Plaintiff v First Defendant

• Plaintiff's Outline Submissions dated 16 August 2016
• First defendant's Submissions dated 23 August 2016
• Third and fourth defendants' Submissions dated 25 August 2016
• Plaintiff's Reply Submissions dated 8 September 2016

• Plaintiff's Submissions dated 23 September 2016
• First defendants' Submissions dated 3 October 2016
• Third & fourth defendants' Submissions dated 3 October 2016
• Plaintiff's Reply Submission to first defendant dated 10 October 2016
• Plaintiff's Reply Submission to third & fourth defendants dated 10 October 2016

Submissions on Obligation of the Surveyor to give reasons:

• Plaintiff's Submissions dated 2 November 2016
• First defendant's Submissions dated 11 November 2016
• Second defendant's Submissions dated 16 November 2016
• Third and fourth defendants' Submissions dated 11 November 2016
• Plaintiff's Reply to first defendant's Submission dated 16 November 2016
• Plaintiff's Reply to third and fourth defendants' Submissions dated 16 November 2016
• Plaintiff's Reply to second defendant's Submission dated 22 November 2016

By letter to the Court dated 12 September 2016 the second defendant advised he submits to the jurisdiction and determination of the Court, save and except he reserves his rights to be heard on the question of costs.

1 The first defendant (CES-Queen) is the registered proprietor of the property situated at 150 Queen Street, Melbourne (the Site). CES-Queen plans to demolish the existing building on the Site and construct a seventy-one storey residential tower known as "Tower Melbourne".

2 Under the Building Act 1993 (Building Act), CES-Queen is an "owner" and has certain obligations, including under Part 7 of the Building Act, which prescribes a regime that is to apply in circumstances where "protection work" is required to be carried out in relation to an "adjoining property". Such "protection work" is directed to the implementation of precautions in respect of an adjoining property before or during the carrying out of building work.

3 The plaintiff (Colonial) is the registered proprietor of two properties adjoining the Site, being the property at 140 Queen Street, Melbourne and the property at 21-27 McKillop Street (McKillop Street), Melbourne. These properties (Colonial's properties) are, for the purposes of the Building Act and in particular, Part 7 thereof, "adjoining properties" and Colonial is an "adjoining owner".

4 There is another property which constitutes an adjoining property for the purposes of Part 7 of the Building Act situated at 423 Bourke Street Melbourne, however the owner of that property has not taken issue with any of the protection works determinations made by the relevant Building Surveyors.

5 Tower Melbourne cannot be constructed until the existing building at 150 Queen Street has been demolished. Demolishing that building may cause significant physical damage to Colonial's properties at Queen Street and McKillop Street, if those properties are not adequately protected.

6 Pursuant to the protection works regime under the Building Act, a Building Surveyor, Mr Ari Akritidis (Akritidis), who is the second defendant, determined that "protection work" must be provided in respect of Colonial's properties before and during the planned demolition work. This meant that the "protection work" regime referred to in Part 7 of the Building Act, and the relevant provisions of Part 6 of the Building Regulations 2006 (Building Regulations), were engaged.

7 The existing building at the Site comprises one basement level, a lower ground floor, a ground floor, 11 upper floors and a two level plant and lift motor room on the roof (the Existing Building).

8 CES-Queen has completed an internal strip out of the Existing Building. The structural demolition of the Existing Building is yet to be undertaken.

9 This proceeding concerns determinations made by the Building Surveyor, and more particularly on appeal from the Building Surveyor, by the Building Appeals Board.

History of the owner's protection works application

10 Pursuant to s 84 of the Building Act and Building Regulations 602(2) and (3) on 30 December 2014, CES-Queen purported to serve two notices, known as "Form 3" Notices dated 24 December 2014, on Colonial and Akritidis. Those Form 3 Notices set out CES-Queen's "proposed protection work" for Colonial's properties, and included the prescribed details of the proposed demolition work, and prescribed details of the nature, location, time and duration of the proposed protection work.[1]

11 The pro-forma "Form 3" document (specified in Schedule 2 of the Building Regulations) required to be served by the owner which proposes to build pursuant to s 84 of the Building Act, indicates that, amongst other details, what the owner applicant should specify.

12 On 5 January 2015, pursuant to s 85 of the Building Act , Colonial served on CES-Queen and Akritidis notices, known as "Form 4" Notices, disagreeing with CES-Queen's "proposed protection work".[2]

13 The pro-forma "Form 4" (specified in Schedule 2 of the Building Regulations), indicates that the adjoining owner should, amongst other details, if it disagrees with the proposed protection work, specify its reasons for disagreement. The pro-forma Form 4 document also provides for the adjoining owner to request further information in relation to proposed protection works.

14 On 4 May 2015 Building Surveyor Akritidis examined the "proposal[s] for protection work" so as to determine, under s 87(1) of the Building Act, the "appropriateness or otherwise" of the proposed protection work (the Akritidis determinations).

15 Pursuant to s 87 of the Building Act, on 4 May 2015 Akritidis determined what he considered to be the "appropriate" protection work for Colonial's properties. The protection work so determined was in respects different to the works defined in CES-Queen's proposal.

16 Colonial centrally argues that Akritidis, by determining appropriate protection works which were different to the protection works proposed by CES-Queen, thereby, in effect "devise[d] his own" "measures which [he] determine[d] [were] appropriate".[3]

17 On 18 May 2015, pursuant to s 141(a) of the Building Act (BAB4 appeal) Colonial appealed to the Building Appeals Board (the Board) against the Akritidis determinations of 4 May 2015.

18 Subsequently, the Chairperson of the Board, the fourth defendant, exercised his power, under clause 8 of Schedule 3 to the Building Act, and determined that the appeal was to be allocated to a specific Panel of the Board constituted by Members Stephen Lodge, Rebecca Cameron and Joe Zita.

19 On 28 April 2016, the Board (the third defendant) determined the BAB4 appeal by affirming the Akritidis determinations under s 149(1)(a) of the Building Act (BAB4 determinations). In the document containing the BAB4 determinations, the Board also provided the Board's Reasons for those determinations.

20 On 24 May 2016 Colonial, pursuant to clause 16(5) of Schedule 3 to the Building Act, requested that the Board give written reasons for the BAB4 determinations.

21 On 6 June 2016, in compliance with clause 16(6) of Schedule 3 to the Building Act, the Board confirmed that "the Board's reasons for its determination were provided to all of the parties as part of the determination".[4] Colonial also argues that by reason of the operation of s 10 of the Administrative Law Act 1978 (Administrative Law Act), the Board's reasons (as set out in the same document as the BAB4 determinations) are incorporated in the record of its determinations.[5]

22 Before the Board the protection works issues relating to Tower Melbourne were addressed by the parties over five hearing days. Further, in its Determination of 28 April 2016, the Board makes reference to the "extensive written and oral material regarding the proposed demolition plan" received by the Board, including expert evidence of Mr Slade, Mr Shields, Mr Nisbet and Mr Luzinat, and the evidence of Mr Landewee, in addition to additional evidence by way of witness statements including the statements of Mr Reutersward, Mr Paras, and Mr Hatzimouratis. It is noteworthy that the witness statements and annexed material placed before the Board alone run to about 1683 pages and the record of the hearing before the Board generated 503 pages of transcript.

23 Colonial's Amended Originating Motion between the parties dated 15 August 2016[6] seeks the following orders:

1. An order in the nature of certiorari quashing the purported determinations of the Building Appeals Board (the Board) of 28 April 2016 under section 149(1)(a) of the Building Act 1993 (Vic) (the Building Act) to:

(a) affirm the purported determination of the second defendant (Mr Akritidis) made on 4 May 2015 under section 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff's building at 140 Queen Street, Melbourne (140 Queen Street); and

(b) affirm the purported determination of Mr Akritidis made on 4 May 2015 under section 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff's building at 21-27 McKillop Street, Melbourne (21-27 McKillop Street),

on the ground of jurisdictional error and/or error of law on the face of the record.

1. An order remitting the plaintiff's appeals to the Board under section 141(a) of the Building Act against Mr Akritidis' purported determinations under section 87 as to the appropriateness of protection work for 140 Queen Street and 21-27 McKillop Street, respectively, and requiring the fourth defendant to constitute a different panel of the Board for the appeals to be heard and determined in accordance with law.
2. Costs.
3. Such further or other orders as the court thinks fit.

24 Colonial's overall position is that the BAB4 determinations are affected by one or more of the three grounds of jurisdictional error or error of law on the face of the record, referred to in its Amended Originating Motion, and that the Court should therefore quash the BAB4 determinations, and then also make orders that require Colonial's appeals against the Akritidis determinations to be remitted to a differently constituted Board.[7]

25 In summary Colonial seeks the relief referred to on the following grounds.

Ground 1 (No power to affirm the Akritidis determination)

26 Colonial contends that as a result of the following circumstances:

(a) CES-Queen in May 2013 serving an earlier Form 3 Notice under s 84 of the Building Act and Building Regulations 602(2) and 602(3) putting forward its protection works proposals, and

(b) Colonial disagreeing with CES-Queen's proposals and responding to CES-Queen's protection works notices pursuant to s 85 of the Building Act and the relevant Building Regulations thereunder, and

(c) a determination in relation to the above protection works proposal being made on 2 July 2013 by Building Surveyor Galanos, and

(d) Colonial appealing the Galanos' determination in July 2013, pursuant to s 141(a) of the Building Act (BAB1 appeal), and

(e) on 12 November 2013 CEQ-Queen purporting to withdraw the May 2013, Form 3 Protection works notice,

CES-Queen was not able to "withdraw" or revoke its May 2013 notices when it purported to do so on 12 November 2013, and therefore the Galanos determination remained in force until 22 May 2015 when the Board quashed the BAB1 appeal under s 149(1)(b) of the Building Act.

27 Colonial contends in its grounds of appeal that in the above circumstances it was not permissible or valid for CES-Queen to issue a fresh Form 3 Notice on 24 December 2014 (received by Colonial on 30 December 2014) in respect of proposed building work and proposed protection works. It is to be noted that CES-Queen's protection works proposal dated 24 December 2014 which was determined by Building Surveyor Akritidis, is referred to as the "BAB4" appeal before the Board. This appeal is principally concerned to challenge and overturn the Board's determination of the "BAB4" appeal on 28 April 2016.

28 Colonial also contends in its grounds of appeal that because of the subsisting Building Act determination by Surveyor Galanos and appeal process before the Board in relation to that Surveyor's determination, and because the 24 December 2014 Form 3 Notices and building work and protection work proposals in those later notices overlap with the same work which was the subject of the May 2013 notices and the subject of the Galanos determination and the BAB1 appeal in relation to the Galanos determination, CES-Queen was not entitled to serve its Form 3 Notices dated 24 December 2014 (and received by Colonial on 30 December 2014).

29 Further, Colonial contends that in the circumstances, the subsequent surveyor, Akritidis has no power under s 87 of the Building Act to make a determination in respect of the invalid Form 3 Notices of 24 December 2014, accordingly the Akritidis determinations of 4 May 2015 are invalid.

30 Colonial also contends that although the Board is empowered to determine an appeal under s 141(a) of the Building Act in respect of an invalid determination, the Board does not have power under s 149(1)(a) of the Building Act to:

(ii) set aside or quash the purported determination of a surveyor as to the appropriateness of protection work, and to substitute its own determination.

31 Accordingly, Colonial contends the Board has no power to affirm the Akritidis purported determination of 4 May 2015, as the Board purported to do on 28 April 2016, and the Board has no power under s 149(1)(d) of the Building Act to quash or set aside the Akritidis purported determination and then substitute its own determination in the same terms as those determinations. Colonial contends therefore the Board's purported determinations of 28 April 2016 are invalid.

32 Finally, Colonial contends that the Board has made an error of law on the face of the record because the reasons for its determinations of 28 April 2016 state that CES-Queen has "effectively [ie lawfully] withdrawn" the Form 3 Notices of May 2013.

33 Colonial contends in its grounds of appeal that the function of the Building Surveyor under s 87 of the Building Act is to determine the "appropriateness" or otherwise of the particular "proposal for protection work" that is made by the owner.

34 Colonial also contends that the Board's function under s 141(a) of the Building Act (in an appeal from a Building Surveyor's determination) is the same as that of the subject Building Surveyor.

35 Colonial contends that Building Surveyor Akritidis fell into jurisdictional error in purporting to exercise his powers under s 87 of the Building Act by determining the appropriate protection for Colonial's properties was protection work which differed to the protection work proposed by CES-Queen.

36 Colonial centrally contends that the Building Surveyor, and in turn on appeal the Board, are constrained to determine either that the owners protection works proposals are appropriate or reject those proposals as not appropriate. Therefore by affirming the Akritidis determinations in BAB4, Colonial asserts that the Board proceeded on the basis that the appropriate protection work for Colonial properties was a form of protection works which differed from the protection works proposed by CES-Queen, and the Board thereby also fell into jurisdictional error.

37 Colonial also asserts that the Board's determination and reasons of 28 April 2016 reveals that the Board fell into error because it stated that the Building Surveyor may determine that the protection works proposals are not appropriate "and then devise his or her own measures ..." as appropriate protection works.

Ground 3 (Errors relating to Building Regulation 607)

38 Building Regulation 607 imposes certain requirements in relation to the carrying out of demolition work.

Demolition

(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.

(2) The relevant building surveyor may exempt minor demolition work from the requirements of sub-regulation (1) if the relevant building surveyor is of the opinion that the nature of the demolition work does not warrant those measures.

40 Colonial asserts that in relation to the appeal of the purported determination of Building Surveyor Akritidis under s 141(a) of the Building Act, the Board lacked jurisdiction and power to review any decision by the Building Surveyor, or itself exercise the Building Surveyor's powers under Building Regulations 607(1) and 607(2) because the Building Surveyor had not:

(a) inspected and approved precautionary measures under Building Regulation 607(1)(a); or

(b) exempted any of the proposed demolition work for 150 Queen Street from the requirement of Building Regulation 607(1).

41 Colonial asserts that it would be relevantly inconsistent with an earlier express view in the BAB2 appeal, concerning 140 Queen Street, Melbourne and a different part of 150 Queen Street, that compliance with the precautionary measures in Building Regulation 607, in particular those importing relevant parts of AS 2601-2001 concerning the demolition of structures, had not been established.

42 Colonial asserts that the Board did not consider Colonial's submissions that:

(a) compliance with Building Regulation 607 had not been established,

(b) the Board should act consistently with its early position in BAB2,

(c) on the two above bases the Board should have concluded that it was premature to determine the appropriateness of protection work for Colonial's properties.

43 Colonial asserts that by not considering Colonial's above submissions the Board fell into jurisdictional error, by:

(a) constructively failing to exercise its jurisdiction, or

44 Alternatively, Colonial contends that if the Board did consider its above submissions, then the Board's reasons for its determination of 28 April 2016 are inadequate and not in accordance with the requirements of clause 16(6) of Schedule 3 of the Building Act, because they do not set out the Board's actual path of reasoning resulting in the Board's rejection of Colonial's submissions in relation to Building Regulation 607, and because those reasons are not explained in sufficient detail to enable a court to ascertain whether the relevant determinations of the Board involved an error of law.

45 These matters, Colonial contends, give rise to an error of law on the fact of the record of the Board's determination of 28 April 2016.

46 Further or alternatively to the above, Colonial asserts if the Board considered that Colonial's submissions establish compliance with Building Regulation 607, it was not open to the Board to find as it did, and therefore the Board fell into jurisdictional error.

47 Further, or alternatively, because the Board concluded that there had been compliance with Building Regulation 607 when no such compliance had been established and the Board had no jurisdiction or power, it made a jurisdictional error, or an error of law on the face of the record.

48 Colonial submits that if the Court makes an order in the nature of certiorari quashing the "determinations" of 28 April 2016 which Colonial criticise, it would be unfair to Colonial if the Board members charged to hear and determine the appeal included any of the members of the Panel comprising the third defendant. Therefore the fourth defendant should, pursuant to clause 8 of Schedule 3 of the Building Act, ensure that any review Panel charged with hearing the appeal under s 141(a) of the Building Act, is constituted by members other than the third defendant.

Ground 1 (No power to affirm the Akritidis determination)

Colonial's Submissions - Ground 1 (No power to affirm the Akritidis determination)

49 In relation to the determinations immediately preceding those of Akritidis namely the Galanos determinations, Colonial emphasises that in about May 2013, CES-Queen served on Colonial and Galanos, the then Building Surveyor, Form 3 Notices under s 84 of the Building Act and Building Regulations 602(2)-(3), which contained details of the proposed demolition and protection work.

50 Colonial then served Form 4 Notices on CES-Queen and Galanos under s 84 of the Building Act and Building Regulation 602(4), challenging the proposed protection work. Building Surveyor Galanos determined the dispute in relation to CES-Queen's May 2013 Form 3 Notices on 2 July 2013.

51 Following the making of the Galanos determinations on about 2 July 2013, Colonial appealed this Building Surveyor's decision under s 141(a) of the Building Act (the BAB1 appeal). Four months later, on about 12 November 2013, CES-Queen purported to "withdraw" the Form 3 Notices which had led to the Galanos determinations.[8]

52 It is Colonial's contention that CES-Queen had no power to withdraw or revoke its Form 3 Notices, for which reason the Galanos determinations continued in force until 22 May 2015, when the Board quashed those determinations.[9]

53 Colonial submits that the Board "appeared to conclude", but did not itself "determine" (nor, according to Colonial, would it have had the power to determine), that CES-Queen had validly withdrawn its Form 3 Notices by its purported formal withdrawal on 12 November 2013.[10]

54 Colonial therefore submits that CES-Queen could not have validly served the subsequent Form 3 Notices dated 24 December 2014 (which reached Colonial on 30 December 2014), pursuant to which the Akritidis determinations were made.[11] Colonial contends that this in turn resulted in the Akritidis determinations being invalid.

55 Having regard to its legislative intent, Colonial maintains that "it would be incoherent for the Building Act to require the owner to carry out two different kinds of, potentially inconsistent, protection work for the same (or overlapping) building work".[12] As part of this argument Colonial points out that the building work which was the subject of the Form 3 Notices pursuant to which the Akritidis determinations were made, "overlapped" with the building work which was the subject of the Galanos determinations.[13]

56 Colonial contends that it could have led evidence that CES-Queen had acted upon the prior permit application, such that it could not then have withdrawn or abandoned that application in the manner proposed.[14] Its submission that the point was not made earlier, as it ought to have been, is based on what it calls "a fair reading of CES-Queen's written submissions" in the BAB4 appeal, referring in particular to its closing reply submissions of 19 October 2015.[15] However, CES-Queen states in that submission that "the protection work notices previously served by CES-Queen (that were determined by Mr Galanos) were formally withdrawn".[16]

57 Colonial asserts that CES-Queen's purported attempt to withdraw the Form 3 Notices "is of no consequence" because, as a matter of law, it was not within CES-Queen's power to withdraw its notices in the circumstances.[17] Colonial rejects CES-Queen's contention that Colonial did not actively seek to challenge the legal force of the Galanos determination,[18] and points to CES-Queen's potential opportunity, which it did not take, to seek orders from the Board disposing of the BAB1 appeal before issuing new Form 3 Notices.[19]

58 Colonial argues that the irregularity which taints CES-Queen's 24 December 2014 Form 3 Notices was not cured because that process was invalid from the outset and hence incurably so.[20]

59 Colonial also argues that therefore the Board had no power either to affirm the Akritidis determinations or to quash, or set those determinations aside and substitute its own determinations in the same terms.[21] Additionally, Colonial submits that by the Board stating that CES-Queen had "effectively [ie, lawfully] withdrawn" the Form 3 Notices, the Board also made a manifest error of law on the face of the record in that respect.[22]

60 In support of its submission that the Board was relevantly devoid of power, as outlined in the preceding paragraph, Colonial relied on the reasons in SZGME v Minister for Immigration and Citizenship.[23] In that case, the Federal Court of Australia held that the Minister had no power or jurisdiction to determine an invalid visa application under the Migration Act 1958 (Cth) (Migration Act); the Minister could neither grant nor refuse the visa application. The Refugee Review Tribunal did have jurisdiction to review, but it did not have the power on the review to either grant or refuse an invalid visa application and could only set aside the decision.[24]

61 Colonial contends that the logic in SZGME "translates readily in the present context". Colonial submits that here, as in SZGME, there are three stages which aggregate to stand in the way of the Board being able to affirm the Akritidis determinations, namely the performance of a legal act as a precondition to the making of an administrative decision (the Form 3 Notices), a purported decision (the Akritidis determinations), and "a decision on merits review" (the BAB4 appeal).[25] Given the existence of similar limitations akin to those which circumscribed the Refugee Review Tribunal's powers in SZGME, Colonial submits, "[t]he only available power that the Board could lawfully exercise in order to determine the appeal was to quash the Akritidis determinations".[26]

CES-Queen's Submissions - Ground 1 (No power to affirm the Akritidis determination)

62 CES-Queen argues that it has effectively dealt with Colonial's assertion that the proposed works in respect of the Galanos and the Akritidis protection works applications "overlapped" and that there was therefore "potential for inconsistency" in relation to approved protection works, by CES-Queen's 12 November 2013 letters to Galanos, the Board and to Colonial, whereby CES-Queen unambiguously and formally withdrew its May 2013 protection work notices that were the subject of the Galanos determinations on 2 July 2013.

