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[2015] VSC 564
General information, not legal advice.
Supreme Court of Victoria
2015-10-14
VICKERY J
Original judgment source is linked above.
BUILDING - Effect of uncertain determination by Building Appeals Board - Appeal to Building Appeals Board from determination of relevant building surveyor in relation to protection works arising from proposed demolition works - Uncertainty as a ground of jurisdictional error considered - Building Appeals Board in making an uncertain determination failed to exercise its statutory function - Jurisdictional error found - Declaration that uncertain determination invalid - Protection works appeal remitted to Building Appeals Board for re-hearing and determination - Building Act 1993 ss 1(c), 84, 85, 87, , and .
ADMINISTRATIVE LAW - Effect of uncertain determination by Building Appeals Board - Appeal to Building Appeals Board from determination of relevant building surveyor in relation to protection works arising from proposed demolition works - Uncertainty as a ground of jurisdictional error considered - Building Appeals Board in making an uncertain determination failed to exercise its statutory function - Jurisdictional error found - Declaration that uncertain determination invalid - Protection works appeal remitted to Building Appeals Board for re-hearing and determination - Building Act 1993 ss 1(c), 84, 85, 87, 88, 141 and 149.
1 These reasons, and the consequent orders made, arise from the judgment of the Court in CES Queen (Vic) Pty Ltd v Thomas & Ors (No 2)[1] (the 'Proceeding') delivered on 1 April 2015. The background to this decision is set out below.
2 On 13 March 2015 I stated a further question for hearing on 16 March 2015 and determination pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules (2005) (the 'Rules'). The question set down for determination by the Court on this occasion was:
What is the effect of the determination of the Building Appeals Board (the 'Board') dated 30 June 2014, as amended on 18 July 2014 (reference number 446544) (the 'Board's Determination')?
3 The background facts giving rise to the statement of this question are set out in earlier decisions.[2] By way of summary:
(a) The Plaintiff, CES Queen (Vic) Pty Ltd ('CES Queen') is the owner of a property situated at 150 Queen Street, Melbourne ('CES Queen's Land'); a planning permit has been issued to build a 71 storey residential tower on CES Queen's Land, to be known as 'Tower Melbourne'; Tower Melbourne cannot be constructed until the existing building at 150 Queen Street has been demolished; building permits have been issued which permit the demolition; as part of a first phase of the demolition works CES Queen proposes the demolition of the plant and lift motor room on the roof of 150 Queen Street (the 'Initial Demolition Works');
(b) The Second Defendant, Colonial Range Pty Ltd ('Colonial Range') is the owner of two adjoining properties known as 140 Queen Street and 21-27 McKillop Street, Melbourne ('Colonial's Land'); a planning permit has been issued to build an hotel and retail premises on Colonial's Land.
4 Disputes have arisen between Colonial Range and CES Queen as to protection works which are necessary to protect the building on Colonial's Land from damage caused by the proposed demolition on CES Queen's Land at 150 Queen Street. Colonial Range is principally concerned that, unless adequate protection works are undertaken, vibrations arising from the demolition work to be undertaken on CES Queen's Land will cause the façade of its building at 140 Queen Street to collapse. The concern is the possibility of vibration causing material damage to the neighbouring property at 140 Queen Street and the risk of damage to the public through falling debris onto the street below, stemming from the vibration which is anticipated or feared.
5 This concern immediately arises from the fact that the Initial Demolition Works involve the demolition of the plant and lift motor room on the roof of 150 Queen Street, which is in contact with the roof structure of 140 Queen Street.
6 The Board's Determination resulted from an appeal pursuant to s 141(a) of the Building Act 1993 (the 'Act') initiated by the adjoining land owner, which was the Second Defendant Colonial Range, arising from a determination made by the relevant private building surveyor, Mr Shane Leonard, dated 5 February 2014 under s 87 of the Act as to the appropriateness of protection work in respect of Initial Demolition Works (the 'Leonard Determination').
7 The Building Appeals Board (the 'Board') delivered a determination dated 30 June 2014, as amended on 18 July 2014 (reference number 446544) (the 'Board's Determination').
8 CES Queen, by its Further Amended Originating Motion dated 13 March 2015 sought a declaration that the Board's Determination substituted the protection works determination comprising the Leonard Determination with its own determination, requiring all the 'proposed protection works' defined in the Leonard Determination be undertaken and in addition, consistently with paragraph 30 of the Board's Determination, requiring that the façade of 140 Queen Street be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the façade from impacting on the street below (the 'Leonard Plus Protection Work Determination').
9 Colonial Range opposed the declaration, principally on the ground that the Board's Determination did not have the effect contended for by CES Queen, and accordingly, could not found the declaratory relief sought.
