APPLICANTS Jefta Ongkodiputra and Kumala Sumarni (Building Site owners)

RESPONDENT Castle Kane Group Building Surveyors Pty Ltd (relevant building surveyor)

BEFORE Members J Shaw (panel chair), L Varveris and B Williams

CITATION Ongkodiputra & Anor v Castle Kane Group Building Surveyors Pty Ltd [2025] VBAB 58

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

1. The Applicants had not made any application for an occupancy permit prior to the commencement of this appeal.
2. As a consequence of the determination in (1) above, the Respondent had not made a decision in respect of an application for an occupancy permit prior to the commencement of this appeal.
3. As a consequence of the determination in (2) above, the BAB does not have jurisdiction pursuant to s 138(1)(a) of the Building Act 1993 (Act) to consider and determine this appeal, and the proceeding is struck out for want of jurisdiction.
4. 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]

_______________________ ________________________

APPEARANCES AT THE E-HEARING DATED 8 NOVEMBER 2024

For the Interested Party Mr S Maloney, director of the Interested Party

APPEARANCES AT THE E-HEARING DATED 4 MARCH 2025

For the Interested Party Mr S Maloney, director of the Interested Party

1. The Applicants own the land at 15 Jessup Close, Mulgrave (Subject Land).
2. They are having two dwellings constructed on the Subject Land (Building Work), and the dwellings are referred to as 'Unit 1' and 'Unit 2' (or, together, the Units). Both Unit 1 and Unit 2 are class 1a dwellings pursuant to the Building Code of Australia (BCA).
3. The Respondent, Castle Kane Group Building Surveyors Pty Ltd, is the relevant building surveyor (RBS) appointed in respect of the Building Work.
4. A hearing was held on 4 March 2025, where the following three proceedings were heard concurrently:

(a) Proceeding 455800, which is an appeal made under s 138(1)(a) of the Building Act 1993 (Act) against the refusal or deemed refusal of the RBS to issue an occupancy permit in respect of the Building Work;

(b) Proceeding 455998, which concerns two applications, one for each unit, made under s 160A of the Act for a determination that a plumbing performance solution in respect of the roof drainage systems for each Unit complies with the performance requirements P2.2.1 and P2.2.2 of Volume 2 of the BCA; and

(c) Proceeding 456378, which concern two applications, one for each Unit, made under s 160(2)(b) of the Act to modify performance requirements P2.2.1 and P2.2.2 of Volume 2 of the BCA to allow the as-constructed roof drainage systems to remain instead of requiring the construction of the roof drainage systems indicated on the drawings forming part of the building permit for the Building Work.

1. This determination is made in respect of proceeding 455800, being the appeal made pursuant to s 138(1)(a) of the Act.

1. As a preliminary issue, the RBS raises a jurisdictional question as to whether the appeal has been correctly brought.
2. Section 138(1)(a) of the Act provides for an appeal to the BAB against the 'refusal or deemed refusal of a permit', in this appeal, the occupancy permit.
3. Section 146(1)(a) of the Act provides that:

a decision in respect of which there is a right of appeal...does not take effect until -

a) the end of the appropriate prescribed appeal period, if there is no appeal; or

b) the decision is affirmed on appeal.

