr Morris responded requiring the Board to 'state what facts are in dispute' and advising that cl 15(3)(b) of the Schedule did not appear to give the Board 'the right to demand access to my property'.
5. The Board by email of 24 October 2022 advised that it would not engage in a debate about its powers, stating:

The purpose of the inspection by the Panel is to obtain an independent assessment of the deck in order to determine whether the issue of the Building Order was justified.

1. The Board stated that Mr Morris was required to confirm whether access to his property would be granted on 26 October and stated that if he did not do so, it would be assumed that access was denied. Mr Morris then told an officer of the Board's registry that access would not be provided.
2. The Board then proceeded to deal with Mr Morris' appeal on the papers, with both Mr Morris and the MBS making written submissions. On 16 December 2022 the Board determined that the Building Order be affirmed.
3. Mr Morris then sought judicial review of the Board's decision in the Trial Division of this Court.
4. It is convenient to set out now the relevant provisions of the Act and the Regulations.

The Building Act and the Building Regulations

1. Part 2 of the Act makes provision with respect to building permits. Division 1 of pt 2 is headed 'Building permit required' and, relevantly, s 16 creates offences in relation to the carrying out of building work:

16 Offences relating to carrying out building work

(1) A person must not carry out building work unless a building permit in relation to the work has been issued and is in force under this Act.

(2) A person must not carry out building work unless the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work.

(3) An owner of land must ensure in relation to building work carried out on that land that a building permit in relation to the work has been issued and is in force under this Act.

1. Section 3 of the Act defines 'building work' to mean 'work for or in connection with the construction, demolition or removal of a building'.
2. The requirements regarding building permits apply to building work unless the Act or the Regulations exempt the work.
3. Schedule 3 of the Regulations ('the Schedule') then provides that the following types of work are exempted from the requirement for a building permit:

(a) item 1 'freestanding Class 10(a) building' which is identified in the Building Code of Australia[5] as 'a non-habitable structure including sheds, carports and private garages'; and

(b) item 3 'repair, renewal or maintenance of an existing building' if the building work:

(a) will not adversely affect the structural soundness of the building, and does not include -

(i) an increase or decrease in the floor area or height of the building;

(ii) underpinning or replacement of footings; or

(iii) the removal or alteration of any element of the building that is contributing to the support of any other element of the building; and

(b) is done using materials commonly used for the same purpose as the material being replaced; and

(c) will not adversely affect the safety of the public or occupiers of the building; and

(d) will not adversely affect an essential safety measure relating to the building.

1. Division 3 of pt 2 is headed 'Decisions on building permits and other matters' and sets out various provisions as to how decisions about building permits are to be made. Relevantly, a building surveyor must decide an application by issuing the permit, issuing it with conditions or refusing the permit[6] and must not issue a building permit unless they are satisfied of the matters in ss 24 and 24A of the Act, including that the building work will comply with the Act and Regulations (s 24(1)(a)).
2. Part 4 is headed 'Inspection of building work' and makes provision for inspections, directions to fix building work and the issue of certificates of final inspection. By s 34, the relevant building surveyor must cause building works to be inspected at mandatory stages set out in the building permit.
3. Section 37 deals with directions to fix. After the inspection of building work, the relevant building surveyor may issue a direction to fix to the builder named in the building permit or person apparently in charge of the site of the building work.[7] Section 37(1) provides that

This section applies if, after the inspection of building work, the relevant building surveyor believes on reasonable grounds that the building work fails to comply with this Act, the building regulations or the building permit issued in relation to the building work.

1. Section 37A is headed 'Direction by relevant building surveyor to fix building work' and provides:

(1) This section applies if, after the inspection of building work, the relevant building surveyor believes on reasonable grounds that the building work fails to comply with this Act, the building regulations or the building permit issued in relation to the building work.

(2) The relevant building surveyor must give a direction to fix the building work to a relevant person in accordance with this Division.

(3) The relevant building surveyor may authorise a building surveyor or a building inspector whose registration under Part 11 authorises the inspection of that building work to give an oral direction to fix the building work to the relevant person on behalf of the relevant building surveyor in accordance with this Division.

1. Section 37C sets out the method of giving directions in respect of a direction to fix building work:

A direction to fix building work may be given as -

(a) an oral direction to either or both of the following persons -

(i) the builder;

(ii) the person who is apparently in charge of the site on which the building work is being carried out; or

(b) a written direction to the builder.

1. Part 8 covers enforcement. Division 2 of pt 8 deals with building notices and building orders. Section 106 empowers an MBS or private building surveyor to issue a building notice including relevantly as follows:

Subject to section 107, 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;

...

(d) the building, land or place or building work on the building, land or place is a danger to the life, safety or health or 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 building owner to show cause within a specified period why they should not carry out 'building work', protection work or work required by the regulations in relation to the building, land or place.[8]
2. A building owner is also entitled to make representations to the relevant building surveyor about the matters raised in the building notice.[9] The relevant building surveyor may cancel a building notice if he or she considers it appropriate to do so after considering any of the representations made.[10]
3. Section 111(1) provides that a MBS or private building surveyor may make a building order after the time allowed for making representations in response to the building notice and after considering any representations made by the building owner. A building order may:

(a) prohibit any person from entering, using or occupying a building, and or a place of public entertainment for a specified period unless permitted by the municipal building surveyor: s 111(4);

(b) direct the owner of a building, land or a place of public entertainment to carry out building work, protection work or other work required by the regulations in relation to the building, land or place: s 111(5).