63 In its 12 November 2013 letters, CES-Queen also stated that it intended to withdraw its application for a Building Permit for the proposed demolition and recommence the s 84 Building Act proposed protection work process afresh.[27] This being so CES-Queen contends that problems of overlap, relied on by Colonial, as between the BAB1 appeal and BAB4 appeal, do not arise.

64 It is to be noted however that Colonial challenges CES-Queen's factual narrative of events said to have resulted in CES-Queen's withdrawal of the Form 3 Notices. Colonial notes that, among other things, Galanos' solicitor wrote to CES-Queen's solicitors on 5 December 2013, stating that "while the matter is currently before the Building Appeals Board, it would be inappropriate to either confirm or revoke the determinations".[28] Hence Colonial contends that it is contentious on this additional basis whether the Form 3 Notices were validly withdrawn by CES-Queen.

65 CES-Queen emphasises the practical consideration that no potential for inconsistency has in fact troubled the parties, and that the communication of CES-Queen's "clear intent to abandon the building permit application from which the Galanos determinations emanated" meant that it could validly serve new Form 3 Notices.[29]

66 CES-Queen also stresses the effectiveness of its unambiguous indications to Colonial and to the Building Surveyor as establishing that the Form 3 Notices were withdrawn, thereby enabling a fresh Form 3 process to be validly commenced in December 2014.[30]

67 In its closing submissions of 3 October 2016, CES-Queen refers to its "clear intent to abandon the building permit application from which the Galanos determinations emanated", which meant that it was free to issue the fresh Form 3 Notices of 24 December 2014.[31]

68 CES-Queen argues in the alternative that even if the December 2014 Form 3 Notices were invalid because of the subsisting earlier unfinalised Galanos determination appealed to the Board on 16 July 2013 and not determined until 22 May 2015, the Board on that date quashed the Galanos determinations. CES-Queen submits that the effect was that at 22 May 2015 the Board's determination in relation to the Galanos determinations appeal in BAB1 was to "eliminate" any possibility of inconsistent protection work determinations or outcomes. CES-Queen points to the powers under s 149(1) of the Building Act to make such orders.

69 Further, CES-Queen distinguishes SZGME on two bases. First, that in SZGME, the invalidity of the visa application was never cured, which is not analogous here.[32] In SZGME, the applicant did not provide a complete visa application. Because of the resulting invalidity, the Tribunal had on review only those powers which the delegate had with respect to an invalid visa application.[33]

70 CES-Queen argues that in SZGME the materially different detailed statutory scheme in the Migration Act applied to greatly circumscribe the Tribunal's powers. For example, under s 47, the Minister could only consider a valid application for a visa; and similar caveats were provided for in ss 65 and 415(4).[34] CES-Queen submits that in the absence of any equivalent provisions in the Building Act, SZGME loses its analogical force.[35]

71 CES-Queen argues that the Board is empowered to act autonomously. In this regard CES-Queen relies on Clause 15(3)(f) of Schedule 3 to the Building Act and s 149(2), which acknowledges the existence of the Board's powers in addition to the powers of the decision maker.

Analysis and conclusions - Ground 1 (No power to affirm the Akritidis determination)

72 I reject Colonial's argument that CES-Queen did not serve a valid and effective Form 3 Notice in December 2014.

73 For the following reasons I also reject Colonial's argument that as a consequence of what it contends is the invalidity of CES-Queen's Form 3 Notices of December 2014, the Board addressing appeals from the Building Surveyor's determinations in respect of those notices, was only empowered to quash the Akritidis determinations and could not affirm what in Colonial's assertion amounted to an invalid process.

74 In my view, neither the Building Act or the Building Regulations expressly or impliedly invalidates or renders ineffective a notice issued pursuant to s 84 of the Building Act in circumstances where an earlier Form 3 Notice proposing appropriate protection and other works in respect of the same building, general building works and earlier proposed protection and other works under s 84 of the Building Act remain on foot.

75 Similarly, there is in my view no stipulation or requirement in the Building Act or the Building Regulations that, expressly or impliedly, renders a Form 3 Notice issued pursuant to s 84 of the Building Act invalid or ineffective in circumstances where an earlier Form 3 Notice in respect of the same building, general building works and proposed protection works have progressed to the stage of being the subject of a Building Surveyor's determination or both a determination and the issue of an appeal under s 141 of the Building Act in relation to that determination.

76 The scheme of Part 7 of the Building Act, and in particular ss 84, 87 and 88 of the Building Act is that it is for the owner seeking to build the subject building, to propose the protection works by which the requirements of the Building Act and the Building Regulations will be met.

77 Further, under Part 7 of the Building Act, the owner may withdraw its Form 3 protection works proposals notice at any time including after its protection works proposals have been the subject of a Building Surveyor's determination and also after that determination has been appealed to the Board. Such withdrawal may however subject the owner to ancillary consequences such as resultant delay to its proposed building works as a result of having to restart the protection works, wasted costs and Building Surveyor and possible Board and inter partes costs associated with the abandoned protection works application process.

78 The Act contemplates that the applicant owner, like a litigant in a court system can bring its own process to an end when it chooses, subject to possible cost consequences and any order or direction which the Board is empowered to make.

79 Concomitantly, an applicant owner may initiate a fresh process seeking approval for a different proposed protection works solution even though an earlier proposal has been the subject of a Building Surveyor's determination, or on appeal to the Board. As a matter of practicality and efficacy, it would be unlikely that the Building Act or the Building Regulations would operate otherwise for the following reasons.

80 Sections 84 to 88 of the Building Act do not prohibit or prevent the owner from withdrawing his proposal for building work at any time. Indeed it would be problematic and anomalous if the Building Act was to have a different operation in this regard. That is because it may be that the owner, at some point in the protection works approval process decides against proceeding with its originally planned building work or the proposed form of protection work earlier put forward if it is perceived, for example to be unnecessary, inefficient or costly.

81 The practical reason for the owner's change in protection works proposals may, as a further example, include a related change to the design of the overall building works or a perceived improvement to the protection works proposals identified by the owners consultants or the adjoining owners. This may occur after initial approval by the Building Surveyor or a relevant determination by the Building Surveyor or by the Board, but before commencement of the protection works or the construction of the project.

82 It would be nonsensical and unreasonable in such circumstances for the owner to be forced to proceed with its s 84 Form 3 Notice, or forced to undertake the protection works determined by the Building Surveyor pursuant to s 87 of the Building Act, or on appeal by the Board, in the event that the owner's protection work solution for the building work has changed.

83 Any such abandonment or change to proposed protection works would however be likely to have negative timing and cost consequences for the applicant owner and may result in substantial costs and expenses being thrown away by the owner, including in relation to its consultant's fees, the Building Surveyor's fees, and the like, including pursuant to s 97 and Clause 17 of Schedule 3 of the Building Act.

84 The critical restraint however is that pursuant to s 88 of the Building Act the owner cannot commence the construction it desires to progress until it has obtained the adjoining owner's approval for its proposed protection works or protection works approval as determined by the relevant Building Surveyor or the Board, and then only in accordance with such agreement or determination.

85 In the particular circumstances of this protection works approval process, because CES-Queen has communicated clearly and unequivocally from 12 November 2013 to the Building Surveyor (Mr Galanos) in relation to BAB1 (in respect of CES-Queen's earlier May 2013 proposal in relation to the Tower Melbourne project) and to Colonial and to the Board, that CES-Queen had made a decision to withdraw all of its earlier Form 3 protection works notices and that CES-Queen also intended to withdraw its existing applications in relation to a Building Permit for proposed demolition works at 150 Queen Street, the application process commenced by CES-Queen under s 84 of the Building Act in May 2013 in relation to those earlier notices, in my view was unequivocally, brought to an end, and effectively abandoned. The s 87 Galanos determination and subsequent Colonial appeal process was thereby rendered irrelevant and of no utility respectively, save for the potential ancillary consequences referred to above.[36]

86 Furthermore, on 12 November 2013, CES-Queen unequivocally advised the Board that it was not planning to do any more building work (including protection work) under the Building Permit that it had sought on or around 12 April 2013 from Mr Galanos.

87 Accordingly, after November 2013, contrary to Colonial's arguments, there was no risk that either a Building Surveyor or the Board would proceed to determine protection works requirements for the relevant building, or rule on contested issues in relation to protection works in relation to two different sets of proposals for protection works put forward by CES-Queen.

88 Further, in the events which occurred, on 22 May 2015 that the Board determined that the Galanos appeal (BAB1) instigated by CES-Queen's May 2013 Form 3 Notices be quashed. [Galanos determination in BAB1 (CB737-738)]

89 The quashing of the BAB1 appeal on 22 May 2015 independently obviated the possibility that there could be inconsistency between two separate protection works processes.

90 After 22 May 2015 (BAB1) relevant BAB1 notices and any Building Surveyor or Board determinations in relation to them could not give rise to any inconsistency with the BAB4 notices issued on 24 December 2014. This is so whether or not the effect of the Board's decision on 22 May 2015 (BAB1) was a decision which operated only prospectively, as Colonial argues, or whether it was a decision which operated retrospectively. Before 22 May 2015 and since 12 November 2013 all relevant parties were formally notified that CES-Queen was not proceeding with its May 2013 protection works proposals.

91 The Board stated in its 22 May 2015 BAB1 decision that in quashing the Galanos determination in BAB1:

(i) "The Board formed the view that the determination made by Mr. Galanos on 2 July 2013 was no longer of any force or effect and the issues that were the subject of the determination and the appeals have been overtaken by subsequent events."[37] (emphasis added)

(ii) In considering whether the BAB1 Form 3 notices of 2013 remain 'undisturbed', the Board was of the opinion that "in practical terms the Form 3 notices may be treated as being withdrawn."[38]

92 The Board also identified these reasons, and the facts and circumstances of the matter, as justifying its view that there "is no practical necessity to remit the Form 3 notices to" Mr Ari Akritidis.[39]

93 Further, at the time the Board heard and considered the Akritidis appeal in September and October 2015 and also at the time the Board determined the Akritidis appeal in April 2016 the CES-Queen protection work process which Colonial contends was disentitling, namely the CES-Queen May 2013 Form 3 Notices and the Galanos determinations, had been quashed on 22 May 2015.

94 For the above reasons in my view, no inconsistent or invalidating alternative process overlapped at any material time with the Building Act protection works application the subject of the April 2016 Akritidis (BAB4) determination. It follows therefore that there was in reality no possibility that there could be a conflict of inconsistent protection works requirements or that there could be any real potential for difficulties, confusion and additional expense as between CES-Queen's BAB1 protection works proposals put forward initially in May 2013 and the subject BAB4 protection works proposals put forward by CES-Queen in December 2014.

95 Further, s 146(1) of the Building Act operates to suspend the effect of a decision of the Building Surveyor for the period of time within which that decision may be appealed, or if appealed the decision is affirmed on appeal. Accordingly, from 13 July 2013[40] when the BAB1 determinations were appealed, those appeals had the effect of bringing about the position pursuant to which no protection work determination was effective or could give rise to any inconsistency with any other protection work determinations which came into existence after the date of the protection works notices issued on 24 December 2014.

96 There was also no realistic danger of duplicated or inconsistent protection works for the same above reasons.

97 Furthermore, I do not accept Colonial's argument in relation to this ground that the statements in SZGME v Minister for Immigration and Citizenship[41] assists Colonial. That is because on this issue in my view that case is distinguishable and is confined to the particular legislation which the court was there considering, in particular, the statutory scheme established by the Migration Act. SZGME was decided by very specific reference to that scheme and specific provisions, in particular of ss 47 and 65, of the Migration Act. These sections refer to the necessity for the application being considered by the Minister under that Act to be a 'valid application for a visa'.

98 There was no equivalent language in the Building Act requiring a 'valid' application as mandated by ss 47 and 65 of the Migration Act. Indeed as emphasised by CES-Queen in its submissions, the Building Act was intended, amongst other things, to provide a protection works and building works approval regime under which Building Surveyors independently evaluate the appropriateness of protection and building works, and to establish a regime under which the Board undertakes its tasks with as little formality and technicality as is practical and in a way which is expeditious and cost effective while complying with the particular requirements of that legislation.

99 Accordingly, for the above reasons I reject Ground 1 of Colonial's appeal in this matter and hold that CES-Queen's Form 3 Notices of 24 December 2014 are valid and effective and unaffected by the earlier commencement of a protection work approval process by CES-Queen in relation to the same building work.

100 Given my findings and conclusions in relation to Ground 1 of Colonial's appeal, it is unnecessary for me to make any finding in relation to CES-Queen's contention that s 149(1) and s 149(2) would, in any event, empower the Board, in the above circumstances to make a protection works decision in relation to CES-Queen's December 2014 Notices.[42]

Colonial's Submissions - Ground 2 (Misconception of statutory function)

101 Colonial argues that the provisions of s 87 of the Building Act establishing the function and power of the Surveyor, are expressly directed to an examination of the 'appropriateness' of the 'proposal for protection work' made by the owner.

102 Colonial claims that Building Surveyor Akritidis made a jurisdictional error by purporting to determine, under s 87 of the Building Act, that the "appropriate" protection work for Colonial's two adjoining properties differed, in certain respects, from the protection works proposed by CES-Queen.[43] Colonial contends that this was contrary to the Building Surveyor's statutory function as circumscribed by s 87(1) of the Building Act, namely to "examine the proposal for protection work and determine the appropriateness or otherwise of the work".[44]

103 Colonial also argues that there are powerful indicators which support the proposition that the Surveyor's function is simply to determine the 'appropriateness' of the 'proposal for protection work' put forward by the owner. Those indicators principally include the circumstance that the Surveyor is not required to hear from either the owner or the adjoining owner before making his or her determination.

104 Colonial argues that if the Surveyor was empowered to determine what would be appropriate protection work it could arise that the owner could be required to perform work which it had not proposed and which the adjoining owner had not considered and which the Surveyor had not identified to either the owner or the adjoining owner prior to making his or her determination under the Building Act.

105 Colonial submits that where, as it appears to concede is the case in relation to s 87(1), there is a 'constructional choice open' the Court should if possible avoid the prospect of an unfair process. Furthermore, Colonial observes that although the Court should adopt the construction that would promote the purpose or object of the Building Act the highly general statement of the Act's purposes, including in s 1(c) of the Act is not useful in construing particular parts of the same legislation.[45]

106 Colonial adds that insofar as s 1(c) of the Building Act refers to resolving building disputes, the relevant dispute is that which crystallises as a result of the adjoining owner's Form 4 response pursuant to s 85(1)(b) of the Building Act. Colonial argues that for the Surveyor to determine what would be the appropriate protection works such a determination would not involve, or necessarily involve, the resolution of the relevant dispute.

107 On the above premises Colonial then argues that on an appeal in respect of a Surveyor's decision under s 87, the Board's role is circumscribed to being one in which the Board 'stands in the shoes' of the Surveyor and 're-exercises the function of the Surveyor.[46]

108 Colonial also contends that the Board's powers, pursuant to s 149 of the Building Act, are limited by reason of Colonial's submissions referred to above concerning the proper construction of s 87 of the Building Act.

109 Colonial also submits that although the Board correctly accepted that the reasoning of Vickery J in CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd (Orders)[47] (CES-Queen) was not binding on the Board, the Board nevertheless made extensive reference to the reasoning in that decision and appears to have accepted that reasoning as correct.[48]

110 Colonial's submission emphasised that as a result of the outcome on appeal the decision in CES-Queen is not binding or persuasive.[49] Colonial submits that reasons referred to in a judgment which has been overturned are also set aside together with the final orders founded upon such reasons, even if particular reasons, or parts of them, have not been challenged on appeal.[50]

111 Colonial also submits that the reasoning in support of the construction of s 87 of the Building Act in CES-Queen, should be rejected because the power to make "enquiries" under s 87(3) of the Building Act is of neutral impact in relation to the proper construction of s 87. Further, Colonial submits the fact that s 88(2)(b) of the Building Act does not expressly refer to the owner's proposals is of no significance. What is of significance in this regard, Colonial submits, is that it would be unfair if the owner was required to carry out protection work determined by the Surveyor under s 88(2)(b) where that work had not been proposed and where it had not been considered by the adjoining owner, particularly where the Surveyor is not required to give either party a hearing.

112 Colonial also submits that it is not appropriate or justifiable to construe s 87 of the Building Act so as to be "conducive to efficiency" as Colonial submits erroneously occurred in CES-Queen at first instance.

113 Colonial also argue that to adopt the construction of s 87 of the Building Act which was proffered in the first instance decision in CES-Queen referred to above would in fact not be conducive to the efficient operation of that section.[51]

114 Colonial also argues that the task of looking at the balance to be struck between competing legal values, including between efficiency and fairness, is a matter for Parliament and not for the Court.

115 Colonial argue that there is an error of law on the face of the BAB4 determinations, which state that "the relevant building surveyor (and the Board, which stands in the shoes of the relevant building surveyor) may determine that the proposal for protection work is not appropriate, and then devise his or her own measures which the relevant building surveyor (or the Board, on appeal) determines are appropriate".[52]

116 Colonial observes that the Board's function on appeal under s 141(a) of the Building Act is the same as that of the Building Surveyor whose decision is appealed.[53] Colonial submits that it therefore follows that the Board also fell into jurisdictional error by affirming the Akritidis determinations, having either misconceived the nature and limits of its jurisdiction, made a decision in excess of its jurisdiction, or constructively failed to exercise its jurisdiction.[54]

117 Colonial also submits that if the Building Surveyor lacked jurisdiction to determine as he did, it would follow that the Board also made an error of law on the face of the record by affirming the Building Surveyor's jurisdictional error in purporting to "devise his ... own measures" in determining what would be the appropriate protection work under s 87 of the Building Act.[55]

118 Colonial submits that the legislative intention underlying the provisions in question would "be rendered otiose if ... the task of the Surveyor was a free-ranging one to determine what 'would be' the appropriate protection work regardless of the proposal made by the owner" and if subsequently the Board were "at large to determine what it thinks would constitute appropriate protection work, and thereby impose some 'solution' on the parties",[56] which would "not reflect" the party's "own proposal".[57] That, in Colonial's submission, would be inconsistent with the legislative purpose outlined in s 1(c) namely, "to provide for an efficient and effective system for ... resolving building disputes".