10 Following delivery of the judgment in the Proceeding, CES Queen requested the Board to exercise its power under cl 18 of Schedule 3 of the Act (the slip rule) alternatively under s 149(4) of the Act (which provided a facility for the Board to make ancillary or incidental orders) to 'correct' the Board's Determination to include the Leonard plus protection work determination. However, the Board declined to exercise these powers.
12 These orders are sought in the context of the key findings made in the judgment of the Court in CES Queen (Vic) Pty Ltd v Thomas & Ors (No 2).[3]
13 In the events that have happened, the parties differ as to the appropriate relief to be granted and the orders which should be made.
14 Given that there remains uncertainty as to the effect of the Board's Determination inasmuch as it relates to the Protection Work Appeal, CES Queen seeks orders providing finality to the Proceeding and enabling it to obtain a determination from the Board as to the appropriate protection works in respect of the demolition of the lift and plant motor room located on the roof of the building at 150 Queen Street.
15 To this end, CES Queen seeks orders in the exercise of the Court's supervisory jurisdiction, namely that:
(1) The determination of the Board that the appointment of Shane Leonard was invalid be upheld.
(2) The determination of the First Defendant of the Second Defendant's appeal under s 141 (a) of the Act made 30 June 2014 and amended on 17 July 2014 as to the appropriateness of the protection works for the demolition of the Lift and Plant motor room at 150 Queen Street, Melbourne be quashed.
(3) The Second Defendant's appeal under s 141(a) of the Act as to the appropriateness of the protection works for the demolition of the lift and plant motor room at 150 Queen Street, Melbourne be remitted to the Building Appeals Board for it to be reheard in accordance with law in order for the Board to make a determination as to what protection works are appropriate in accordance with law as soon as practicable.
16 On the other hand, Colonial Range contends that the Proceeding should merely be dismissed, with an appropriate order as to costs.
Relevant Provisions of the Building Act and Regulations
17 I set out below some of the provisions of the Act which are relevant to this part of the Proceeding, namely the substance of the statutory scheme insofar as it is relevant to the question as to what orders should be made.
18 It is useful to commence with a reference to s 1(c) of the Act. This sub-section defines one of the purposes of the Act as follows:
(c) to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes;
19 'Building work' is defined by s 3 of the Act to include 'demolition or removal of a building'.
20 Part 7 of the Act includes a statutory scheme relating to the protection of adjoining property during proposed building works.
21 Section 84(1) requires that an owner, who is required by the regulations to carry out protection work in respect of an adjoining property before or during the carrying out of building work, for which a building permit is required, must first serve on the owner of the adjoining property, and the 'relevant building surveyor', notice of the proposed building work.
22 Section 85(1) of the Act provides that the adjoining owner must, within 14 days, give notice to the owner agreeing to the proposed protection work, or give notice to the owner and the relevant building surveyor either disagreeing with the proposed protection work or requiring more information.
23 Section 87(1) provides that, on receipt of a notice under s 85(1)(b), the relevant building surveyor must examine the proposal for protection work and make a determination as to the appropriateness or otherwise of the work. The text of s 87(1) has assumed some importance in the course of submissions. The full text of s 87 is here set out:
Effect of disagreement or request for further information
(1) On receipt of a notice under section 85(1)(b), the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work.
(2) If the relevant building surveyor considers it appropriate in the case of a notice under section 85(1)(b)(ii), the relevant building surveyor -
(a) may ask the owner to give more information before making a determination under subsection (1); and
(b) if more information is requested, must make a copy of that information available to the adjoining owner.
(3) In determining a matter under this section, the relevant building surveyor may make any inquiries he or she thinks fit but is not required to give any person a hearing.
24 Section 88 provides for imposition of a criminal penalty in the event that building work is carried out before the necessary protection works have been determined, including where, in the case of an appeal to the Board in relation to the appropriateness of protection works, the subject of the appeal has not been determined. Further, in the event that appropriate protection works have been determined by the Board in the event of an appeal, the relevant owner is also subject to criminal penalty in the event of a failure to carry out the protection work determined by the Board in the event of an appeal. Section 88 provides:
(1) An owner who is required by the building regulations to carry out protection work in respect of an adjoining property must not carry out any building work giving rise to that requirement until -
(a) the adjoining owner agrees or is deemed to agree to the protection work; or
(c) in the case of an appeal to the Building Appeals Board in relation to the matter, the matter is determined by the Building Appeals Board.
Penalty: 500 penalty units, in the case of a natural person.
2500 penalty units, in the case of a body corporate.