1. Section 118A is headed 'Building notices and building orders are to be last resort' and provides:

A municipal building surveyor or private building surveyor must not cause a building notice to be served on an owner or make a building order in relation to the carrying out of building work unless -

(a) a direction to fix the building work was given under Division 2 of Part 4 and it is clear that the direction will not be complied with; or

(b) the municipal building surveyor or private building surveyor is satisfied that it is either not possible or not appropriate to give a direction to fix the building work under that Division.

1. Division 2 of pt 5 of the Regulations addresses various siting, setback, and other amenity requirements. Pursuant to reg 72, that division applies to the construction of a single Class 1 building and associated Class 10(a) buildings on an allotment.
2. The Code, which forms part of the Regulations by reason of reg 10, identifies a Class 1 building as 'a house or dwelling of a domestic or residential nature' and a Class 10(a) building is identified as 'a non‑habitable structure including sheds, carports and private garages'.
3. Regulation 84 within div 2 of pt 5 deals with overlooking and provides:

(1) A habitable room window or raised open space of a building on an allotment must not provide a direct line of sight into a habitable room window or on to a secluded private open space of an existing dwelling on an adjoining allotment.

...

(3) In the case of a direct line of sight from a raised open space, the line of sight is any line measured from a height of 1.7 m above the floor level and along the perimeter of the raised open space to any point within a horizontal distance of 9 m from the raised open space and extending 45º beyond any point where the perimeter of the raised open space meets a wall of a building.

...

(6) A raised open space complies with this regulation if the direct line of sight into the habitable room window or on to the secluded private open space on the adjoining allotment is obscured by a permanent and fixed screen which has no more than 25% of its area open.

...

(9) The report and consent of the relevant council must be obtained to an application for a building permit in relation to a design that does not comply with this regulation.

(10) In this regulation -

raised open space means a landing with an area of more than 2 m2, a balcony, a terrace, a deck or a patio;

secluded private open space means any part of private open space on an allotment -

(a) which is screened for at least 90% of its perimeter by a wall, fence or other barrier that is at least 1·5 m high and that has no more than 25% of its area open; and

(b) which is primarily intended for outdoor recreation activities.

1. Regulation 233(1) is headed 'Alteration to existing building' and provides:

(1) Building work to alter an existing building must comply with these Regulations.

(2) Subject to regulations 234 and 236, if the proposed alterations to an existing building, together with any other alterations completed or permitted within the previous 3 years, relate to more than half the original volume of the building, the entire building must be brought into conformity with these Regulations.

(3) Despite subregulations (1) and (2) and subject to subregulation (6), the relevant building surveyor may consent to partial compliance of building work or an existing building with subregulation (1) or (2).

(4) ...

(5) ...

(6) If any part of the alteration is an extension to an existing building, the relevant building surveyor may only consent to partial compliance in respect of the extension if the floor area of the extension is not greater than the lesser of -

(a) 25% of the floor area of the existing building; and

(b) 1 000 m2.

1. An appeal to the Board from a Council building order is governed by s 142 of the Act. It is a rehearing in which the Board may consider matters not raised before the decision under appeal[11] and in this case was conducted on the papers with both parties making written submissions.
2. The Board provided written reasons for its decision.
3. It noted that the appeal was pursuant to s 142(2)(a) of the Act. The Board set out the history of the dispute and the submissions of Mr Morris and the MBS. It rejected Mr Morris' contention that the Council email created an estoppel by convention. It concluded that the public interest in the statutory discretion enjoyed by the MBS outweighed the cost to Mr Morris in terms of complying with the Building Order.[12] It also noted that the representation made in the Council email was not one made by the MBS.[13]
4. The Board then addressed the question of whether there was sufficient information available to the MBS to make the Building Order, in light of Mr Morris' refusal to permit the Board to inspect the site.
5. The Board noted that it had viewed photographs of the deck provided by the MBS, along with other materials, and was satisfied the combination of the photographs and other material filed by Mr Morris and the MBS was sufficient for it to make a determination.[14]
6. It held:

We find the reconstruction and extension of the deck to the rear of the dwelling was constructed without a building permit, does not comply with the Act, and the works were not exempt under item 1 of Schedule 3 to the Building Regulations 2018.

In any event, by his own admission in his submissions and submissions in reply, the applicant has extended the decking balcony which is beyond maintenance and/or repair of an existing structure, and therefore constituted building work which triggers the requirement for a building permit.