119 Colonial submits that on CES-Queen's case in relation to s 87 of the Building Act "there is no logical reason why the Surveyor would ever properly stop (or even start) with the owner's proposal in seeking to devise the 'ideal' protection work for the adjoining owner's property".[58]

120 Furthermore, Colonial claims that CES-Queen's construction of the Building Surveyor's function in s 87 of the Building Act would impose "an extraordinary obligation on the Surveyor, who may not have the expertise or resources to perform this task properly".[59]

121 Colonial submits that s 88(1) of the Building Act is concerned with timing. It prevents an owner from carrying out building work "until" the protection work is determined. It is therefore not surprising, Colonial submits, that s 88(1)(b) of the Building Act refers only to the relevant event.[60]

122 Colonial acknowledges that s 88(2)(b) of the Building Act "does not expressly refer to the owner's proposal". However, Colonial contends that to require an owner to carry out protection work which it had not proposed in its notices, and which the adjoining owner was not anticipating, "would be extraordinarily unfair".[61]

123 Colonial also submits that "[w]here a constructional choice is open, the Court should seek to avoid such an unfair process",[62] and that the Court should bear fairness in mind as well as efficiency in the construction of statute and the ascertainment of legislative intention.[63]

124 Colonial further contends that its "construction is, in fact, likely to lead to more protection work disputes being resolved before they are referred to the Surveyor or after they are so referred",[64] but hastens to add that a consequentialist analysis of statutory interpretation is not a matter for the Court, which should be concerned only with the construction of the words of s 87 of the Building Act, in their statutory context, rather than whether a particular interpretation leads to the right balance between fairness and efficiency.[65]

125 Colonial points to Divisions 1 and 2 of Part 10 of the Building Act which deal with the Board's jurisdiction to determine appeals. Colonial contrasts those earlier parts with Divisions 3, 4 and 5 which deal with the Board's jurisdiction to determine "disputes" and "other proceedings".[66] Colonial submits that by locating ss 141 and 149 within those parts of the Act providing for the Board's appellate jurisdiction, and in locating ss 155 and 161 outside Division 1 of Part 10, the legislature has reflected its intention that the latter provisions do not apply here and therefore cannot be invoked to uphold the Akritidis determinations, that is if Mr Akritidis had only the limited power Colonial argue for under s 87 of the Act.[67]

126 Colonial also submits that s 149(4), and clause 16(3) of Schedule 3 of the Building Act, do not empower the Board to uphold a Building Surveyor's determination that it is appropriate to approve protection works which differ from those proposed by the owner. These provisions refer to "ancillary" and "incidental" orders which the Board may make. Colonial's point is that such "incidental powers cannot transform" the Board's "function" of simply determining on appeal whether the owner's proposed protection work is appropriate or not.[68] Colonial contends that modifying the owner's proposal could not be "giving effect to the Board's determination" under s 149(4) of the Building Act.[69]

127 Further, in its reply submissions, Colonial asserts that if the Surveyor had to devise what would be the most appropriate protection works, the Surveyor would be engaged in the task of 'the design of ... building works' in breach of s 79 of the Building Act.

128 In response to the Board's submissions, Colonial also submits that:

The power to require more information pursuant to s 85(1)(b)(ii) of the Building Act is a power to obtain additional information to consider whether 'the proposal' is appropriate or not. Such a power does not imply that the surveyor can determine that non-proposed works are appropriate.

129 Colonial, as mentioned above, submits that s 88 of the Building Act is in the nature of a timing provision and that it is unsurprising that the provision refers only to the event of the relevant determination by the Surveyor. Colonial submits that this does not in any way suggest any focus on a distinction between the original protection works proposal and the Surveyor's determination. Colonial also submits that s 88(2) of the Building Act would do violence to the language of ss 84, 85, 87(1) and 88(1) if it somehow permitted the Surveyor to ignore the onus proposal in relation to protection works and impose the Surveyor's own solution.

130 Colonial also submits that the third and fourth defendants' submissions as to the way in which s 87(1) is intended to operate would be more productive of appeals to the Board because an imposition by the Surveyor of his or her 'solution' would more frequently provoke appeals.

CES-Queen's Submissions - Ground 2 (Misconception of statutory function)

131 CES-Queen contend that if Colonial's "binary construction"[70] of s 87 of the Building Act were the correct one, then the language of the provision would reflect this intent.[71]

132 I understand CES-Queen's description of a binary construction to mean that Colonial contend that the Building Surveyor, acting within power, is obliged to regard the owner's proposed protection works as a separate element from any other proposed protection works and restrict himself or herself to approve or reject the owner's proposed protection works.

133 CES-Queen submit that if the Building Surveyor's role was simply to determine pursuant to s 87(1) of the Building Act, if the protection works proposal presented by the owner was appropriate or not, then the language of s 87(1) would reflect that intent. CES-Queen contend that instead the Building Surveyor has been invested with the different task of determining whether the protection works proposed is "appropriate or otherwise".

134 CES-Queen argues that where in particular the purpose of the Building Act is to provide an efficient and effective system of administering and enforcing related building and safety matters and resolving building disputes, clear language limiting the Surveyor's powers would have been enacted and it has not been.

135 CES-Queen also submit that it is a distortion of its position to characterise its interpretation of s 87 of the Building Act as giving rise to a solution being imposed on the parties. Rather, CES-Queen submits the Building Surveyor's determination is "responsive to a proposal submitted by an owner".[72]

136 CES-Queen responds to Colonial's submissions that in this matter the Building Surveyor "devised his own protection works measures" by submitting that "close scrutiny of the material that was before Akritidis reveals instead that the Akritidis determinations was [sic] best understood as involving a process of clarification of the original proposal".[73] The specific ways in which CES-Queen argues that the Building Surveyor's determination clarified the owner's original proposal are described at [20(a) and (b)] of CES-Queen's submissions of 3 October 2016.

137 CES-Queen also relies in particular on ss 149(4), 155 and 161 of the Building Act. Section 149(4) provides that the Board "may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal". Section 161 of the Building Act provides that the Board "must consider and determine a matter referred, or application made, to it under this Act or any other Act and may make any order that it considers appropriate in the circumstances". Such powers, it is argued by CES-Queen, ensure that the Board is also able to approve a modified protection work proposal made by the Surveyor.[74]

138 CES-Queen also relies on what it calls the Board's "catch-all", or "residual jurisdiction".[75] CES-Queen points to the language of s 155 of the Building Act which provides: "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." CES-Queen submits that s 155 of the Building Act provides the "basis" for this residual jurisdiction which allows the Board to "resolve any disagreement relating to protection work."[76]

139 CES-Queen submit that the above provisions of the Building Act and in particular s 149(1) and s 149(4) together with Clause 16(3) of Schedule 3 of the Building Act, bestow on the Board undoubted power to approve a modified version of the owner's Form 3 proposals.[77] CES-Queen also submits that the decision in Moreland CC v Building Appeals Board[78] in which CES-Queen submits the court interpreted s 149 of the Building Act as bestowing broad powers on the Board.

140 CES-Queen also argues that Colonial's construction of s 87(1) of the Building Act is difficult to reconcile with s 87(2)(a) and s 87(3) of that Act. CES-Queen's submission is that it is unlikely those provisions would authorise the Building Surveyor to seek information about proposed protection works, when on Colonial's "binary construction" of s 87(1) the Building Surveyor would be unable to utilise such information.[79]

Third and Fourth Defendants' submissions - Ground 2 (Misconception of statutory function)

141 The third and fourth defendants emphasise that here the Board was dealing with an appeal from the Building Surveyor under s 141(a) of the Building Act, in respect of which the Board has pursuant to s 149(1) and a 149(2) of the Act powers including all the powers of the decision maker in relation to the decision under appeal. The powers of the decision maker here, and as explained, the Board, included the Building Surveyor's power to "determine the appropriateness or otherwise" of the proposed protection works under s 87 of the Act.

142 The third and fourth defendants submit that rather than a restrictive construction of s 87 of the Building Act that section, properly construed does not restrict the Building Surveyor to simply "determining whether [the] proposal is appropriate or not appropriate". They submit that s 87(1) when considered in its context including by reference to its statutory purpose and its legislative history should be understood to mean that the power of the Building Surveyor to determine the appropriateness or otherwise of proposed protection work includes a power to determine that the work would be appropriate with some modification.

143 In that regard the third and fourth defendants particularly rely on s 87(1) and the words of that subsection "... determine the appropriateness or otherwise of the work."

144 The third and fourth defendants also submit that had the legislature intended that the Building Surveyor would only have a binary power to determine that the work was "appropriate or not", it would have been a straightforward matter to use language which expressed that meaning.

145 The third and fourth defendants submit that the phrase "determine the appropriateness or otherwise of the work" comfortably embraces a task of examining the proposal and determining that it is appropriate. The third and fourth defendants submit that the permissible considerations by the Building Surveyor include as to whether a protection works proposal is appropriate in part and whether the proposal would be appropriate with modification or whether it would not be appropriate.

146 The third and fourth defendants submit that given in statutory context and the purpose and the nature of protection works, these factors strongly suggest that s 87(1) was not intended to confer only a binary power on the Building Surveyor. In support of that argument, the third and fourth defendants make the point that the functions of the Building Surveyor under s 87 of the Building Act require the Building Surveyor to consider not only the owner's original Form 3 Notice but also any further information required from the owner at the request of the adjoining owner and any information arising out of the broad power of the Building Surveyor to make enquiries pursuant to s 87(3) of the Act. The third and fourth defendants observe that this process involves an examination and consideration, with potential to obtain and further consider information and that in those circumstances it would be surprising if the Building Surveyor was not permitted to use the information received to address any inadequacy in a proposed protection work solution and to determine that the proposal was appropriate with some modification.

147 The third and fourth defendants also submit that once it is acknowledged, as the plaintiff does in its submissions, that the Building Surveyor's determination may differ from the owner's protection works proposal, by reference to further information provided, including pursuant to s 85(b)(ii) of the Building Act, it cannot be the case that the Building Surveyor's powers under s 87(1) are binary.

148 The third and fourth defendants submit that the purpose of the Act as a whole, and its objectives, include the provision of "an efficient and effective system" for enforcing building and safety matters and resolving building disputes as reflected in s 1(c) and s 4(1)(e) of the Building Act which respectively refer to "an efficient and effective system" for enforcing building and safety matters and resolving building disputes and the facilitation of "cost effective construction and maintenance of buildings". Furthermore, the third and fourth defendants point out that in the Second Reading Speech of the Building Control (Amendment) Bill the requirement for the Building Surveyor to determine the "appropriateness or otherwise" of the proposed works clarify that the subject amendment was intended to introduce a procedure which would minimise delays to building works.

149 The third and fourth defendants submit that the plaintiff's contention as to a "binary" interpretation of the Building Surveyor's powers under s 87(1) of the Act would not facilitate the efficient or cost effective resolution of the protection works issue but would mean on the contrary that where the Building Surveyor identified an inadequacy in the owner's proposed protection work solution and the Building Surveyor could identify a suitable and effective modification which would make the proposed works appropriate, the Building Surveyor would nevertheless be constrained to determine simply that the proposed works were "not appropriate". The result would be that the owner would need to recommence the process under s 84 of the Building Act.

150 Furthermore, the third and fourth defendants contend that a resubmission by the owner of the owner's modified protection works proposal would not necessarily be met by agreement from the adjoining owner which could well lead to a subsequent Building Surveyor's determination followed by an appeal to the Board. The third and fourth defendants submit that if the plaintiff's construction of s 87(1) was to prevail this process could occur over and over again because neither the Building Surveyor nor the Board, on Colonial's arguments, would be empowered to resolve the protection works issue by deciding what protection works would be appropriate, but would rather be required to simply approve or not approve the protection work proposal.

151 The third and fourth defendants submit that it would not promote and give effect to the statutory purpose in s 1(c) of the Building Act if the Building Surveyor cannot "determine what will make proposed protection works appropriate" but must instead patiently wait for the proposing party to submit and re-submit until it gets it right.[80]

152 The third and fourth defendants point out that the appropriate protection works solution would never be imposed without the Surveyor having heard from both parties. This, the third and fourth defendants explain, is because as Part 7 of the Building Act operates, the Surveyor will have been served with the Form 3 and Form 4 Notices, and may seek further information from an owner under s 87(2), and make inquiries of either party under s 87(3) of the Building Act.

153 The third and fourth defendants submit that the impartiality of a duly certified Building Surveyor, and the right of appeal afforded under s 141 of the Building Act, ensure that no unfairness will result from a Building Surveyor having the power to determine the appropriate protection works.[81]

154 The third and fourth defendants also support CES-Queen's submission that to delimit the Building Surveyor's power to approve or reject the owner's protection works proposal would probably give rise to repetitive applications, which would be inefficient, dilatory, costly and contrary to the purpose and intent of the Building Act.

155 As referred to above, the third and fourth defendants submit that applications for protection works proposals would be likely to be repetitive if all the Building Surveyor was empowered to do was either approve or reject the owner's protection works proposal. If rejected a repeat submission would have to be made by the owner, perhaps again and again to obtain approval. Whereas if the Building Surveyor was empowered to receive all proposals and the information he or she considered necessary and determine the protection solution he or she considered appropriate, there would likely be only the one process. This would promote the object and purpose of the Building Act referred to.

156 Further, the third and fourth defendants argue that s 88 of the Building Act lends support to an interpretation of Part 7 of the Building Act permitting the Surveyor to determine what protection works are appropriate rather than simply approve or reject a given protection works proposal because Section 88 of the Building Act distinguishes between the Surveyor's determination and the determination of the Board on appeal.

157 The third and fourth defendants submit that s 88(1) provides that an owner required to carry out protection works must not carry out building works until (absent the adjoining owner's agreement or deemed agreement) the matter is determined by the relevant building surveyor under Part 7 of the Building Act. Those parties submit that the utilisation of the words "the matter is to be determined by" in s 88(1)(b) of the Building Act does not convey a narrow process whereby the Surveyor only either approves or rejects protection works proposed by the owner.

158 The third and fourth defendants also submit that the language of s 88(1)(c) of the Building Act is supportive of a construction of s 87(1) of the Building Act, pursuant to which the Surveyor considers and determines "the matter" of the appropriate protection works on the basis of the owner's proposal, the adjoining owner's disagreements, any additional information provided and Surveyor's inquiries. Those parties submit that both the language of s 88(1) of the Building Act and of the words "or otherwise" in s 87(1) do not describe a process which can only result in an approval or a rejection of the owner's protection works proposal.

159 Further, the third and fourth defendants submit that s 88(2) of the Building Act distinguishes between the original proposal and the Surveyor's determination. Section 88(2)(b) of the Building Act provides that the owner must carry out the protection works required by the relevant Building Surveyor's determination in accordance with the Surveyor's determination.

160 The third and fourth defendants point out that s 88(2) does not prescribe that protection work be undertaken in accordance with the protection work proposed in the owner's original Form 3 Notice pursuant to s 84 of the Building Act. Nor does s 88(2) refer to the owner's "proposal for protection work" which is the description used in s 87(1).

161 The language of s 88(2) defines the protection work to be carried out by reference to the Surveyor's determination. The third and fourth defendants contend that in this way the Building Act reflects Parliament's intent that the Surveyor's determination as to what is appropriate protection work is autonomous and not confined to being an approval of the owner's protection works proposal or parts of it.

Analysis and conclusions - Ground 2 (Misconception of statutory function)

162 I reject Colonial's second ground, namely that the Board misconceived its statutory function when determining the BAB4 appeal.

163 On Colonial's argument the Building Surveyor, Mr Akritidis wrongfully purported to determine different protection works to those put forward by CES-Queen, and wrongfully 'devised his own measures which he determined were appropriate'.

164 On Colonial's argument if the relevant Building Surveyor was acting as authorised by s 87(1) he or she could do no more than approve or reject an owner's protection works proposal.

165 As an example, Colonial has complained that whereas in CES-Queen's protection works proposal it made no provision for any waterproofing to protect Colonial's adjoining building, the Surveyor determined that the appropriate protection work should include the provision of appropriate weatherproofing, but only if required, to be sequentially installed down the northern external face of the building.

166 However, in this appeal I note Colonial did not submit that the subject protection work, including the "waterproofing" of Colonial's exposed building, was unnecessary as such.

167 Further, I note that the waterproofing protection included by the Surveyor in his determination as to appropriate protection works in relation to Colonial's adjoining building is an added protection for Colonial as adjoining owner and probably represents a level of protection for Colonial beyond the protections which the owner developer CES-Queen put forward to ensure no damage or harm would be sustained to Colonial's adjoining buildings.

168 I also observe that the cost of the additional protection work identified by the Surveyor is at CES-Queen's expense and not at the expense of Colonial.

169 Notwithstanding these matters, Colonial objects to the extra added waterproofing protection work and identify the Building Surveyor's determination that this element of extra protection was required as one of the factors which have led to error on the part of the Surveyor and in turn error by the Board in affirming the Surveyor on appeal.

170 Colonial's principle contention that pursuant to s 87 of the Act the Surveyor's simple task is to consider the protection works proposal made by the owner and to resolve the dispute between the parties (the owner and the adjoining owner) by determining whether the proposal put forward by the owner is appropriate, or is not appropriate. As earlier noted in this sense Colonial characterised the Surveyor's function as a 'binary' one.

171 Colonial contend that it is not within the Surveyor's power (and on appeal also not within the Board's power) to '... determine what would be' the appropriate protection work.

172 The Building Control Act 1981 (which was the Act which preceded the Building Act 1993) provided that, in the event of disagreement (or non-agreement) about proposed protection works, "the matter" was to be referred directly for determination by an arbitrator.[82] No limitation was set as to what protection works the arbitrator might determine to be appropriate, in order to resolve the parties' dispute. The arbitrator's award was binding on the parties, subject only to setting aside for misconduct,[83] and/or on appeal for error of law.[84]

173 Debate in relation to the earlier Building Control (Amendment) Bill in the Legislative Assembly in December 1988 relevantly included the following:

PROTECTION OF ADJOINING PROPERTY

There have been numerous cases where developers have been delayed in commencing building work due to the manipulation of the system as currently provided for in Part IX of the Act. This has added significantly to the cost of some projects and caused others to be abandoned purely on a basis of cost.

The Bill proposes to streamline arrangements -

the adjoining owner is given only fourteen days to agree to or disagree with proposed protection works;

if the owner does not respond within this time, the owner is deemed to have agreed;

if the owner disagrees within this time, the matter is simply referred to the municipal building surveyor for determination;

if there is disagreement by either party within fourteen days of the building surveyor's notice of decision on the matter, it may be referred to the Director of Building Control, who shall appoint an arbitrator;

powers are now clearly provided to allow the owner power of entry into the adjoining property to carry out surveys to determine the protection works required;

the nature of documentation required to be submitted to the adjoining owner is clarified; and

the extent of adjoining properties to which the process can be applied is given a limitation.

The government intends to ensure that developers can proceed with their projects as expeditiously as possible while the adjoining owners will still have rights to agree to or disagree with proposed protection works and to appeal if aggrieved by a building surveyor's determination.[85]

174 By 1989, the Victorian Parliament resolved to address those issues,[86] including by streamlining of the procedure, and referring disagreements to municipal building surveyors for determination, with the surveyor's determination being subject to review by an arbitrator.[87]

175 As to protection of adjoining property in particular, an express purpose in statutory reforms replacing arbitrations was to increase efficiency and decrease cost:[88]

An enhanced version of the existing building referees boards will replace the current more expensive arbitrator system of resolving disputes between parties where protection works are deemed necessary for properties adjoining proposed building works.

176 The current s 87 of the Building Act 1993 originated from s 147(6)-(9) in the Building Control Act 1981. Section 147(6) of that Act provided:

Upon receipt of a notice under sub-section 2(b) the Building Surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work.

177 The Second Reading Speech of the Building Bill in the Victorian Legislative Assembly which dealt with what was to become the Building Act 1993, placed great emphasis on efficacy in resolving construction disputes. That speech included the following statement:[89]

The major reforms are in the areas of liability, the provision of a privatised option for building approval and of a one-stop-shop approach to dispute resolution. They are being progressively adopted by other States and Territories, which reflects the national momentum and support for reforms to the ways in which building standards are determined and enforced.

The Second Reading Speech stresses this point again in its conclusion:[90]

The Bill will provide the public with choice and options and will require building surveyors to deliver cost effective and timely building permit services.