(2) The owner must carry out any protection work required by the building regulations -
(b) if the relevant building surveyor has made a determination under this Part in respect of the protection work, in accordance with that determination; or
(c) if the Building Appeals Board has made a determination under Part 10 in respect of the protection work, in accordance with that determination.
Penalty: 500 penalty units, in the case of a natural person.
2500 penalty units, in the case of a body corporate.
25 Section 166(1) establishes the Board as an entity. Section 166(6) provides that Schedule 3 has effect with respect to the membership and procedure of the Board.
26 Clause 8(1) of Schedule 3 provides that, for the purposes of performing any of its functions, the Board may be constituted by one or more panels of its members.
28 Part 10 Division 1 of the Act contains a number of provisions enabling an appeal or referrals to be made to the Board in particular circumstances.
29 In particular, s 141 relating to protection work is directly applicable here, where it provides:
Protection work
An owner required to carry out protection work or an adjoining owner may appeal to the Building Appeals Board against -
(a) a determination under section 87 as to the appropriateness of the work; or ...
30 Section 149(1) and (2) provides for what action may be taken by the Board on appeal, in the following text:
(a) affirm the decision under appeal; or
(b) quash the decision under appeal; or
(c) vary the decision under appeal; or
(d) set the decision under appeal aside and -
(i) substitute its own decision; or
(ii) remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.
(2) In considering and determining an appeal, the Building Appeals Board has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal.
31 Section 155 provides that other disputes between owners and adjoining owners in relation to matters arising under Part 7 of the Act may be referred to the Board. Section 155 provides:
Other disputes between owners and adjoining owners
If an owner and adjoining owner cannot agree in relation to a matter arising under Part 7, and the Building Appeals Board does not have jurisdiction to deal with that matter under any other provision of this Part, either of them may refer the matter to the Building Appeals Board.
32 Section 152 provides that disputes between owners and adjoining owners relating to insurance may be referred to the Board. Section 152 provides:
If an owner and an adjoining owner cannot agree about the nature of cover to be provided under a proposed contract of insurance under section 93 or about the amount to be insured under that contract, either of them may refer the matter to the Building Appeals Board.
33 Section 153 provides that disputes between owners and adjoining owners relating to a survey may be referred to the Board. Section 153 provides:
Surveys of adjoining property
If an owner and an adjoining owner cannot agree about how or when a survey is to be carried out under section 94 or about the adequacy of a survey carried out under that section, either of them may refer the matter to the Building Appeals Board.
34 Clause 16 of Schedule 3 of the Act is concerned with determinations by the Board and the reasons given for those determinations. Clause 16(1) provides that a determination of the Board must be in writing. Clauses 16(5) and (6) provide as follows:
16(5) Within one month after being served with a copy of the Building Appeals Board's determination, or within any further time allowed by the Board, a party to a proceeding may request the Board to give to the party written reasons for its determination.
16(6) The Building Appeals Board must comply with a request received under subclause (5) without delay after receiving it.
35 The Act therefore differentiates between the 'determination' of the Board, and the 'reasons' for a determination. This was the subject of analysis by Kaye JA in Supple & Anor v Building Appeals Board and Ors[4] where his Honour observed:
The short answer to that submission is that the proceeding, consisting of the appeal to the Board under s 141 of the Act, was complete (apart from the resolution of the question of costs) upon the delivery by the panel of its determination on 30 June 2014. It is the determination which finalises the rights of the parties who were the subject of the appeal. Reasons, subsequently provided for that determination, cannot alter or qualify the determination, or the orders made in it. Rather, the reasons do no more than reveal the path of reasoning of the panel for its decision. Thus, the process provided by clause 16, for a party to request reasons, and for the Board to provide those reasons, does not constitute a continuation of the proceeding in which the reasons for a determination are sought.
36 Further, the Building Regulations 2006 (the 'Building Regulations') have been made pursuant to the general regulation-making powers provided for in s 261 of the Act. Set out below are relevant parts of Building Regulations rr 101, 602, 604 and 607.
37 Relevant objectives of the Building Regulations are set out in r 101 and include (b) and (f) as follows:
The objectives of these Regulations are -
(b) to prescribe standards for the construction and demolition of buildings;
(f) to prescribe standards and matters relating to the maintenance of fire safety and safety measures.
38 Regulation 602(1) provides for the protection of adjoining property before and during the carrying out of any building work, in the following terms:
Protection of adjoining property
(1) Protection work must be provided in respect of an adjoining property, before and during the carrying out of any building work, if required by the relevant building surveyor.
39 Regulation 604 provides for protection of the public, and prescribes:
Protection of the public
(1) Precautions must be taken before and during building work to protect the safety of the public if required by the relevant building surveyor.
(2) The precautions must be approved by the relevant building surveyor before building work is commenced.