Finally, for completeness we consider than in extending the decking/balcony the applicant is in breach of reg 84 of the Regulations.[15]

1. Having accepted that the deck reconstruction and addition was a new construction and therefore reg 84 applied, the Board concluded that a physical barrier, not merely vegetation, was required to prevent overlooking from Mr Morris' property.[16]

1. Mr Morris originally alleged 24 individual grounds of judicial review of the Board's decision. The judge grouped them as follows:

(a) Mr Morris relied on the MBS' employee's statement on 22 January 2021 that a permit was not required for the construction of the deck Mr Morris referred to in his email on 21 January 2021. Accordingly, the MBS was estopped from issuing the Building Order and the Board erred by affirming the Building Order.

(b) The Building Notice and Building Order were issued in contravention of s 118A of the Building Act.

(c) Mr Morris did not require a building permit under the Building Act for the Works, so there was no basis for the Building Notice and Building Order.

(d) Mr Morris was not required by reg 84 of the Building Regulations to erect a screen to prevent overlooking of Mr Morris' neighbours.

(e) If a screen is required, trees and vegetation would be a fixed and permanent screen for the purpose of reg 84 of the Building Regulations. Because there were trees between Mr Morris' property and that of his neighbours which were removed at some time prior to the Works, Mr Morris should not be required to pay to plant new vegetation and trees.

(f) The Board's decision was also unlawful because:

(i) The Building Order was based on the false premise that the deck posed safety concerns.

(ii) The Board's decision was affected by bias.

(iii) The Board failed to consider Mr Morris' arguments.

(iv) The Board affirmed the Building Order in circumstances where the MBS had issued the Building Order without exercising his discretion consistently.

(v) The Board failed to take into account mandatory considerations, namely the injustice of Mr Morris bearing the burden of remediating the Works, the availability of alternative remedies for any non‑compliance with the Building Act and Building Regulations, and the factual issues of whether the Works involved the installation of a larger deck and whether they are truly a 'new structure' or mere reconstruction.

(vi) The Board denied Mr Morris procedural fairness by refusing his request for internal documents about the consistency of the MBS decision‑making regarding the issue of Building Orders.[17]

1. The judge set out the statutory context and the factual background, and then identified each of Mr Morris' issues, which she addressed as follows.

1. The judge concluded that the Board's finding that there was no estoppel preventing the issue of the Building Order was correct. The facts did not support the existence of an estoppel. The contents of the January email could not be characterised as a 'decision' with respect to 'the work' which was actually performed at Mr Morris' premises as the work described in the email was confined to a proposed one metre deck extension, whereas Mr Morris' evidence and submissions were to the effect that the deck had been 'reconstructed and extended'.
2. The judge noted that no evidence was tendered by either party as to the exact size of the deck as extended by Mr Morris (bearing in mind that Mr Morris refused to permit the Board to inspect the deck). However, the other evidence (photographs and observations by the MBS) demonstrated that the deck was a 'significantly raised structure' which overlooked the neighbour's dwelling. Thus, the advice in the January email was 'not a decision with respect to the quite different works later undertaken'.[18]
3. Her Honour also held that the Board was correct in deciding that there was no basis for applying a public interest exception to the broad principle that estoppel does not apply to hinder or prevent the exercise of a statutory discretion.[19] The Board was also correct in recognising that the limited public interest exception involves balancing the harm to the public at large against the harm to the particular individual.
4. The judge held that the Board was correct in its assessment that the public interest in the MBS being able freely to exercise the discretion to make a building order outweighed any public interest considerations arising from the potential prejudice to Mr Morris.
5. Finally on the issue of estoppel, the judge noted that although the Board referred to estoppel by convention, the type of estoppel that Mr Morris described in his submissions was more appropriately characterised as an estoppel by representation or equitable estoppel, given that it turned on a representation made in the Council email. The distinction however did not alter the correctness of the Board's observations as to the limits on estoppel applying to the exercise of a statutory discretion.[20]
6. As to Mr Morris' submission concerning the basis for the decision, the judge considered that the Board did not make a finding that the deck did in fact present a risk to life, health or safety; rather it found that there was a concern that the reconstructed deck may involve a safety risk and this was relevant to the nature of the discretion to make a building order. As her Honour explained:

An objective of the Building Act is to protect the safety and health of people who use buildings and places of public entertainment. That is an objective to which the MBS was obliged by the Building Act to have regard in exercising the statutory discretion to issue a Building Notice or Building Order. Further, the Building Notice and Building Order had been issued to Mr Morris in this case because the MBS was of the view that the building work had occurred without a building permit first being obtained. One purpose of the building permit system, and associated powers to issue building notices and building orders, established by the Building Act is to further the main purposes of the Act in regulating building work and building standards, and administering and enforcing related building and safety matters. The building permit ensures the involvement of a building surveyor from an early stage, with mandatory inspection requirements as works progress. The absence of a building permit means that an important process directed to building safety is avoided, with the result that important matters such as structural integrity have not been assessed.[21]

1. Her Honour noted that, notwithstanding the opportunity provided in the show cause process following the issue of the Building Notice, Mr Morris did not provide any of the requested documentation to the MBS to demonstrate the safety of the deck or its compliance with the Act, the Regulations and the Code (adopted by reg 10 of the Regulations). Accordingly, the Board did not have evidence to enable it to assess whether the raised deck was in fact safe and structurally sound, but equally it did not find that the deck was unsafe.[22]
2. Her Honour held that a fair reading of the Board's reasons indicated that it concluded that there was 'a valid concern that there was a safety risk, and that the MBS, in exercising his discretion to serve a Building Order, had concerns regarding safety' and that 'this was an entirely justified observation and not a "fabrication" as Mr Morris contended'.[23]