178 The legislator's reference to a "one-stop shop" in my view reflects the general legislative intention to expedite such processes as Building Surveyor's determinations and Board appeals.[91]

179 It is reasonable to infer that negative factors including adversarial engagement in relation to the earlier protection work regime resulted in expensive delays to building projects, adding significantly to the cost of some projects and causing others to be abandoned purely on the basis of cost.[92]

180 The legislative history of the Building Act outlined above indicates that excessive costs and delays resulted in legislative reforms including the enactment of the current Act in 1993.[93]

The purpose of the Building Act

181 Furthermore, s 1(a) and (c) of the Building Act 1993 provides:

Part 1 - Preliminary

1 Purposes

The main purposes of this Act are -

(a) to regulate building work and building standards; and

...

(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.

182 The above purposes inform the proper construction of provisions of the Building Act, including s 87.

The function of the Surveyor under s 87 of the Act

183 Part 7 of the Act, and the applicable Building Regulations, deal with the protection of an adjoining property from "building work" (which includes demolition work).

184 Building Regulation 602 provides that "protection work" must be provided in respect of an "adjoining property" if required by the Surveyor. The expression "protection work" is defined to mean certain kinds of work to protect the "adjoining property" from damage from building work. The expression "adjoining property" is relevantly defined to mean land "which is so situated in relation to the site on which building work is to be carried out as to be at risk of significant damage from the building work".

185 Section 84 of the Building Act , read with Building Regulation 602(3)(b), provides that an owner who is required by the Building Regulations to carry out protection work in respect of an adjoining property must serve a Form 3 Notice on the owner of the adjoining property and the Surveyor.

186 Section 85 of the Building Act , read with Building Regulation 602(4), provides that the adjoining owner must give to the owner a Form 4 Notice agreeing to the "proposed protection work" (s 85(1)(a)), or give to the owner and the Surveyor a Form 4 notice disagreeing with the "proposed protection work" or requiring more information to be given to enable "the proposal" to be considered by the Relevant Building Surveyor (s 85(1)(b)).

187 If the adjoining owner agrees to the "proposed protection work", the owner may proceed to carry out "the protection work" after obtaining any necessary permits or approvals.[94]

188 If, however, the adjoining owner disagrees with the "proposed protection work", or requires more information to be given to enable the "proposal to be considered by the Surveyor", and gives the requisite Form 4 Notice to the building surveyor under s 85(1)(b), then the relevant building surveyor must perform the task set out in s 87.

(a) Section 87(1) provides that the relevant building surveyor must examine the "proposal for protection work" and "determine the appropriateness or otherwise of the work". In context, the expression "the work" refers to the protection work "proposed" by the owner.

(b) Section 87(2) provides that the relevant building surveyor may seek further information from the owner if the adjoining owner had given a notice under s 85(1)(b)(ii) requiring more information to be given to enable "the proposal" to be considered.

(c) Section 87(3) relevantly provides that the relevant building surveyor may make any enquiries he or she thinks fit however he or she is not required to give "any person" (including the owner or the adjoining owner) a hearing before he or she gives the owner and the adjoining owner notice in writing of his or her determination under s 87(4).

189 Section 88 of the Building Act provides, in summary, as follows:

(1) An owner who is required to carry out protection work must not carry out any relevant building work until -

(a) the adjoining owner agrees or is deemed to agree to the protection work; or

(b) the matter is determined by the relevant building surveyor; or

(c) on appeal the matter is determined by the Building Appeals Board.

(2) The owner must carry out any protection work required by the building regulations -

(a) in accordance with that agreement; or

(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) any Building Appeals Board determination.

190 The Interpretation of Legislation Act 1984, s 35(a) provides as follows:

a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object...

191 In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd[95] the High Court stated as follows:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text... The statutory text must be considered in its context. That context includes legislative history and extrinsic material. Understanding context as utility, and insofar as, it assists in fixing the meaning of the statutory text.

192 The provisions and statements in the last two preceding paragraphs provide a framework and interpretative tools in relation to identifying the proper construction of Part 7 and s 87 of the Building Act.

Proper construction of s 87 of the Building Act

193 Section 87(1) of the Building Act is in the following terms:

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.

194 The language of s 87(1) of the Act does not expressly, or by implication, limit the Surveyor to doing no more in respect of a protection works application than to consider the owner's protection works proposal together with any additional information the Building Surveyor receives and determine whether that proposal is appropriate or not appropriate.[96]

195 On the contrary I consider that s 87 of the Building Act conveys the legislature's intent that the Surveyor determine the appropriateness or inappropriateness of the proposed protection works. This meaning is clear from the words of s 87 itself, the context of that section within the Building Act and from the purpose of that Act referred to in s 1(c) of the Building Act in particular. The use of the words in s 87(1) '... determine the appropriateness or otherwise of the work', I consider reflects a legislative intention to empower the Surveyor to determine the respects in which the proposed protection works are appropriate and, where not appropriate, to determine what modifications are required to the owner's proposals to achieve an appropriate protection works solution.

196 In my view the words "or otherwise" in s 87(1) of the Building Act are intended to empower, and thereby enable, the relevant Building Surveyor to effectively and expeditiously determine disputes between the owner and the adjoining owner in relation to protection work, including by determining the nature and scope of appropriate protection work.

197 By employing the words "determine the appropriateness or otherwise of the work" in the overall context of s 87 of the Building Act Parliament, I consider, conveyed its intention that:

(ii) the objection or objections raised by the adjoining owner;

(iii) any additional information provided to assist the Building Surveyor in his or her consideration pursuant to ss 85(b)(ii) and 87(2)(a);

(iv) the results of any enquiries made by the Surveyor pursuant to s 87(3); and

(v) any further information or submissions to the Surveyor at any hearing which he or she permitted to occur in respect of the relevant protection works proposals;

(a) that the proposed protection works are appropriate; or

(b) that the proposed protection works are appropriate in part; or

(c) that modifications are necessary to the owners proposed protection works to render them appropriate; or

(d) determine that the proposed protection works are not appropriate.

198 The purposes of the Building Act elucidated by s 1(c) of the Building Act to provide an efficient and effective system to administer and enforce building and safety matters and resolve building disputes, and the object and purpose of Part 7 of the Building Act, namely to provide an efficient and effective process for determining appropriate protection works, including in relation to components of such work which are the subject of disagreement by the adjoining owner, are each consonant with and support the above broad construction of s 87(1) of the Building Act.

199 It would, on the contrary, be inefficient and ineffective if the scheme and operation of the Building Act did not permit the synthesis of the owner's proposal, the adjoining owner's disagreements and any additional relevant information provided pursuant to s 85 and s 87 of the Building Act and the Surveyors inquiries, in the Building Surveyor's determination of the protection works solution, including if necessary a protection works solution including modifications which he or she considered appropriate to the owners protection works proposal, that is, appropriate to afford the required protection.

200 In the unlikely event that the legislature desired to circumscribe the Surveyor's role and function in connection with his examination and determination of proposed building works, it would have been an easy matter for Parliament to achieve that result by for example using language providing that the Surveyor after examining the proposal for protection works, and relevant additional information, is to approve or reject any such proposal.

201 If Parliament had intended to restrict the Building Surveyor to a binary process, rather than provide the Building Surveyor with power to determine the appropriateness or otherwise of the protection work, it could have provided for the Building Surveyor to "approve" the proposed works or decide whether those works were appropriate or not.

202 In my view it is likely that s 87(1) is intended to facilitate both the resolution of any dispute between the owner and the adjoining owner as to what constitutes appropriate protection work and also to provide an expeditious, practical and cheap means of doing so including by determining where the owners protection works proposal is not appropriate in some respect, what modified or additional protection work is required.

203 Such a construction would promote the purpose of s 87 in a way consistent with s 1(a) and (c) of the Building Act and consonant with the context of s 87(1) in that Part of the Building Act directed to providing for an effective and efficient regime for both the resolution of protection works disputes and protecting adjoining property.

204 On the construction of s 87 of the Building Act vigorously argued for by Colonial namely that '... the Surveyor's function is to "examine" the owner's actual proposal, and to resolve the dispute between the parties as to whether that proposal is appropriate',[97] the Building Surveyor's role and powers under s 87 of the Act would, I consider, be most unlikely to promote the purposes of the Act including to establish an efficient and effective regime within which the Building Surveyor is to determine whether or not the proposed protection works are suitable.

205 Furthermore s 85 of the Building Act, in particular s 85(1)(b)(i), contemplates that the adjoining owner may provide a responding notice to the owner's proposed protection works, disagreeing with these proposed protection works.

206 The Building Act does not preclude the adjoining owner disagreeing with the owner in a way which includes the adjoining owner specifically suggesting that modified or additional works are required to afford the adjoining owner's property an appropriate level of protection.

207 Accordingly, in the real world there is a practical likelihood that from time to time the Surveyor will be required, in the process of arriving at his or her determination under s 87(1) of the Act, to " examine" the owner's actual proposal, the adjoining owner's notice of disagreement and further information provided to the Building Surveyor including as a result of any inquiry by the Surveyor, and to resolve the dispute between the parties as to whether the protection work is appropriate and if not determine what protection work is necessary.

208 It seems unlikely that the intent of the legislature in relation to s 87 of the Building Act would have been to circumscribe the Surveyor's task so narrowly that the Surveyor could not, in the process of determining what protection work is appropriate, determine the nature and extent of works which he or she consider necessary to ensure appropriate protection was achieved. Were s 87 of the Building Act to operate otherwise, inefficiency or impasse might well arise because the owner's proposed protection works are manifestly inadequate and disputed by the adjoining owner however, both the owner and the adjoining owner have not put forward protection work proposals which would achieve an appropriate level of protection for the adjoining property.

209 To hold that the legislature intended to constrain the Building Surveyor as argued by Colonial would, in my view, contrary to the above identified intended objects and purposes of the Building Act, give rise to easily foreseeable inefficiency and inflexibility in relation to the dispute resolution process at the heart of the protection of adjoining property regime provided for by ss 84-88 of the Building Act.

210 In my view, Colonial's contention that the expression 'appropriateness or otherwise' in s 87(1) simply recognises that the surveyor might determine that the subject proposal is not appropriate and its contention that the phrase 'appropriateness or otherwise' does not sever the connection which Colonial contends is critical between the owner's proposal and the Surveyor's function, are not interpretations which are likely to promote a purposeful or practical interpretation of s 87 of the Building Act.

211 Given the context of s 87 of the Building Act and the objects and purposes of the Building Act and in particular Part 7 of that Act to which I have referred, the words 'or otherwise' are likely in my view to have been included to provide scope and flexibility to the Building Surveyor in s 87(1) so that the Surveyor is not constrained just to approve or reject proposed protection works.

212 Furthermore, I do accept as persuasive Colonial's argument that CES-Queen's construction of s 87 would impose 'a solution' that the parties had not proposed or considered and that may suit neither party, and that may not be the subject of the actual dispute between them'.[98]

213 The procedures provided for in ss 84 to 87, and in s 141 of the Building Act outlined above accommodate opportunities for the owner and the adjoining owner to raise the matters they desire to raise in relation to the measures necessary to protect the adjoining building or buildings, and the owner and the adjoining owner are entitled to have the issue of the appropriateness of the Building Surveyor's determination under s 87(1) considered de novo by the Board under s 141 of the Building Act if the protection works solution determined as appropriate by the Building Surveyor is relevantly objectionable in some way.

214 Notably, s 88(2)(b) of the Building Act requires an owner to carry out protection work in accordance with "a determination" by the Building Surveyor where one has been made. By so providing, rather than requiring that protection work be carried out by the owner in accordance with the owner's notice of proposed building and protection work, the intent of Part 7 of the Building Act in that regard is indicated, as more particularly is the Building Surveyor's intended function under s 87(1) of the Building Act. That is, it is the Building Surveyor's determination of what protection works are appropriate, rather than simply the owner's proposal (when determined appropriate) which is to prescribe the nature and scope of the protection work required by the Building Regulations.

215 It is also significant that s 88(1) of the Building Act refers to the matter determined by the relevant Building Surveyor and on appeal by the Board, namely the protection work, rather than simply making reference to an approval or refusal of the adjoining owner's proposal.

216 Furthermore, if there was no potential difference between the protection works proposal by the owner and the Surveyor's determination of appropriate protection works, and the Surveyor could do no more than determine that the owner's protection works proposal was "appropriate", or not, it would be unlikely that in s 88(2) of the Building Act, Parliament would have referred to the owner's obligation to carry out any protection works required by the Building Regulations in accordance with the surveyor's determination, rather than using words to the effect that protection works were to be undertaken in accordance with the owner's proposal approved by the Building Surveyor.

217 I consider that the scheme of the Building Act in this regard supports a broader construction of s 87(1), namely one which permits the Building Surveyor to determine what protection works would be appropriate.

218 Accordingly, in my view, to achieve its intended purpose Part 7, in s 87(1) of the Building Act empowers the Building Surveyor to determine as appropriate a protection works solution which may constitute a modification of the owner's proposed protection work put forward under s 87 of the Building Act.

219 This interpretation of s 87 would also achieve a practical balance against an undesirable converse scenario where the process of obtaining a determination that proposed protection works are appropriate, involves what might well be a series of protracted and expensive section 84, Form 3 Notices being rejected, then modified and re-presented by the owner (again and again) until the point in time when the owner's proposal, unmodified, itself satisfies all the requirements which the Building Surveyor considers are necessary to constitute appropriate protection works.

220 A further practical balance is achieved by the Building Act entitling both the owner and the adjoining owner to re-address the appropriateness of the protection works solution determined by the Surveyor, before the Board pursuant to s 141 of the Building Act.

221 In relation to such practical considerations and their bearing on the likely intent and proper construction of s 87 of the Building Act, CES-Queen's submission at [66]-[67] refers to the reality of the nature of the protection works process and the 'dispute' which the Surveyor, Akritidis, was obliged to address in this instance. Paragraphs [66] and [67] of CES-Queen's submissions responding to Colonial's contentions in relation to s 87(1) of the Building Act are as follows:

[66] The inefficiency that would invariably result from this construction is illustrated by the Akritidis Determination with respect to 140 Queen Street, which was informed by and based upon an assessment of in excess of thirty-six reports, opinions and documents of varying descriptions, including five documents prepared by or on behalf of the adjoining owner, Colonial.[99]

[67] The Akritidis Determination did not in any case, represent a wholesale departure from the proposal that CES-Queen had identified by its form 3 notices. Whilst there were certain aspects introduced during the course of the process in which Mr. Akritidis engaged those changes were no more than refining the measures which had been originally proposed by CES Queen. The danger to which Colonial refers in its submissions, that an owner should not be bound to submit to any "solution" imposed on it by the surveyor (or the Board) that does not reflect its own proposal, does not reflect the reality of the protection work process and the matters prescribed in Part 7 that necessarily mean that a determination made by a relevant building surveyor will be responsive to a proposal submitted by an owner.

222 If, as Colonial contends, the Surveyor was confined to determining whether or not the owner's protection works proposals were appropriate and likewise the Board standing in the Surveyor's shoes was similarly confined, this may result in:

(a) the owner being unable to modify its proposals in an attempt to address the matters which the Surveyor identified as inadequate in its initial protection works proposal;

(b) the Board not being able to resolve the inadequacies in the owner's protection works proposals which had been identified in the Surveyor's reasons for the rejection of those proposals so as to bring to an end the particular building works dispute and determine either that the owner's original proposals were appropriate or that those proposals modified in a certain way amounted to appropriate protection works for the subject building;

(c) the Surveyor being confronted with impasse when the protection works proposals from the owner were either inappropriate, for the reasons identified by the adjoining owner, or were in the Surveyor's view (although not the subject of dispute by the adjoining owner) inappropriate. This would result in the Surveyor being unable to resolve those issues and endeavour to finalise the matter by determining the protection work which would be appropriate for the subject building even if certain works should be included or modified in respect of the owner's proposals to achieve an appropriate protection works specification.

223 The scenarios referred to in the last preceding paragraph would be most likely to be productive of significant delay, including the delays caused by repeated fresh or modified applications under ss 84 and 85 of the Building Act and repeated appeals to the Board.

224 Were Colonial's "binary" interpretation of the Surveyor's powers under s 87(1) of the Building Act to prevail it would be highly likely that such an interpretation would not promote the efficient and effective or cost efficient resolution of protection work issues. On the contrary, such an interpretation would likely result in, or at least omit of the very real possibility that, where the Surveyor identified an inadequacy in the proposed protection work and also identified a necessary modification to the owner's proposed protection work which would render the protection works proposal appropriate in the Surveyor's view, the Surveyor would nevertheless only be able to determine that the protection works proposal under consideration was not appropriate. In the result, the owner would need to re-commence the protection works proposal process and serve an amended or new Form 3 Notice. Thereafter, even in circumstances where the Surveyor communicated his or her reasons as to why the initial proposed protection works were not appropriate (in whole or in part), and the owner modified its initial protection works proposal accordingly, the adjoining owner would be under no obligation to agree to the second (modified) protection works process which would be then likely to lead to the need for a second Surveyor's determination.

225 This scenario would also give rise to the real possibility of an appeal, and in due course multiple appeals, to the Board.

226 Relevantly, the Building Act does not appear to limit the number of times the disagreement and appeal scenario referred to in the last preceding paragraph could re-occur in relation to protection work proposals for the same building.

227 On Colonial's argument this might well lead to multiple applications under s 84 of the Building Act, inefficiency, delay and additional costs in connection with a protection works proposal.

228 Further, in respect of large commercial projects, the ramifications of delay and additional cost are potentially very large and such consequences have the potential to effect construction workers, consultants, suppliers, ultimate tenants and many others as a result of a major project being "stalled in the ground" by such an inefficient and ineffective protection work dispute resolution system.

229 The purposes and objects of the Building Act reflected in the Parliamentary speeches referred to above would not be achieved by Colonial's "binary" construction of the Building Surveyor's role under s 87 of the Building Act, namely by the Surveyor simply approving or denying successive proposed protection works until an appropriate proposal is submitted.

230 It is therefore most unlikely that s 87(1) of the Building Act was intended to limit the Building Surveyor in the way Colonial contends.

231 The interpretation of the Building Act which I consider better reflects the natural and ordinary meaning of s 87(1) and also better promotes the purposes, objects and schemes of the Building Act is one which affords the relevant building surveyor with the power pursuant to s 87 of the Building Act to determine what are appropriate protection works and does not confine the relevant Building Surveyor to simply adopt or reject the owner's form 3 protection work proposals.

Decision in CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd (Orders)

232 The parties raised in argument the way in which the Board had apparently utilised the above decision in its determination under review.

233 I accept Colonial's submissions that the effect of the Court of Appeal's decision in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd[100] is that the relevant decision below is wholly set aside and is not now either binding nor persuasive.

234 Finally, given that Colonial and CES-Queen dispute the significance of the decision in CES-Queen[101] it is necessary to clarify what I consider the relevance of that decision particularly given it has been the subject of consideration by the Court of Appeal of this court.

235 Although in its determination here the Board recognised that Vickery J's decision was not binding on the Board, the Board nevertheless appears to extract certain parts of his Honour's reasoning as helpful to the Board in its consideration of the meaning of s 87 of the Building Act. Hence it is instructive to briefly summarise the relevant parts of his Honour's reasons, notwithstanding that the decision which they supported has been set aside on appeal.

236 Commencing with the text of s 87(1), in CES-Queen his Honour stresses that the words of this provision "or otherwise" are, in his Honour's view, not words of limitation but contemplate a whole "range of possible courses for the relevant building surveyor in undertaking his or her statutory duty".[102]

237 His Honour refers to s 88(2)(b) of the Building Act, which requires the owner to carry out protection work "if the relevant building surveyor has made a determination under this Part in respect of the protection work, in accordance with that determination". This provision, it is noted, does not limit itself to protection works proposed by the owner and then approved by the Building Surveyor. From this textual and contextual analysis, Vickery J thus infers that the legislative intention of s 87(1) of the Building Act is to provide for whatever the appropriate protection works are, in a reasonably efficient manner, in accordance with the objects of the Building Act.[103] His Honour concludes that to interpret s 87(1) otherwise would be "positively inimical" to that object.[104]

238 I both consider the manner in which the Board utilised Vickery J's above decision, to be appropriate and, with respect, agree with his Honour's observations and reasoning in relation to the intended operation of s 87 of the Building Act.

