d) not appropriate or unreasonable due to an asserted Australian and/or Victorian housing crisis; > > e) want of jurisdiction as the Subject Land is: > > 1. in the process of an Indigenous Australian heritage site application; and/or > 2. under application pursuant to the Equal Opportunity Commission; > > f) is inconsistent with international treaties and conventions that Australia is a signatory to, including but not limited to: > > 1. the International Covenant on Economic Social and Cultural Rights human rights; > 2. United Nations Convention on the Rights of the Child; > 3. Convention on the Rights of Persons with Disabilities; > > g) inconsistencies with Commonwealth laws pursuant to section 109 of the Commonwealth of Australia Constitution Act 1900 (Cth) (Constitution); and > > h) that "[n]o body cares" as there is no impact to Nillumbik Council nor has any neighbour raised any issues with the Extension,

collectively referred to herein as the Applicant's Submissions.

1. We have considered the Applicant's Submissions in detail and find that on the balance of probabilities they are unfounded and do not invalidate the Building Notice or the Respondent's power to issue the Building Notice pursuant to the Act and Regulations.
2. The Applicant's Submissions do not:

a) directly address the validity of the Building Notice or the Respondent's power under the Act and Regulations; > > b) evidence any changed circumstances to the issues identified in the Building Notice that would invalidate or contradict the reasonable opinions of the Respondent as set out in the Building Notice; or > > c) address the Building Notice's request to show cause, which was a request to provide further information as required by the Notice, not a decision to demolish or remove the Extension.

3. The Applicant's Submissions amount to mere assertions that the Building Notice, even if valid, does not apply to the Applicant or the Extension simply due to the Applicant family's personal circumstances.
4. Addressing each of the key heads of reasons to the Applicant's Submissions in turn, the BAB finds that in relation to:

a) extenuating circumstances - > > 1. Although we have genuine concern for the Applicant's family situation, including the Applicant's granddaughters' health and safety, the asserted extenuating circumstances to the Extension being built and/or required may explain why the Extension was built but it does not invalidate the Building Notice, the Respondent's opinion or exempt the Applicant from answering the Building Notice. > 2. If the Applicant's submissions in this regard were accepted and taken to their logical conclusion, then any person with any injury, concern for safety, special needs, age or other alleged circumstance could simply ignore a Building Notice, the Act or the Regulations. > 3. The logical extension of this argument would also allow owners or occupants of all other types of buildings - such as hospitals that house the sick, rooming houses that house the homeless, retirement villages that house the elderly or special needs facilities that house the less able - to ignore the Act and the Regulations. > 4. This is not the case and in fact such buildings have their own, often more stringent, building compliance requirements due to the particular needs of its occupants. > 5. The Act and the Regulations are there to regulate and ensure minimum standards of safety, amenity and other issues are maintained within the building industry and all buildings, including the Extension. > 6. These regulations and standards may differ depending on the particular building and its use, but they must still be complied with. > > b) building requirements disagreement - > > 1. Submissions about the type of building, construction materials or length of use by the Applicant do not address why the Building Notice ought not be served or why it is invalid. > 2. It is simply not up to the Applicant to unilaterally decide whether or not the Extensions, including the construction methodology or materials used, are required or not required, or do or do not comply with the Building Notice, the Act or the Regulations. > 3. Rather, the Applicant's submissions reinforce the need for the Building Notice so that the Respondent can obtain information from the Applicant about the Extension to ensure the type of building, construction materials and use of the Extension is in accordance with the Act and the Regulations. > 4. To do otherwise would be untenable and result in an unregulated building industry that would allow the Applicant and others in the community to self-regulate and police the construction of buildings based on idiosyncratic and unilateral circumstances and beliefs.

1. bias or discrimination - 1. There was no bias or discrimination by the Respondent in deciding to serve the Building Notice as the minimum setback required on the Subject Land is, as the Respondent submitted, a factual calculation as set out in reg 74 of the Regulations and based on the Subject Land's immediate neighbouring properties. 2. The Applicant's contention that the setbacks of other buildings in the street are less may be relevant to whether the Extension is subject to an exemption, if the Respondent subsequently determines the Extension does not comply. 3. However, such submissions do not invalidate the service of the Building Notice which was served in order to obtain such information in the first instance.

d) asserted housing crisis - > > 1. Similar to our findings that personal circumstances do not invalidate the valid issuance of a Building Notice and exercise of the Respondent's powers under the Act, we do not accept that a mere assertion that societal circumstances, such as a housing crisis, ought to circumvent an act of Parliament that has been in operation for decades and which aim to regulate the building industry to insure housing is safe. > 2. If the community and Parliament was similarly concerned as the Applicant, the proper avenue is to amend the law by Parliament. > 3. It cannot be that any individual member of the public, such as the Applicant, can unilaterally choose to ignore the law simply because it asserts it requires housing. > 4. Such housing must be safe and built to sufficient standards and compliance as set out in the Act and the Regulations. > > e) Australian Indigenous heritage and the Equal Opportunity Commission protection applications - > > 1. Aside from a mere assertion of want of jurisdiction and repetition of sections within these laws, no evidence or specific details was provided by the Applicant as to how applications under either the: > 1. Aboriginal and Torres Strait Islander Heritage Protection Act 1948 (Cth); or > 2. Equal Opportunity Act 2010 (Cth),

directly voided the jurisdiction of the Act or the Regulations.

