Plaintiff v First Defendant

1 Mr Morris, the plaintiff, resides with his family in a home in Surrey Hills which has, at the rear of the dwelling, a raised rear timber deck. In early 2022, Mr Morris arranged for work to be done to reconstruct and extend the deck.[1] Before doing the work he asked the Whitehorse City Council by email whether he required a building permit to extend the deck on his property by a metre, and he was advised that he did not require a building permit. After the extension and reconstruction work on the deck was completed, the Municipal Building Surveyor for the City of Whitehorse (MBS) issued a building notice to Mr Morris on the basis that he had reconstructed and extended the deck without a building permit, and without screening to prevent overlooking adjoining properties. The Building Notice required Mr Morris to show cause why the deck should not be demolished and removed, and the MBS identified categories of information which should be provided if Mr Morris wished to retain the deck.

2 Mr Morris, in correspondence with the MBS, identified reasons why he regarded the Building Notice as having been wrongly issued. He did not provide any of the information identified by the MBS. The MBS issued a Building Order requiring the deck to be removed. Mr Morris appealed the order to the Building Appeals Board, which affirmed the decision of the MBS.

3 Mr Morris now seeks judicial review of the Board's decision. Mr Morris relies on numerous grounds of review, but the essential issues raised by his application are:

(a) whether the works required a building permit;

(b) whether the reconstructed deck required a physical barrier to prevent overlooking, and if so whether trees are an adequate screen;

(c) whether the MBS was estopped from issuing the Building Notice or Building Order by reason of the statement of the Council's employee that no permit was required; and

(d) whether the Board denied Mr Morris his rights to procedural fairness, failed to take into account relevant matters, or wrongly applied the law.

4 For the reasons that follow, the proceeding is dismissed.

5 In the period from late January to early February 2022, Mr Morris conducted work on his property which involved reconstructing and extending the raised deck at the rear of the house.[2]

6 Mr Morris had corresponded a year before with the Council about proposed work to the deck.[3] Mr Morris inquired, by email dated 21 January 2021:

I would like to extend a deck by 1 metre, which increases the total deck size by about 7 sq. metres. I've been told by a tradie that I won't need a building permit as the extension is less than 10 sq. metres. Is that correct?[4]

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

I can confirm, based on the information provided to me that a building permit is not required for proposed deck extension.[5]

8 On 16 February 2022, the Council wrote to Mr Morris advising that it had been brought to the Council's attention 'that there may have been structure built in the rear yard without a building permit' at Mr Morris' address. The letter advised that the Council's compliance officer proposed to conduct an inspection on the morning of 28 February 2022 and requested that access to the property be made available at that time.[6]

9 On 21 February 2022, Mr Morris responded with questions in relation to the proposed inspection, and advised:

Contrary to your letter, no structure was erected in the rear yard of my property. I have undertaken repairs to my dwelling which included replacing and extending the wooden deck on the rear side of my dwelling.[7]

10 In a subsequent email Mr Morris advised that if the Council wished to have access to his property it should provide reasonable grounds for concluding that 'contrary to its earlier advice, a structure requiring a building permit was erected on my property without a permit' and it should 'call to arrange a suitable day and time for a visit'.[8]

11 On 1 March 2022, the MBS issued a Building Notice to Mr Morris under s 106 of the Building Act 1993 (Vic).[9] The Building Notice identified the reasons why the notice was served as the following:

1. The following building work has been carried out on the building/land without a building permit as required by the Building Act 1993:

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

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

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

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

(a) a report and Certificate of Compliance by a Registered Building Practitioner in the category of Building Surveyor, together with referenced endorsed 'as built' drafted drawings from that building surveyor to verify that the works were built in accordance with the Building Regulations 2018 (Vic) and the Building Code of Australia;

(b) a complete set of architectural and structural drawings for the work already carried out including among elevations of the building, footing construction method and framing details;

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

(d) a copy of title and an approved plan of subdivision or title plan.[10]

13 Mr Morris did not provide the requested information. On 4 March 2022, he corresponded with the MBS advising among other things that the Council had acted unconscionably given its 'earlier decision that a building permit was not required'; that 'the increase in the size of the dwelling footprint' on the property was minimal, and that the deck 'does not give rise to any shading issues for neighbours and gives rise to minimal (if any) privacy issues' to one neighbour, who had 'removed the screen (two large trees) between our respective dwellings and respective decks.' He advised that he disputed the Notice, and required the Council to withdraw the Notice or confirm it would be responsible for any and all costs incurred in complying with the Notice.[11]

14 In further correspondence between Mr Morris and the Council, Mr Morris acknowledged that the Council had identified relevant regulations and said that it was unfortunate that neither the Council nor the builder he had used informed him of them. He said that he continued to dispute the Notice, and the Council's interpretation that the Building Regulations required a building permit for the work he had done. He advised that the Council was estopped from applying its interpretation of the Works.[12] The Council's evidence showed that the builder identified by Mr Morris was not a registered building practitioner.[13]

15 On 14 April 2022, the MBS advised Mr Morris that in view of the ongoing communications, the show cause period under the Building Notice had been extended to 16 May 2022.[14] The letter also:

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

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

(c) requested that if Mr Morris was willing to address concerns relating to the structural soundness of the works, that he provide the documentation identified in the letter of 1 March 2022 which had been sent with the Building Notice.

16 On 26 April 2022, Mr Morris responded by letter again disputing that the Council had a proper basis to issue the Building Notice, advising that the opinion of the MBS that the Works required a building permit was insufficient unless there was a reasonable basis for it, and the Council had not identified the reasonable basis, nor had it identified the measurements of the structure that it had used in determining that a building permit was required.[15] The Council responded advising that the estimated area of extension to the deck was 24m2 which required a building permit.[16]

17 On 1 June 2022, the MBS issued a Building Order under s 111 of the Building Act.[17] The Building Order directed Mr Morris to:

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

18 The Building Order identified the reasons why the order was made as the same as those in the Building notice, namely:

1. The following building work has been carried out on the building/land without a building permit as required by the Building Act 1993:

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

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

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

19 The covering letter for the Building Order informed Mr Morris that the Building Order could be cancelled if he provided the documents which had been identified in the cover letter to the Building Notice, as referred to in paragraph [12[18]] above.18

20 On 28 June 2022, Mr Morris appealed the Building Order to the Board. He provided detailed written submissions in support of the application.[19] The MBS provided a statement of contentions in response, which included photographs of the deck which had been taken from outside the property,[20] and Mr Morris provided detailed submissions in reply.[21]

21 Prior to the determination of the appeal, the Board wrote to Mr Morris and advised that the Board panel members intended to undertake a site inspection involving unrestricted access to the external parts of the building.[22] Mr Morris advised that he was away from Melbourne until 26 October 2022 and also asked for the legal basis for the Board to require access, and stated that he did not recall any facts that were in dispute.[23] The Board advised that cl 15(3)(b) of Schedule 3 to the Building Act permitted the Board to inform itself in any manner it thinks fit'; advised that conducting a site inspection was one method of informing itself; and that the reason for this was that the facts were in dispute. It requested that Mr Morris confirm that he would give access to the property on 26 October 2022.[24] Mr Morris responded requiring the Board to 'state what facts are in dispute' and advising that clause 15(3)(b) of the Schedule did not appear to give the Board 'the right to demand access to my property'.[25] The Board responded by email dated 24 October 2022, advising that it would not engage in a debate about its powers, and stating:

The purpose of the inspection by the Panel is to obtain an independent assessment of the deck in order to determine whether the issue of the Building Order was justified.[26]

22 The Board stated that Mr Morris was required to confirm whether access to his property would be granted on 26 October, and advised that if he did not do so, it would be assumed that access was denied.[27] Mr Morris verbally advised an officer of the Board's registry that access would not be provided.[28]

23 The Board decided the appeal on 16 December 2022 and affirmed the MBS' decision to issue the Building Order.[29] It provided written reasons for its decision.

24 The Board has advised the Court[30] that consistent with the principles identified in R v Australian Broadcasting Tribunal; Ex parte Hardiman[31] it would abide the decision of the Court save as to costs, unless the Court would be assisted by the Board taking an active role. The hearing proceeded without involvement by the Board, and with the MBS making submissions as defendant.

25 Mr Morris's application for judicial review[32] identifies 24 individual grounds of review of the Board's decision. Broadly they can be grouped as relating to the following issues:

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

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

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

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

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

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

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

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

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

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

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

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

26 The Building Act provides in s 16(1):

16 Offences relating to carrying out building work

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

...

27 Building work must not be carried out unless it is carried out in accordance with the Building Act, the Building Regulations and the building permit issued in relation to the work, and an owner of land must ensure in relation to building work carried out on the land that a building permit in relation to the work has been issued and is in force under the Building Act.[33]

28 Building work is defined to mean 'work for or in connection with the construction, demolition or removal of a building'.[34]

29 These requirements with respect to building permits apply unless the building work is exempted by the Building Act or Building Regulations.

30 Schedule 3 of the Building Regulations identifies types of work that are exempted from the requirement of a building permit. One exemption category, in item 1, relates to construction of a 'freestanding Class 10(a) building'. A Class 10(a) building is identified in the Building Code of Australia[35] as a non-habitable structure including sheds, carports and private garages.

31 Another exemption category in item 3, is for repair, renewal or maintenance of an existing building:

Repair, renewal or maintenance of a part of an existing building if the building work -

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

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

(ii) underpinning or replacement of footings; or

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

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

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

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

32 An application for a building permit may be made to a private building surveyor or a municipal building surveyor (who are referred to in the Building Act as the 'relevant building surveyor'), who must decide that application by issuing the permit, issuing it with conditions or refusing the permit.[36] A building surveyor must not issue a building permit unless they are satisfied of the matters in s 24(1) of the Building Act, including that the building work will comply with the Building Act and Building Regulations.

33 The relevant building surveyor must cause building works to be inspected at mandatory stages set out in the building permit.[37] After the inspection of the building work, the relevant building surveyor may issue a direction to fix to the builder named in the building permit or person apparently in charge of the site of the building work if the MBS believes on reasonable grounds that the building work does not comply with the Building Act, Building Regulations, or building permit.[38]

34 The power of the MBS or private building surveyor to issue a building notice is conferred by s 106 of the Building Act, which provides, relevantly:

Building notices

Subject to section 107, a municipal building surveyor or a private building surveyor may cause a building notice to be served on an owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment if the building surveyor is of the opinion that any one of the following circumstances exists -

(a) building work has been carried out on the building, land or place without a building permit required by this Act, or in contravention of a building permit or this Act or the building regulations;

(d) the building, land or place or building work on the building, land or place is a danger to the life, safety or health or any member of the public or of any person using the building land or place or to any property.

35 A building notice may require the building owner to show cause within a specified period why they should not carry out 'building work', protection work or work required by the regulations in relation to the building, land or place.[39]

36 A building owner is also entitled make representations to the relevant building surveyor about the matters raised in the building notice.[40] The relevant building surveyor may cancel a building notice if he or she considers it appropriate to do so after considering any of the representations made.[41]

37 Section 111 provides that a MBS or private building surveyor may make a building order after the time allowed for making representations in response to the building notice and after considering any representations made by the building owner.[42] A building order may, pursuant to ss 111(4) and (5):

(4) A building order under this section may prohibit any person from entering, using or occupying a building, and or a place of public entertainment for a specified period unless permitted by the municipal building surveyor.

(5) A building order under this section may direct the owner of a building, land or a place of public entertainment to carry out building work, protection work or other work required by the regulations in relation to the building, land or place.

38 A person to whom a building order has been issued must comply with that order.[43]

39 Section 118A provides that building notices and building orders are to be a last resort:

Building notices and building orders to be last resort

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

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

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

40 Division 2 of Part 5 of the Building Regulations, deals with various siting, setback and other amenity requirements. Pursuant to reg 72, that Division 'applies to the construction of a single Class 1 building and associated Class 10a buildings' on an allotment.[44] That Division includes reg 84, which relates to overlooking, and provides, relevantly:

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

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

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

41 'Raised open space' is defined by reg 84(10) to mean 'a landing with an area of more than 2 m2, a balcony, a terrace, a deck or a patio'.

42 Regulation 233(1) of the Building Regulations provides that building work 'to alter an existing building' must comply with the Regulations. The relevant building surveyor may consent to partial compliance of building work on an existing building, but must in doing so take into account the structural adequacy of the building.[45]

The basis of the argument and the parties' submissions

43 Mr Morris contended before the Board that the Council was estopped from requiring a building permit for the deck 'on the grounds that Council advised me that a Building Permit was not required to extend my rear timber deck and after the rear deck was reconstructed and extended, Council issued a Building Notice and later a Building Order on the basis that a building permit was required but not obtained'.[46] The Council's response was that s 16(3) of the Building Act required a permit for the Works and that the exemption under reg 23 of the Building Regulations did not apply.