The Board's operation and powers on appeal in relation to s 87(1) of the Building Act - ss 141, 148 and 149 of the Building Act

239 In this matter, as earlier summarised, CES-Queen argued that if contrary to its primary submissions the relevant Building Surveyor was not empowered to determine what protection works were appropriate, but was constrained to simply approve or reject the owners proposed protection works proposal, the Board on appeal nevertheless was itself empowered to determine the appropriate protection works in the way argued for by CES-Queen.

240 Colonial on the contrary argued that the Board on appeal was confined to exercising the same powers as the authorised Building Surveyor under s 87 of the Building Act.

241 On this issue the third and the fourth defendants argued in support of the construction of the Building Act advanced by CES-Queen.

CES-Queen submissions (Board's operation and powers on appeal in relation to s 87(1) of the Building Act - ss 141, 148 and 149 of the Building Act)

242 CES-Queen submits that the relevant provisions of the Building Act make it clear that even if the Building Surveyor's powers under s 87(1) do not permit the surveyor to approve a modified proposal (which CES-Queen disputes), the powers of the Board are not so confined.[105]

243 CES-Queen points out that the Board is established under s 166 of the 1993 Building Act, and consists of members with a range of qualifications and experiences.[106] Its various administrative appeal, dispute resolution and other regulatory roles are set out in Divisions 1, 3 and 4 of Part 10 of the Act. Pursuant to s 161 of the Building Act, the Board must consider and determine a matter referred or application made to it under the Building Act or any other Act and may make any order that it considers appropriate in the circumstances.

244 CES-Queen in its submissions outlined the provisions of the Building Act which fix the legislative structure in which the Board deals with appeals from the Building Surveyor as follows:

(i) An appeal to the Board from a surveyor's protection work determination lies under s 141(a) of the Building Act. It is pursuant to s 148(a) in the nature of a rehearing. On appeal the Board may consider matters not raised before the surveyor.[107] Further, the Board's appellate powers are in addition to, and do not take away from, its other powers.[108]

(ii) The Board's powers to determine an appeal are set out in s 149(1). On appeal the Board may affirm, quash or vary the decision under appeal, or it may set the decision aside and either substitute its own decision, or remit the decision for reconsideration in accordance with any directions or recommendations that the Board considers appropriate.

(iii) Section 149(2) of the Building Act, confirms that the Board may deploy powers including all the powers of the original decision-maker.

(iv) Pursuant to s 149(4) of the Building Act, the Board is also empowered to "make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal".

(v) Section 161 of the Building Act also imposes an obligation on the Board to decide all matters and applications referred to it and in that regard may make any order that it considers appropriate in the circumstances including under s 155 of the Building Act and any matter arising under Part 7 of the Building Act in respect of which the owner and the adjoining owner do not agree, which either the owner or the adjoining owner refer to the Board.[109]

(vi) The Building Act also provides in Schedule 3, Clause 15(3) that in conducting an appeal or a dispute hearing, the Board must proceed with as little formality and technicality, and with as much expedition, as the requirements of the Act and the proper consideration of the matter permit.

(vii) Schedule 3, Clause 16(8) also provides that the Building Appeals Board is not bound by its earlier determinations.

245 CES-Queen's submission in summary is that the Board may approve or modify a proposal by using its residual protection works dispute resolution power. Specifically at [83]-[86] CES-Queen submit:

(a) Section 155 operates as a basis for residual, or catch-all, jurisdiction in the Board to resolve any disagreement relating to protection work, insofar as the Board does not otherwise have jurisdiction under Part 10 to "deal with" the matter.

(b) Read together, ss 141, 151-155, 159 and 161 evince an unmistakeable intention that the Board would have plenary power to determine all grievances arising from a determination under s 87 or an emergency protection work declaration under s 89, and any other disagreement whatsoever in relation to protection work. That is consistent with the legislative intention both that the Board should operate as a "one-stop shop", and that it should be the dispute resolution mechanism for protection work matters generally, as a cheaper alternative to arbitration.[110]

(c) Thus, if Colonial's confined construction of s 87(1) is upheld, the immediate consequence will be that the Board does not have jurisdiction under s 149 to approve a modified form of protection work. But, as it was plainly intended to do, s 155 could be invoked to fill that gap: the approval of a modified form of protection work, about which the parties have not agreed, would be a matter "that the ... Board does not have jurisdiction to deal with ... under any other provision of [Part 10]"; and, if invoked by either party, s 155 would confer jurisdiction on the Board to deal with that matter, effectively and efficiently.

(d) In practice, whenever uncertainty arises about s 141 appeal jurisdiction, it is commonplace for the Board to invite an applicant to amend its application to invoke s 155 for the avoidance of doubt. That practice accords with the purpose of s 155.

246 CES-Queen also submits, including in the alternative, that the Board may approve a modified protection works proposal through ancillary or incidental orders or by its general power. CES-Queen submit that the Board's powers to make incidental orders, both under s 149(4) and Clause 16(3) of Schedule 3, and its power under s 161 of the Building Act to make any order which it considers appropriate to determine a matter or application, are powers expressly conferred in addition to the powers of the decision-maker which the Board derives under s 149(2). CES-Queen distinguishes the statutory framework established in relation to review under the Administrative Appeals Tribunal Act 1975 (Cth) and under the Victorian Civil and Administrative Tribunal Act 1998.

247 Finally CES-Queen rely upon the decision in Moreland CC v Building Appeals Board[111] in which Beach J (as he then was) held that it was incorrect to interpret s 149 of the Building Act so as to confine the Board to the exercise of a binary power merely to approve or reject an application. His Honour placed significant reliance upon the contrary position indicated by s 149(4) and Clause 16(3) of Schedule 3 of the Building Act.

Third and fourth defendants' submissions (Board's operation and powers on appeal in relation to s 87(1) of the Building Act - ss 141, 148 and 149 of the Building Act)

248 The third and the fourth defendants submit consistently with the position taken by CES-Queen, that in addition to the specific powers on an appeal conferred by s 149(1) of the Building Act, the Board has 'all the powers of a decision-maker in relation to the decision under appeal' as conferred by s 149(2) of the Building Act. Accordingly, on the third and fourth defendants' submissions, the Board has power to 'determine the appropriateness or otherwise' of the proposed protection work under s 87 of the Building Act.

249 The third and fourth defendants reject the binary interpretation of s 87 of the Building Act and Colonial's contention that the powers of the relevant Building Surveyor are restricted to determining whether the owner's proposed protection work proposal is appropriate or not appropriate. In essence, and as outlined above, the third and fourth defendants submit that the language of s 87(1) of the Act and its statutory context and purpose, together with the legislative history of the Act indicate that the intention of Parliament was to empower the Board to determine the appropriateness of proposed protection works including protection works modified from the owner's Form 3 proposal.

Colonial's submissions (Board's operation and powers on appeal in relation to s 87(1) of the Building Act - ss 141, 148 and 149 of the Building Act)

250 Colonial submits that in Part 10 of the Building Act which is concerned with the Board's jurisdiction and powers there is a clear distinction between the Board's appellate or review jurisdiction and its original jurisdiction. Colonial contends that Divisions 1 and 2 deal with the Board's jurisdiction to determine "appeals" and Divisions 3, 4 and 5 deal with the Board's jurisdiction to determine "disputes" and "other proceedings".

251 Colonial points out that in this proceeding the Board's appellate jurisdiction is engaged pursuant to s 141 of the Building Act which is located within Division 1 ("Rights of appeal").

252 Colonial also points out that s 149 of the Building Act is located within Division 2 ("Appeals") and provides for the action which can be taken by the Board on appeal.

253 Colonial submits that ss 155 and 161 do not concern the Board's appellate jurisdiction but rather the Board's original jurisdiction in relation to "Disputes" and "powers concerning disputes and other proceedings", respectively.

254 Colonial submits that s 161 which empowers the Board to determine a "matter" that has been "referred" and in respect thereof to make any orders which it considers appropriate in the circumstances is not engaged when the Board is exercising its appellate jurisdiction under s 141 of the Building Act.

255 It is not contended by CES-Queen, as Colonial points out, that any relevant matter has been referred to the Board pursuant to s 155 of the Building Act.

256 Accordingly Colonial submits that ss 155 and 161 of the Building Act did not empower the Board to make the determinations which it did in relation to BAB4.

257 Colonial also submits that s 149, in particular s 149(4) which authorises the Board to make any "ancillary" or "incidental" orders that it considers necessary to "give effect to its determination on an appeal" and Clause 16(3) of Schedule 3 to the Building Act which provides that the Board's determination may include any other "incidental" orders or directions cannot transform the Board's functions pursuant to s 141(a) of the Act whereunder it is determining an appeal and in that process examining the owner's proposal for protection works to determine whether they are appropriate or not appropriate.

258 Accordingly, Colonial argue that before the Board on appeal it is not open to the Board to modify the owner's protection work proposal pursuant to s 149(4) of the Building Act. Colonial submits that this is because such a modification of the owner's proposal could not be "giving effect to the Board's determination" pursuant to s 149(4) of the Act. Colonial submits that the power to make "ancillary or incidental orders" in the context does not mean "supplementary" but rather servient or subordinate.

259 Further, in relation to CES-Queen's reliance upon Beach J's decision in Moreland CC v Building Appeals Board Colonial submits that CES-Queen's reliance is misplaced because s 149 of the Building Act is ambulatory in its operation. That is, some of the powers exercised in relation to the original decision maker may authorise the imposition of conditions and some may not. In Moreland, the Council as the original decision maker was empowered to give consent to the construction of a building subject to conditions. Therefore the Board also had the power to impose conditions in the exercise of its power under s 149.

260 Colonial submits that on the basis of the distinction explained above Moreland does not support CES-Queen's argument that the "ancillary or incidental" powers authorise the Board to make a determination of a different kind to that which the original decision maker could have made.

Conclusion (Board's operation and powers on appeal in relation to s 87(1) of the Building Act - ss 141, 148 and 149 of the Building Act )

261 Given my conclusions and findings in relation to the relevant Building Surveyor's powers under s 87(1) of the Building Act it is, I consider, unnecessary for me to decide the issue argued by the parties in this proceeding in relation to the extent of the Board's power, per se, in relation to the determination of the proposed protection works in question.

262 This is because, as I have already concluded, s 87(1) of the Building Act empowers the relevant Building Surveyor to determine what protection works are appropriate including a protection works solution which modifies the owner's protection work proposal under s 84 of the Building Act.

263 Accordingly, the Board dealing with an appeal from a relevant Building Surveyor's determination under s 87 of the Act pursuant to ss 141 to 149 of the Building Act is itself clearly empowered to affirm that decision under appeal pursuant to s 149(1)(a) of the Building Act because the Board, amongst other powers, is able to exercise all the powers of the decision maker, here the relevant Building Surveyor pursuant to s 87 of the Building Act.

Ground 3 (Errors relating to Building Regulation 607)

Colonial's submissions - Ground 3 (Errors relating to Building Regulation 607)

264 Colonial asserts jurisdictional error or error of law on the face of the record on the part of the Board with respect to Building Regulation 607. Building Regulation 607 provides as follows:

(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.

(2) The relevant building surveyor may exempt minor demolition work from the requirements of sub-regulation (1) if the relevant building surveyor is of the opinion that the nature of the demolition work does not warrant those measures.

265 Colonial's submissions in connection with Building Regulation 607 are that the Board failed to consider certain Colonial submissions, namely that having regard to the approach earlier taken in the BAB2 appeal it was premature for the Board to determine that the owner's proposed protection works were appropriate, and Colonial's submission that CES-Queen had not established compliance with Building Regulation 607.

266 Colonial also argues under Ground 3 that the Board failed to give adequate reasons for rejecting Colonial's above arguments, if it did in fact consider Colonial's submissions, and further if the Board did consider Colonial's submissions but rejected them because it considered that CES-Queen had complied with Building Regulation 607, the Board was wrong to so conclude.

267 Colonial points out that Building Regulation 607 relevantly states that precautions must be taken before and during demolition in accordance with AS 2601-2001 (relating to the demolition of structures). Building Regulation 607(1) also stipulates that demolition must not be commenced until precautionary measures have been inspected and approved by the relevant building surveyor.

268 Colonial also submits that its contentions are based on the correctness of the approach previously adopted by the Board itself in the BAB2 appeal, as explained by the Court of Appeal in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd.[112] Colonial submits that as a matter of principle as well as comity, the Board in the BAB4 appeal should have taken the same approach as did the Board in the BAB2 appeal.

269 Colonial submits that until it is known how a building will be demolished it is premature for the Board to determine the protection work measures required. Colonial expands this submission by contending that the precautions to be taken under Building Regulation 607 may illuminate whether proposed protection work is lacking in some material respect, and therefore until such precautions are known, it is premature to determine the appropriateness of proposed protection work measures.

270 Colonial submits that the Board failed to deal, either expressly or impliedly, with Colonial's arguments concerning it being premature for the Board to determine protection work measures before the precautions required to be taken under Building Regulation 607 'are known'. Colonial supports its argument by noting that the Board failed to refer to Colonial's submissions on this point.

271 Colonial also submits that the Board erred in that it:

(a) did not find that compliance with Building Regulation 607 had been established; and

(b) did not explain, in those circumstances, why it should not (either as a matter of comity or principle) adopt the same approach as it adopted in the BAB2 appeal, and determine that the protection work proposed by CES-Queen was not appropriate.[113]

272 Colonial argues that the Board's failure to consider its submission in relation to this issue, which were worthy of serious consideration, amounts to a jurisdictional error by the Board.

273 Colonial cites Dennis Willcox Pty Ltd v Federal Commissioner of Taxation,[114] a decision in which the Full Court of the Federal Court of Australia characterised a failure by the Administrative Appeals Tribunal to consider a submission "worthy of serious consideration" as a failure to "carry out the duty to consider and determine each question of law and fact relevant to the determination".

274 Colonial also relies upon the decision Dranichnikov v Minister for Immigration and Multicultural Affairs,[115] in which the High Court of Australia characterised a failure by the Tribunal to respond to "a substantial, clearly articulated argument relying upon established facts" as both a failure to accord the party procedural fairness, and a "constructive failure to exercise its jurisdiction".[116]

275 Colonial points out that the above authorities have been considered and applied by this Court. For example, in XYZ v State Trustees Ltd,[117] Cavanough J held that a "failure by a Tribunal to address in its reasons a submission which is worthy of serious consideration and is seriously advanced to the tribunal" may amount to an error of law. In Aitken v State of Victoria,[118] Colonial notes that the Court of Appeal of this Court approved XYZ, observing that "[t]he failure of a ... tribunal to consider a substantial submission may amount to an error of law".

276 Alternatively, Colonial submits that the Board failed to give adequate reason explaining how it dealt with the submissions which Colonial contends were ignored or inadequately treated on the issue of compliance with Building Regulation 607.

277 Clause 16(5) of the Schedule 3 of the Building Act provides that the Board must give a party 'written reasons for its determination'. That obligation is conditional upon a party requesting the Board to do so. However, in this instance that condition was satisfied because on 24 May 2016 Colonial exercised its right to require a statement of reasons from the Board pursuant to clause 16(5) of Schedule 3 of the Act. The Board furnished reasons by reference to its earlier BAB4 appeal determination.[119]

278 Colonial submits that any written reasons for a determination of the Board should 'reveal the path of reasoning of the Board or its decision'[120]. Colonial submits, more particularly, that the standard of reasons required of a written statement of reasons sufficient to fulfil the duty imposed on the Board is in substance that those reasons set out the actual path of reasoning by which the Board arrived at its opinion and that any such statement is adequate to enable a court to ascertain whether its opinion does or does not involve an error of law.[121]

279 Colonial submits that in this instance it simply does not understand how the decision 'went against it' on the Building Regulation 607 issue.

280 Accordingly, Colonial submits that the Board has made one of two vitiating errors. Either the Board failed to consider Colonial's submissions, and thereby fell into jurisdictional error in the nature of either a constructive failure to exercise jurisdiction or a failure to afford procedural fairness.

281 Alternatively, Colonial argues that if the Board did in fact consider Colonial's submission, then it did not explain how it dealt with those submissions, in which case the inadequacy of its statement of reasons amounts to an error of law on the face of the record.

282 Colonial submits that on either of the above bases the court should grant a writ in the nature of certiorari to remove the legal effect of the decision.

283 Further or alternatively, Colonial submits that the Board erred in concluding that compliance with Building Regulation 607 had been established.

284 Colonial contends that if the Board in fact concluded that there had been compliance with Building Regulation 607, it did so without any basis. Colonial submits that there was no evidence before the Board to establish compliance with Building Regulation 607, and in particular no evidence that the Surveyor had:

(a) inspected and approved precautionary measures under Building Regulation 607(1)(a); or

(b) characterised the demolition work as 'minor demolition work', and thereby exempted it from the requirements of Building Regulation 607(1).

285 Further, Colonial points out that the Board only has jurisdiction with respect to a decision by the Surveyor as to whether or not to approve precautionary measures under Building Regulation 607, or a failure by the Surveyor to make such a decision.

286 Colonial submits that CES-Queen would have needed to appeal to the Board under s 144 of the Building Act in relation to such a decision, however, CES-Queen initiated no such appeal. Accordingly, if it be the case that the Board in fact considered Colonial's submissions (which Colonial refutes), and dealt with such submissions by concluding that Building Regulation 607 had been complied with (which Colonial also refutes), it was not open to the Board to reach that conclusion because there was no evidence before the Board that the Surveyor had approved precautionary measures under Building Regulation 607(1)(a).

287 Colonial asserts that CES-Queen's position is always evolving and that it now contends that it has demonstrated it would comply 'prospectively' with Building Regulation 607.

288 Colonial also notes in its submission of 10 October 2016 [19] that CES-Queen did not respond to Colonial's submissions (at [31]) of its earlier submissions) concerning the calculation of loading on suspended floors in accordance with [3.4.3.3(b)] of AS 2601-2001.

289 Colonial's submits that it would be "preferable (at least in certain cases) for the Board not to determine the appropriate protection works required as precautionary to demolition work until compliance with Building Regulation 607 had been established".[122] Colonial cites as an example of the precautions to be taken before protection work is determined, the abovementioned calculation of loadings on suspended floors in accordance with [3.4.3.3(b)] of AS2601-2001 following a proper investigation of the structure as required by [2.2.2] of the Australian Standard.

290 Colonial submits that a proper investigation should include a physical investigation. Colonial submits that an understanding of the details of the relevant structure will influence the selection of demolition procedures. Colonial adds that the floor loading advice dated 7 June 2013,[123] and the ultimate revision of the demolition management plans,[124] were each prepared before any report pursuant to [2.2.2] of the Australian Standard was available on about 3 March 2014.[125] Colonial also notes that this report under [2.2.2] of the Australian Standard does not deal with any of the matters referred to in [2.2.2(a)-(g)] of the Australian Standard, nor does it refer to any physical investigations of the type referred to in Note 1 thereof.[126]

291 Colonial submits that the floor loading advice is therefore theoretical having been prepared without a proper investigation of the structure. Colonial submits that as a consequence the requirements of [3.4.3.3(b)] of the Australian Standard[127] have not been met and that it is not possible to conclude that the proposed method of demolition will be in accordance with the general precaution referred to at [3.1.3] of the Australian Standard.[128]

292 Colonial submits that CES-Queen's submissions are inconsistent in that in BAB2 CES-Queen submitted that the Board was wrong because compliance with Building Regulation 607 can only occur after protection work has been determined, whereas CES-Queen has submitted in BAB4 that it has established compliance with Building Regulation 607 before the determination of the relevant protection works.

293 Colonial refutes CES-Queen's submission that compliance with Building Regulation 607 can only be established after protection works have been determined because an owner could not construct a "precaution" for the purpose of Building Regulation 607 without the Surveyor having first determined protection works for that "precaution". Colonial however contends that "protection works" in relation to the "precaution" themselves would only be required if the Surveyor required such work under Building Regulation 602, which has not occurred in this instance.