1. No section or provision of these laws, including those quoted by the Applicant, expressly or implicitly state that operation of one excludes all the others, including exclusion of the Act or Regulations.
2. Although the laws submitted by the Applicant may apply to the Applicant's family situation, they do not expressly reference the Act or the Regulations and as such, without more, does not bring into question the operation of Building Notice, the Act or the Regulations.

f) inconsistency with international treaties and conventions:

1. Similarly, aside from a mere assertion of conflict and repetition of sections within these conventions, no evidence or specific details were provided by the Applicant as to how either the:
   1. the International Covenant on Economic Social and Cultural Rights human rights;
   2. United Nations Convention on the Rights of the Child;
   3. Convention on the Rights of Persons with Disabilities;

takek precedence over, was mutually exclusive of or somehow voided the jurisdiction of the Act or the Regulations.

1. Although the treaties cited by the Applicant may be relevant to the Applicant's family situation, they do not expressly reference the Act or the Regulations and as such, without more, does not bring into question the operation of Building Notice, the Act or the Regulations.

g) inconsistency with Commonwealth laws -

1. Section 109 of the Constitution in full provides:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid [Emphasis added].

1. It is under this s 109 that the Applicant asserts the various Commonwealth laws and international treaties referenced by the Application - some of which are referred to above - by their mere existence and the provisions set out within them, overrides the operation of the Building Notice, the Act and/or the Regulations.
2. The landmark case of Clyde Engineering Company Limited v Cowburn[2] (Clyde) established in Australian Jurisprudence the "cover the field" test, which is one of the tests used to determine whether state laws are inconsistent with Commonwealth laws..
3. Isaacs J in Clyde stated the cover the field test as

the vital question would be: Was the [Commonwealth Act] on its true construction intended to cover the whole ground and, therefore, to supersede the [State Act]?....If...a competent legislature expressly or impliedly evinces its intent to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field_.[3]_

1. Based on this cover the field test, in order for the Building Notice, the Act and/or the Regulations to be voided under the application of s 109 of the Constitution, there needs to be clear intent in the other laws submitted by the Applicant that they expressly cover the whole field of building compliance, which is the relevant field and subject matter of the Building Notice, the Act and the Regulation.
2. In considering each of the laws submitted by the Applicant, twe find that although they may apply to the Applicant's personal and familial circumstances, none expressly or implicitly refer to building compliance, which is the relevant subject matter.
3. Further, the case of Federated Sawmill Employees of Australia v James Moor and Sons Pty Ltd[4] established a separate, more specific test known as the "simultaneous obedience" test, namely that obedience to both the Federal and State law at the same time must be impossible for s 109 of the Constitution to apply.[5]
4. In considering each of the laws submitted by the Applicant, we find it is inherently possible and indeed desirable that all the laws can be met simultaneously, including that it is possible for the Extension and the Applicant to comply with the Building Notice and the Act simultaneously whilst complying with:
   1. the International Covenant on Economic Social and Cultural Rights;
   2. the United Nations Convention on the Rights of the Child;
   3. the Convention on the Rights of Persons with Disabilities;
   4. the Aboriginal and Torres Strait Islander Heritage Protection Act 1948 (Cth); and
   5. the Equal Opportunity Act 2010 (Cth),

as none of these and Conventions and Acts directly or indirectly refer to building regulation or compliance of buildings that creates any conflict or inconsistency, and vice versa.

1. In that regard, we findthat none of the laws referred to by the Applicant meet either of:
   1. the cover the field test; or
   2. the simultaneous obedience test.
2. Accordingly, the BAB finds no inconsistency that enlivens the operation of section 109 of the Constitution in regard to the Building Notice.

h) "No body cares" -

1. It is clear from, and the BAB accepts the Respondent's evidence that the Extension was brought to the attention of the Respondent via an anonymous reporting by someone in the community.

2. Therefore, even if one accepts that the Applicant's submission is a reasonable argument to make, which we do not, factually it is incorrect.

3. Other members of the community, as well as Council and the Respondent clearly do care. They cared enough to respectively bring the matter to Council's attention, send a building surveyor to inspect the Extension and to issue a Building Notice.

21. In summary, the Applicant's submissions do not address the validity of the Building Notice but merely assert the Building Notice does not apply to the Applicant due to the Applicant's personal and familial circumstances, which is not founded in law and not accepted by the BAB.

1. Contrastingly the Respondent's opinions and reasons for serving the Building Notice was that it formed a valid opinion pursuant to s 106 of the Act that it was reasonable to believe, in the absence of contrary evidence, that the Extension was non-compliant with the Regulations and was not constructed with a building permit.
2. It is further reasonable for the Respondent to then exercise his powers under s 106 of the Act to compel the Applicant to provide further information by issuing the Building Notice pursuant to section 108 of the Act.
3. Any steps beyond the issue of the Building Notice would then likely depend, at least in part, on the responses and evidence requested of the Applicant.
4. The Applicant must be obliged to provide such evidence so that the Respondent can properly exercise its statutory obligations, once armed with all reasonable information.
5. Conversely, for procedural fairness, the Applicant ought to have and was afforded a right of response under the Building Notice before the Respondent makes any future decisions regarding the Extension.
6. If the Applicant disagreed with the substance of or the Respondent's opinion in the Building Notice, it could have and was well within his rights to provide information or evidence in answer to the Building Notice.
7. If decisions were then subsequently made by the Respondent in relation to the Extension, the Applicant then has rights to review those decisions, subject to proper compliance with its appeal rights under the Act.
8. In the circumstances and on the balance of probabilities, we find that the Building Notice is valid and enforceable.
9. We affirm the Respondent's decision to serve the Building Notice.
10. Nonetheless, we further determine that the deadline for the Applicant to meet the requirements of the Building Notice be extended as set out in the orders to this determination.
11. In closing, we encourage the Applicant, if it chooses to answer the Building Notice, to deal directly with the building compliance issues and requests relevant to the Building Notice, the Act and the Regulations.

[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] (1926) 37 CLR 466.

[3] (1926) 37 CLR 466, p 489.

[4] [1909] HCA 43; (1909) 8 CLR 465.