44 The Board understood the argument as an argument of estoppel by convention. It referred to the discussion of estoppel by convention in the text Meagher, Gummow & Lehane's Equity: Doctrines & Remedies[47] and then to a Building Appeals Board case in which estoppel was discussed in the following terms:

1. It is common ground that estoppel, including estoppel by convention cannot be raised where it would fetter or hinder the exercise of a statutory discretion. The making and issuing of the Building Order by the Respondent was the exercise of a statutory discretion or discretionary administrative power.
2. In Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic,[48] the Full Federal Court, rejected the contention that the relevant Minister had become estopped from exercising a discretion to order deportation because to recognise an estoppel would have hindered the Minister's exercise of the statutory discretion.
3. Endorsing this position, Mason CJ in Attorney-General (NSW) v Quin,[49] rejected the contention that a representation had been made or an impression created by the Attorney-General, which precluded the Executive from adopting a policy of considering Mr Quin's application to be appointed as a Magistrate, competitively with the applications of other persons. His Honour stated:

The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power ... Accordingly, it has been said that 'a public authority ... cannot be estopped from doing its public duty', to use the words of Lord Denning M.R. in Lever Finance v Westminster London Borough Council. ...

45 The Board noted that there could be a public interest exception to the principles that statutory decision-makers cannot be estopped but that:

... the Respondent must be able to freely exercise his discretion to ensure members of the public that visit or reside in the dwelling do so without risk to life, safety and health. We find that the exercise of the Respondent's discretion is overwhelmingly in the public interest and outweighs the cost to the Applicant complying with the Building Order.

We are not persuaded that the potential prejudice to the Applicant in having to comply with the Building Order outweighs the public interest in the deck being removed. Clearly the statutory discretion exercised by the Respondent was to address concerns regarding protection of life, health and safety of people and property.[50]

46 The Board also noted that it was doubtful whether the representation by the Council could be taken to be a representation of the MBS, given that the MBS is a separate and independent statutory officer with statutory obligations to enforce the Building Act and its regulations.[51]

47 On appeal to this Court, Mr Morris contended that there was no legal precedent for the Board to deny an estoppel, and that it erred in law in doing so.[52] He summarised the position as follows:

... [the MBS] made and communicated its decision to the Plaintiff, and then later after the Plaintiff had completed the works, not only reversed its decision, but also prosecuted the Plaintiff for following its advice, imposed a draconian order and put the full costs of complying with that grossly excessive order on the Plaintiff. Such behaviour is patently unfair, unjust, and unreasonable.[53]

48 Mr Morris submitted that the elements of an estoppel were present, being the making of a representation by an official with the intention that the other party would rely on it; a reliance by that other party on the representation to their detriment; and that it would be unconscionable for the official to go back on the representation.[54] He also contended that the Board had 'fabricated' the basis of denying the estoppel, in that the Board referred to risks to life, safety and health and 'concerns regarding protection of life, health and safety of people and property.[55]

49 The MBS submitted that the Board had correctly stated and applied the principles relating to estoppel. He submitted that the Board correctly identified that there may be a public interest exception to the more general prohibition on estoppel applying to statutory discretions, and considered matters relevant to the public interest in determining that no estoppel applied.[56]

50 The Board did not err in concluding that there was no estoppel which prevented the issue of a Building Order.

51 The Board was correct in referring in its reasons to authority to the effect that a decision-maker cannot by the making of a representation disable itself from or hinder its exercise of a statutory discretion. In Attorney-General (NSW) v Quin, Mason CJ held, referring to a line of authority including Minister for Immigration , Local Government and Ethnic Affairs v Kurtovic[57] that:

The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the discretion.[58]

52 That principle is directly relevant to and dispositive of the submissions made by Mr Morris. There are further reasons why Mr Morris' argument, that the Board was wrong to determine that an estoppel did not apply to prevent the issue of the Building Order, could not succeed.

53 The evidence of what occurred when Mr Morris emailed the Council in January 2021 does not support Mr Morris' submission that the MBS 'made and communicated its decision to the Plaintiff' and later when the works were completed 'reversed its decision'. Putting aside for present purposes the question of whether the statement made in the email of 22 January 2021 is properly regarded as being attributable to the MBS, it cannot in my view be characterised as a 'decision' with respect to the work which was actually done for Mr Morris in early 2022. The representation made in the email was that:

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

54 The information that had been provided to Council by Mr Morris prior to that email was that he wanted to 'extend a deck by 1 metre, which increases the total deck size by about 7 sq. metres.'[59] However, Mr Morris's evidence and submissions were to the effect that the deck had not simply been extended, but had been 'reconstructed and extended';[60] he had 'replaced' the original deck because that deck was about 20 years old and 'had become hazardous'[61] and was 'falling into disrepair'.[62] He also described the works as 'repairs to my dwelling which included replacing and extending the deck on the rear side of my dwelling'.[63]

55 No evidence was tendered by either party as to the exact size of the reconstructed structure. However Mr Morris, in correspondence with the Council, identified the 'total works' of repairing and extending the deck as being 'about 24 square metres'.[64]

56 The evidence also established that the deck was a significantly raised structure, with accessible spaces underneath it, which overlooks the south-eastern corner of the neighbour's dwelling at the adjoining property.[65]

57 It is clear that the work, which involved a reconstruction and extension of a raised deck, was materially different to the work described by Mr Morris in his email in January 2021 as extending a deck by one metre. Whatever effect the 22 January 2021 response from Council advising that 'based on the information provided ... a building permit is not required' may have had, it was not a decision with respect to the quite different works later undertaken. The representation made in that email was not a representation that no building permit was required for the reconstruction and extension of a deck that was also a raised structure. Even if it was accepted that the exercise of the MBS' statutory discretion could be estopped by a prior representation, if the public interest so required, it would not operate to preclude the MBS from issuing a building order in this case, as no representation had been made that a building permit was not required for work of the kind actually done.

58 The Board was also correct to decide that there was no basis for the application of the public interest exception to the broad principle that estoppel will not apply to hinder or prevent the exercise of a statutory discretion.

59 The Board referred to estoppel by convention. The type of estoppel that Mr Morris described in his submissions was more appropriately characterised as an estoppel by representation, or equitable estoppel, given that it turned on a representation made in the Council email of 22 January 2021.[66] Estoppel by convention is an estoppel which arises not from a representation, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both parties will be estopped from denying.[67] However that does not alter the correctness of the Board's observations as to the limits on estoppel applying to the exercise of a statutory discretion. The principle that estoppel cannot ordinarily be used to prevent or hinder the exercise of statutory discretion applies generally to estoppel, including estoppel by representation.[68]

60 The Board was also correct to recognise that the limited exception to the general position that estoppel cannot be used to hinder the exercise of statutory discretion involves the balancing of the harm that would be done to the interests of the public at large, against the harm to the particular individual.[69] In the case of the discretion to issue a building order, this is a statutory discretion to be exercised in the public interest, including by reference to the objectives in s 4 of the Building Act. Section 4(2) of the Building Act expressly states that it is the intention of Parliament that in the administration of the Building Act, regard be had to those objectives, which include that of protecting the safety and health of people who use buildings in s 4(1)(a). The Board's assessment that the public interest in the MBS being able freely to exercise the discretion outweighed any public interest considerations arising from the potential prejudice to Mr Morris was correct.

61 Ground 1.1, to the effect that the Board erred in determining that estoppel did not apply to prevent the issue of the Building Order, is not made out.

62 As to the grounds based on the contention that the Board's conclusion on estoppel was based on a 'fabrication', grounds 1.2 and 3.1, these must also be rejected.

63 The Board also made no error in referring to the discretion of the MBS as being 'to ensure members of the public that visit or reside in the dwelling do so without risk to life, safety and health' and to 'address concerns regarding protection of life, health and safety of people and property'.[70] Contrary to the submission of Mr Morris,[71] the Board did not in those references make a finding that the deck did in fact present a risk to life, health or safety; rather it was making a finding that there was a concern that the reconstructed deck may involve a safety risk. This was relevant to the nature of the discretion to make a building order.

64 An objective of the Building Act is to protect the safety and health of people who use buildings and places of public entertainment.[72] That is an objective to which the MBS was obliged by the Building Act to have regard in exercising the statutory discretion to issue a Building Notice or Building Order.[73] Further, the Building Notice and Building Order had been issued to Mr Morris in this case because the MBS was of the view that the building work had occurred without a building permit first being obtained. One purpose of the building permit system, and associated powers to issue building notices and building orders, established by the Building Act is to further the main purposes of the Act in regulating building work and building standards, and administering and enforcing related building and safety matters.[74] The building permit ensures the involvement of a building surveyor from an early stage, with mandatory inspection requirements as works progress.[75] The absence of a building permit means that an important process directed to building safety is avoided, with the result that important matters such as structural integrity have not been assessed.

65 Notwithstanding the opportunity provided in the show cause process following the issue of the Building Notice, Mr Morris did not provide any of the requested documentation to demonstrate the safety of the deck or its compliance with the Building Act and Building Regulations (and the Building Code of Australia which is adopted by reg 10 of the Building Regulations). The MBS had no way of assessing whether the raised deck was in fact safe and structurally sound. The Board also did not have evidence to enable it to make that assessment but equally it did not find that the deck was unsafe. A fair reading of its reasons indicates that it concluded that there was a valid concern that there was a safety risk, and that the MBS, in exercising his discretion to serve a Building Order, had concerns regarding safety. This was an entirely justified observation and not a 'fabrication'.

66 For the above reasons, grounds 1.1, 1.2 and 3.1 fail.

Section 118A of the Building Act

67 Mr Morris contends in ground 1.3 that it was unlawful to affirm the Building Order as it was issued in contravention of s 118A of the Building Act. By ground 2.3 he contends that the Board failed to consider whether the Building Order was validly issued in compliance with section 118A.

68 Section 118A provides that a building notice must not be served unless:

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

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

69 No direction to fix the raised deck was issued. Mr Morris contends that the MBS could not have been be reasonably satisfied that a direction to fix the building work would not have been complied with or that it was either not possible or not appropriate to give a direction to fix the building work, as he had 'offered to address any reasonable concerns' of the MBS and affected neighbours, and had 'suggested the overlooking could be overcome through erecting a screen', an offer which the MBS did not take up. He also submitted that there was 'no evidence whatsoever that the structure complained of ... is structurally deficient in any way'.[76]

70 The MBS notes that this issue was not raised before the Board, so the Board did not have the opportunity to consider it. It submits that in any case, it was reasonable for the MBS to conclude that a direction to fix was not possible or not appropriate because it was entirely unknown what aspects needed to be 'fixed'. It is also submitted that s 37A, relating to the giving of a direction to fix, applies where a 'relevant building surveyor' believes on reasonable grounds that the building work fails to comply with the Building Act, Building Regulations or the building permit issued in relation to the work. The direction to fix must, in compliance with s 37D of the Building Act be given to the builder, which is defined as the builder in the building permit issued in relation to the building work. Given there was no building permit and no builder, it was not possible to issue a notice to fix. Further, as the MBS did not issue any building permit for the work, he was not the 'relevant building surveyor' for the work and could not give a notice under s 37A.[77]

Analysis: there was no failure to comply with any requirement to issue a direction to fix

71 The regime for the giving of a direction to fix in Division 2 of Part 4, and the requirement to give a direction to fix subject to certain exceptions in s 37A, is premised on the assumption that the person who is arranging for the carrying out of building work has obtained a building permit for the work as required by s 16 of the Building Act.

72 This is apparent from several features of the Division.

73 First, s 37A(1) states that:

This section applies if**, after the inspection of building work,** the relevant building surveyor believes on reasonable grounds that the building work fails to comply with this Act, the building regulations or the building permit issued in relation to the building work.[78]

The reference to the section applying if a state of belief is formed 'after the inspection of building work' necessarily assumes that an inspection of the building work will have occurred. Part 4 of the Building Act, relating to inspection of building work, provides for the inspection of building work by the relevant building surveyor at mandatory notification stages, which are to be notified to the relevant building surveyor by '[t]he person that is named as the builder in a building permit issued for building work'.[79] Inspections may also be caused to carried out at any other time by the relevant building surveyor for 'building work for which a permit has been issued under Part 3'.[80] Section 37A will not apply unless an inspection has occurred, and an inspection under the Building Act will not routinely have occurred if no building permit was issued for the relevant work.