294 In relation to CES-Queen's submission that it has established compliance with Building Regulation 607, Colonial submits that cannot be correct because CES-Queen relies on the Demotion Management Plan, however that plan merely contemplated that AS 2601-2001 would be complied with. It did not establish that the requirements of AS 2601-2001 had in fact been complied with. Further, Colonial submits that CES-Queen did not adduce any evidence that the Surveyor had inspected and approved the precautions in accordance with the requirements of Building Regulation 607(1).

295 Finally, as earlier outlined, Colonial contends that the Board did not itself have jurisdiction to inspect and approve the precautionary measures under Building Regulation 607(1). Colonial contends that was a function for the Surveyor and further points out that no appeal was made to the Board under s 144 of the Building Act in respect of any approval, or failure to make such approval, on the part of the Surveyor.

296 Colonial asserts that the Board could not logically have considered that compliance with Building Regulation 607 had been established because it affirmed the determination of Building Surveyor Akritidis, which determination itself stated that precautions in accordance with AS 2601-2001 were to be implemented, and not that they had been implemented.[129]

CES-Queen's Submissions - Ground 3 (Errors relating to Building Regulation 607)

297 CES-Queen submits that the Board was not obliged to consider the issue of whether it was premature for the Board to determine the appropriateness of protection work for adjoining properties when compliance with Building Regulation 607 has not been established.[130]

298 CES-Queen submits that the decision of the Court of Appeal of this Court in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd did not express any relevant view as to whether the Board in BAB2 was correct in relation to Building Regulation 607, and its relationship with s 87 of the Building Act.

299 CES-Queen's submission is that the determination of the Board in BAB4 is unambiguous. In that decision the Board, in the exercise of its power under s 149(1)(a) of the Building Act, affirmed the Akritidis determinations, namely those of 4 May 2015.[131] The overall substance and purport of the Board's determination, on CES-Queen's submission, is that the protection work embodied in the Akritidis determinations was appropriate.[132]

300 Further, CES-Queen seeks to explain the way in which the Board reasoned towards its result in BAB4, including by:

(a) acknowledging that the Board was not bound by the decision in CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd,[133] however it appears to accept the reasoning of Vickery J in that decision where his Honour stated that:

In relation to demolition r 607, which is a component of the statutory scheme, is also something which the relevant building surveyor, and on any appeal the board, would be required to take into account when considering the appropriateness of protection work.

(b) highlighting a number of instances where the Board expressed the view that Colonial's proposed alternative methods of work in relation to demolition which in the Board's view, were not appropriate;[134]

(c) highlighting instances where the Board referred to, and quoted from, clause 1.4 of AS 2601-2001 Demolition of Structures, and acknowledged the extensive written and oral material regarding proposed demolition plans which it had received and which it had inspected.[135]

301 CES-Queen submits that the matters referred to above and in particular those at [99](a)-(i) of CES-Queen's submissions dated 23 August 2016, demonstrate that the Board in its reasons for determination in BAB4 'had in mind' the matters comprehended under Building Regulation 607 and in so doing adopted an approach generally consistent with that adopted by the Board in its disposition of the BAB2 appeal.

302 In particular, CES-Queen also refers to the Board's finding that Colonial was unable to demonstrate its alternative works methods would achieve a level of safety not less than the industry standard method documented in the Delta Demolition Management Plan and Delta's proposed work. CES-Queen submits that this evidence is independently capable of sustaining a finding that there had been compliance with Building Regulation 607.

303 At [101] of CES-Queen's submissions of 23 August 2016 it contends that its submissions in Exhibit "ACM-340" of the Moschoyiannis affidavit, sworn 3 August 2016 (directed to the effect of the Court of Appeal decision in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd[136] and the impact of Building Regulation 607) demonstrate that there is no merit in any of the issues raised by Colonial in Ground 3. That affidavit attached CES-Queen's submissions dated 22 February 2016 which argued firstly, that the decision by the Court of Appeal does not stand for any general proposition in relation to the operation of Building Regulation 607 because in that decision the task identified by the Court was limited to ascertaining whether the BAB2 determination was sufficiently certain. Those submissions also argued that, in any event, CES-Queen had adduced before the Board highly detailed evidence, including the evidence of Mr Slade, Mr Nisbet, Mr Hatzimouratis, Mr Luzinat and Mr Akritidis, that established compliance with Building Regulation 607, and further that none on Colonial's witnesses before the Board had expressed any issue with the proposed measures.

304 CES-Queen also submits that Colonial's argument that it was necessary for CES-Queen to appeal 'a determination' of the Surveyor under Building Regulation 607 is flawed because the 'RBS (Surveyor) has no such function'.

305 CES-Queen argues that the Building Surveyor's obligation under Building Regulation 607(1) is absolute, namely, precautions must be taken in accordance with AS 2601-2001 and when such precautions are actually being implemented the required preconditions must be satisfied. CES-Queen contends that this happened at a later point in time. CES-Queen also again points out that detailed evidence was adduced and addressed before the Board in relation to the issue of compliance by CES-Queen with Building Regulation 607, in particular through the evidence of Mr Hatzimouratis, and that evidence was not the subject of any challenge by Colonial, including by way of cross-examination.[137]

306 CES-Queen argues that Colonial has ignored the reality of what occurred at the BAB4 hearing before the Board, namely, in summary, that:

(a) Mr Landewee, consultant engineer, on behalf of Colonial initially raised the issue of compliance with Building Regulation 607;

(b) in response to this non-compliance issue concerning Building Regulation 607 (raised by Colonial's expert witness), CES-Queen adduced a large body of expert evidence demonstrating compliance with Building Regulation 607. Such evidence included evidence focusing on the appropriateness of the demolition methodology put forward by Colonial, and demonstrating CES-Queen's compliance with AS 2601-2001; and

(c) Building Surveyor Akritidis' evidence to the Board addressing CES-Queen's compliance with Building Regulation 607, including as to the appropriateness of the proposed demolition methodology and the Demolition Management Plan and compliance with AS 2601-2001.[138]

307 CES-Queen also points out that Colonial's independent structural engineer in substance conceded in cross-examination that CES-Queen's contractors' Demolition Management Plan complied with normal industry standards and satisfied all requirements.[139]

308 Further, CES-Queen points out that it provided submissions as to how the Board should approach the issue of compliance with the requirements of Building Regulation 607 and in particular by reference to the evidence of Mr Hatzimouratis.[140]

309 CES-Queen also submits that critically, Colonial did not in cross-examination challenge Mr Hatzimouratis' evidence.[141]

310 On the basis of the position taken by Colonial in relation to Mr Hatzimouratis' evidence at the hearing before the Board, where Colonial observed and acknowledged that, having considered what were the principal issues on appeal before the Board, it elected not to cross-examine Mr Hatzimouratis on his evidence in chief; evidence which in substantial part related to CES-Queen's compliance with requirements of Building Regulation 607.[142] CES-Queen now contends on this appeal that Colonial cannot now legitimately pursue Ground 3 of its appeal.

311 CES-Queen also submits that the Board's reasons, disclose "... a path of reasoning in relation to whether CES-Queen had demonstrated that in the carrying out of protection work it would comply prospectively with Building Regulation 607", and in particular CES-Queen submits that the Board in its decision:

(a) acknowledged that the passages of Vickery J's judgment in CES-Queen[143] were not binding upon it, however the Board cited with acceptance his Honour's statements in relation to the Building Regulations, including 607;[144]

(b) noted in relation to deciding what was appropriate pursuant to s 87 of the Building Act, that the Surveyor should have regard to the statutory scheme of the Building Act, including the importance of protecting the safety of workers and members of the public;[145]

(c) at [55] noted the extensive written and oral material regarding the proposed demolition plan addressed during the parties' appeal before the Board. Further the Board noted that it had conducted an onsite inspection of both the owner's building and the adjoining owner's property;[146]

(d) CES-Queen in its written submission of 3 October 2016, [30(d)-(j)], highlights that the Board accepted CES-Queen's Demolition Management Plan as appropriate (Board determination [56]) and by contrast found that Colonial was unable to demonstrate that Colonial's alternative demolition protection works would be sufficiently safe;[147]

(e) was highly critical of the evidence given, and approach adopted, by Mr Landewee, Colonial's expert.[148] The Board preferred and accepted CES-Queen's expert evidence, and ultimately concluded that Colonial's proposed demolition method was 'very unusual' and would be 'unsafe' and was 'inappropriate to use'.[149]

312 Further, CES-Queen notes in its submissions that the Board in its Determination at [59] also cited part of AS 2601-2001, Clause 1.4 which is expressly called up in Building Regulation 607(1).

313 CES-Queen's submission, drawing on the matters referred to above, is that the Board's reasoning in its determination of 28 April 2016 had in mind relevant matters under the Building Regulations and the Board also adopted an approach which was generally consistent with that adopted by the Board in its disposition in the BAB2 appeal.[150]

314 CES-Queen submits that "at a practical level" the Board's determination, on a fair reading, discloses that the Board was clearly engaged with the questions of how CES-Queen proposed to do the work and how that work would comply, in a prospective way, with Building Regulation 607, including in particular the requirements of AS 2601-2001. CES-Queen submits that the Board was plainly satisfied that to the extent necessary to determine the question of compliance with Building Regulation 607, CES-Queen had demonstrated that its proposal for the demolition of the existing building was appropriate.

Procedural issues in relation to Building Regulation 607

315 As mentioned above, CES-Queen argues that Colonial did not cross-examine Mr Hatzimouratis, the demolition contractor, as to how his organisation proposed to comply with Building Regulation 607, and that Colonial therefore cannot now pursue Ground 3.[151]

316 Colonial in response submits that the argument advanced by CES-Queen in the last preceding paragraph is a new argument and is filed without leave. Colonial submits that fairness dictates that submissions filed without leave should be ignored.

317 Colonial also submits that it would be subjected to "unfairness" if CES-Queen's submissions on this point were considered, and further submits that such "unfairness" would be particularly acute because Colonial's reply submissions were, by direction, limited to one page for each ground.

318 I consider however that I should receive and deal with all of Colonial's arguments in relation to Ground 3 of its appeal notwithstanding CES-Queen's assertion that Colonial's arguments as to, in particular, the evidence establishing compliance with Building Regulation 607 should not be permissible, as a result of Colonial's failure before the Board to cross-examine CES-Queen's key witness (Mr Hatzimouratis) who addressed, amongst other matters, CES-Queen's compliance with Building Regulation 607.

319 In my view it is appropriate to take into account all of Colonial's argument in relation to Ground 3 because it appears that before the Board Colonial was arguing, as it does now, that because of the nature of the proceedings before the Board, the Board was not empowered to deal with questions of compliance with Building Regulation 607[152] and also because CES-Queen in this appeal pointed to no specific prejudice which it would suffer in the event Colonial was now permitted to pursue its Building Regulation 607 non-compliance arguments.

320 I reject Colonial's submissions that CES-Queen should not be permitted to argue its compliance with Building Regulation 607 in part on the basis of evidence before the Board. CES-Queen refers to these evidentiary compliance arguments in its written submissions of 3 October 2016, [29]. Colonial was in a position to substantially reply in its submissions of 10 October 2016 but did not do so.

321 If indeed the above evidentiary argument by CES-Queen was in Colonial's view significant and able to be refuted by Colonial, it should have dealt with Colonial's response to that point in its reply submissions, albeit in a concise way supplemented by footnote references to relevant material before the Board which explained or answered this point. Colonial could also have sought leave to file any necessary further submission.

322 Furthermore, at trial CES-Queen submitted,[153] "I should mention that Mr Hatzimouratis, being the proponent of the demolition plan, wasn't even cross-examined by our learned friends. So, insofar as there are assertions from the Bar table as to problems with the demolition plan this morning, which I understand my learned friend has got instructions about, none of that was put to Mr Hatzimouratis." In my view this statement by CES-Queen's Senior Counsel also notified and legitimately enlivened this issue and afforded Colonial adequate time in which to advance its response.

323 I regard as relevant and significant CES-Queen's evidence before the Board of its compliance with Building Regulation 607 and also Mr Akritidis' evidence on the same issue.

324 Accordingly, I have taken into account the matters referred to at [29] of CES-Queen's submissions dated 3 October 2016 and raised in argument by CES-Queen at trial.[154]

325 In its submissions of 10 October 2016 [16], Colonial also contends that CES-Queen in its closing submission to the court did not press its arguments that:

(a) the Board was wrong in BAB2 because compliance with Building Regulation 607 can only occur after protection work has been determined;

(b) that CES-Queen had in fact established compliance with Building Regulation 607.

326 I also reject those contentions by Colonial on the basis of what was in fact argued by CES-Queen in this appeal.[155]

Conclusion - Ground 3 (Errors relating to Building Regulation 607)

327 I reject Colonial's arguments that the Board erred in various respects in ultimately determining to uphold the Building Surveyor's determination in relation to his exercise of power under Building Regulation 607 of the Building Regulations, for the following reasons.

328 Sections 148 and 149(1) of the Building Act broadly empowers the Board to determine a matter on appeal from the Building Surveyor, and to do so:

(a) taking into account matters not raised or presented to the Building Surveyor;

(b) departing, as the Board sees fit, from any previous decision of the Board.[156]

329 The Board in this matter had before it extensive evidence, including expert evidence as to compliance with Building Regulation 607, and as to compliance with Australian Standard AS 2601-2001.[157]

330 The evidence before the Board included the evidence of Building Surveyor Akritidis in relation to compliance in Building Regulation 607, which was to the effect that CES-Queen and Delta Demolition's demolition methodology and the Demolition Management Plan complied with normal industry standards in all required respects.[158]

331 At the hearing before the Board, Colonial did not challenge CES-Queen's evidence that Building Regulation 607 had been complied with.[159]

332 I am unpersuaded that in the circumstances of these proceedings the Board's earlier determination in BAB2 on 30 June 2014 gives rise to any material inconsistency or lack of comity.

333 In BAB2 the Board decided, in those circumstances, that particular proposed protection work could not be categorised as appropriate where compliance with the requirements of Building Regulation 607 had not been established. The situation was different.

334 Here the Board was considering a different building and different precautions and protection works and also had itself conducted an onsite inspection of the building and adjoining property[160] and after hearing extensive expert and other evidence, and the parties submissions on the matter. So informed the Board decided that the relevant protection works precautions were in accordance with AS 2601-2001 and Building Regulation 607(1)[161] and were appropriate pursuant to s 87(1) of the Building Act.

335 In my view the Board, pursuant to ss 141 and 149 of the Building Act, as outlined below, had jurisdiction to consider the appropriateness of the relevant protection works determined by the Building Surveyor under s 87 of the Building Act, and as a component of that subject matter and determination, the question of CES-Queen's compliance with Building Regulation 607. As such I consider that the factually based compliance aspects of the Board's determination in relation to CES-Queen's compliance with Building Regulation 607, even if factually erroneous, which I reject, are not errors of law, given that, for reasons I have explained below, because the Board has acted within jurisdiction, and its determinations in these respects are therefore unassailable.

336 Furthermore, even if the earlier decision in BAB2 was analogous or otherwise applicable to this particular set of facts and circumstances, which I do not accept, the Board was specifically empowered to depart from the BAB2 Determination.[162]

337 Further, the Board, as it was entitled to do, adopted the reasoning in CES-Queen,[163] while appropriately recognising that it was not bound by that decision as a result of it being overturned by the Victorian Court of Appeal.

338 The statements of the Court of Appeal in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd[164] making an observation related to its understanding of the reasons of the Board concerning a determination of the Board in relation to Building Regulation 607, are in substance the Court's construction of the Board's opinion and are, I consider, not in the nature of a finding by the Court of Appeal as to whether the position apparently adopted by the Board in relation to Building Regulation 607 and its relationship to s 87 of the Building Act was correct,[165] nor in the nature of a decision of the Court of Appeal as to the proper construction of s 87(1) and Building Regulation 607. Accordingly, that decision is not in any respect binding in relation to the issues in this proceeding for those same reasons. In any event in these proceedings, as I have outlined, the Board has as a matter of fact found compliance with the requirements of Building Regulation 607(1).

339 Further, as I have already noted, the Board in its deliberations inspected the subject building, in addition to receiving evidence and submissions.[166]

340 The Board also specifically considered clause 1.4 of Australian Standard AS 2601-2001 Demolition of Structures, as called up by Building Regulation 607(1).[167] Further, in specifically referring to the evidence of witnesses who addressed relevant compliance with AS 2601-2001 the Board referenced a bases for its satisfaction that AS 2601-2001 requirements were satisfied. Those references when read together with the Board' statements in its reasons [59] (reference to AS 2601-2001), and the Board's acceptance of CES-Queen's expert evidence in relation to CES-Queen's demolition plan, which included Mr Hatzimouratis' and Mr Slade's evidence, (Reasons, [56]); the rejection of Colonial's demolition method, and its supportive expert evidence (Reasons, [63] and [64] which included the evidence of Mr Hatzimouratis, 3 September 2015 [CB1713 and following including at [24] and Items 26, 27, 28 and 29 of his response to Mr Landewee] and the Delta Demolition Management Plan CB1771 and following); the Board's decision that CES-Queen's Delta Demolition Management Plan was appropriate (Reasons, [65(c)] and [67]) and the Board's determination that the protection works determined by the relevant Building Surveyor were appropriate (Reasons, [67] and [72]), provided ample factual bases for the Board's Determination as to compliance of CES-Queen's demolition related precautions under Building Regulation 607 which I am not persuaded gave rise to any error of law.

341 The Board in considering the demolition plan and compliance with Building Regulation 607 was not satisfied with the Colonial alternative works methods and was unaccepting of Colonial's expert Mr Landewee.[168]

342 I am satisfied on the above bases that the Board considered Colonial's evidence and submissions in relation to the Building Surveyor's determination pursuant to s 87(1) of the Building Act, in which the issue of compliance with Building Regulation 607 was submitted and both specifically considered the question of CES-Queen's protection works proposals and its satisfaction of Building Regulation 607 and in conjunction with those considerations also considered the requirements of AS 2601-2001 as specifically argued in the evidence cited above. In all necessary respects the Board concluded, as it had the power to do under ss 141 and 149 of the Building Act, that the relevant Building Surveyor's determination that CES-Queen's protection works were appropriate under s 87 of the Building Act, including that CES-Queen had satisfied the requirements of Building Regulation 607 and that the Building Surveyor's determination in that regard should be affirmed.

343 Pursuant to the Board's powers under s 87, s 148(1) and (2) and s 149(1)(d)(i) and s 149(2) the Board was in determining the above, empowered to:

(a) re-hear the subject matter, and [s 148(1)],

(b) consider matters not raised before the Building Surveyor [s 148(2)], and

(c) substitute its own decision for the Building Surveyor's decision [s 149(1)(d)(i)], and

(d) exercise all its powers, including all the powers of the Building Surveyor under s 87(1) and Building Regulation 607 [s 149(2)], and

(e) make a determination which departed from a relevant determination made earlier by the Board.[169]

344 Here, in the manner outlined above the Board, addressing the appropriateness of the protection works determined by the Building Surveyor, including compliance with Building Regulation 607(1) pursuant to its broad powers under Part 10, Division 2 of the Building Act, was empowered to stand in as Building Surveyor and, by way of a rehearing, evaluate compliance.

345 The Board's above determinations under s 87 of the Building Act and in relation to Building Regulation 607, were for the above reasons made within power. Accordingly, Colonial's suggestion that the Board has failed to satisfy itself, for example, as to satisfactory calculation in relation to floor loadings on suspended floors in accordance with AS 2601-2001 [3.4.3.3(b)] and in relation to an investigation of the structure, and the like[170] do not give rise to any material error of jurisdiction or law.

The Board's power to deal with Building Regulation 607

346 I also reject Colonial's argument that because of the nature of this appeal the Board is deprived, by reason of s 144 of the Building Act, of power to permit it to address compliance with Building Regulation 607.

347 Section 141(a) of the Building Act provides for the owner, who is required to carry out protection work (or an adjoining owner), to appeal to the Board against a determination by the Building Surveyor under s 87 of the Act as to the appropriateness of that work.

348 Section 144 of the Building Act provides, in part, that the owner of the building or land who requires a determination to be made, or an approval to be given, or a discretion to be exercised, may appeal to the Board against that determination.