(3) Before and during the carrying out of building work all excavations must be fenced or otherwise guarded against being a danger to life or property.
(4) The report and consent of the relevant council must be obtained to an application for a building permit relating to the erection of precautions over the street alignment unless a local law requires the taking of precautions and the precautions comply with the local law.
40 Regulation 607(1) provides specifically for demolition, in the following terms:
(1) Precautions must be taken before and during demolition in accordance with AS 2601 - 2001. The demolition of structures, published 13 September 2001, as published from time to time and the following -
(a) the demolition must not be commenced until the precautionary measures have been inspected and approved by the relevant building surveyor; and
(b) no part of any external wall on or within 3m of a street alignment may be pulled down except during the hours that the relevant building surveyor directs; and
(c) protective outriggers must be installed where necessary to guard against danger to life or property or when required by the relevant building surveyor; and
(d) the site must be cleared of all debris.
41 As observed in relation to these regulations in CES Queen (Vic) Pty Ltd v Thomas & Ors (No 2):[5]
42 On 20 December 2013 CES Queen, as the owner of 150 Queen Street, Melbourne, served on the owner of the adjoining property, Colonial Range, and upon Mr Leonard, who was the relevant building surveyor, a notice pursuant to s 84 of the Act of the proposed building work. The building work described in the notice was limited to the demolition of the plant room and lift motor room on the roof of the existing building at 150 Queen Street.
43 By a document dated 31 December 2013 the owner of the adjoining property, Colonial Range, submitted to Mr Leonard its response pursuant to s 85 of the Act. The response was in fact received by Mr Leonard on 20 January 2014.
44 On 5 February 2014, Mr Leonard delivered his determination as to the appropriateness of the work proposed by CES Queen pursuant to s 87 of the Act. He determined that the proposed protection works were appropriate.
45 Material parts of the Leonard Determination are set out below:
PROTECTION WORDS DETERMINATION
Re: Adjoining Owners Consent - Form 3 and Form
4 Notices
Subject Property: 150 Queen Street Melbourne
Owner's Name: CES Queen(Vic) Pty. Ltd.
Adjoining Property: 140 Queen Street Melbourne
Adjoining Owner's Name: Colonial Range Pty. Ltd.
On 20 December [2013], I had served on me by CES Queen (Vic) Pty. Ltd. a notice pursuant to Section 84 of the Building Act 1993 in the prescribed Form 3 of their intention to commence carrying out building works on their land at 150 Queen Street Melbourne. The notice was served together with:
(a) Details of the proposed protection works as at the date of the Notice; and
(b) Details of the proposed protection works setting out the nature, location, time and duration of the protection works on the adjoining property.
The owner claims that on 20 December [2013] they served copies of the notices and the above documents upon the adjoining owners, as required by the Act.
Having considered:
(a) The information submitted to me by the owner;
(b) The response submitted to me by the adjoining owner, in the form of a Form 4, dated 31 December 201[3] (received on the 20 January 2014); and
(c) The further information forwarded by the owner on or about 29 January 2014 to the adjoining owner addressing the relevant matters raised in the Form 4 response; and
(d) Report prepared by SLR Consulting Australia Pty. Ltd. dated 20 August 2013, specifically relating to the threshold level of vibration the façade of 140 Queen Street Melbourne can sustain without damage.
I, hereby determine that the proposed protection works are appropriate.
In this determination, the expression "proposed protection works" means
(a) "Building Scaffold Support Advice 140 Queen Street" prepared by Structplan, dated 12 November 2013. (including propping details, scaffold support and cross bracing)
(b) Erection of scaffolding (including shade cloth and horizontal decks) supported by independent props canter levering from 150 Queen Street Melbourne above roof structure of 140 Queen Street Melbourne. (information contained in Appendix 1Q of the further information submitted to me on or about 29 January 2014).
(c) Plywood and carpet laid directly on the roof of 140 Queen Street Melbourne as depicted in Appendix 1J of the further information submitted to me on or about 29 January 2014.
(d) Methodology of controlling and limiting vibration encountered by the property at 140 Queen Street Melbourne in accordance with the report prepared by SLR Consulting Australia Pty. Ltd. dated 20 August 2013 and Delta Group Stop Work Procedure contained in Appendix 1K (1) & (2) of the further information submitted to me on or about 29 January 2014.
46 On or about 21 February 2014, the Colonial Range appealed to the Board against the protection work determination made by Mr Leonard dated 5 February 2014 in respect of the demolition of the plant room and lift motor room on the roof of the existing building at 150 Queen Street. This appeal was made pursuant to s 141(a) of the Act (the 'Protection Work Appeal').