74 Second, s 37A(2) imposes the duty to give a direction to fix the building work on a 'relevant building surveyor'. The term 'relevant building surveyor' is relevantly defined in s 3(1) of the Building Act to be the building surveyor who gives the permit, approval, inspection, direction, notice of order. Given that s 37A(2) is referring to the relevant building surveyor at the time prior to the giving of any direction to fix, it appears that the reference to relevant building surveyor in that subsection is to the building surveyor who issued the building permit.

75 Third, s 37C provides that the direction to fix be given to 'the builder' or to 'the person who is apparently in charge of the site on which the building work is being carried out'. 'Builder' for the purposes of Division 2 of Part 4 is defined by s 37 as follows:

builder in relation to building work, means the person who is specified as the building in the building permit issued in relation to that building work ...

76 This, too, contemplates that a building permit will have been issued for s 37A to apply. The direction to fix can also be given to the person in charge of the site on which 'the building work' is being carried out. That is a reference to 'the building work' referred to in s 37A, so given the terms of s 37A(1) discussed above, that phrase also necessarily refers to building work for which a building permit has been issued.

77 In a situation where building work is being carried out without a building permit, for the reasons above s 37A would generally not apply to require the giving of a direction to fix prior to the issuing of a building notice. It may be possible for an inspection to be carried out where there is no building permit in place. However, in this case, Mr Morris responded to the Council's request to have access to the property to inspect the work, prior to the Building Notice being issued, by saying that 'no structure was erected in the rear yard of my property' and requiring the Council to provide reasonable grounds for concluding that a structure requiring a building permit was erected on his property.[81] The only assessments that were possible were from the observation and photographs of the deck from outside the property taken prior to the issue of the Building Notice[82] and again prior to the issue of the Building Order.[83]

78 For the reasons addressed below, I accept that the work in reconstructing and extending the raised deck was 'building work' within the meaning of the Building Act which required a building permit.

79 Section 118A applies to require a MBS or a private building surveyor not to cause a building notice or building order to be issued where a direction to fix under Division 2 of Part 4 was given and it is clear that it will not be complied with; or where it is not possible or not appropriate to give a direction to fix. Because, for the reasons above, the MBS was not the relevant building surveyor and had not been able to undertake any adequate inspection as required under s 37A(1), it was both not possible and not appropriate for the MBS to give a direction to fix, and s 118A(b) would apply.

80 Although that disposes of this ground, it is also appropriate to observe that it I do not accept Mr Morris' submission that he has 'offered to address any reasonable concerns' of the MBS, and that the MBS could not have been satisfied that a direction to fix the building work, if given, would not have been complied with. The Council had requested an opportunity to inspect Mr Morris' property, which he declined on the basis that it was unreasonable to expect someone to remain on the property for an entire morning waiting for the compliance officer, but also by denying that any structure was erected in the rear of his property, characterising it instead as 'repairs to his dwelling'.[84] He also required the Council to provide reasonable grounds for concluding that he had erected a structure requiring a building permit if it wished to have access to his property.[85] Had s 37A of the Building Act applied to require the MBS to form a view for the purposes of s 118A(b) as to whether it was 'not appropriate to give a direction to fix the building work', it would have been open to the MBS to form that view.

The Board's conclusion that the work required a building permit

82 The Board, after discussing its request to have access to Mr Morris' property in order to inspect the deck, concluded that the making of the Building Order was appropriate in the circumstances. It stated:

... having viewed the photographs of the deck provided by the Respondent and having reviewed the other materials filed by the parties, we are satisfied the material is sufficient for us to be able to make a determination. Further, we are satisfied that the decision of the MBS to issue the Building Notice and the Building Order was appropriate in the circumstances.

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

In any event, by his own admission in his Submissions and Submissions in Reply, the Applicant has extended the decking/balcony which is beyond maintenance and or repair of an existing structure, and therefore constituted building work which triggers the requirement for a building permit.[86]

83 The Board also addressed the application of reg 84 of the Building Regulations. It found that 'in extending the decking/balcony the Applicant is in breach of reg 84 of the Regulations'. The Board stated that it did not[87] accept the Applicant's submission that:

(i) Trees are unquestionably fixed and 'more permanent than timber decks, timber and metal screens and residential buildings';

(ii) Trees provide a 'fixed and permanent' screen; and

(iii) BY removing the trees that provided an effective screen before the original deck was extended and reconstructed, the owners of [the neighbouring property] created the overlooking issue.

84 The Board accepted the submission of the MBS that the deck reconstruction was a new construction, so that reg 84 applied, and that 'a physical barrier and not merely vegetation' is required to prevent overlooking.[88]

85 Mr Morris contends that the Board was wrong to conclude that the reconstruction and extension of the raised deck:

(a) required a building permit, and

(b) was required to comply with reg 84 of the Building Regulations.

86 Mr Morris contends that the Board was required to consider 'whether a "reasonable man" in the position of [the MBS] with the same duties and responsibilities would have come to the same conclusions' as the MBS. He submits that the relevant decision is 'whether the reasonable man would have concluded that the Plaintiff's timber deck results in some or other material adverse consequences relating to matters of concern to the Building Act 1993, such as to structure integrity and the level of shading and overlooking'. He also contends that 'the intention of the Building Act would not have been to deem a structure erected without a building permit as requiring demolition and removal merely because it did not have a building permit.'[89] Mr Morris also contends that the Board was wrong in failing to distinguish between the pre works and post works level of overlooking.[90]

87 The MBS submits that the ground of review, in positing a 'reasonable man' test as the question that should have been asked by the Board, misunderstands the nature of the rehearing undertaken by the Board, which steps into the MBS' shoes and remakes the decision. He also submits that it was plainly correct for the Board to conclude that the structure required a building permit and was required to comply with reg 84.[91]

88 Mr Morris also submits that there was an error of law on the part of the Board in affirming the Building Order made by the MBS as:

(a) the MBS had not exercised his discretion consistently as required when making the building order. This appears primarily to be a submission that the MBS had not adhered to any formula guideline in making his determination as to whether a building permit was required;[92] and

(b) the Building Order lacked a proper basis, which was based essentially on a submission that the MBS had not properly compared the pre and post works structure.[93]

While it concluded that the Plaintiff's timber deck was a new structure for the purpose of the Building Act 1993 on the basis that it was 'beyond maintenance and/or repair of an existing structure', it did not consider whether the reconstruction was "beyond maintenance and/or repair".

Consideration - the Board was correct to conclude that the reconstruction and extension of the raised deck required a building permit

90 An appeal to the Board is identified by s 148 of the Building Act as being an appeal in the nature of a rehearing. On that appeal, the Board has powers to affirm the decision under appeal; quash or vary it; or set the decision aside and substitute its own decision or remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations the Board thinks appropriate.[94] In considering and determining an appeal the Board has, in addition to its other powers as a Board, all of the powers of the decision-maker in relation to the decision under appeal.[95]

91 Contrary to Mr Morris' submission, the question of what a 'reasonable man' in the position of the MBS would have done, and whether he would have concluded that the deck results in adverse consequences under the Building Act was not the question for the Board. Mr Morris' appeal application to the Board was against the making of the Building Order. This did not involve the Board assessing what a reasonable person in the position of the MBS would do. It involved considering, by reference to the facts before it, whether it was open and appropriate to make the Building Order pursuant to s 111 of the Building Act.

92 There was also no error in the Board's conclusion that the work required a building permit and was required to comply with reg 84.

93 As stated above, the Building Act, s 16 requires that a building permit is obtained for any 'building work' to be carried out. 'Building work' is defined as 'work for or in connection with the construction, demolition or removal of a building'. 'Building' is defined in such a way that it could include both the residence (of which the deck formed part) or the deck itself, as part of the building or structure:

building includes structure, temporary building, temporary structure and any part of a building or structure ...

94 The MBS was limited in the evidence he could put before the Board as to the nature of the work done, as, despite the requests made for an inspection of the work by a council compliance officer, the Council and Mr Morris had been unable to reach an agreement about access for inspection.[96] The Board also had requested that Mr Morris permit it to view his property and inspect the deck. Mr Morris refused that request.[97] The Board viewed the photographs of the structure provided by the MBS, reviewed the other materials filed by the parties, and took into account including Mr Morris' admission that he had extended the deck, which meant that it was 'beyond maintenance and or repair of an existing structure'. The Board concluded that the work on the deck constituted 'building work'.[98] It also concluded that the works were not exempt under item 1 of Schedule 3 of the Building Regulations and that the decision to issue the Building Notice and Building Order was appropriate in the circumstances.

95 In my view the material before the Board supported these conclusions. The photographs to which the Board referred were also in evidence in the review application in this Court. The photographs showed that the raised deck was a structure of significant size, which could evidently be overlooked by neighbouring properties, but could equally enable overlooking into one or both adjoining properties. The photographs also demonstrate that it is raised from the ground in such a way as to permit regular access to and use of the space under the deck; Mr Morris' submissions also stated that the area under the deck, or at least the room leading out to the space under the deck, was at a height of 1.8m.[99]

96 Mr Morris' submissions to the Board had referred to the work on the deck in the following terms:

(a) 'the reconstruction and the extension to the original (20-year-old raised timber deck)';[100]

(b) 'the original deck had become hazardous, I replaced it...';[101]

(c) 'the new timber deck on my property';[102] and

(d) the 'extension and reconstruction' and the 'extension and replacement' of the deck.[103]

97 In these circumstances it was open to the Board to conclude that the reconstruction and extension of the deck was building work, and that it fell within the exemption in item 1 of Schedule 3 to the Building Regulations, which exempts construction of a freestanding Class 10a building that has a floor area not exceeding 10m2, and conforms with certain other conditions. The deck was attached to the rear of the house and clearly not a freestanding structure. Mr Morris had acknowledged this in submissions to the Board.[104]

98 Item 3 of Schedule 3, exempts from the requirement of a building permit work which is 'a repair, renewal or maintenance of a part of an existing building' if the building work also satisfies other conditions including that it:

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

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

(ii) underpinning or replacement of footings; or

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

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

99 It was not entirely clear from Mr Morris' submissions to the Board whether he contended that item 3 of Schedule 3 applied to the new deck. He appeared to concede that item 3 would not of itself exempt all of the work given that it involved an extension to the deck.[105] He contended that because his original timber deck was approved and inspected by Council at the time it was erected some 20 years ago, and item 3 of Schedule 3 permits repairs to structures without a building permit, the only issue was then whether 'a relatively minor extension to it requires a building permit'. This was related to his argument in ground 2.1 that the Board had not considered whether the work on the deck was 'beyond a repair', because it was necessary for the MBS to show that the deck had less structural integrity or increased overlooking, and it had not done so.[106]

100 The Board did not refer specifically to item 3.3. It apparently did consider Mr Morris' submissions as to whether the reconstructed deck constituted work which was maintenance or repair of the previous deck, as the Board Reasons show that after its express conclusion that item 1 of Schedule 2 did not apply, it expressly concluded that the work on the deck was 'beyond maintenance and or repair of an existing structure',[107] which addresses the criteria in item 3 of Schedule 3. I also infer that in affirming the Building Order, the Board accepted the correctness of the explanation provided in the MBS' submissions that structural alterations had occurred with the replacement of critical elements of the deck, being supporting posts, bearers, floor joists, decking boards and hand rails, which contribute to the support of other elements; and that the floor area had increased.[108]

101 This first premise of Mr Morris' arguments on these grounds appears to be that the reconstruction of the raised deck constituted no more than a 'repair' to an existing structure. That argument cannot succeed as it was made clear in Mr Morris' own submissions to the Board that the original deck was not simply repaired, but replaced or reconstructed. He stated that '[as] the original deck had become hazardous, I replaced it'.[109] This and the acknowledgement in submissions that the deck had been extended were sufficient for the Board's conclusion that the work involved in the reconstructed deck was 'beyond maintenance and or repair'. Contrary to Mr Morris' submissions in support of ground 2.1, the Board was not required to assess the 'materiality of the variation from the pre-existing structure' by reference to matters such as structural integrity, shading and overlooking.[110] Once the Board had a basis to conclude that the deck involved a reconstruction of a previous structure, which had been replaced, this was a sufficient basis to reject the characterisation of the work as repair or maintenance. The fact that the deck was extended beyond the original measurements was a further reason to conclude that the work was beyond repair or maintenance.