Section 118A of the Building Act - order to demolish as a last resort

1. Section 118A (which is part of div 2 of pt 4), set out above, requires the MBS to consider whether a notice to fix (as opposed to a building order) should be issued. An order is the last resort. Mr Morris argued that a notice to fix was the appropriate course for the MBS to take, rather than to make an order for demolition. He submitted that it was unlawful for the Board to affirm the Building Order because it was issued in contravention of s 118A.
2. The judge considered that it is apparent from several features of the regime for the giving of a notice to fix that (subject to certain exceptions in s 37A) it is premised on the assumption that the person who is arranging for the carrying out of building work has obtained a building permit for the work as required by s 16 of the Act.[24] Her Honour noted:

(a) Section 37A will not apply unless an inspection has occurred (under ss 33(1) or 35), and an inspection under the Act will not routinely have occurred if no building permit was issued for the relevant work.[25]

(b) Section 37A (2) imposes the duty to give a direction to fix on a 'relevant building surveyor' as defined in s 3(1) which appears to be the building surveyor who issued the building permit.[26]

(c) Section 37C provides that the direction to fix be given to 'the builder' or to 'the person who is apparently in charge of the site on which the building work is being carried out'. The definition of 'builder' in s 37 as it applies to s 37A, and the reference to 'building work' in respect of 'the person in charge of the site on which the building work is being carried out', both contemplate that a building permit has been issued.[27]

1. Her Honour also noted that in a situation where building work is being carried out without a building permit, s 37A would generally not apply to require the giving of a direction to fix prior to the issuing of a building notice.
2. Further, assuming that an inspection could be carried out where there is no building permit in place, Mr Morris had maintained that 'no structure was erected in the rear yard of my property' and had refused access to the property. The only assessments that could be carried out were based on observations and photographs of the deck from outside the property.[28]
3. The judge concluded that the MBS had not been able to undertake any adequate inspection as required under s 37A(1), accordingly it was neither possible nor appropriate for the MBS to give a direction to fix, and s 118A(b) applied.[29]

1. The judge held that the Board was correct to conclude that the reconstruction and extension of the raised deck constituted 'building work' which required a building permit; that the works were not exempt under item 1 of sch 3 of the Regulations; and that the decision to issue the Building Notice and Building Order was appropriate in the circumstances.[30] In reaching these conclusions, her Honour:

(a) rejected Mr Morris' submission that the Board was required to answer the question of what a 'reasonable man' in the position of the MBS would have done, and whether he would have concluded that the deck resulted in adverse consequences under the Act, noting that the matter before the Board was an appeal in the nature of a rehearing under s 148 of the Act which involved considering, by reference to the facts before the Board, whether it was open and appropriate to make the Building Order pursuant to s 111 of the Act;[31]

(b) noted that material before the Board supported her conclusions. Her Honour noted that the MBS was limited in the evidence he could put before the Board as to the nature of the work done, as the Council and Mr Morris were unable to reach an agreement about access for inspection and Mr Morris had also refused the Board's request for inspection. However, the Board had viewed the photographs provided by the MBS and other material filed by the parties, and took into account Mr Morris' admission that he had extended the deck, which meant that it was 'beyond maintenance and or repair of an existing structure'. The photographs showed that the raised deck was a structure of significant size, which could be overlooked by neighbouring properties and equally enable overlooking into one or both adjoining properties. The judge also set out various terms in which Mr Morris described the work on the deck in his submissions, and noted his acknowledgement that the deck was attached to the rear of the house and was clearly not a freestanding structure;[32]

(c) noted that it was not entirely clear from Mr Morris' submissions to the Board whether he contended that item 3 of sch 3 (which exempts from the requirement for a building permit work which is 'a repair, renewal or maintenance of a part of an existing building' if the building work also satisfies certain other conditions) applied to the new deck. In any event, her Honour found that while the Board did not specifically refer to item 3 of sch 3, after it concluded that item 1 of sch 2 did not apply, it expressly concluded that work on the deck was 'beyond maintenance or repair of an existing structure'. The work involved a reconstruction of a previous structure and extended beyond the original measurements - so much having been conceded by Mr Morris in his submissions. The judge inferred that in affirming the Building Order, the Board accepted the MBS' submission that structural alterations had occurred with the replacement of critical elements of the deck (supporting posts, bearer, floor joists, decking boards and hand rails) which contributed to the support of other elements, and that the floor area had increased;[33]

(d) rejected Mr Morris' submission that the Regulations should be construed not to apply to timber decks, by reference to 'industry practice' and the 'intention of the Regulations' to 'exclude relatively inconsequential buildings and structures', and having regard to the absence of any specific reference to timber decks in the 'building and structure classifications' in the Regulations. Her Honour held there was nothing in the terms of the Regulations which supported such a construction nor was there any text in the Act or Regulations or any other foundation from which a legislative intention could be discerned that the Regulations were not intended to apply to work on a timber deck if it falls within the definition of 'building work' and does not fall within an exemption in the Regulations;[34]