47 A referral application was also made by Colonial Range to the Board pursuant to s 155 of the Act where it was alleged that it and CES Queen could not agree in relation to a matter arising under Part 7 of the Act, being the appointment of the relevant building surveyor, Mr Shane Leonard (the 'Section 155 Referral').
50 The Protection Work Appeal, the Section 155 Referral, the Insurance Appeal and the Survey Appeal came before the Board for a hearing which commenced on 7 April 2014. The appeal was heard over 5 days.[6]
51 The Board then delivered the Board's Determination dated 30 June 2014, as amended on 18 July 2014. In that determination the Board relevantly said:
Application under Section 155 of the Act
Application under Sections 141, 152 and 153 of the Act
52 At paragraphs 29 and 30 of the Board's Determination, the Board also said in what was expressed to be "Reasons" for Determination 4(a) above:
53 By originating motion dated 31 July 2014, CES Queen commenced this Proceeding No 03891 of 2014.
54 On 12 September 2014, I ordered in the Proceeding that three separate Preliminary Questions be heard as a separate trial pursuant to r 47.04 to the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the 'Rules').
55 On 3 December 2014, having heard the three Preliminary Questions, I handed down judgment in CES Queenv Thomas & Anor[7] (which was subsequently amended on 19 December 2014), in which the preliminary questions were answered as follows:
(1) Has the Plaintiff established any of the errors referred to in Grounds 1 and 2 under the heading 'Grounds of the Originating Motion' dated 31 July 2014? Answer: No.
(2) If Mr Leonard was appointed in breach of s 79 of the Building Act 1993 (Vic), what is the legal effect of his protection work determinations? Answer: Mr Leonard's protection work determinations are invalid and of no force or effect.
(3) Does the determination of the Board dated 18 July 2014 (reference number 446544) vary or substitute the protection work determination of Mr Leonard the subject of the appeal? Answer: The determination of the Building Appeals Board dated 18 July 2014 substituted the determination of Mr Leonard that was the subject of the appeal with its own determination.
56 On 13 March 2015, I stated a further preliminary question for determination, being:
(1) What is the effect of the determination of the Board dated 30 June 2013, as amended on 18 July 2014 (reference number 446544)(the Board's Determination)?
57 On 1 April 2015, I handed down judgment in judgment in CES Queen (Vic) Pty Ltd v Thomas & Ors (No 2)[8] where it was concluded that:
50 As earlier observed, the Board said this in its determination:
(a) the appropriateness of the protection work determined by the RBS
52 The Board specifically noted in its reasons at paragraph 30:
(a) Either the Board merely intended to quash the Leonard determination without more; or
(b) the Board intended to quash the Leonard determination and substitute its own decision which consisted of the Leonard determination, but with the addition of a requirement that the facade of 140 Queen Street should be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the facade from impacting onto the street below.
58 Accordingly, by reason of the uncertainty as to the meaning and effect of the Board's Determination, and the gravity of the consequences which may flow from it, at least at that time, I declined to grant the declaration sought by CES Queen.
59 However, I identified in the judgment certain powers of the Board (being the slip rule and/or ancillary power) which may enable it to clarify the Protection Work Appeal part of its determination.
60 On or about 2 June 2015, CES Queen subsequently applied to the Board for it to exercise either the slip rule or ancillary power to clarify the Protection Work Appeal.
61 On or about 11 August 2015, the Board issued a determination in which it declined to make the ancillary or incidental order sought by CES Queen.
62 The principal issues for determination in this part of the case boil down to whether:
(a) the determination of the Board as to the appropriateness of the protection works for the demolition of the Lift and Plant motor room at 150 Queen Street, Melbourne, if it was in fact a determination, should be quashed, if it was in fact a determination capable of being the subject of such an order; and
(b) Colonial Range's appeal under s 141(a) of the Act as to the appropriateness of the protection works for the demolition of the lift and plant motor room at 150 Queen Street, Melbourne should be remitted to the Board for it to be reheard in accordance with law in order for the Board to make a determination as to what protection works are appropriate as soon as practicable.
63 The basis upon which CES Queen contends that the Board's determination of Colonial Range's appeal under s 141(a) of the Act should be quashed is that the Board's Determination 'is uncertain in that it is unclear what the Board intended to do'. Each of the 'grounds' on which CES Queen seeks judicial review of the Board's Determination is substantially premised on this assertion.
64 Colonial Range resists the premise that the Board's determination is 'uncertain' in an administrative law sense.
65 In any event, Colonial Range contends that the Board's determination should not be quashed on this basis.
(a) quash the purported determination by Shane Leonard (the Leonard Determination) under section 87 as to the appropriateness of the protection work proposed by CES; and in addition to (b) determine that the protection work proposed by CES was not appropriate.