102 A further submission of Mr Morris on the application of the building permit requirements and exemptions was that, insofar as he accepted that the deck had been extended, the Building Regulations should be construed not to apply to timber decks, by reference to 'industry practice' and the 'intention of the Regulations' to 'exclude relatively inconsequential buildings and structures', and the absence of any specific reference to timber decks in the 'building and structure classifications' in the Building Regulations.[111]

103 That argument too cannot succeed. There is nothing in the terms of the Regulations which supports a construction that they exempt raised timber decks as a category from the requirements as to building permits. There is also no text of the Building Act or Building Regulations or any other foundation from which a legislative intention can be discerned that the Building Regulations are not intended to apply to work on a timber deck if it falls within the definition of 'building work' and does not fall within an exemption in the Building Regulations.

104 Contrary to Mr Morris' submission,[112] there was no basis on which the Board should have applied anything other than a strict interpretation of the law as to the requirements for a building permit. Section 16 of the Building Act strictly requires a building permit for any building work, unless the building work is exempted by or under the Building Act or Building Regulations. The context of the Building Act, including the objective of protecting the safety and health of people who use buildings,[113] is consistent with this. The Board having concluded that the work was building work, and that the exemption relating to repair, renewal or maintenance did not apply, it followed that a building permit was required by s 16.

105 The Board was also not required to consider whether 'a reasonable man' would have determined that reg 84 required screening to prevent overlooking. Regulation 84(1) imposes an unqualified requirement that a 'raised open space of a building on an allotment must not provide a direct line of sight into a habitable room window or on to a secluded private open space of an existing dwelling on an adjoining allotment'. For the reasons discussed below, the Board was correct to conclude that reg 84 applied to the work. For the purpose of this ground of review, it is sufficient to note that neither reg 84 nor any other part of the Building Act or Building Regulations provided the MBS or the Board with a discretion to permit a degree of overlooking or to dispense with the reg 84 restrictions.

106 As there was a proper basis for the Board to conclude that the reconstructed and extended deck required a building permit, and (as discussed below) that it was required to comply with reg 84, but did not, there is no merit in the contention that the Building Order lacked a proper basis. The MBS had not been in a position to compare the earlier deck and the reconstructed deck. The previous deck had been replaced and reconstructed without any opportunity for inspection by the MBS (nor apparently by any other building surveyor).

107 Questions of structural integrity and safety of the reconstructed replacement deck would not in any event depend on a comparison to the previous deck but on the integrity and safety of the new structure. Mr Morris did not during the show cause process following the issue of the Building Notice provide any documentation which would have enabled an assessment of the structural integrity of the reconstructed deck. Ground 1.9 which alleges that the Board erred in law in affirming a Building Order that lacked a proper basis cannot therefore succeed.

108 Finally, ground 1.8, that the Board erred in law by affirming the Building Order when the MBS had not in issuing the Building Order exercised his discretion 'consistently', also cannot succeed. The Board accepted that there was a basis for the issue of the Building Order. The submission that the MBS (and by extension the Board) was required to act by reference to a framework or guideline in making the decision does not have any foundation in the legislative scheme. It was enough, to justify the decision to affirm the Building Order, that the Board had a basis to conclude that the work required a building permit but did not have one, and that it also identified safety objectives as a reason for the exercise of the discretion to issue a Building Order.

109 Grounds of review 1.4, 1.8, 1.9 and 2.1 are not made out.

Regulation 84 of the Building Regulations

110 Mr Morris seeks to impugn the Board's conclusions as to the application of reg 84 of the Building Regulations in two ways. He first contends that the Board erred in determining that reg 84 applied, and specifically that:

(a) the Board erred in concluding that the law should be interpreted strictly to conclude that the deck was required to comply with reg 84 (ground 1.4). I have rejected this ground above; and

(b) the Board failed to distinguish between the current (post works) level of overlooking and the pre-works level of overlooking, which was characterised as an error of law (ground 1.6), and failed to take relevant matters into account (ground 2.2).

111 Secondly Mr Morris contends that the Board erred in law in determining that trees and hedges do not fall within the ambit of a 'fixed and permanent screen' (ground 4.1).

Did regulation 84 apply to require that overlooking was prevented by screening?

(a) the pre-existing deck complied with reg 84;[114]

(b) there is no evidence that there is a difference in overlooking between the previous deck and the reconstructed deck; and there was 'little (if any) difference in the level of overlooking';[115]

(c) 'it could not have been within the reasonable contemplation of the Building Act 1993 for structures with a similar level of overlooking to be compliant pre-reconstruction but not compliant post reconstruction'.[116]

113 The MBS submitted that because the deck/balcony had been reconstructed the legislative requirements as to the deck previously in place no longer applied, and the current Building Regulations, in particular reg 84, now applied. The MBS considered that the deck had been completely replaced, but even had he been of the view that some of the existing deck remained in location, regs 233(1) and (2) meant that reg 84 must be complied with as more than half the original volume of the building had been altered.[117]

Regulation 84 applied to the reconstructed deck

114 Regulation 84(1) provides, relevantly, that a raised open space of a building on an allotment must not provide a direct line of site on to a secluded private open space of an existing dwelling on an adjoining allotment.

115 A raised open space is defined by reg 84(10) as meaning, among other things, a balcony, terrace, deck or patio. Mr Morris' deck was clearly a raised open space.

116 It was also uncontroversial that the deck permitted overlooking into the backyard of the adjoining property, on which a house was situated. This was apparent from the photographs before the Board, but also was accepted in Mr Morris' submissions to the Board. He referred to the deck overlooking the 'south east corner of the dwelling on [the adjoining property]', but said that the overlooking arose 'due to the current owner/occupiers of [the adjoining property] removing the effective screen (two mature tress) shortly after purchasing that property 5 to 6 years ago'.[118]

117 In these circumstances, it was clear that the work involved in the deck was building work, undertaken while reg 84 was in force (as it had been from the time the Building Regulations were promulgated).[119]

118 Regulation 233(1) of the Building Regulations provides that 'building work to alter an existing building must comply with these regulations'. Although reg 233(4) provides, relevantly, that despite regulation 233(1) the relevant building surveyor may consent to partial compliance of building work or an existing building with reg 233(1), this had no application in circumstances where Mr Morris had not obtained a building permit for the work, so that there was no relevant building surveyor involved who could give such consent. There was also no question of the MBS being able to provide that consent; if it were possible to give that consent after the construction (on which I do not need to express a view). That was because Mr Morris had not put the MBS in a position of being able to consider whether to give that consent. Regulation 233(4) provides that a relevant building surveyor, in determining whether to consent to partial compliance, must take into account, among other things, the structural adequacy of the building. Despite the requests made by the MBS during the show cause process following the issue of the Building Notice for Mr Morris to produce documents relevant to the structural adequacy of the raised deck, such as a certificate of compliance from a building surveyor, and complete structural certification, computations and plans, Mr Morris had declined to do so.

119 Contrary to Mr Morris' contentions, the application of reg 84 did not require any comparison between the previous structure and the newly reconstructed deck. Reg 84 imposes a straightforward requirement that the raised open structure must not enable a direct line of sight into the secluded open area of the adjoining property.

120 There is also no merit in Mr Morris' argument that his neighbours 'created' the overlooking by removing trees some five to six years earlier. The trees were plainly not in place by the time of the reconstruction or replacement of the deck, so that the reconstructed deck when built enabled an overlooking of that neighbour's property. Neither reg 84 nor any other part of the Building Regulations impose any obligation on an adjoining property owner to prevent adjoining properties from overlooking. The obligation arising from the requirement in reg 84 is on the party responsible for the raised open space from which there is a direct line of sight into the secluded space of the adjoining dwelling. Mr Morris identified no basis on which it was 'incumbent on the current owners' of the adjoining property to either retain or restore trees on its own property in order to prevent overlooking from Mr Morris' deck. There is no such obligation, and this argument cannot succeed.

121 It was, therefore, entirely open to the Board to conclude that Mr Morris was in breach of reg 84 of the Building Regulations by reason that the deck overlooked the neighbour's adjoining property, and that determination is not affected by any error alleged by Mr Morris.

122 Grounds 1.6 and 2.2, with ground 1.4, are not made out.

Whether trees may constitute a fixed and permanent screen

123 By ground 4.1 Mr Morris contends that the Board's determination that trees and hedges do not constitute a 'fixed and permanent screen' within the meaning of reg 84 was wrong at law.

124 Mr Morris submits on appeal that the MBS' submissions to the Board showed that the MBS based his determination that Mr Morris contravened reg 84 on the grounds that trees are not 'fixed and permanent', and that this was wrong in law. Mr Morris submits:

(a) he did not remove the trees and they were not removed for the reconstruction and extension of the deck;

(b) trees 'would fall within the ambit of fixed and permanent because they generally have a longer useful life than many, if not most buildings and structures and can provide a higher level of screening (can eliminate more overlooking) than is required under Regulation 84'; and

(c) the Board, in determining in its reasons that 'a physical barrier, not merely vegetation, is required to prevent overlooking', made a statement which 'defies common sense and appears to be without legal support'. [120]

125 The MBS contends that the phrase 'fixed and permanent screen in reg 84 'could not simply mean "vegetation", which can be trimmed, removed, fall over, die, lose its foliage, all of which would affect its function or exist as a "screen".'[121]

Consideration - the relevance of the Board's comments as to whether trees can constitute a screen

126 Before the Board, Mr Morris had raised the issue of whether trees constituted a fixed and permanent screen with the following submission, which was made in support of his contention that there was no basis to determine that reg 84 applied to the reconstructed and extended deck:

Council also erred by disregarding the fact that the current owner/occupiers removed two mature trees providing an effective screen and despite requests from me to do so, have failed to replace those trees or erect another effective screen. In this regard Council also erred by stating that it ignored the trees removed by my neighbours as trees are not 'permanent and fixed' as required by Regulation 84. Since this term is not defined by the regulations, the common meaning applies. Under that interpretation trees are regarded 'fixed' to the ground, as are buildings, and are regarded as permanent or even more permanent than weatherboard, brick veneer and various other types of buildings and structures. ... Many trees also meet the requirement (at Reg 84 5 d) for the screen [to have] no more than 25% of its area open to a direct line of sight. Nevertheless, whether trees are or are not 'permanent and fixed' is not relevant. The only point that is relevant is whether the works resulted in any additional overlooking.[122]

127 It was in response to Mr Morris's position that the overlooking was caused by the neighbour's removal of trees that the MBS stated, in his contentions to the Board:

... pursuant to Regulation 84 of the Building Regulations 2018, a physical barrier not vegetation is required to be provided to prevent overlooking for the property proposing to undertake building work.[123]

128 In that context, the Board rejected Mr Morris' submissions that trees provide a fixed and permanent screen and that the neighbours created the overlooking by removing the trees that had provided an effective screen.[124] It accepted that because the deck reconstruction and addition was a new construction, reg 84 applied. It also accepted the submission that a physical barrier, not merely vegetation, is required to prevent overlooking.

129 For the reasons already identified above, the Board was correct to conclude that reg 84 applied to the reconstructed deck. It followed from that conclusion that screening was then required in order to prevent the overlooking. The question of whether the neighbour's original trees would have been able to constitute the required screening did not arise, since those trees had been removed before the reconstructed and extended deck was erected. It was clear from Mr Morris' submission to the Board that they had been removed some six years before the appeal, and so several years before the reconstruction of the deck.[125] There was, therefore, no question at the time of the deck being reconstructed and extended that any trees provided the screening required by reg 84. As the prohibition in reg 84(1) of raised open spaces overlooking a secluded private open space on an adjoining allotment applies to the raised open space, the obligation to ensure screening is in place to prevent any overlooking is plainly on the owner of that raised open space. For that reason, the question of whether the trees previously in place could or could not have constituted screening for the purposes of reg 84 did not arise.

130 The Board's statement, in accepting the submission of the MBS, that 'a physical barrier, not merely vegetation, is required to prevent overlooking from the Applicant's property', would be relevant only to the consideration of what screening would have been required to the reconstructed deck had Mr Morris erected the necessary screening, or what may be required in any future structure.

131 It is not, therefore, strictly necessary to consider whether the Board was correct to say that a physical barrier, and not merely vegetation would be required to satisfy the description of a fixed and permanent screen. It is an issue of which there appears to be no existing consideration in the authorities and it would be more appropriate to reserve consideration of the issue for an occasion on which there are more complete submissions addressing the issue.

132 It suffices for present purposes to observe that even if it was accepted that certain types of established trees could constitute a permanent and fixed screen (a matter on which I express no opinion in this proceeding) it would remain a question in every case whether they would continuously satisfy the requirement in reg 84(6) of a screen which has 'no more than 25% of its area open'. It may be that this degree of coverage by trees could not be sufficiently certain at all times for trees to satisfy that requirement in a fixed and permanent way, which is the other requirement for the screening.