(e) found that there was no basis on which the Board should have applied anything other than a strict interpretation of the law as to the requirements for a building permit in s 16 of the Act;[35]

(f) found that there was a proper basis for the Board to conclude that the reconstructed and extended deck required a building permit, and that it was required to comply with reg 84 but it did not. The judge noted that the MBS had not been able to compare the earlier deck and the reconstructed deck and that, in any event, questions as to structural integrity and safety of the reconstructed replacement deck would not depend on such a comparison but rather on the safety and integrity of the new structure about which Mr Morris had failed to provide any supporting material through the show cause process following the issue of the Building Notice;[36] and

(g) found that the Board did not err in law in affirming the Building Order by not acting 'consistently', there being no foundation in the legislative scheme to require the MBS (and by extension the Board) to act by reference to a framework or guideline in making its decision. It was enough that the Board had a basis to conclude that the work required a building permit but did not have one, and that it also identified safety objectives as a reason for the exercise of the discretion to issue a Building Order.[37]

Regulation 84 of the Building Regulations - overlooking

1. The judge held it was open to the Board to conclude that Mr Morris was in breach of reg 84 of the Regulations by reason that the deck overlooked the neighbour's adjoining property. The judge found:

(a) Mr Morris' deck was clearly a 'raised open space' as defined by reg 84(10).

(b) Regulation 233(4) (which provides that, despite reg 233(1) - which requires building work to alter an existing building to comply with the Regulations - the relevant building surveyor may consent to partial compliance of building work or an existing building) had no application in the circumstances where Mr Morris had not obtained a building permit for the work, so that there was no relevant building surveyor involved who could give such consent.

(c) Regulation 84 imposes a straightforward requirement that the raised open structure must not enable a direct line of sight into the secluded open area of the adjoining property and does not require any comparison between the previous structure and the newly reconstructed deck.

(d) There was no merit in Mr Morris' argument that his neighbours 'created' the overlooking by removing trees some five to six years earlier.

1. As to the question of whether trees may constitute a fixed and permanent screen as required by s 84, the judge noted that this did not arise since those trees had been removed before the reconstructed and extended deck was erected. Neither reg 84 nor any other part of the Regulations imposes any obligation on an adjoining property owner to prevent adjoining properties from overlooking - the obligation to ensure screening is in place to prevent any overlooking is plainly on the owner of the raised open space. The judge held that it was not strictly necessary to consider whether the Board was correct to say that a physical barrier, and not merely vegetation, would be required to satisfy the description of a fixed and permanent screen - that would only be relevant to the consideration of what screening would have been required to the reconstructed deck had Mr Morris erected the necessary screening, or what may be required in any future structure.[38]
2. Finally, the judge addressed questions of natural justice and procedural fairness on the part of the Board. The judge rejected multiple complaints by Mr Morris regarding the Board's approach to the appeal, the proposed site inspection of the deck, the Board's acceptance of the MBS submissions, and the Board's failure to consider Mr Morris' arguments. As none of these issues appear to be pursued on this application for leave to appeal, it is not necessary to address them further.

The application for leave to appeal - consideration

1. Mr Morris represented himself. Notwithstanding the Court directing Mr Morris' attention to the nature of this application, much time was spent in his oral submissions attacking the actions of the Council and the MBS. These points were made repeatedly by him in his oral submissions. It must be understood that the nature of this application is an appeal against the correctness of the decision of Harris J. Her Honour held that the Board had not fallen into error in dismissing Mr Morris' appeal against the order of the MBS. It was necessary, therefore, for Mr Morris to show an error of law or a misapprehension of the facts on the part of the judge, not to engage in a litany of complaints about the conduct of the Council or the MBS. This was not a rehearing of his appeal to the Board.
2. We set out below the primary points made by Mr Morris in his written and oral submissions in relation to eight proposed grounds of appeal. We address these solely in the context of the nature of this application for leave to appeal - the correctness of the judge's decision.

Estoppel - the MBS and the Council were estopped from issuing the Building Notice and Building Order by reason of the Council's email (Proposed ground 4)

1. Mr Morris repeated submissions he had made to the Board and to the judge regarding the nature of the estoppel, noting that it was unfair in the extreme that the Council/MBS could resile from the contents of the Council email.
2. We have set out the judge's reasons for rejecting the submission at [64]-[68]. For the reasons the judge gave, she was correct to do so. We agree that properly characterised, Mr Morris' argument related to an estoppel by representation or equitable estoppel. However categorised, the representation to Mr Morris did not create an estoppel as it related to the exercise of a statutory [39]scretion by the MBS.39 There was no countervailing publ[40] interest exception.40
3. The judge's conclusion was correct.
4. We should add that, in any event, and as the judge found,[41] it was entirely open to the Board to conclude that the actual extension of the deck (as demonstrated by the photographic evidence reproduced above) did not conform with the representation contained in the Morris email as to its dimensions - it was much larger. That is so, even accepting Mr Morris' point that the larger rectangle drawn on Sketch SK1 is too wide when compared to the aerial photographs. The MBS estimated twenty‑four square metres as opposed to Mr Morris' representation of ten square metres. The Board was entitled to accept the MBS evidence, particularly given Mr Morris' refusal to permit the Board access to the deck extension as it requested.
5. This ground fails.