Board's Determination Comprised 4 Separate Determinations
67 I am satisfied that the Board's Determination, although it was provided in a single document dated 30 June 2014, as amended on 18 July 2014, in truth contained four separate and distinct determinations which determined each of the Protection Work Appeal, the Section 155 Referral, the Insurance Appeal and the Survey Appeal.
68 Accordingly, if any orders are to be made in this Proceeding confined to the Protection Work Appeal, the other determinations made by the Board will remain on foot unaffected.
Whether the Board had Power to make the Additional Leonard Plus Protection Work Determination
69 A compelling reason for not quashing or declaring void the protection work determination purportedly made by the Board in relation to the Protection Work Appeal and remitting it to the Board for further determination would arise if in fact the Board had no power to order any additional protection works, beyond merely approving or disapproving of the works initially proposed by the owner. The answer to this question hinges principally on the construction of s 87 of the Act by reason that, for these purposes, the Board on appeal under s 141(a) of the Act has no greater power than that conferred on the relevant building surveyor.
70 Section 87(1) of the Act provides:
(1) On receipt of a notice under section 85(1)(b), the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work. [Emphasis added]
71 It was submitted by Mr Solomon QC, who appeared with Mr Wood for Colonial Range, that the Board had no power to make the Leonard Plus Protection Work Determination.
72 It was submitted in this regard by Colonial Range that: the Board's powers in determining an appeal under s 141(a) are circumscribed by s 149 of the Act, which is entitled in plain English 'What action can be taken on appeal'? One of the Board's powers is to set aside the decision under appeal and substitute its own decision pursuant to s 149(1)(d). However, it was submitted that the scope of the power conferred by s 149(1)(d) depends on the nature of an appeal. It was further submitted that an appeal under s 141(a) is brought against a determination by a relevant building surveyor as to 'the appropriateness or otherwise' of 'the proposal for protection work'. The relevant building surveyor considers 'the proposal for protection work' and determines, in effect, that that proposed works are either 'appropriate' or 'not appropriate'. The relevant building surveyor may not, it was submitted, determine that 'the proposal for protection work is not appropriate', but then devise his own measures which the relevant building surveyor determines are appropriate. It was said that there was no power vested in the relevant building surveyor to take that course.
73 I do not accept this submission of Colonial Range, and prefer the submissions of Ms Harris, who appeared for the Board.
74 I start with the text of s 87(1). The relevant building surveyor is required to 'examine the proposal for protection work and determine the appropriateness or otherwise of the work' [Emphasis added]. The words 'or otherwise', although they may have different shades of meaning in different contexts, as used in sub-section 87(1) of the Act, are not words of limitation. On the contrary, they encompass a range of possible courses for the relevant building surveyor in undertaking his or her statutory duty. In my opinion this text imports a facility vested in the building surveyor to not merely provide a 'yes' or 'no' answer as to whether the work proposal advanced by an owner is appropriate or not. The relevant building surveyor has an additional power to determine what would be appropriate protection works, whether or not the substance of his determination was included in the works proposal advanced by an owner.
76 Further support is to be derived from s 88(2)(b) of the Act, which requires the owner to carry out any protection work required by the building regulations .... '(b) if the relevant building surveyor has made a determination under this Part in respect of the protection work, in accordance with that determination'. The operation of this sub-section is not limited to the works as proposed by the owner and approved by the relevant building surveyor. It is expressed to be governed by the 'determination' of the relevant building surveyor. The legislative intention, I construe from the legislative context of the Act as a whole, is to provide for whatever works are appropriate protection works, and do so in a reasonably efficient manner, consistently with the purpose expressed in s 1(c). This points to the relevant building surveyor having the power to go beyond what is included by the owner in its initial works proposal.
77 The construction which I prefer, also finds support in the Regulations made under the Act, namely the Building Regulations. A discussion of the relevant Regulations 602(1), 604 and 607(7) is to be found in CES Queen (Vic) Pty Ltd v Thomas & Ors (No 2),[9] where the Court concluded with the observation that:[10]
... the Act and the Regulations in determining the appropriateness of protection work properly require a relevant building surveyor, and on any appeal the Board, to have reference to the evident intention and purpose of the broader statutory scheme, and in so doing apply the requirements of r 604 and adopt measures to protect the safety of the public in addition to protecting adjoining properties.
In relation to demolition, r 607 which is a component of the statutory scheme, is also something that the relevant building surveyor, and on any appeal the Board, would be required to take into account when considering the appropriateness of protection work.