133 For the above reasons, the Board's observations as to a physical barrier and not merely vegetation being required by reg 84 do not disclose any error.

Grounds of review relating to procedural fairness and the Board's conduct of the hearing

135 Mr Morris relied on multiple grounds of review directed to the manner in which the Board heard and resolved the application, alleging that all constituted a denial of his right to natural justice. One of these, ground 3.1, was the contention that the Board 'fabricated' an aspect of the basis on which it rejected Mr Morris' argument on estoppel. That ground has been rejected above. Of the other grounds, they can be broadly grouped as set out below. The third grouping, relating broadly to the Board's approach to the resolution of the appeal, overlaps with grounds identified in part 1 of the originating motion as involving an error of law on the part of the Board, and so are considered with these procedural fairness grounds. The errors on the part of the Board alleged in the grounds of review are:

(a) a wrongful refusal of Mr Morris' request that the MBS provide its internal papers and correspondence 'that could have shown the basis on which the [MBS] decided that the structure complained of required a Building Permit' (ground 3.6);

(b) a wrongful endeavour to exercise powers the Board does not have, by demanding access to Mr Morris' property when it had no right to do so (ground 3.8);

(c) the Board:

(i) acted contrary to the 'legislative intention that requires sentences to be just' in affirming the Building Order which put the costs of compliance and remedial action on Mr Morris (ground 1.5);

(ii) failed to consider whether the Building Order, placing remedial costs on Mr Morris, was just in the circumstances (ground 2.4);

(iii) in affirming the Building Order acted 'contrary to the fundamental duties of adjudicating bodies' (ground 1.7);

(iv) showed dishonesty (ground 3.2);

(v) showed prejudice 'by unquestionably accepting the [MBS'] statements' (ground 3.3);

(vi) showed prejudice by 'failing to consider [Mr Morris'] arguments (ground 3.4);

(vii) showed 'an arrogant attitude, which indicates that it lacked impartiality and lacked the ability to provide a fair hearing' (ground 3.5);

(viii) failed to properly establish and consider the facts and assess the matter (ground 3.7);

(ix) affirmed a Building Order that is draconian, unjust, unfair and ineffective (ground 3.9); and

(x) failed to 'ensure the [MBS] did not run spurious arguments or even encourage or caution it not to' (ground 3.10).

The refusal to require the MBS to provide internal papers and correspondence

136 In his written submissions accompanying his appeal to the Board, Mr Morris requested that the Board order the Council to 'provide for examination':

(a) The Council's file of information and correspondence relating to the matter, including internal papers recommending the issue of the Building Notice and Building Order. The submissions stated that this was relevant 'to establish its motivation for issuing the Building Notice and Building Order and the basis or premise on which it did so'.

(b) The Council's internal policy relating to the exercise of its discretion as to whether Building Permits are required, said to be relevant because of the Council's advice that a building permit was not required for the works.[126]

137 In Mr Morris' submissions to the Board, he asked it to consider whether the Council's 'motivations were honourable or an abuse of power' because there were 'reasonable grounds for concluding its actions are due to it embarking on a vendetta against me'. He referred to having made an inquiry of Council two or three years previously to purchase a section of the laneway behind his property, and that after the Building and Planning Department did not respond to his enquiry for some time he 'made some noise, elevating the matter to the CEO and my local Councillor'. He said that in doing so 'it would have been clear that I regarded the [Department] as inefficient and incompetent'. He referred to having sought a copy of a legal opinion that the Department had obtained in relation to the request, which had been refused, so that he again 'made a noise' in taking the matter up with the CEO and local Councillor. He also referred in the submission to having:

(a) made objections to an application for a building permit for a neighbouring property, and having lobbied the community and local Councillors to submit objections to the application, with the result that the Department's recommendation was rejected; and

(b) initiated a 'petition against many of the building permits that had been approved' and after Council did not provide a report or response to the petition, 'made further noise and it would have been clear that I regarded [the Department] as inefficient, incompetent and failing in its duty to act in the best interests of the local community'.[127]

138 The Board made procedural orders on 8 August 2022 in which it noted that its role was 'to consider afresh the technical factors which are said to substantiate the making of the Building Order', so that the motivation of the MBS in making the Building Order was not relevant.[128] The Board declined to order the Council to provide the internal documents.

139 At the hearing of the appeal Mr Morris did submit that the MBS and his employer, the Council, were motivated by malice in the decision,[129] but did not identify any evidence supporting that submission. His submissions focussed more on the contention that the internal documents were relevant because the MBS had a discretion, and he had a right to review information that he said would enable him to determine whether the MBS had a proper basis for his decision. He contended that 'the mere fact that the ... current timber deck is larger than the one it replaced, does not amount to a proper basis' for the decision, and without seeing the MBS' internal papers and correspondence he was unable to establish whether the decision complied with the law.[130]

140 The MBS contends that this ground of appeal cannot succeed because it misunderstands the nature of the Board's de novo jurisdiction. As the Board is not concerned with the method by which the original decision is made, but rather with making the decision on the information before it, any issue as to the reason for the decision being made is not relevant to the Board.[131]

Conclusion - there was no error in the Board not ordering the Council to provide documents

141 There was no error on the part of the Board in failing to order production of documents by the Council. The issue for the Board on the appeal was whether it was appropriate to make a Building Order. The appeal was, pursuant to s 148, in the nature of a rehearing, and the Board had powers under s 149 to affirm the decision of the MBS to issue the Building Order or, among other decisions, to set it aside and substitute the decision. The Board was not required to find error in the original decision.[132]

142 The motivation of the MBS in making the original order was not relevant, other than that the stated reasons for making the Building Order were, if the Board was of the same view, a proper basis for the Board's decision to affirm the order.

143 The Board identified the basis on which it considered that the making of the Building Order was appropriate, being that the deck required but did not have a building permit and failed to comply with the reg 84 requirements relating to overlooking.[133] That conclusion having been reached, there was no reason for the Board to consider whether the MBS had any motivation for issuing the Building Notice and Building Order other than the reasons clearly identified in the notice and order themselves. It was also not necessarily the case that the position of the Council, which was the focus of Mr Morris' request for documents and his concern as to ulterior motives for the Building Order, could have any relevance to the MBS, who holds a distinct role. The MBS is, as defined under the Building Act,[134] a person appointed, employed or nominated by a council for the purposes of the Act, with specific statutory functions and duties.

The Board did not deny natural justice in requiring a site view

145 The Board set out in its reasons the request it had made to view the property and inspect the work which was the subject of the Building Order.[135] It observed that despite the Board having advised that it wanted to have a site inspection, Mr Morris refused to provide access.[136]

146 Mr Morris did not make any additional submission on appeal to support his contention in ground 3.8 that the Board denied him natural justice by 'endeavouring to exercise powers it does not have by demanding access to the Plaintiff's property when it had no right to do so'.

147 The MBS submits that there is no basis to regard the Board's attempt to arrange a site inspection as a denial of natural justice, and observes that Mr Morris was, in any event, successful in preventing the Board from conducting a site view.[137]

There was no denial of procedural fairness, nor other error, in the Board seeking to have a site view

148 Mr Morris has not identified how the Board's communications advising that it required a view of the land to inform itself involved any denial of natural justice. The Board explained, when Mr Morris first objected to what he characterised as an apparent 'demand for access', that conducting a site inspection was a way in which the Board sought to inform itself, which was provided for by cl 15(3)(b) of Schedule 3 of the Building Act. When he continued to refuse access, it acknowledged that refusal and proceeded to make its decision on Mr Morris' appeal without the site inspection. This acceptance of Mr Morris' refusal to provide access did not involve any failure to afford procedural fairness, nor was the way in which the Board advised Mr Morris that it required a site view and then dealt with that issue in any way unfair to him.

149 If Mr Morris' contention is simply that the Board had advised that it required a site inspection to determine the appeal, or that it had no power to do so, there is no merit in either argument. The Board had power to request a site visit in order to inspect the work, as an inspection of the deck to consider the nature of the work and the extent of any overlooking were ways in which it could inform itself on whether a building permit was required and whether reg 84 was engaged. It was plainly one way in which the Board could inform itself for the purposes of the Appeal within the meaning of cl 15(3)(b) of Schedule 3 of the Building Act. It was a reasonable and appropriate way of informing itself given the nature of the appeal Mr Morris had brought. The appeal against the Building Order entailed a consideration of the reasons for which it was issued. That required consideration of whether the work was building work which required a permit, and whether the deck was a new construction which permitted overlooking of the adjoining property. The Board had power to advise that it required a site inspection and to ask that Mr Morris, as the appellant, to provide access. As the Board did not press the inspection when Mr Morris refused to provide access it is unnecessary to consider whether it would have further power to compel any access.

150 There was no error in the way the Board proceeded with respect to requiring a site inspection. Ground 3.8 therefore fails.

The grounds relating to the Board's approach to the appeal

151 The following grounds are all identified as involving a denial of natural justice by the Board in hearing the appeal. It is appropriate before considering each of them to make some observations as to the Board's powers in conducting a hearing.

152 The Board is, by cl 15 of Schedule 3 of the Building Act, required to observe certain procedural requirements in conducting a hearing. Clauses 15(3)(c) and (d) of Schedule 3 provide that the Board is bound by the rules of natural justice, now more commonly referred to as the body of rules relating to procedural fairness,[138] but not by any rule or practice as to evidence.

153 The content of the requirements of procedural fairness is shaped by the nature of the Board's functions and its powers.[139] The Board is expressly permitted by clause 15(1) and (3) to conduct a proceeding, as it did in this case, by accepting written submissions, after giving the parties a reasonable opportunity to make those written submissions. The Board received Mr Morris initial submissions and made orders[140] providing for him to file a reply to the Statement of Contentions of the MBS, which Mr Morris did.[141] The Board is required to proceed with as little formality and technicality and with as much expedition as the requirements of the Building Act, Building Regulations and the proper consideration of the matter before it permit.[142]

154 The Board must make its determinations in writing[143] and must give reasons if requested.[144] The Board in this case gave both a determination and orders, and reasons for the determination at the same time.[145]

155 In considering the Board Reasons, it is to be borne in mind that the Board, as well as including at least one member who is a lawyer, is also required by the Building Act to include members who are appointed for their expertise in the building industry or matters related to that industry.[146] The reasons of such an industry-focussed panel should not be 'construed minutely and with an eye keenly attuned to error'.[147]

156 For the following reasons with respect to each specific ground raised by Mr Morris, none of the matters raised demonstrate any failure on the part of the Board to observe the rules of natural justice or provide Mr Morris with procedural fairness.

The Board did not err in affirming the Building order that put the costs of compliance and remedial action on Mr Morris

157 By ground 1.5 Mr Morris alleged that the Board erred in law in affirming a building order that 'puts the costs of compliance and remedial action on the Plaintiff' as this is 'contrary to a legislative intention that requires sentences to be just'. He also alleges by ground 2.4, that the Board failed to consider whether the Building Order, placing the remedial costs on Mr Morris, was just in the circumstances. Both grounds overlap to a substantial degree to other complaints raised under Mr Morris' grounds alleging that the Board denied him natural justice.

158 The comparison inherent in ground 1.5 with the imposition of sentences is misplaced. As observed above, the Board's role established under the Building Act is to make decisions on matters arising under the Building Act, with all the powers of the original decision-maker. In the present case, its role included to consider whether it was, in the circumstances, appropriate to make a Building Order, and its powers included affirming that order or setting it aside and substituting its own decision.[148] The Board's decisions must conform to the limits and objectives of the Building Act, and will involve considering what is appropriate in the circumstances, having regard to the objectives of the Building Act. As noted above, the Board is required to observe rules of natural justice. The legislative scheme does not, however, impose on the Board an independent criterion of making determinations which are 'just'.

159 For the reasons identified at paragraphs [165] below, there was no basis on which the remedial work required under the Building Order should be borne by anyone other than the owner of the relevant building work, Mr Morris.

The Board's decision to affirm the Building Order was not contrary to the fundamental duties of adjudicating bodies

161 By ground 1.7 Mr Morris contends that the Board was required to, but failed to be 'an impartial decision-maker in pursuit of justice'.[149] In support of this ground he makes submissions which substantially overlap with other grounds. It is possible to address the particular arguments put in support of this ground because of that significant overlap:

(a) It is submitted that the Building Order was unjust and contrary to the principles of proportionality and fairness because rather than requiring the deck to be removed, the Building Order could simply have required that a screen be erected. That submission cannot be accepted for the reasons identified in paragraphs [106]-[107], [162(b)], [180(d)] and [187]-[193]. In short, the Building Order was also issued because the replacement of the previous raised deck with a reconstructed deck was building work which required a building permit, which had not been obtained. The structural integrity and general compliance of that reconstructed raised deck with the Building Regulations not having been established, it remained a matter justifying the Building Order, which could not have been addressed simply by screening. Mr Morris had also not accepted that he would apply screening other than in a highly qualified, inadequate way.