No evidence that a building permit was required for the alterations to the deck (Proposed ground 5)

1. Mr Morris framed this proposed ground as follows:

Harris J was wrong to allow the Respondent to issue a Building Notice and Building Order requiring demolition and removal without any evidence showing the structure fails to comply with the Building Act 1993.

1. This ground essentially takes issue with the Board's and the judge's conclusion that Mr Morris' alterations to the deck required a building permit, and that Mr Morris was therefore required to comply with reg 84 of the Regulations (the overlooking provision) in carrying out the extension.
2. Mr Morris argued that there was no evidence upon which it could be concluded that a building permit was required for the extension. He said that evidence of non‑compliance was 'preposterous'. He maintained that the Board and the judge were wrong to classify the work on the deck as a new structure as opposed to a reconstruction of an existing building, which would fall within an exemption to the requirement to obtain a building permit for such work (sch 3).
3. The judge's analysis of this argument is set out at [77] above. It is correct. The relevant clause of the schedule to the Act (cl 15(3)(b)) permits the Board to inform itself as it sees fit. As the judge noted, the Board had viewed the photographs of the structure and the evidence provided by the MBS and Mr Morris. The Board was entitled to rely on the evidence provided by the MBS, particularly as Mr Morris had refused it access to the property. Based on this evidence, it was open to the Board to find that the extension involved the reconstruction of a previous structure and extended beyond its original measurements. The Board then concluded, as it was entitled to on the evidence presented to it, that the work on the deck constituted 'building work' within the meaning of the Act (s 3 - see above at [38]) and did not fall within the exemption in the schedule. The fact that it was unable to inspect the deck did not prevent it from reaching that conclusion.
4. The judge was correct to reject Mr Morris' submissions.
5. This ground fails.

The MBS should only have made the Building Order as a last resort - s 118A was not complied with (Proposed ground 3)

1. Mr Morris argued that the Board and the Judge misinterpreted ss 118A, 37 and 37A, which would have permitted the MBS to give a direction to fix in relation to building work, rather than issue a building notice or building order.
2. He submitted that the clear intention of s 118A was to ensure that building notices and building orders were issued as a last resort, and this meant that the MBS, rather than issuing the Building Notice and/or Building Order requiring demolition of the deck, should have given Mr Morris a direction to fix any perceived issue with the deck and the extension work.
3. Mr Morris argued that by failing to give him a direction to fix the deck rather than ordering him to demolish it, the MBS had acted with gross unfairness and contrary to the provisions of the Act.
4. The MBS responded by asserting that it was not possible to give such a notice, as s 37A is engaged only where a building permit has been issued.
5. The judge accepted the MBS submission. She was correct to do so.
6. The judge's analysis is set out at [73]-[76] above. After setting out the relevant parts of the Act, the judge concluded that the application of s 37A and the giving of a direction to fix were part of a scheme premised on the existence of a building permit. We agree with that interpretation of these provisions. It was not possible for the MBS to give a direction to fix. This meant that s 118A(b) applied, and it was appropriate for the MBS to issue a building order. The judge therefore rejected the argument that the Board was precluded by s 118A from affirming the Building Order.
7. The judge also concluded that the MBS had been unable to undertake any adequate inspection as required under s 37A(1). She found that Mr Morris' conduct had precluded the MBS from carrying out a proper inspection of the deck.
8. Mr Morris disputed the judge's conclusion[42] that he had failed to address any reasonable concerns of the MBS. This was reflected in her Honour's finding, 'I do not accept Mr Morris' submission that he has "offered to address any reasonable concerns" of the MBS, and that the MBS could not have been satisfied that a direction to fix the building work, if given, would not have been complied with'. He argued that he had always been willing to fix any non-compliance issues.
9. Mr Morris also cavilled at the judge's finding that the Council had requested an opportunity to inspect Mr Morris' property, which he declined. He referred to correspondence between himself and the Council, which he said demonstrated that he was willing to provide access (his emails of 21 and 25 February 2022).
10. In the initial exchanges with the Council, Mr Morris demonstrated a willingness to provide access. Neither party was blameless in arranging access at that time. However, contrary to Mr Morris' assertion, the entirety of the correspondence with the MBS demonstrates that Mr Morris steadfastly refused to cooperate with the MBS. For instance, the letter accompanying the Building Notice stated that it gave Mr Morris an opportunity to enter into communication with the MBS. Mr Morris responded: 'No reasonable person would regard it as such. It is a threat and a draconian one in these circumstances'. This approach permeated his future discussions with both the MBS and, later, the Board regarding access and co-operation.
11. Mr Morris refused MBS access after the Building Notice had been issued and either obfuscated or refused to answer requests for material (as set out in the Building Notice and subsequent correspondence) that might have enabled the MBS to determine whether the deck extension required a building permit, or to reach a satisfactory resolution of the issue.
12. The judge's conclusion regarding Mr Morris' attitude and compliance with reasonable requests by the MBS was correct.
13. There was no error by either the Board or the judge in concluding that there was no proper basis for the MBS to issue a direction to fix, as no building permit had been issued.
14. This ground fails.