78 In my opinion, the object of protection of the public in building works, including demolition works, is better served by the relevant building surveyor acting under s 87(1) of the Act, not being circumscribed in recommending works which appear to be appropriate to the surveyor, whether or not they are included in the proposal advanced by the owner.
79 Finally, s 87(1) is to be construed in the context of the Act as a whole, including its purposes. Section 1(c) provides as one of the purposes of the Act 'to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes'.
80 The approach to the construction of s 87(1) submitted by Colonial Range would, to my mind, not be conducive to efficiency, but would be positively inimical to achievement of that objective. For a relevant building surveyor to simply say 'no' to a work protection proposal, would compel the owner to prepare and submit a fresh proposal for the works, more than likely without the aid of the surveyor's observations as to what is considered appropriate, and the whole process would have to start again. This would inevitably be productive of delay. Such delay is not cured, but is more likely to be exacerbated, by an owner exercising a right of appeal to the Board in the event of receiving a 'no' answer from the surveyor.
81 Accordingly, a relevant building surveyor, in making a s 87(1) determination, is empowered not only to accept or refuse the works proposal advanced by the owner, but may in addition determine what works would be appropriate to achieve the objects of the legislation and regulations.
82 I am further satisfied that, if the protection works determination was to be remitted to the Board for determination, it would have the same power to deal with the matter.
83 It follows that the alleged lack of power submitted by Colonial Range, provides no ground for refusing to send the matter of appropriate protection works back to the Board for determination.
84 The owner, CES Queen, in the light of the earlier decision of the Court, accepted that the determination of the Protection Work Appeal made by the Board is uncertain in that it is unclear what the Board intended to do in respect of the Protection Work Appeal.
85 CES Queen further submitted that insofar as the determination of the Protection Work Appeal is uncertain, the determination should be quashed and remitted to the Board for rehearing (thereby preserving the remaining determinations of the Board).
86 On the question of uncertainty, Colonial Range submitted that:
(a) It is certain that the Board determined Colonial Range's appeal under s 141(a) of the Act by exercising power under s 149 to: (i) quash the Leonard Determination under s 87 as to the appropriateness of the protection work proposed by CES; and in addition to (ii) determine that the protection work proposed by CES was not appropriate. That exercise of power was open to the Board; and that exercise of power was sufficient to determine the appeal under s 141(a) of the Act; and
(b) There was no vitiating uncertainty in the Board's Determination. Whether or not there is any ambiguity as to whether the Board additionally purported to determine that the appropriate protection works would be those described in paragraph [30] of the Board's reasons (the Additional Leonard Plus Protection Work Determination), that asserted ambiguity, it submitted, did not vitiate the Board's determination of the appeal.
88 Professor Mark Aronson and Associate Professor Matthew Groves, in their work 'Judicial Review of Administrative Action',[11] after acknowledging the long debate as to whether 'uncertainty' of outcome is a common law ground of review, opine that uncertainty is a common law ground of review, 'applicable to a broad range of acts, decisions and delegated legislation'.[12] It is noted by the learned authors that this ground in substance 'requires a degree of clarity of expression and form such that the meaning of the impugned act, decision or delegated legislation is reasonably precise. The requisite degree of precision varies according to a number of factors, including the relative need for precision, and how possible that is, having regard to the relevant Act'.[13]
89 As observed by Davies J in TAB Ltd v Greyhound Racing Victoria: [14]
If a sum of money is not expressly specified as the price, then it is obviously necessary that the money sum forming the price should be ascertainable with certainty, and this means that the elements from which it is calculated must be definite. The powers given by reg 23(1A) cannot be duly exercised unless a definite criterion or standard is stated, or a process of calculation is prescribed proceeding from some certain basis and avoiding in its course all standards which are solely subjective. "It is not necessary in order to fix a price under reg 23 to stipulate a sum of money, but if a sum of money is not stipulated, it is necessary for the due exercise of the powers conferred by the regulation that a definite standard or criterion should be stated whereby the price can be ascertained" (Vardon's Case (1943) 67 CLR 445, 450).
Dixon J likewise reasoned as follows:
A perusal of [reg 23(1A)] makes it quite clear that, when prices are fixed under the particular powers they confer, or, at all events, under many of them, amounts need not be named as prices. To that extent at least greater room is allowed for uncertainty of expression. Prices may be fixed on sliding scales; on a condition or conditions; on landed or other cost with the addition of a percentage or specified amount or both; or upon or according to any principle or condition specified by the Commissioner. The powers thus reposed in the Commissioner are very wide indeed. But, having regard to certain expressions used and to the nature of the duty to be imposed by the orders upon the subject, I think that there are limitations upon the kind of standards or criteria he may employ for building up the prices he fixes. They must, I think, be standards or criteria from which a price may be calculated. It is not enough if the price, or some element entering into its composition, can be obtained only by estimation or by the exercise of judgment or discretion, as, for instance, where apportionment or allocation is required.