(b) The Building Order is said to be unconscionable because Mr Morris relied on the Council advice. This is again a reiteration of arguments based on estoppel. For the reasons identified above at [50]-[61], the Board was correct to find that no estoppel applied to prevent the issue of a Building Order. The Board's conclusion, having been reached by reference to the submissions before it and relevant legal authority, and a consideration of the application of the law to the facts identified by Mr Morris, was consistent with its duties and not contrary to them.

(c) It is said to be unjust to put the responsibility on Mr Morris to address the overlooking because his neighbours created the overlooking by removing trees.[150] For the reasons in [120] above I reject that submission.

(d) Mr Morris contends that the Building Order is unjust because it 'achieves nothing' other than to put him to the cost of 'removing his current timber deck and reconstructing the original timber deck'. He contends it will not eliminate or reduce the level of overlooking, because he is permitted under the Building Regulations to reconstruct his original deck with the similar level of overlooking.[151] The premise of this submission is incorrect, as any rebuilt deck must comply with reg 84 regardless of any historical levels of overlooking. The submission must therefore be rejected.

162 Mr Morris concludes his submissions in support of the contention in ground 1.7 that the Building Order is 'unjust and contrary to the principles of proportionality and unfairness' with the submission that the Board should have considered what the purpose of the Building Order was.

(a) Mr Morris contends that if the Building Order was issued to punish him it was 'grossly unfair' because it was the MBS' fault for 'having advised him that a Building Permit was not required'.[152] It is misconceived to identify the purpose of the Building Order as having been to punish Mr Morris. The purpose of the Building Order was identified in the order itself, as with the Building Notice before it, as being non-compliant with the requirement in the Building Act of a building permit, and the contravention of reg 84. To issue a Building Order in these circumstances was consistent with the objective in s 4(1) of the Building Act of protecting the safety and health of people who use buildings, an objective to which the MBS was required, pursuant to s 4(2), to have regard in discharging his duties and functions under the Building Act.

(b) Mr Morris contends that if the purpose was to rectify the overlooking it was unnecessarily excessive as less costly options such as screening are available. This is simply another variation on the submission Mr Morris has made elsewhere, which is rejected because the contravention of the overlooking requirements of reg 84 was not the only basis for the building order. Further, the submission that the Building Order was excessive as screening could have been an alternative is rejected for the reasons summarised in paragraph [161(a)] above and referred to in [180(d)] and [187]-[193] below.

163 The various complaints made under ground 1.7 not having been made out, ground 1.7 must fail.

The Board did not err in affirming the Building Order which placed the remedial costs on the plaintiff

164 By ground 2.4 Mr Morris alleges that the Board was wrong to affirm a building order that was 'unjust' in placing the remedial costs on him. This overlaps with aspects of ground 1.7 already addressed at paragraph [162(a)] above, and ground of review 3.9 in which Mr Morris contends that the MBS should bear the costs of remedial action as the 'fault, if any, lies with [the MBS]'.[153]

165 This contention that the MBS was at 'fault' with respect to the work on the reconstructed and extended deck is apparently based on the email advice given by the Council as discussed at paragraphs [50]-[60] above. For the reasons given in response to Mr Morris' estoppel arguments, those communications do not form a basis to attribute to Council responsibility for the carrying out of the more extensive and different works involved in the reconstruction and extension of the deck. Mr Morris also does not identify any other basis on which the MBS or Council should be responsible for the remedial work. As the owner of the building work conducted without a permit, there was no basis on which any person other than Mr Morris should have been responsible for complying with the Building Order. The Building Order was not unjust given the multiple opportunities given to Mr Morris in the show cause process to show why the deck should be retained, including giving him an extension of time to show cause.[154] There was no injustice in the Board affirming the Building Order after a full hearing in which Mr Morris had ample opportunity to make submissions.

The Board was not dishonest in conducting the appeal

166 Mr Morris alleges by ground 3.2 that the Board 'showed dishonesty'. The basis for this ground, as elaborated in his submissions, is primarily identified as the Board's treatment in its reasons of the issue of a site inspection of the deck. Mr Morris contended that the Board was wrong to say that he had 'refused to provide access to the Subject Land', as he was 'endeavouring to establish the aim of the inspection' and 'did not refuse access'.[155] He also submits that the statement at [33] of the Board's reasons that he 'verbally advised' a registry officer 'that access would not be provided' is 'contrary to [his] recollection'. Mr Morris states that 'he may have declined to provide access on the day, but would not have denied [the Board] access per se'.[156]

167 It is apparent from the correspondence about the Board's requirement of a site visit, which in addition to having been referred to in the Board Reasons, was in evidence before this Court, that the Board explained its purpose in seeking a site visit as being to inform itself about whether the issue of the Building Order was justified.[157] This being the subject matter of the appeal, it was an entirely appropriate reason for a site inspection. The Board was not required to discuss further in the request its reasons for seeking the site inspection.

168 Mr Morris' complaint that his recollection of his statement to the Registry officer refusing access on 25 October 2022 was different to that of the Board is also unmeritorious. He accepts that he may have in that conversation 'declined to provide access on that day'. That is consistent with the Board Reasons at [33], and the Board had made clear to Mr Morris in an email the previous day that it required confirmation on that day whether he would provide access on 26 October 2022, or it would assume that access was denied. The Board was both procedurally fair with this request and accurate in its Reasons.

169 Finally, Mr Morris raises, in support of his allegation that the Board was dishonest, a matter arising after the Board had made its determination. He states that he had made an inquiry to the Board about a statement on its website that decisions by the Board can be appealed to the Supreme Court. He made an inquiry to the Board through the website as to what legislation gave rise to that right of appeal and was told by a representative of the Board that it could not provide any legal advice. Mr Morris says that the information on the website was later changed to state that parties may apply for a judicial review by the Supreme Court. He characterises this as the Board hiding an error by claiming that it was prohibited from answering his question, and says it raises the question of the Board's integrity.[158]

170 This complaint, put as a ground of appeal, is entirely without merit. It is appropriate for the Board to decline to provide individual legal advice. The response was appropriate and if there was some initial mischaracterisation of the rights of parties following a decision of the Board as an appeal rather than the potential for an application for judicial review, it is entirely irrelevant to the Board's decision on the appeal and whether it was procedurally fair.

171 None of these matters put by Mr Morris supports the serious allegation that the Board showed dishonesty. Ground 3.2 fails.

The Board did not show prejudice by accepting the MBS' arguments, nor did it fail to consider Mr Morris' arguments

172 Mr Morris asserts by grounds 3.3 and 3.4 that the Board showed prejudice in 'unquestionably [scil, unquestioningly] accepting' the MBS' statements, and failing to consider his arguments. He refers to the MBS' submissions, and his submissions, on 15 matters that overlap in large part with the subject matter of other grounds.

173 The Board, like other statutory tribunals, is not required to address in its reasons each and every argument or submission raised by a party.[159] Procedural fairness requires that the Board consider all submissions of substance on the grounds put before it on the appeal.[160] In considering this issue, it is plainly open to consider the Board Reasons given with its Determination and Orders. However, it is also necessary, in assessing those reasons and what they expose about the Board's consideration of the arguments, to acknowledge that the Board, while bound to give a determination in writing,[161] is not obliged to provide reasons for that determination.[162] It is only required to do so if a request is made.[163] Inadequate reasons, at least if given voluntarily with the order as they were in this case, would not constitute an error of law.[164] It is therefore appropriate to be cautious in identifying any absence of consideration of a submission in reasons given by the Board as showing a failure to consider submissions made by the parties.

174 There is no basis identified for Mr Morris' submission that the Board unquestioningly accepted the MBS' submissions that the reconstructed deck was a new structure requiring building work; that the Building Order was necessary, and reg 84 was to be complied with, and that it was appropriate that Mr Morris bear the cost of compliance with the Building Order. The Board stated that it relied on the photographs of the deck provided to it, together with the other materials filed by the parties, as the basis for its determination.[165] This was an appropriate foundation on which the Board could form its views, particularly in circumstances where Mr Morris had declined to give the Board panel members access to his property to conduct a site view. These aspects of ground 3.3 are without foundation. The remaining complaint, that the Board unquestioningly accepted the MBS' submission that a physical barrier, not merely vegetation, is required to prevent overlooking is without consequence since, in affirming the Building Order, it was unnecessary for the Board to form a view about any screening, whether consisting of vegetation or otherwise, as there was no screening. That is sufficient to address this aspect of ground 3.3, but I am also not persuaded that the Board unquestioningly accepted the submissions of the MBS on this issue, given that it had set out Mr Morris' submissions on the issue and stated that it did not accept them.[166]

176 Ground 3.4 complains that the Board failed to consider Mr Morris' submissions on ten issues. The MBS submits that the Board did not fail to consider the submissions, but simply declined to accept them.[167]

177 The Board set out submissions made by both Mr Morris and the MBS at the start of its reasons. It also set out each of Mr Morris' grounds of appeal.[168] It also set out in considerable detail the matters that Mr Morris had raised in reply to the submissions of the MBS.[169] The Board Reasons gave detailed reasons for rejecting the argument on estoppel.[170] The Board also gave reasons for its conclusion that the Building Order was appropriate in the circumstances, which disclosed the Board's path of reasoning on the issues.[171]

178 Procedural fairness did not require that the Board also give an explanation for rejecting each submission made by Mr Morris as to why it should make the contrary conclusion, that the Building Order was not justified.[172]

179 I do not accept that Board failed to consider Mr Morris' submissions. Rather the reasons indicate that it did not accept the submissions. There is no evidence of any kind that the Board did not accept them because of any prejudice against Mr Morris, as this ground alleges. Ground 3.4 fails on this basis.

180 For completeness, the following additional observations can be made with respect to the specific submissions that Mr Morris says were not considered by the Board:

(a) The timber deck is structurally sound.[173] This submission was expressly referred to by the Board in its reasons at [12]. Mr Morris had not provided any evidence that the reconstructed deck was structurally sound, so it is understandable that the Board did not accept the submission.

(b) The deck gives rise to minimal (if any) additional overlooking, implying that the current deck is not a new structure but a reconstruction not requiring a building permit.[174] The first part of this submission was referred to by the Board in its reasons at [11(b)]. The Board gave reasons for concluding that the deck was building work which required a building permit and the issue of the extent to which it involved additional overlooking could not rationally require the contrary conclusion.

(c) The Building Order was draconian and unnecessarily excessive.[175] This submission was expressly referred to by the Board in its reasons at [13(f)]. The reasons why the Building Order was not unnecessarily excessive and that the Board was not in error in affirming it are addressed at paragraph [197(a)] of this judgment, below.

(d) A more appropriate remedy to any alleged contravention was erection of a screen.[176] Mr Morris primarily submitted that he was not required to erect a screen, which submissions were referred to by the Board at [11], [13(h)], [23(b)], [23(k)]. His concluding observation was that should the Board determine that the extension to the deck contravened reg 84, he sought a period to erect a screen 'and that compliance be limited to the additional overlooking created by the extension'. He had also contended that the neighbours should be responsible for screening.[177] This highly qualified acceptance of a screen as an alternative not only would not have complied with reg 84 which required that there be no overlooking from any part of the raised open structure, and provided no basis for any neighbour to bear the cost, but also did not address the other fundamental problem with the deck, that it was constructed without a building permit.

(e) Where Mr Morris had obtained advice from the MBS and relied on it, it was unfair that he should have to bear the cost of remedial action.[178] The Board referred to his submissions on this issue at [10] and [23(c) to (j)] of the Board Reasons and gave reasons for rejecting them at [24]-[28].

(f) In the circumstances, where Mr Morris did not cause the overlooking it is grossly unfair that he be required to bear the cost of eliminating overlooking.[179] The Board referred to Mr Morris' argument that the neighbours had caused the overlooking by removing the trees at [23(k)(iii)]. The argument that the neighbours should have to pay for the cost of screening Mr Morris' deck because they had removed trees some years before was contrary to the obligation in reg 84 which applies to the party constructing the raised open space, and was not an outcome that the Board could order.

(g) That 'trees and hedges could constitute a fixed and permanent screen'.[180] The Board referred to Mr Morris' submissions on this issue at [23(k)(i) and (ii)] and rejected them at [37] of its reasons.