'Manifestly not just' - No basis for a finding of overlooking and a breach of reg 84 (Proposed ground 1)

The decision by Harris J was manifestly not just and as such fails abysmally to meet her and the court's fundamental duty of administering justice.

1. In his written case, Mr Morris particularised a number of matters that he said 'the respondent' (without differentiating between the Board and the MBS) had done which were 'manifestly unjust', namely:

(a) issuing the Building Order and Building Notice for not having obtained a building permit and requiring demolition and removal after the respondent's representative had informed him that a building permit was not required;

(b) prosecuting him for contravening reg 84 in circumstances where the deck was not structurally deficient and did not contravene shading provisions, there was no evidence or allegation he caused the overlooking or increased it, and any overlooking could be overcome by erecting a screen;

(c) putting the cost of compliance and remedial action on him when he was not at fault; and

(d) treating three identical (in dimension and position) structures differently by not requiring building permits in respect of the other two.

1. As is evident, there is substantial overlap between this proposed ground and others. Mr Morris' complaints with respect to overlooking and reg 84 are dealt with here.
2. Mr Morris made a number of submissions to the judge and to this Court concerning reg 84. In particular, he argued:

(a) that there was little material difference between the original structure and the reconstructed deck in terms of line of sight into the adjoining property;

(b) that his neighbours 'created' the overlooking issue by removing the trees which provided a screen between the properties some five to six years earlier.

1. In Mr Morris' written case, he contended that there was no evidence that he contravened reg 84 - either by overlooking the neighbour's property or increasing the overlooking. He also said that it was manifestly unjust that he was prosecuted by the MBS for it and that the judge allowed the MBS to put the costs of compliance and remedial action on Mr Morris when he was not at fault.
2. The judge's reasons for rejecting Mr Morris' arguments are set out at [78]-[79] above. They are correct.
3. Regulation 233 was engaged as the Board concluded (as it was entitled to do on the evidence before it) that the extension was building work within the definition in the Act (s 3).
4. Regulation 84(1), which is set out at [53] above, is clear in its terms: a raised open space, such as the deck, must not provide a direct line of sight onto a secluded private open space of an existing dwelling or an adjoining allotment.
5. It was open to the Board to conclude that the deck was a raised open space within the meaning of reg 84(10). Indeed, this did not seem to be disputed by Mr Morris.
6. As the judge then found, reg 84(10) applied to the extension because it constituted work to 'alter an existing building', which, by the terms of reg 233, meant that it was necessary to comply with the Regulations then in force. This meant that the construction of the extension altered the pre‑existing situation and brought Mr Morris' building works within the purview of reg 84.
7. Once it was determined that reg 84 applied to the deck (including the extension), then its terms were clear: the raised open space needed to comply with the relevant provisions of reg 84 and particularly cls 1, 3 and 6 of reg 84 (set out at [53] above).
8. It was immaterial, as the judge observed, whether trees had previously provided an appropriate screen. The application of reg 84 was engaged by the construction of the extension, and that was where the matter ended. The debate, as the judge recognised,[43] as to the presence or otherwise of trees in the past and the degree of screening they may have provided fell by the wayside - as did Mr Morris' arguments as to the unfairness of the situation, given that it was his neighbours who had removed the trees five years earlier.
9. This ground sought to travel further into the merits of the case, rather than addressing whether the judge's decision was legally correct. In any event, the matters relied on do not establish manifest injustice to Mr Morris. One might observe that if Mr Morris had followed the MBS' invitations regarding the provision of appropriate information and consultation, this issue could have been resolved at an early stage by a modification to the deck and/or the erection of an appropriate screen.

The erection of three other structures approved by the MBS (Proposed ground 6)

Harris J was wrong to allow the respondent to avoid his responsibility to make consistent decisions by treating differently three structures of identical dimensions (identical size, height, etc) and position.

1. The judge noted that Mr Morris had made this submission to the Board which had referred to it in its reasons. The judge held:

There was no evidence that the MBS regarded any other deck of identical size and dimensions as compliant, so the Board was justified in not accepting any submission of this kind.[44]

The judge then observed that if the submission was meant to demonstrate that the exemption within cl 3 of the Schedule operated, then this was clearly incorrect as this was not a freestanding building, as the photos demonstrated.

1. It is simply wrong to assert that the judge allowed the MBS to avoid responsibility. As has been seen, the judge was analysing the validity of Mr Morris' submission that the Board had not taken this matter into account nor relied upon it.
2. We should add this. It matters not what approach the MBS took at different times to different structures at different locations within the municipality. Each required separate consideration, depending on the nature of the construction and the relevant provisions of the Building Act and regulations at the time of construction. The only issue the Board had to determine, as the judge recognised, was whether the extension in the present case complied with the provisions of the Act and the Regulations, and whether the order was validly made.
3. This ground fails.