349 Section 148 of the Building Act provides in respect of all appeals under Part 10, Division 1 of the Building Act that on appeal to the Board, the Board may consider matters not raised before the decision under appeal.

350 Section 149 of the Building Act provides that in respect of all appeals the Board may affirm, quash, vary or set aside and substitute its own decision or remit to the original decision maker.

351 The Building Act, Schedule 3, Clause 16(8) provides that the Board is not bound by its earlier determinations.

352 Here the Board heard and determined Colonial's appeal against the Akritidis determinations made on 28 April 2016, in relation to BAB4, under s 149(1)(a) of the Building Act.

353 The Akritidis determination under challenge included the Building Surveyor's approval of the precautionary measures pursuant to Building Regulation 607(1)(a) of the Building Regulations.

354 Further, Colonial made submissions to the Board on its appeal in relation to compliance with, and the approach which should be taken by the Board to, Building Regulation 607. Before the Board, Colonial, inter alia argued that Building Regulation 607 had not been complied with by CES-Queen.

355 I consider that because Colonial's challenge to the Building Surveyor's determination under s 87 in this proceeding included Colonial's challenge to the Building Surveyor's approval of the requirements of Building Regulation 607 by Building Surveyor Akritidis on 4 May 2015, and further because, before the Board, both Colonial and CES-Queen had proposed an acceptable protection works regime, including in respect of compliance with Building Regulation 607, the Board, was pursuant to s 141(a) of the Building Act, entitled to hear and determine issues, including in relation to CES-Queen's compliance with Building Regulation 607.

356 The Board was also, for the above reasons, empowered to deal with Colonial's appeal under s 149 of the Building Act, including in relation to Building Surveyor Akritidis' acceptance as part of his s 87(1) determination that Building Regulation 607 was satisfied in relation to precautionary measures, to the extent necessary. I note that the adequacy of those precautionary matters was the subject of considerable evidence and submissions before the Board.[171]

357 Further, I consider that because the Board was, as explained above, seized of all issues concerning the appropriateness of CES-Queen's proposed protection works, including necessary precautions required under the Building Regulations, and also because, pursuant to s 148 and s 149(1) and (2) of the Building Act, the Board can in effect "stand in the shoes" of the Building Surveyor, and in the process of addressing an appeal of the type under consideration, conduct a re-hearing, I consider that under the Building Act the Board was entitled as part of that appeal to hear and consider whether, inter alia, CES-Queen had satisfied the precautionary measures required under Building Regulation 607.

358 For the above reasons I do not accept Colonial's submission that because CES-Queen did not appeal the Building Surveyor's determination under s 144 of the Building Act the Board cannot now review any decision of the Building Surveyor under Building Regulation 607 or exercise the Building Surveyor's power under Building Regulation 607.[172]

359 Similarly, the Board did not in my view fail to afford Colonial's submission serious consideration or fail to sufficiently expose its path of reasoning in its determination dated 28 April 2016.

360 The Board at [55] to [67] of its Reasons (CB3272-3274) in my view sufficiently reveals and explains:

(a) that the Board rejected Colonial's alternative protection works proposals;

(b) that the Board had received extensive evidence in relation to the precautions for the demolition at 150 Queen Street and it considered and inspected and approved those works, including precautionary measures, after an extensive hearing about the suitability and adequacy of those protection works and precautionary measures including from expert witnesses, [55], [56], [57], [63] and [64];

(c) that the Board noted the requirements of part of AS 2601-2001 [59]. The expert evidence before the Board and the evidence of Mr Hatzimouratis dated 3 September 2015 [CB1713 and following], and the statement of Mr Andrew Slade dated 2 September 2016, CB1316 and following, including [17], [18]-[31]] addressed compliance with AS 2601-2001 as referred in detail above;

(d) that the Board addressed evidence dealing with specific demolition plans, [55], [62] to [65];

(e) that the Board had before it evidence which addressed compliance with the requirements of Building Regulation 607.[173]

361 Colonial, by a reasonable reading of the above determination, in my view, knew why it had failed before the Board.

362 For the above reasons I reject Ground 3 of Colonial's Amended Originating Motion.

The Building Surveyor's obligation to give reasons

363 On an issue not raised in Colonial's Amended Notice of Appeal, and not argued during the hearing of this appeal, however subsequent to the hearing of the appeal, by exchange of written submissions the parties argued the issue of whether the Building Surveyor is required to give reasons for a determination made under s 87(1) of the Building Act.

364 The origin of the issue was that by its post hearing submissions dated 2 November 2016 at [1] Colonial argued that the parties contention at trial that the Building Surveyor is not required to give reasons for his or her determination was incorrect. In Colonial's 2 November 2016 submissions, Colonial submitted that the Building Surveyor is required to give reasons for his or her determination.

365 The background to Colonial's above position was that CES-Queen had somewhat obliquely raised the issue of the arguable contradiction to Colonial's observations about the process by which the Building Surveyor might acquaint the owner with what changes it might make to an unsuccessful protection works application under ss 84-87 of the Act. The contradiction identified by CES-Queen was that Colonial's observations assumed that in relation to his or her functions under s 87 the Building Surveyor would furnish reasons, whereas the Building Act made no provision for reasons to be given by the Building Surveyor.[174]

366 Colonial in its submissions responds to CES-Queen's criticisms of Colonial for not explaining how the evidence or any obligation to give reasons supports a binary construction of s 87 of the Building Act by submitting that this argument is unjustified because "Colonial confined its submissions to the grant of leave, which was limited to whether the Surveyor is or can be obliged to give reasons".[175] Colonial also contends that here no reasons were sought from the Building Surveyor in response to the third and fourth defendants submissions, that the real question is the ability to request reasons, rather than an actual request for reasons, which assists in the proper construction of s 87 of the Building Act.[176]

367 Colonial submits that, if an owner, or adjoining owner, request reasons for determination from the Building Surveyor, then the Building Surveyor must give reasons.[177] In support of this proposition Colonial first cites s 8(1) of the Administrative Law Act, which provides: "A tribunal shall, if requested to do so by any person affected by a decision made, or to be made by it, furnish him with a statement of its reasons for the decision."

368 Colonial argues that because a determination made under s 87(1) is a "decision" within the meaning of s 2 of the Administrative Law Act, and because both the owner and adjoining owner are "persons affected" within the meaning of the same provision, the real question becomes whether the Surveyor is a "tribunal".[178]

369 Colonial's submissions point out that s 2 of the Administrative Law Act defines a tribunal (with exceptions, including courts and Royal Commissions) as "a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice".

370 Colonial submits that the two rules of natural justice which a tribunal is required to observe are the hearing rule and the bias rule.[179] Colonial submits that only "plain words of necessary intendment" could exclude the operation of a rule of natural justice.[180] Since no rules of natural justice have been excluded, there being no relevant words of necessary intendment to show otherwise, Colonial asserts that the Building Surveyor must observe those rules and, as a result, by operation of the Administrative Law Act as outlined above, the Building Surveyor is a "tribunal" within the statutory meaning, and thereby a determination maker who must therefore give written reasons for his or her determinations, at least when so requested.

371 Colonial relies upon the reasons of Kyrou J (as he then was), in CECA Institute Pty Ltd v Australian Council for Private Education and Training[181] to the effect that as long as the power exercised is governmental in nature, then a public power is being exercised which is subject to the rules of natural justice.[182]

372 Colonial submits that the provisions of the ss 76, 77, 78, 79, 81 and 179 of the Building Act "do not exhaustively codify the requirements of the natural justice bias rule", and hence are insufficient to exclude the bias rule.[183] Moreover, Colonial submits the bias rule does not have a fixed content at common law, for which reason it would not, in any event, be possible to codify the bias rule.[184]

373 In Colonial's closing submissions in reply dated 10 October 2016 it contends that it is not Colonial's case that the Surveyor could engage with an owner informally to discuss recommended changes to the proposed protection works. Colonial submits that the Surveyor would provide reasons (particularly if requested) to explain why proposed protection works were not appropriate. This would not undermine the Surveyor's independence or involve a breach of s 79 of the Building Act.

374 As referred to above, by its submissions dated 2 November 2016 Colonial submitted that at trial the parties contended that the Surveyor is not required to give reasons for a determination made under s 87(1) of the Building Act.

375 In Colonial's submissions of 2 November 2016, at [1] the plaintiff now submits that it is wrong to contend that the Surveyor is not required to give reasons for a determination under s 87(1) of the Building Act, and that to the contrary the Surveyor is required to give reasons for his determination, if requested to do so by an owner or an adjoining owner.

376 Colonial submits that s 8(1) of the Administrative Law Act imposes an obligation on a "tribunal" to provide a statement of its reasons for a decision if requested to do so by a person affected by that decision. Colonial also submits that a determination under s 87(1) of the Building Act is a "decision" under the Administrative Law Act because such a determination operates in law to determine a question affecting the rights of the owner and of the adjoining owner. It submits that both of those persons are a relevant "person affected" in respect of such a decision pursuant to s 2 of the Administrative Law Act.

377 Colonial submits that Parliament has not manifested any intention to exclude the bias rule in relation to the Building Surveyor's function under s 87(1) of the Building Act. Colonial also submits that indeed s 79 of the Building Act contains indicators that it is intended that the Building Surveyor be "independent" and undertake his or her functions "impartially" and in good faith.

378 Further, Colonial submits that the Surveyor is a tribunal pursuant to s 2 of the Administrative Law Act because he or she is required to observe one (or more than one) of the rules of natural justice which in Colonial's submission are constituted by the "hearing rule" and the "bias rule" requiring the decision maker to be impartial and disinterested.

379 Colonial also submits that CES-Queen's contention that were the Building Surveyor's determination to be subject to judicial review that would be antithetical to the intention of the legislature that the Board should operate as a "one stop shop", ignores the fact that such determinations are subject to review anyway, irrespective of whether the Surveyor is a "tribunal" within the statutory meaning and that the Building Surveyor's determination are also reviewable by the Board.[185]

380 CES-Queen submits that the relevant Building Surveyor is "not by law required to observe one or more of the rules of natural justice".[186]

381 CES-Queen submits this on the basis that when the two tier statutory framework under the Building Act for reaching a final determination with respect to a proposal for protection work is considered, the exhaustive provision for the requirements of natural justice at the second stage, that is at the Building Appeal Board stage, evince a clear intention that the relevant building surveyor be relieved from any obligation to afford natural justice when making a determination under s 87(3) of the Building Act. CES-Queen submits that in such circumstances, the requirements of natural justice may be fulfilled if the decision-making process, when viewed in its entirety, makes appropriate provision for the observance of the rules of natural justice, notwithstanding that a decision-maker at a particular stage may not be required to observe any of the rules of natural justice.[187]

382 As to the first stage, namely in relation to the Surveyor's determination, CES-Queen point to the words of s 87(3) of the Building Act, which provides: "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."[188] CES-Queen contend that this part of s 87(3) makes it clear that Parliament intended that the Building Surveyor was not required to afford a hearing to the parties affected by his or her determination and by implication not required to afford natural justice.

383 CES-Queen agrees that at the second stage, namely in relation to an appeal to the Board, the rules of natural justice do apply. Schedule 3 to the Building Act provides in clause 15(1) that the Board must give the parties reasonable opportunity to make oral submissions at a hearing, or written submissions in the case of a proceeding that is not a hearing; and in clause 15(3)(c) that the Board is bound by the rules of natural justice.[189] Moreover, CES-Queen notes that Board determinations under s 149 of the Building Act are amenable to judicial review under the Administrative Law Act. CES-Queen also cites the provision in clause 16 of Schedule 3 of the Building Act which provides for reasons to be provided by the Board on request by a party.[190]

384 CES-Queen also draws attention to what it suggests would be a problematic practical result which would arise from classifying the Surveyor as a tribunal: namely, that the Building Surveyor's determinations would be amenable to review under the Administrative Law Act, in addition to being appealable to the Board under s 141 of the Building Act.[191]

385 Finally, CES-Queen draws attention to Colonial's failure to explain how an obligation to provide reasons under the Administrative Law Act would support its binary construction of s 87 of the Building Act. CES-Queen contends that a requirement to provide reasons upon request under the Administrative Law Act "does not materially advance the submissions made by Colonial in circumstances where the statutory intent is clear".[192]

386 CES-Queen submits that the Surveyor is not a "tribunal" for the purpose of the Administrative Law Act and can therefore not be compelled to provide reasons under s 8(1) of the Administrative Law Act.

387 CES-Queen argue that pursuant to the Building Act there is a two tier scheme which must be considered in determining whether the Surveyor owes a duty to accord natural justice to a person affected by a decision. More particularly, CES-Queen submits that the Building Act establishes a two tier process for reaching a final determination in relation to protection works. The first stage relates to the exercise of the power conferred by s 87(1) of the Building Act to make a determination as to the appropriateness or otherwise of protection work.

388 The second stage, CES-Queen submits, relates to the Building Appeals Board which is invested with jurisdiction pursuant to s 141 of the Building Act to hear and determine appeals. Those appeals are in the nature of a hearing done over pursuant to s 148 of the Building Act.

389 CES-Queen, as earlier outlined, contend that in relation to the first stage of the above process the Building Act does not impose an obligation to afford a hearing to the parties affected by that determination pursuant to s 87(1) of the Building Act.

390 On the other hand, CES-Queen submits that in the second stage of the process under the Building Act the Board is bound, without limitation, by the rules of natural justice as specifically provided in Clause 15(3)(c) of Schedule 3 of the Building Act. CES-Queen also submits that it is clear that determinations made by the Building Appeals Board pursuant to s 149 of the Building Act are amenable to judicial review under the Administrative Law Act.

391 CES-Queen submit that it is clear that the scheme of the Building Act which clearly provides that the second tier stage undertaken by the Building Appeals Board is required to afford natural justice to the parties provides by implication including a lack of provision to the contrary that the Surveyor determination process established by the Building Act does not require conformity with the rules of justice including compliance with "bias rule". Accordingly, CES-Queen submits the Surveyor is not a tribunal for the purposes of s 2 of the Administrative Law Act, nor amenable to a request made pursuant to s 8(1) of the Administrative Law Act. CES-Queen also submits that were the Surveyor to be a "tribunal" for the purposes of the Administrative Law Act, the Surveyor would be subject to judicial review pursuant to s 3 of the Administrative Law Act which CES-Queen submits would be antithetical to the Building Act legislation which intended the Building Appeals Board to be a "one stop shop".

392 CES-Queen also submits that Colonial is silent as to how an alleged obligation on the part of the Surveyor to provide reasons under the Administrative Law Act supports a binary construction of s 87 of the Building Act. Accordingly, CES-Queen submits that the submissions about whether or not the Surveyor is obliged to give reasons are not submissions which assist the Court in relation to the questions which arise in relation to Ground 2 of Colonial's appeal in this proceeding.

393 CES-Queen submits that there is no ambiguity in the words of s 87(1) and therefore it is not permissible to go outside the four corners of the Building Act and have resort to another Act to discern the statutory intent of s 87 of the Building Act.[193]

394 In its related closing submissions at [17(b)] CES-Queen also submit that Colonial's construction of s 87(1) of the Building Act is flawed, for amongst other reasons because the solutions proposed by Colonial include an assumption that the process to be adopted by the Surveyor is one in which he or she must give reasons. CES-Queen submits that there is no provision made for the provision of such reasons under the Building Act.

Submissions of the Building Surveyor (the Second Defendant) - Surveyor's obligation to give reasons

395 The Surveyor (the second defendant Mr Akritidis) submits that the Surveyor is not obliged to afford natural justice. Further, the second defendant submits that (adopting the third and fourth defendants' submissions) whether or not the Building Surveyor is a 'tribunal' is not relevant to the proper construction of s 87(1) of the Act and that this issue therefore need not be decided in this case.

396 Further, the second defendant submits that the Building Surveyor is a private professional to whom the Building Act gives certain powers, however the Building Surveyor is at all events not a person who can properly be described as an administrative or executive decision maker to whom the common law presumptions in relation to natural justice apply. The second defendant also submits that the common law bias rule is, in the context of the Surveyor, excluded by implication because it is accepted by the parties that the hearing rule is expressly excluded.[194]

397 The second defendant submits that the Building Surveyor does not exercise "public powers" such as to make his or her determination the subject to the rules of natural justice or alternatively the second defendant submits that both rules of natural justice identified by Colonial have been excluded by plain words of necessary intendment.[195]

398 The second defendant concedes that the Building Surveyor's powers derive from the Building Act, but denies that this makes them "public powers", since they are performed "within the framework of ... their professional responsibilities and not as public officials or administrative decision makers".[196] The second defendant observes that under s 78 of the Building Act, the Surveyor is appointed and remunerated not by a government agency, but by a person who is entitled to apply for a building permit, occupancy permit or temporary approval in respect of a building or building work. Hence, the second defendant asserts that the Building Surveyor is better characterised as "a private professional to whom the Building Act gives certain confined powers that are to be used in performing their professional functions as building surveyors".[197]

399 The second defendant notes that it is accepted by the parties that the hearing rule is expressly excluded.[198] The second defendant further submits that the "detailed provision" for appointment (Building Act s 78); functions (Building Act ss 76 and 77); termination of appointment (Building Act s 81); circumstances in which the Surveyor may not act (Building Act s 79); and the requirement to avoid "unprofessional conduct" (Building Act s 179), expose the intention of the Building Act that the common law bias rule is excluded.[199]

400 The second defendant also notes at para [8] of its submission of 16 November 2016, referring to Vickery J's decision in Colonial Range Pty Ltd v Victorian Building Authority [2014] VSC 272 at [26] - [28], that the prohibitions in ss 70(1)(a) and (b) and the requirements of regulation 1502(c) have the purpose of 'ensuring that a private building surveyor is independent and is in a position to act impartially in undertaking the important functions assigned to this role by legislation'. The second defendant submits that these specific provisions are required to ensure impartiality because building surveyors are often retained and paid by building owners, and the common law bias does not apply to building surveyors.

401 The third and fourth defendants submit that whether or not the Surveyor is a 'tribunal' and must give reasons for his or her determination, if requested to do so, by force of the Administrative Law Act, Colonial fails to identify how such issues are relevant to the proper construction of s 87 of the Building Act.

However it is understood, from the plaintiff's original submissions, that the sole relevance is that if the RBS gives reasons "the owner and the adjoining owner might be well-advised to have regard to such reasons and observations in any future negotiations or dispute",[200] which may "allow the owner to formulate a new proposal that takes that explanation into account".[201]

403 The third and fourth defendants submit that in any event, even if it were assumed that the Surveyor is a 'tribunal' the answer to whether the Surveyor may be required to provide reasons will be factually dependent and may vary from case to case. Therefore, any significance of a requirement on the part of the Building Surveyor to furnish reasons does not arise in the present context in which s 87 must be interpreted. This is because the Building Surveyor may not be requested to provide reasons and further because there may be circumstances, such as provided for in s 8(5) of the Administrative Law Act, in which a Tribunal is not bound to furnish reasons, even if requested to do so.

404 The third and fourth defendants also point out that in practical terms, even if the Surveyor did provide reasons, such reasons may or may not be taken into account by the owner and the adjoining owner in any further attempts to resolve a dispute about protection works.

405 The third and fourth defendants submit that, for the above reasons, even if the Building Surveyor was required to give reasons, this would not be a factor which weighs in favour of any particular construction of s 87(1) of the Building Act.[202]

406 The third and fourth defendants also submit that the question of whether the Surveyor is a tribunal and is required to provide reasons is complex and not suited to determination as a hypothetical issue in a case where no question of reasons being required could arise, as no request was made.

Conclusion - natural justice - Surveyor's obligation to provide reasons

407 In my view, for the reason explained below, it is ultimately unnecessary and undesirable for me to decide the issues addressed by the parties in relation to whether the Building Surveyor has an obligation to give reasons for his or her determination under s 87(1) of the Building Act.

408 The question of whether the nature of any obligation imposed on the Building Surveyor to give reasons reflects upon the Building Surveyor's powers of determination under s 87(1) of the Building Act was at best an indirect and ancillary issue which was not argued by either Colonial[203] or CES-Queen[204] to be material to the central question of whether under s 87(1) of the Building Act, the Building Surveyor was constrained by only "binary" power to either approve the owner's protection works proposal or reject that proposal.