(h) That the current timber deck could not contravene reg 84 because there was no evidence of increased overlooking.[181] This submission was referred to at [11] and [23(k)(v)] of the Board Reasons. As noted in paragraph [119] above, the extent of any change in overlooking from the original deck to the reconstructed deck was irrelevant to the application of reg 84.

(i) That 'in the case of two structures of identical size and other dimensions, [the MBS] regarded one as compliant, the other as non-compliant'.[182] A submission of this kind was referred to by the Board at [23(m)] of the Board Reasons. There was no evidence that the MBS regarded any other deck of identical size and dimensions as compliant, so the Board was justified in not accepting any submission of this kind. If the gravamen of Mr Morris' submission was that it should make no difference to the application of the exemption in cl 3 of Schedule 3 of the Building Regulations, the submission could not be accepted as cl 3 expressly applies only to a 'freestanding' class 10(a) building. The photos before the Board clearly showed the deck as being attached to Mr Morris' dwelling.

(j) The building permit exemption in Schedule 3 'could not have been intended to deny the building permit exemption merely because the extension was attached to an existing timber deck'.[183] The Board recounted a submission of this kind at [23(l)]. The submission was misconceived as the deck was entirely reconstructed and was attached to the dwelling, rather than any extension being made to the existing deck. The Board would have been justified in rejecting the submission.

181 Mr Morris submits, in support of ground 3.5, that the Board showed an arrogant attitude in the way it sought a site inspection, including because it was 'not willing to state the purpose of the inspection' and because it said that facts were in dispute but declined to state what those facts were.

182 An 'arrogant attitude' on the part of a decision-maker is not a proper ground of judicial review, unless it involves some specific failure to afford procedural fairness or other error. The Board's conduct was, in any case, not arrogant. As noted above, the Board explained that the reason it required a site inspection was to inform itself about whether the issue of the Building Order was justified. This was an adequate explanation. The Board was not required to elaborate on this, nor on what facts were in dispute, particularly in light of the detailed contentions of the MBS which had been served some weeks before the Board sought the site inspection. The MBS' contentions identified where he differed from Mr Morris on a range of issues, and Mr Morris had responded to the contentions, including to put arguments disagreeing with the MBS on a number of factual matters about whether there was a proper basis for issuing the Building Order.[184]

The Board did not fail to properly consider the facts and assess the appeal

184 In support of ground 3.7, Mr Morris submits that the Board failed to consider certain matters including the extent to which the deck was larger than the one it replaced, or whether the works amounted to a new structure requiring a Building Permit.[185] This essentially repeats the complaints made in grounds 1.4, 1.9 and 2.1, about the conclusion that the reconstructed deck was building work requiring a building permit. For the reasons in paragraphs [90]-[1021] above, it is apparent that the Board considered these matters in determining the appeal, and there is no substance in this complaint.

185 Mr Morris also submits that the Board failed to consider:

(a) any alternative remedies to fix any non-compliance; and

(b) whether the Building Order was just.

186 The second of these complaints can be readily disposed of. The Board was not required to consider whether the Building Order was just. It was required to consider whether it was open under the Building Act to make the Building Order and appropriate to make the Building Order in the circumstances. It did so, and concluded that it was appropriate to affirm the Building Order made by the MBS because the reconstructed raised deck was building work carried out without a building permit, and was not exempt from the requirement of a building permit; and the raised deck breached the requirements of reg 84.[186]

187 The first matter, that the Board failed to consider any alternative remedies to fix any non-compliance, is a misplaced complaint. The process under the Building Act which permits the issue of a Building Notice and ultimately, if appropriate, a Building Order, incorporates a show cause process where the recipient of the Building Notice has an opportunity to make representations about the matters contained in the notice, and show cause why the owner should not carry out building work (such as demolition) in relation to the building the subject of the building notice. Section 108(1A) provides for the building notice to require the owner of the building to show cause within a specified period why the owner should not carry out building work in relation to the building. This is what the MBS did when issuing the Building Notice to Mr Morris. The Building Notice stated that under s 108 Mr Morris was required to show cause why the building works of demolition and removal should not be undertaken.[187] In the cover letter provided with the building Notice, Mr Morris was informed that if he wished to retain the works he needed to provide categories of documentation, including a certificate of compliance by a building surveyor and structural certification as required by a building surveyor. The letter requested that Mr Morris give access to the property on 11 April 2022 for a reinspection.

188 Mr Morris declined to provide any of the documentation which was required if he wished to retain the work. His first reaction was to 'require' the Council to withdraw the Notice.[188] The Council responded to his correspondence about the Building Notice, explaining the process and reiterating that the Building Notice was a show cause notice which provided him with an opportunity to detail alternate works or proposals to that contained in the document, and that if he could provide enough information to satisfy Council that the works comply, further action would not be required.[189] Mr Morris response also was to advise by letter in the course of his ongoing correspondence:

I will not permit the inspection on 11th April 2022 or on any other date and nor will I comply with the Enforcement Notice. That is, unless a court order is obtained after I have been given the opportunity to argue my case.[190]

189 The Council's response addressed Mr Morris' assertions that exemptions in the Building Regulations applied with the effect that no building permit was required, as well as other matters, and concluded:

The Building Notice remains open and allows you to provide additional representations in relation to if the structure complies with the legislation.[191]

190 Mr Morris stated that he was 'willing to address Council's reasonable concerns, if any, as to the structural soundness of the works' but did not provide any documentation nor provide an opportunity for the Council to inspect the deck.[192] The Council responded by referring again to the Building Notice and requested that he provide the items identified in the cover letter.[193] Mr Morris's response asserted, among other things, that the Council issued the Enforcement Notice without lawful justification and that the notice needed to be reviewed.[194] The Council again responded recommending Mr Morris review the request for documentation in the covering letter in the Building Notice.[195] Mr Morris declined to provide any of the documentation and the Building Order was issued.

191 The Board gave Mr Morris multiple opportunities, explained in its clear correspondence to:

(a) provide documentation which demonstrated that the deck was compliant with requirements under the Building Act and Building Regulations and should not be demolished; and

(b) provide alternative proposals to the requirement that the deck should be demolished and removed.

192 Mr Morris declined to use these opportunities to either demonstrate that the deck complied with building requirements and was structurally sound, or to propose other alternatives to address the issues raised by the Building Notice and explained in subsequent correspondence. The failure to take this opportunity to make representations to the MBS as to alternative options was entirely attributable to Mr Morris.

193 Mr Morris also did not provide any of the documentation identified in the covering letter to the Building Notice to the Board and nor did he permit the Board to conduct a site view. He did not put any material information before the Board which could have enabled it to consider alternative options to the demolition and removal of the deck.

194 In these circumstances Mr Morris' complaint that the Board failed to consider any alternative remedies to fix any non-compliance is without any merit.

The Building Order affirmed by the Board was not objectionable on the basis that it was draconian, unjust, unfair or ineffective

196 By ground 3.9 Mr Morris contends that the Board denied him natural justice because the order it affirmed was 'draconian, unjust, unfair or ineffective'. This argument too has no substance.

(a) draconian because to require removal of the deck was excessive, as 'the only issue, the overlooking situation, could be eliminated (to the extent required by the Building Regulations) through erecting a screen'.[196] This submission does not sit readily with Mr Morris' ground of appeal 4 before the Board based on a submission that screening was only required if there was increased overlooking compared to the previous deck.[197] Mr Morris had not erected any screening by the time of the Board hearing nor did he clearly undertake to erect a screen or identify what type of screening would be erected. In any case, the Building Order's requirement was also based on the fact that the reconstructed and extended deck constituted building work carried out without a permit. Further, the absence of screening was not the only issue with the deck. The Building Notice and Building Order also identified the fact that it was building work constructed without a building permit as one of the reasons for issue. Mr Morris did not make any attempt to demonstrate that the building work complied with the Building Act and Building Regulations during the show cause process_,_ nor did he propose any alternative solution or provide the documentation relating to compliance and structural integrity of the deck which had been requested in the show cause process. His submission that the show cause requirement itself is 'draconian and punitive' because the reconstructed deck was a 'mere inconsequential extension to a timber deck'[198] also cannot be accepted. Where work is 'building work', the Building Act through the building permit requirement plainly shows a concern with the work's compliance with the technical requirements of the Building Regulations and Building Code. The show cause process enables a person who has not obtained a building permit to show that those requirements have nevertheless been complied with. The manner in which the MBS administered the show cause process in Mr Morris' case was reasonable. In these circumstances, the requirement in the Building Order that the deck be demolished and removed, although an onerous requirement, was certainly not a draconian outcome.

(b) Unfair and unjust, because the non-compliance was the fault of the MBS, and he should not have to bear the cost of remedial action. For the reasons addressed at paragraph [165] above, this argument is rejected.

(c) 'ineffective' because even if the deck is removed in compliance with the Building Order, it 'will not eliminate or even reduce the current level of overlooking - because the Plaintiff is permitted under the Building Act 1993 to reconstruct his original timber deck without a Building Permit'.[199] This submission also has no basis. The original timber deck was, by Mr Morris' admission, replaced by the new reconstructed and extended deck. Even if a new deck was to be built to the original deck's specifications, it would constitute 'work for or in connection with the construction ... of a building' as defined by the Building Act, noting that 'building' is defined to include 'structure, ... and any part of a building or structure'.[200] Rebuilding the deck would constitute 'building work' and would require a building permit.

198 These complaints as to the Board's affirmation of the Building Order are, therefore, without substance. Ground 3.9 is not made out.

The MBS did not run spurious arguments and there was no failure on the part of the Board in the way it responded to the MBS' contentions

199 Mr Morris contends in support of ground 3.10 that the Board denied him natural justice by failing to ensure that the MBS 'did not run spurious arguments or even encourage or caution it not to'. He gives as an example of a 'spurious argument' the submission of the MBS, in the context of the estoppel argument, that the plaintiff did not inform it that the extension would be 'attached' to the structure concerned' and that anyone should have known that an 'extension' would be attached to the structure being extended.[201]

200 The Board does not have a responsibility to control the written submissions that parties make to it. This ground can be rejected on that basis alone. Further, for the reasons discussed at paragraph [174] above, the Board did not err in accepting submissions made by the MBS. Mr Morris has incorrectly summarised the only example of a submission that he gives as 'spurious'. The MBS submitted that in Mr Morris' email inquiry about whether a permit was required for the extension to the deck, it did not 'indicate that they were attaching this extension to an existing deck/balcony and its location, did not indicate its height, nor quantify the total area of the deck'.[202] The submission addressed the fact that it was an extension to a raised deck / balcony at a height above the ground, not just that it was an extension to the deck. The work was, in any case, significantly beyond an extension as it involved the replacement and reconstruction of a previous deck, with extended length.

201 The complaint about the wording of the submission is a trivial and misconceived complaint. Ground 3.10 more generally is also misconceived, and must be rejected.

202 Mr Morris has not succeeded in any ground of review. The application for judicial review will be dismissed.

203 Mr Morris opposed any order for costs being made against him on the basis that it was unjust that he, as a self-represented person, would not receive costs in the event he succeeded, but that the MBS had legal representation, which would be funded by the taxpayer because was a local government employee.[203] The MBS stated in his submissions that he sought costs in the event the application was dismissed.[204]

204 Costs would generally, in the absence of other features, follow the event.[205] The MBS has comprehensively succeeded in an appeal where Mr Morris raised 24 separate but often overlapping grounds of review. This is not a case where there were some issues on which the plaintiff was successful although not ultimately succeeding in the outcome.[206] The MBS made efficient submissions in response to the grounds of review, which assisted the Court. The matter raised by Mr Morris as a reason why it was unjust to award costs against him is not a basis on which the MBS should not receive his costs of the proceeding, nor why it would be unfair to make a costs order in his favour.

205 In these circumstances, my preliminary view is that it is appropriate that Mr Morris pay the MBS' costs of the proceeding. To address the possibility that there are circumstances of which I am not aware that would displace the usual rule that costs follow the event, I will make orders permitting the parties to make a short written submission on costs following which I will make costs orders.

[1] Affidavit of Mark Michael James Morris affirmed 1 February 2023 (Morris Affidavit), [6].

[2] Morris Affidavit, [6]. Council described the deck as a 'raised deck/balcony', including in the Building Notice and the Building Order. Mr Morris' position was that the deck was not a 'balcony'; rather that it is a raised timber deck, as his property has a slope so that the deck was higher than the ground below it. It can be inferred from the evidence that the deck was at a height of approximately 1.8 metres above the ground. See submissions to the Board, page 8 of 20, at Affidavit of Sean Grogan dated 2 May 2023 (Grogan Affidavit), Exhibit SG-23 (Mr Morris' Submission to the Board), 129.