The MBS fabricated grounds for issuing the Building Notice and Building Order (Proposed ground 2)

1. This proposition was not the subject of the application for judicial review and was not considered by the judge.
2. On the hearing before the judge, Mr Morris argued that the Board, not the MBS, fabricated an argument about safety concerns. The judge rejected this.
3. It is not open to Mr Morris to now argue this point in respect of the MBS.[45] The notes to the Building Notice, which he relies upon, have been available to him since they were served on him in 2022. Even if the argument were permitted, it would still fail. The MBS was entitled to have regard to safety, given that the MBS had not been able to inspect the premises and had relied upon the photographs of the works.
4. In that respect the MBS was in the same position as the Board. As the judge pointed out in relation to Mr Morris' submissions attacking the Board at [69]-[71] above, the Board did not directly identify a safety risk, but rather, found that in the circumstances of Mr Morris' conduct, there was a valid concern that there was a safety risk, and this justified the issue of the Building Order.
5. This ground fails.

The trial and the judge's decision was unjust and demonstrated prejudice (Proposed grounds 7 and 8)

1. Mr Morris contends that his right to a fair trial was denied because the judge showed prejudice against him. In his written case, Mr Morris asserted that the judge permitted the MBS to withhold information from him that 'could show whether he exercised his discretion consistently, without prejudice and in accordance with policies and procedures'.
2. This proposed ground was not developed in oral submissions, and it is unclear what information the MBS may have withheld. To the contrary, the affidavit of Mr Grogan, the MBS, contained some 28 exhibits from the MBS file, which, on their face, provided a comprehensive account of the MBS' dealings with Mr Morris.
3. Mr Morris also contended that the reasons for judgment demonstrated prejudice against him and by the acceptance of statements made by the MBS in relation to the contents of the Building Notice, submissions made to the Board, access to Mr Morris' property and the failure by the MBS to give a direction to fix.
4. This complaint demonstrates Mr Morris' misunderstanding of the nature of the appeal to the judge and of this application. Her Honour was required to determine whether there was an error of law in the Board's decision, not to rehear the parties' cases and the evidence.
5. There is nothing in the conduct of the trial or the reasons that demonstrates any form of prejudice - to the contrary, the judge painstakingly analysed each of Mr Morris's arguments. His real complaint was with the result, not with the judge's approach or the conduct of the trial.
6. The judge was correct in dismissing Mr Morris' complaints about the Board's decision in this respect.
7. This ground fails.

1. We agree with the conclusion of the judge that the following factual findings and legal conclusions reached by the Board were open to it on the evidence before it:

(a) The extension of the deck undertaken by Mr Morris was 'building work' within the meaning of the Act. It was work undertaken in connection with the construction of a part of a building, being the deck attached to Mr Morris' house.

(b) Based on the photographs and the evidence of the MBS and Mr Morris, the extension works required a building permit. The extension of the deck had the effect of increasing the floor area of the building, such that no exemption under sch 3 of the Regulations applied.

(c) Mr Morris had not obtained a building permit for the deck.

(d) The deck as altered by the building work was in contravention of the overlooking provisions in reg 84 of the Regulations. There was no permanent or fixed screen to prevent overlooking to adjoining properties. That there had been trees or vegetation on an adjoining property providing such a screen several years earlier, which the owner of that property had removed, was not sufficient to satisfy reg 84.

(e) As no building permit had been issued, it was neither possible nor appropriate to give a direction to fix the building work under s 37A of the Act.

1. It was therefore legally open to the Board to affirm the MBS' decision to issue the Building Notice and the Building Order under div 2 of pt 8 of the Act and there was no error on the part of the judge in so deciding.
2. Leave to appeal should be refused.

[1] Morris v Municipal Building Surveyor for the City of Whitehorse (Victorian Civil and Administrative Tribunal, Chairperson Bryan Thomas, Member Paul Mulholland, 16 December 2022) ('Board Decision')

[2] Morris v Municipal Building Surveyor for the City of Whitehorse [2024] VSC 316 (Harris J) ('Reasons').

[3] The part which follows is extracted from the reasons of Harris J which were largely informed by the Affidavit of Sean Grogan on behalf of the MBS, dated 2 May 2023.

[5] Incorporated in the Regulations by reg 10, and defined in the Regulations as volumes of the National Construction Code series_._

[19] Reasons, [51] citing Attorney-General (NSW) v Quin and Minister for Immigration (1990) 170 CLR 1, 17 (Mason CJ) and Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208-‍10 (Gummow J).

[39] See Reasons, [51] citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 17 (Mason CJ) referring to Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208-‍210 (Gummow J); Page v Manningham City Council (2010) 27 VR 643, [65]-[66] (Warren CJ).

[40] See Reasons, [60] citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 18; Page v Manningham City Council (2010) 27 VR 643, [61]-[64].

[45] Sambucco v Sambucco (2023) 72 VR 121, 127-8 [29]-[30] (McLeish and Walker JJA and Gorton AJA).