1. The 'prescribed appeal period' in respect of an appeal under s 138(1)(a) of the Act is set out in reg 271(1)(a) of the Building Regulations 2018 (Regulations) as being 30 days after the day the Applicants are notified of the refusal. Alternatively, in respect of an appeal against a deemed refusal of a permit, reg 271(1)(b) provides that the 'prescribed appeal period' is 30 days after the day the permit is deemed under the Act to have been refused.
2. Further, reg 190 of the Regulations provides that a relevant building surveyor must decide an application for an occupancy permit for a Class 1 building within 2 business days after that building surveyor receives all reports and consents required from reporting authorities, or after the day such reports and consents must be supplied, whichever is the earlier. Should the relevant building surveyor fail to decide an application for an occupancy permit within the time limit provided for in reg 190 of the Regulations, s 43 of the Act provides that the building surveyor is taken to have refused the application.
3. Regulation 186 of the Regulations provides that an application for an occupancy permit must be in the form of Form 15. Form 15 contains the prescribed information required by cl 1 of Sch 2 to the Act.[2] Further, reg 186(2)(b)(i) requires the application to be accompanied by 'any compliance certificate within the meaning of Part 12A of the Act given for plumbing work carried out in conjunction with the building work...'.
4. The RBS submits that the only application for an occupancy permit he received was received by him on 17 July 2024. The RBS referred to the requirement in reg 186 of the Regulations that the application for an occupancy permit must be in the form of Form 15, and submitted that the only Form 15 application he received was on 17 July 2024.
5. The RBS then submitted that it had been clear to the Applicants since an inspection undertaken by him on 11 September 2023 that he would not be issuing an occupancy permit for the Building Work because after the inspection he had identified at least nine issues that need to be resolved. One of the issues identified by the RBS was that the roof drainage systems on each of Unit 1 and Unit 2 had not been constructed in accordance with the Building Permit drawings, and as a result of it not complying with the Deemed to Satisfy (DtS) provisions of the BCA 2019, it would require a performance solution. This issue was still unresolved as at 17 July 2024.
6. The RBS also referred to the date that this appeal was commenced on 3 April 2024, and submitted, in effect, that an appeal against a decision cannot be commenced before the decision-maker has been asked to make that decision.
7. Counsel for the Applicants, on the other hand, submitted that the application for the occupancy permit was made 'on or before 12 September 2023' or 'on or about 11 September 2023'. Although there is no document evidencing such an application at this date, it coincides with the date of the 'final inspection' carried out by the RBS. Counsel therefore submitted that there must have been an application in order for the RBS to have carried out the inspection.
8. Counsel for the Applicants then submitted that the 'Project Brief Design Brief' was submitted to the RBS on 21 March 2024, and that armed with this information, the RBS should have decided the application within 7 days. Therefore, Counsel submitted that the application was deemed to have been refused on or about 28 March 2024.
9. There is considerable weight in the RBS's submissions that an appeal against a decision cannot be commenced before the application for the decision has been made. Although we have not been provided with a copy of the application for the occupancy permit dated 17 July 2024, this date or the existence of that application was not challenged by the Applicants. Further, the Applicants have not referred to any document to evidence an application for an occupancy permit prior to the date that the appeal was commenced.
10. However, we consider that we must determine whether an application for an occupancy permit was made at any stage prior to commencement of the proceeding on 3 April 2024.
11. It is clear that there was no Form 15 submitted to the RBS before 3 April 2024. Further, given that the earliest Compliance Certificate within the meaning of Part 12A of the Act with respect to plumbing work that has been provided with respect to the roof plumbing systems is dated 12 July 2024, it is reasonable to infer that no Compliance Certificate required to be provided with an application pursuant to reg 186(2)(b)(i) of the Regulations was provided to the RBS prior to 3 April 2024.
12. It is also relevant that as at 3 April 2024, there had been no performance solution determined with respect to the roof drainage systems, yet this was known to be an outstanding issue since 11 September 2023. Indeed, the proceedings set out above that were heard concurrently with this appeal relate to such a performance solution.
13. Therefore, we are not persuaded by the submissions made on behalf of the Applicants. There is no dispute that no application in accordance with the Regulations was made for an occupancy permit, and indeed there is no document evidencing any attempt at such an application in September 2023. Further, the Applicants were aware on or around 11 September 2023 that there were numerous issues, including the roof drainage issues, that needed to be resolved prior to an occupancy permit being issued. The fact that the 'Project Brief Design Brief' was provided to the RBS in late-March 2024 does not alter the fact that no application had been made, and that the Applicants knew what was required in order to obtain an occupancy permit.
14. Therefore, we find that no application for an occupancy permit had been made prior to the commencement of this appeal on 3 April 2024. As a consequence of that finding, the BAB does not have jurisdiction to consider an appeal under s 138(1)(a) because there was, as at 3 April 2024, no decision to appeal.
15. We note, however, that if we were incorrect in our finding that there had been no application, and that in fact the RBS had refused an application for an occupancy permit prior to the commencement of this appeal, we would have affirmed the RBS's decision to refuse the grant of an occupancy permit. There are clearly a number of items that are outstanding that would prevent an occupancy permit being issued, most notably an approved design of a compliant roof drainage system.

[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'.

[2] Building Regulations 2018, reg 186(2).