409 In the result, neither Colonial nor CES-Queen argue, in any direct way, that a decision in relation to the Building Surveyor's obligation to give reasons in relation to his or her determination under s 87(1) of the Building Act, will assist me in the task of deciding the true nature and extent of the Building Surveyor's powers under that section.

410 Furthermore, and in any event, I have in relation to Ground 2 of this appeal held that s 87(1) of the Building Act empowers the Building Surveyor to determine the appropriateness of proposed protection works which represent a modification of the owner's s 84 protection works proposal.

411 In reaching the above finding I do not consider it to be material whether or not the Building Surveyor was obliged to give reasons to the owner and the adjoining owner for his or her determination. Put another way, I do not consider that the points argued by the parties in relation to the Building Surveyor's obligation to give reasons advance either side of the argument put by the parties as to the nature and extent of the Building Surveyor's powers under s 87(1) of the Building Act.

412 I also note that the Building Surveyor (the second defendant) and the third and fourth defendants all submitted that the question of whether a Building Surveyor is a tribunal and would thereby be obliged to give reasons for his or her determination, is not relevant to the proper construction of s 87(1) of the Building Act, and further each of those parties also argued that issue need not be decided in this appeal.[205]

413 Further, the third and fourth defendants submit that even if the Building Surveyor is a tribunal, as asserted by Colonial, the answer to whether the Building Surveyor may be required to provide reasons will depend on facts which may vary from case to case, for example:

(i) The Building Surveyor would, in any event, only be required to provide reasons, if requested to do so by the person effected by the decision. That request may not be forthcoming, as in this case; and

(ii) Section 8(5) of the Administrative Law Act omits of circumstances in which a tribunal is not bound to publish reasons, even if requested to do so.

Whether s 8(5) will be of application is in turn a complex and likely largely factual issue which would be undesirable to endeavour to address in the context of this appeal because it necessarily remains hypothetical because of unresolved facts as mentioned and further because, as I have explained above, I do not consider, on any outcome, the resolution of the statutory question concerning the Building Surveyor's obligation to give reasons assists me in the primary construction task I have referred to.

414 I am also unpersuaded by Colonial's submissions to the effect that in a setting such as this, s 8(5) of the Administrative Law Act will not be engaged, principally, on Colonial's submission because there will never be a relevant contradiction with public policy. I am unpersuaded in this regard because I do not accept that given the uncertain factual setting, such an assertion can be unequivocal.

415 I am also unpersuaded by Colonial's submission that the question of the obligation of the Building Surveyor to give reasons is not a "neutral factor" because the defendants argued the relevance of an obligation to give reasons at trial. I regard this submission as unconvincing because it fails to take account of the above mentioned positions of the defendants communicated in their submissions filed well after trial and up to late November 2016 in which they eschew the materiality of the issue of whether the Building Surveyor was obliged to give reasons.

416 For these reasons I decline to determine the matters argued in relation to the Building Surveyor's obligation to give reasons. These questions are to the degree I have explained above hypothetical and at all events not instructive as to the proper interpretation of s 87(1) of the Building Act.

417 Colonial seeks an order in the nature of certiorari quashing the purported determinations of the Board made on 28 April 2016 to:

(a) affirm the purported determination of Akritidis made on 4 May 2015 under s 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff's building at 140 Queen Street, Melbourne; and

(b) affirm the purported determination of Akritidis made on 4 May 2015 under s 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff's building at 21-27 McKillop Street, Melbourne

on the ground of either or both jurisdictional error and error of law on the face of the record.[206]

418 Colonial submits that if the primary orders sought by it are made, and its appeals against the Akritidis determinations remain undetermined, it would be unfair to Colonial or would give the appearance of unfairness to Colonial, if the panel of the Board that heard and determined the appeals included any of the members comprising the third defendant.[207] Colonial cited case law expounding the "guiding principle" that matters of this kind ought to be remitted to a differently constituted decision-maker,[208] in order to ensure fairness and the "perception of a fair hearing".[209] It therefore seeks an order in effect requiring the fourth defendant to reconstitute a panel of the Board which does not include any of those same members to determine Colonial's appeals under s 141(a) of the Building Act against the Akritidis determinations.[210]

419 Resisting this submission, CES-Queen argues impracticality and expense against the necessity for making an order that the Board be differently constituted. CES-Queen contends that Colonial can only point to the possibility that the Board may take an adverse view were the matter to be remitted to the same Board members. CES-Queen submits that this mere possibility is insufficient to overcome the expense and difficulty involved in having the matter remitted to a newly-constituted panel.[211]

420 CES-Queen submits that Colonial has not pointed to anything other than the possibility that somehow on remitter the Board might take an adverse view of Colonial and its case,[212] because 'this court has impugned an aspect of its decision on judicial review'.

421 CES-Queen submits indirectly by reference to authority, that to remit to a different tribunal is likely to be more expensive and less efficient and therefore, except in a clear case, the interests of justice will generally best be served by a hearing before the tribunal constituted as it was originally.

422 CES-Queen submits that in the absence of some aspect of the conduct or reasons of decision of the primary decision-maker, which would render it unfair to the successful party, or give the appearance of unfairness to that party, there is no justification for a remitter to a differently constituted tribunal.

423 For the reasons referred to above I dismiss Colonial's appeal in toto. Accordingly, no question of remitter arises.

424 For the forgoing reasons I am not persuaded that the Board fell into relevant error in any respect in relation to any of the three subject grounds of appeal when pursuant to s 141 and s 149 of the Building Act the Board by its Determination dated 28 April 2016 affirmed the determination of relevant Building Surveyor Akritidis under s 87 of the Building Act. Accordingly I dismiss Colonial's Amended Originating Motion between the parties dated 15 August 2016.

425 It is unnecessary, as stated in the above conclusion, to decide whether or not it would be appropriate to order the reconstruction of the Board on a remitter.

426 I dismiss Colonial's Amended Originating Motion between the parties, dated 15 August 2016.

427 I shall await on further submissions, if necessary, before the finalisation of orders in this appeal, including in relation to costs.

[1] See Building Act 1993, s 84; Building Regulations, reg 602(2).

[2] Ibid s 85; Building Regulations, reg 602(4).

[3] Cf C_ES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd_ [2015] VSC 564, [72].

[4] Colonial requested and received written reasons from the Board; see Affidavit of Andrew John Green, 27 June 2016, [17]-[19]; BAB4 Letter and Response. Exhibits "AJG-10", "AJG-11", "AJG-12" to that affidavit have however not been included in the filleted Court Book in this Appeal.

[5] Amended Originating Motion, 15 August 2016, [9]; Cf S_upple v Building Appeals Board_ [2015] VSC 83, [68]-[72].

[7] By letter to the Court dated 12 September 2016 the second defendant, Akritidis, advised that he submits to the jurisdiction and determination of the Court on this issue, save that he reserves his rights to be heard on the question of costs. This position is recorded in the Orders of Daly AsJ made 3 August 2016, "Other Matters".

[8] Amended Originating Motion, 15 August 2016, [18]-[21]; Affidavit of Andrew John Green, 27 June 2016, "AJG-22"; Affidavit of Andreanna Constantine Moschoyiannis, 3 August 2016, "ACM-16-34" and "ACM-72"; see CB128-149.

[10] Colonial's Submissions, 16 August 2016, [48]-[49].

[11] Amended Originating Motion, 15 August 2016, [24]-[25].

[12] Colonial's Submissions, 16 August 2016, [37].

[13] Amended Originating Motion, 15 August 2016, [25]; Colonial's Submissions, 16 August 2016, [43].

[14] Colonial's Submissions to CES-Queen, 10 October 2016, [7].

[17] Colonial's Submissions, 8 September 2016, [18]; Colonial's Submissions, 23 September 2016, [1]-[10].

[20] Ibid [21]; Colonial's Submissions to CES-Queen, 10 October 2016, [9].

[21] Amended Originating Motion, 15 August 2016, [28]-[29]; Colonial's Outline of Submissions, 16 August 2016, [55]-[56].

[23] [2008] FCAFC 91; (2008) 168 FCR 487.

[24] Colonial's Submissions, 16 August 2016, [59]-[63]. See SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at 492-8 [22]-[36].

[27] CES-Queen's Submissions, 3 October 2016, [2].

[28] Colonial's Submissions, 8 September 2016, [5].

[29] CES-Queen's Submissions, 3 October 2016, [4].

[33] Ibid [8]; SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at 497 [30] and 498 [36].

[34] Ibid [9]; SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at 497 [30] and 498 [36].

[36] Affidavit of Andrew John Green, 27 June 2016, "AJG-22"; Affidavit of Andreanna Constantine Moschoyiannis, 3 August 2016, "ACM-16-34" and "ACM-72".

[40] CES-Queen Submissions, 23 August 2016, [11].

[41] [2008] FCAFC 91; (2008) 168 FCR 487.

[42] CES-Queen's Closing Submissions, 3 October 2016, [11]-[13].

[43] Amended Originating Motion, 15 August 2016, [35].

[45] Colonial's submissions, 16 August 2016, [22]-[23].

[47] (2015) VSC 564.

[49] Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; [2010] 241 CLR 320, [32]; see also Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2015] VSCA 356, [27].

[50] Colonial's Submissions, 16 August 2016, [69], citing Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 at 337-8 [32].

[53] Amended Originating Motion, 15 August 2016, [34].

[56] Colonial's Submissions, 16 August 2016, [18], [26]; see also [72].

[58] Colonial's Submissions, 23 September 2016, [21].

[60] Colonial's Submissions, 10 October 2016, [2].

[61] Colonial's Submissions, 16 August 2016, [73].

[62] Ibid [21]. See Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 259 [14]-[15].

[66] Colonial's Submissions, 8 September 2016, [27].

[70] CES-Queen's Submissions, 3 October 2016, [18].

[72] CES-Queen's Submissions, 23 August 2016, [67].

[73] CES-Queen's Submissions, 3 October 2016, [19] and [20].

[74] CES-Queen's Submissions, 23 August 2016, [71]-[82].

[77] CES-Queen's Closing Submissions, 3 October 2016, [21]-[25].

[78] [2000] VSC 84.

[80] The Board's Submissions, 25 August 2016, [13]-[14], [19]-[21].

[82] Building Control Act 1981, (4)-(5).

[83] Under the Arbitration Act 1958, s 12(2) and later the Commercial Arbitration Act 1984, s 42, both of which applied in relation to statutory arbitrations: s 23 of the 1958 Act and s 3(4) of the 1984 Act. See also Russell on Arbitration (20th ed, 1982) at 395; It has always been open to the court to have regard to the background and historical setting of a statute in order to ascertain the objective purpose of a provision see Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 410F (Samuels JA), 394F (Kirby P); Holme v Guy (1877) 5 Ch D 901 at 905 (Jessel MR).

[84] Subject to leave or agreement under s 38(2) and (4) of the Commercial Arbitration Act 1984.

[85] Legislative Assembly, Debates, 9 December 1988.

[86] Legislative Assembly, Debates, 9 December 1988, p 1310.5 (Mr Roper MLA).

[87] Building Control Act 1981, s 147(10), as amended.

[88] Legislative Assembly, Debates, 11 November 1993, 1693 (Mr Maclellan MLA).

[89] Legislative Assembly, Debates, 11 November 1993, 1689 (Mr Maclellan MLA).

[90] Legislative Assembly, Debates, 11 November 1993, 1694 (Mr Maclellan MLA).

[91] CES-Queen's Submissions, 23 August 2016, [54].

[92] Legislative Assembly, Debates, 9 December 1988, pp 1310, 1311 (Mr Roper MLA).

[94] Building Act, s 86.

[95] [2012] HCA 55; (2012) 250 CLR 503 at 519, [39].

[96] Colonial's Closing Submissions, 23 September 2016, [18].

[99] Affidavit of Andrew John Green, 27 June 2016, "AJG-6"; reference at [2]-[3] of the Determination to "Documentation used in this Assessment".

[100] [2015] VSCA 356.

[101] [2015] VSC 564.

[105] CES-Queen's Submissions, 23 August 2016, [72]-[82].

[106] Building Act, s 166(3).

[107] Ibid s 148(1) and (2).

[108] Ibid s 145.

[109] Ibid Schedule 3, Clause 16(3); the determination of the Board may include any other incidental order or direction that the Board considered necessary.

[110] Legislative Assembly, Debates, 11 November 1993, p1693.

[111] [2000] VSC 84, [26]-[30].

[112] [2015] VSCA 356.

[113] Colonial's Submissions, 23 September 2016, [32].

[114] (1988) 14 ALD 794 at 795.

[115] [2003] HCA 21; (2003) 73 ALD 321 at [24]- [25].

[116] In Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [80]-81], the Federal Court explained that the nature of the error involved when a tribunal fails to consider a submission "worthy of serious consideration" may be characterised in various ways, including "constructive failure to exercise jurisdiction" or "denial of procedural fairness", but that there is "no bright line between these characterisations, and in many circumstances either may be available".

[117] [2006] VSC 444; (2006) 25 VAR 402 at [42].

[118] [2013] VSCA 28 at [27]. Previously, in Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255; (2007) 18 VR 346 at [77], the Court of Appeal also noted that "it has generally been accepted that it is an error of law for an arbitrator to ... fail to address substantial and serious submissions", citing Dennis Willcox.

[119] Affidavit of Andrew John Green, 27 June 2016, Exhibit "AJG-12"; Letter 24 May 2016 from the Board to Colonial, Affidavit of Andrew John Green, 27 June 2016, [17]-[19]; Exhibits "AJG-12" (not included in Court Book).

[120] Supple v Building Appeals Board [2015] VSC 83.

[121] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.

[122] Colonial's Submissions, 23 September 2016, [31].

[124] Revision D, dated 1 March 2014, at CB2038.

[128] CB1902; Colonial's submissions, 23 September 2016, [31], fn 4.

[130] CES-Queen Submissions, 23 August 2016, [91] and [92].

[131] Affidavit of Andrew John Green, 27 June 2016, Exhibit "AJG-6".

[132] CES-Queen Submissions, 23 August 2016, [97].

[133] [2015] VSC 564 [77].

[134] CES-Queen Submission, 23 August 2016, [99](f)-(i).

[135] In relation to the demolition plan, the evidence of Mr Landewee (oral evidence before the Board and written Reports "AJG-29" CB813-876, "AJG-30" CB877-944) advanced by Colonial. The technical aspects raised set out at [13]-[15] of BAB4 determination, the evidence of Mr Paras (independent structural engineer) "ACM-02" (140 Queen) CB945-1052 and "AJG-31" (21-27 McKillop) CB1053-1126.

[136] [2015] VSCA 356.

[137] CES-Queen's Submissions, 23 August 2016, [102] and Submissions, 3 October 2016, [26(e)]- [29].

[138] CES-Queen's Submissions, 3 October 2016, [26(c)] and CB2674-2730; CB2675-2677; CB2683-2684 and CB2727-2729.

[139] CB3047.L28-CB3048.L18; CES-Queen's Submissions, 3 October 2016, [26(d)].

[140] CB2735.L30-CB236.L24; CB2738.L23-CB2739.L5.

[141] CES-Queen's Submissions, 3 October 2016 [27] and [78] and evidence before the Board cited in those paragraphs of the Submissions.

[142] See also the statement of Andrew Slade dated 2 September 2016, CB1316 and following, including [17], [18]-[31].

[143] [2015] VSC 564, at [35].

[144] Board's Reasons for Determination, [72]-[80].

[148] Ibid [61], [62] and [65(b)].

[150] CES-Queen Submissions, 23 August 2016, [100].

[151] CES-Queen Submissions, 3 October 2016, [29].

[152] CES-Queen Submissions, 16 August 2016, [109], [110] and [111].

[155] T121.32-31, T256.1-7, T234.17-24 and T137.13-16.

[156] Building Act, Schedule 3, Clause 16(8).

[157] CB1718-1753; CB1648-1684; CB1320-1338; CB1420-1424; CB1509-1514; CB2241; CB1685-1711; See, for example, the transcript extracts from Day 2 (CB2743-2848), Day 3 (CB2864-CB2865) and Day 4 (CB2974;CB2985-3002); see CB2674 to 2730 (see in particular, CB2675-2677; CB2683-2684; CB2727-2729); see CB3047 (Line 28) to CB 3048 (Line 18); see CB2735 (Line 30) to CB236 (Line 24); CB2738 (Line 23) to CB2739 (Line 5).

[158] See CB3047 (L28) to CB 3048 (L18).

[159] CB2937 (L30) to CB2938 (L23) and Mr Hatzimouratis' Statement, 3 September 2015, including at [24], responses to Mr Landewee at [50] in particular items 26, 27, 28 and 29; Delta Group Demolition Management Plan, CB1771 and following and at CB1720, CB2735 (L30) to CB2736 (L24); CB2738 (L23) to CB2739 (L5); and the statement of Mr Andrew Slade dated 2 September 2016, CB1316 and following, including [17] [18]-[31].

[160] Board's Reasons for Determination, [55].

[161] Reference, See Footnote 149 above.

[162] Building Act, Schedule 3, Clause 16(8).

[163] (2015) VSC 564 at [72]- [80].

[164] [2015] VSCA 356 at [21].

[165] Colonial's Submissions, 16 August 2016, [91] and CES-Queen's Submissions, 23 August 2016, [96].

[166] Board's Reasons for Determination, [55].

[168] Ibid [60], [61], [62] and [65(b)].

[169] Building Act, Schedule 3, Clause 16(8).

[170] Colonial's Submissions, 10 October 2016, [19].

[171] Reasons for Judgment [340] and [360((b) and (c)].

[172] Colonial's Submissions, 16 August 2016, [111].

[173] Reasons for Judgment [340] and [360(b) and (c)].

[174] CES-Queen's Submissions, 3 October 2016, [16], [17(b)] and Colonial's Submissions, 16 August 2016, [75].

[175] Colonial's Reply to CES-Queen, 16 November 2016, [4].

[176] Colonial's Reply to the Board, 16 November 2016, [3].

[177] Colonial's Submissions, 2 November 2016, [1].

[180] Ibid [7], quoting Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 259 [14], in turn quoting Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598.

[181] [2010] VSC 552; (2010) 245 FLR 86.

[182] Colonial's Reply to the Building Surveyor's Submissions, 22 November 2016, [2]-[5].

[185] Colonial' Submissions, 16 November 2016, [3].

[186] CES-Queen's Submissions, 11 November 2016, [7].

[187] Ibid [4]-[7]; Nicholson v Mornington Shire Council [2007] VSC 519 at [77]; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578].

[193] CES-Queen's Submissions, 11 November 2016, [12]; CES-Queen's Submissions, 23 August 2016, [C.2.2].

[194] Building Surveyor's Submissions, 16 November 2016, [7].

[200] Colonial's Submissions, 16 August 2016, [75].

[201] Third and Fourth Defendants' Submissions, 11 November 2016, [2].

[202] The third and fourth defendants submitted to the contrary at T199.30-200.12.

[203] Colonial's Submissions, 2 November 2016 do not expressly argue that the Surveyor's obligation to provide reasons assists in the interpretation of s 87(1) of the Act; see also Colonial's Submissions, 16 November 2016, [4] and fn [4].

[204] CES-Queen's Submissions, 11 November 2016, [9], [11]-[15].

[205] Building Surveyor's Submissions, 16 November 2016, [2(b)]; Third and Fourth Defendants' Submissions, 11 November 2016, [2], [3], [4], [7] and [8].

[206] Amended Originating Motion, 15 August 2016, [1].

[208] Vegco Pty Ltd v Gibbons [2008] VSC 363; (2008) 30 VAR 1 at 10 [33].

[209] Barro Group Pty Ltd v Brimbank City Council (No 2) (2012) 36 VR 281 at 306 [9].

[210] Colonial's Submissions, 16 August 2016, [119].

[211] CES-Queen's Submissions, 23 August 2016, [107]-[108]; Comcare v Broadhurst (No 1) [2011] FCAFC 39; (2011) 192 FCR 497 at 504 [31]-[32].