...
By the nature of the duty imposed upon the subject I mean the obligation to keep the prices at which he sells below definite limits, limits which of necessity must be clearly ascertainable. The extremely heavy punishments to which, under the Black Marketing Act, a sale above those limits exposes the seller illustrates the reasons for authorising only maximum prices that are clearly ascertainable. It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure, but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised.
By parity of reasoning, the imposition of fee conditions by reference to the formulas prescribed by RVL and GRV will not be valid exercises of power, unless the amounts which TAB is required to pay by way of fees can be calculated with certainty. [citations omitted]
90 Applying these principles, the question then becomes whether the purported exercise of power by the Board in this case, in the expression of its protection works determination was invalid because of the degree of uncertainty surrounding the intended effect of the text.
91 The power which the Board purported to exercise in this case in determining the Protection Work Appeal was that provided by s 149(1) of the Act, namely once it is seized of such an appeal:
(1) The Building Appeals Board must consider and determine an appeal and by its determination may -
(a) affirm the decision under appeal; or
(b) quash the decision under appeal; or
(c) vary the decision under appeal; or
(d) set the decision under appeal aside and -
(i) substitute its own decision; or
(ii) remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.
92 The particular uncertainty arising from the Board's approach to determining the Protection Work Appeal in this case was the uncertainty as to what head of power, if any, the board was purporting to act under in making the statement in paragraph 30 of its determination. Either the Board, as Colonial Range contended, merely quashed the decision of the relevant building surveyor which was under appeal pursuant to s 149(1)(b), or it set the decision under appeal aside and substituted its own decision, which included the Additional Leonard Plus Protection Work Determination, pursuant to s 149(1)(d)(i).
93 In my opinion, the making of a valid determination by the Board under s 149 carries with it the obligation to specify with reasonable precision what it is that the Board has actually determined in relation to appropriate protection works.
94 This is underscored by the operation of s 88(2) of the Act which provides for criminal penalties for owners who fail to carry out building works, including protection work, in accordance with any determination made by the Board in the event of an appeal.
95 The role of the Board in making a determination in such a case effectively serves to define the ambit of what is potentially criminal conduct, and what is not, and, particularly in relation to demolition building works, further serves to define what an owner is compelled to do to protect neighbouring properties and the public. Unless a protection works determination is made by the Board with the necessary certainty, the important obligations of the owner will not be properly defined.
96 The requisite degree of precision in the expression of a determination in relation to protection works in such a case is high.
97 Should the Board fail in this duty, in my opinion it will not have carried out its statutory function. It will have fallen into jurisdictional error, and its purported decision is open to be vitiated.
98 On the basis of the findings already made by this Court (in particular, the finding that 'there is a level of uncertainty in the expression of its determination as to what the Board actually intended to do'[15]), it follows in relation to the Protection Work Appeal determination purportedly made by the Board in this case, that the Board failed to exercise the jurisdiction which the Act conferred upon it.
99 Accordingly, the Protection Work Appeal determination must be declared void and remitted to the Board for rehearing.
100 This leaves the determinations of the Section 155 Referral, the Insurance Appeal and the Survey Appeal untouched. They remain as valid determinations of the Board.
101 In the exercise of the Court's discretion, it is appropriate in this case that declaratory relief be given rather than making an order in the nature of certiorari, with the intention that a declaration will have the same practical effect as the 'quashing' of the Protection Work Appeal determination.
102 It is desirable to remit for rehearing to the Board the question of the appropriateness of the protection works for the demolition of the lift and plant motor room at 150 Queen Street, Melbourne so as to provide an opportunity for the Board to consider this part of the protection works in the context of determining appropriate protection works for the other demolition work proposed to be undertaken for the other portions of the building on CES Queen's Land, should the Board be minded to do so.
[2] Colonial Range Pty Ltd v Victorian Building Authority and Ors [2014] VSC 272; [2014] VSC 602.
[3] [2015] VSC 120 [47]-[55].
[4] [2015] VSC 83 [47].
[5] [2015] VSC 120 [24]-[30].
[7] CES-Queen v Thomas & Anor [2014] VSC 602.
[9] [2015] VSC 120 [18]-[30].
[10] [2015] VSC 120 [29]-[30].
[11] M Aronson and M Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013).
[14] TAB Ltd v Greyhound Racing Victoria [2009] VSC 338, 33.
[15] CES Queen v Thomas & Anor [2015] VSC 120 [54].
CES Queen (Vic) Pty Ltd
Colonial Range Pty Ltd
(1943) 67 CLR 445