[3] Grogan Affidavit, [4]-[5]; Exhibit SG-01.

[4] Grogan Affidavit, Exhibit SG-01, 10.

[6] Grogan Affidavit, Exhibit SG-02, 12.

[7] Grogan Affidavit, Exhibit SG-03, 14.

[8] Grogan Affidavit, Exhibit SG-04, 16.

[9] Grogan Affidavit, Exhibit SG-07, 34-36.

[10] Grogan Affidavit, Exhibit SG-07, 32-33.

[11] Grogan Affidavit, Exhibit SG-08, 39-40.

[12] Grogan Affidavit, Exhibit SG-10, SG-12, SG-13, SG-14.

[13] Grogan Affidavit [20]; Exhibit SG-11.

[14] Grogan Affidavit, Exhibit SG-18, 74-75.

[15] Grogan Affidavit, Exhibit SG-19, 77-78.

[16] Grogan Affidavit, Exhibit SG-20, 80.

[17] Grogan Affidavit, Exhibit SG-22, 111-113.

[18] Grogan Affidavit, Exhibit SG-22, 109-110.

[19] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 122-137.

[20] Grogan Affidavit, Exhibit SG-25 (MBS' Submission to the Board), 148-163.

[21] Grogan Affidavit, Exhibit SG-25 (MBS' Submission to the Board), 165-175.

[22] Grogan Affidavit, Exhibit SG-27, 177.

[23] Grogan Affidavit, Exhibit SG-27, 177.

[24] Grogan Affidavit, Exhibit SG-27, 180.

[25] Grogan Affidavit, Exhibit SG-27, 181.

[26] Grogan Affidavit, Exhibit SG-27, 185.

[27] Grogan Affidavit, Exhibit SG-27, 185.

[28] Grogan Affidavit, Exhibit SG-28 (Board Reasons), [33].

[31] [1980] HCA 13; (1980) 144 CLR 13, 35-36.

[32] By originating motion filed 2 February 2023.

[33] Building Act, ss 16(2) and (3).

[34] Building Act, s 3.

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

[36] Building Act, ss 17, 19.

[37] Building Act, s 34.

[38] Building Act, ss 37, 37A and 37C.

[39] Building Act, s 108(1A).

[40] Building Act, s 109.

[41] Building Act, s 110.

[42] Building Act, s 111(1).

[43] Building Act, s 118(1).

[44] The Building Code of Australia which forms part of the Building Regulations by reason of reg 10, identifies a Class 1 building as a house or dwelling of a domestic or residential nature. A Class 10(a) building is identified as a non-habitable structure including sheds, carports and private garages.

[45] Regulations 233(3) and 233(4)(a).

[46] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 127; See also Board Reasons, [13(a)].

[47] J D Heydon, M J K Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, Fifth Edition, Lexis Butterworths Australia 2015_,_ cited at Board Reasons, [25].

[49] (1990) 170 CLR 1.

[52] Originating Motion filed 2 February 2022, ground 1.1.

[53] Plaintiff's Submissions dated 9 May 2023, [1.1]; See also at ground 3.1 characterising the Board's failure to find that there was an estoppel as a denial of natural justice.

[54] Plaintiff's Submissions dated 9 May 2023, [1.1].

[55] Originating Motion filed 2 February 2022, ground 1.2; also ground 3.1 alleging that the denial of estoppel was a failure of procedural fairness.

[56] Board Reasons, [27]; First Defendant's Submissions dated 27 June 2023, [17]-[20].

[57] (1990) 21 FCR 193, 208-210 (Gummow J).

[58] (1990) 170 CLR 1, 17.

[59] Grogan Affidavit, Exhibit SG-01, 10.

[61] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 122.

[62] Plaintiff's Submissions dated 9 May 2023, 19.

[63] Grogan Affidavit, Exhibit SG-04 (Email from Mr Morris to Council dated 21 February 2022), 16.

[64] Grogan Affidavit, Exhibit SG-19 (Letter from Mr Morris to Council dated 26 April 2022), 77.

[65] Grogan Affidavit, Exhibit SG-23, 122 (Mr Morris' submissions to the Board).

[66] See, for example, the discussion of different types of estoppel in Discount and Finance Ltd v Gehrig's NSW Wines Ltd [1940] NSWStRp 52; (1940) 40 SR (NSW) 598, 602-3 (Jordan CJ).

[67] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226, 244 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).

[68] Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208 (Gummow J); Attorney-General (NSW) v Quin (1990) 170 CLR 1, 17; Page v Manningham City Council (2010) 27 VR 643, [65]-[66] (Warren CJ).

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

[71] Plaintiff's Submissions dated 9 May 2023, 1.2.

[72] Building Act, s 4(1)(a).

[73] Building Act, s 4(2).

[74] Building Act, s 1(a), (c).

[75] Building Act, s 34.

[76] Plaintiff's Submissions dated 9 May 2023, 1.3; See also 2.2.

[77] First Defendant's Submissions dated 27 June 2023, [26]-[30].

[79] Building Act, s 33(1).

[80] Building Act, s 35.

[82] Grogan Affidavit, Exhibit SG-05, 18-25.

[83] Gorgan Affidavit, Exhibit SG-06, 27-30.

[84] Grogan Affidavit, Exhibit SG-03, 14.

[85] Grogan Affidavit, Exhibit SG-04, 16.

[87] It was agreed by both parties that the Board Reasons in paragraph [37], which omitted the word 'not' should be read in context as having been intended to include this word: Transcript 12/03/24, T75.04-76.08.

[89] Plaintiff's Submissions dated 9 May 2023, 1.4.

[90] Plaintiff's Submissions dated 9 May 2023, 1.6, 2.2.

[91] First Defendant's Submissions dated 27 June 2023, [33]-[35].

[92] Plaintiff's Submissions dated 9 May 2023, 1.8.

[93] Plaintiff's Submissions dated 9 May 2023, 1.9.

[94] Building Act, s 149(1).

[95] Building Act, s 149(2).

[96] Grogan Affidavit, Exhibit SG-02, 12, Exhibit SG-03, 14, Exhibit SG-04, 16, Exhibit SG-07, 34, Exhibit SG-08, 40, Exhibit SG-14, 58, Exhibit SG-15, 62, Exhibit SG-22, 110.

[99] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submissions to Board), 129.

[100] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submissions to Board), 122.

[101] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submissions to Board), 122.

[102] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submissions to the Board), 123, 137, Exhibit SG-26 (Mr Morris' Reply Submissions to the Board), 166-167, 171-172, 175.

[103] Grogan Affidavit, Exhibit SG-26 (Mr Morris' Reply Submissions to Board), 174.

[104] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submissions to Board), 8-9.

[105] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submissions to Board), 134.

[106] Plaintiff's Submissions dated 9 May 2023, 10.

[108] Grogan Affidavit, Exhibit SG-25 (Respondent's Submissions to the Board), 159.

[109] Grogan Affidavit, Exhibit SG-23, (Mr Morris' Submission to the Board), 122.

[110] Plaintiff's Submissions dated 9 May 2023, 9.

[111] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 134-135.

[112] Plaintiff's Submissions dated 9 May 2023, 1.4.

[113] Building Act, s 4(1)(a). Section 4(2) states: 'It is the intention of Parliament that in the administration of this Act regard should be had to the objectives set out in subsection (1)'.

[114] Plaintiff's Submissions dated 9 May 2023, 2.2.

[115] Plaintiff's Submissions dated 9 May 2023, 1.6, 2.2.

[116] Plaintiff's Submissions dated 9 May 2023, 1.6.

[117] Grogan Affidavit, Exhibit SG-25 (MBS' Submission to the Board), 156.

[118] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 122.

[119] The previous Building Regulations 2006 contained reg 419, which relevantly was in materially the same terms as reg 84.

[120] Plaintiff's Submissions dated 9 May 2023, 4.1-4.2.

[121] First Defendant's Submissions dated 27 June 2023, [76].

[122] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 131.

[123] Grogan Affidavit, Exhibit SG-25 (MBS' Submission to the Board), at [Q], 156.

[125] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 122, 131.

[126] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 123.

[127] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 126-127.

[128] Grogan Affidavit Exhibit SG-24 (Building Appeal Board Orders of 8 August 2022), pars [A]-[C].

[129] Transcript 12/03/24, T18.06-.13, T19.05-10.

[130] Plaintiff's Submissions dated 9 May 2023, 3.6.

[131] First Defendant's Submissions dated 27 June 2023, [71].

[132] Fire Rescue Commissioner v Building Appeals Board [2021] VSC 217, [34] (Garde J); Carson v Turner [2019] VSC 427, [43]-[44] (Cameron J).

[134] Building Act, s 3(1).

[137] First Defendant's Submissions dated 27 June 2023, [73].

[138] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, [25] (Gleeson CJ).

[139] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, [25] (Gleeson CJ); Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 614 (Brennan J).

[140] Orders of 8 August 2022, Grogan Affidavit, Exhibit SG-24.

[141] Grogan Affidavit, Exhibit SG-26 (Mr Morris' Reply Submission to the Board).

[142] Building Act, Schedule 3, cl 15(3)(f).

[143] Building Act, Schedule 3, cl 16(1).

[144] Building Act, Schedule 3, cl 16(5)-(6).

[145] Board Determination and Orders, and Reasons, 15 December 2022, Grogan Affidavit, Exhibit SG-28.

[146] Building Act, ss 166(3)(b), (bb) and (c).

[147] Collector of Customs v Pozzolanic [1993] FCA 356; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ), cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); See also Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 where Kirby P, McHugh J agreeing, observed that it was appropriate to take into account the composition of the Tribunal as created by parliament in considering the reasons of expert tribunals.

[149] Plaintiff's Submissions dated 9 May 2023, 1.7.

[150] In this Court on appeal Mr Morris also submitted that the neighbours should have to pay for the screening 'as the person who caused the overlooking'. Transcript 12/03/24, T14.11-.13.

[151] Plaintiff's Submissions dated 9 May 2023, 1.7.1.

[152] Plaintiff's Submissions dated 9 May 2023, 1.7.1, at the second paragraph (a).

[153] Plaintiff's Submissions dated 9 May 2023, 2.4, 3.9.2.

[154] See [11]-[19] above and [187]-[193] below. On 14 April 2022, the MBS advised that in view of the ongoing communications, the show cause period under the Building Notice was extended to 16 May 2022. Grogan Affidavit, Exhibit SG-18, 74-75.

[155] Plaintiff's Submissions dated 9 May 2023, 3.2.2.

[156] Plaintiff's Submissions dated 9 May 2023, 3.2.3.

[157] Grogan Affidavit, Exhibit SG-27.

[158] Plaintiff's Submissions dated 9 May 2023, 3.2.5.

[159] Comcare v Forbutt [2000] FCA 837, [58] (Heerey J); Iliopoulos v Repatriation Commission [2016] FCA 756, [28] (Pagone J).

[160] Comcare Australia v Rowe [2002] FCA 1034, [12] (Merkel J); Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 245 ALR 561, [89] (Bennett J); Clause 13(2) of Schedule 3 identifies how a proceeding is to be commenced before the Board, and requires that the document commencing the proceeding specify the nature of the proceeding, the grounds for commencing the proceeding and the relief sought.

[161] Building Act, Schedule 3, cl 16(1).

[162] Supple v Building Appeals Board [2015] VSC 83, [68]-[70] (Kaye JA).

[163] Building Act, Schedule 3, cl 16(5)-(6).

[164] Supple v Building Appeals Board [2015] VSC 83, [72] (Kaye JA).

[167] First Defendant's Submissions dated 27 June 2023, [68].

[169] Board Reasons, [23(a)]-[23(n)].

[172] Supple v Building Appeals Board [2015] VSC 83, [75] (Kaye JA), referring to Wingfoot Australia Partners v Kocak [2013] HCA 43; (2013) 252 CLR 480, 502 [56] where French CJ, Crennan, Bell, Gageler and Keane JJ observed that the decision-maker in that case, a Medical Panel, once it has explained the path of reasoning for the opinion that it has reached, is not obliged to explain an opinion that it did not form.

[173] Plaintiff's Submissions dated 9 May 2023, 3.4.1.

[174] Plaintiff's Submissions dated 9 May 2023, 3.4.2.

[175] Plaintiff's Submissions dated 9 May 2023, 3.4.3. See also Transcript 12/03/24 T20.7-13

[176] Plaintiff's Submissions dated 9 May 2023, 3.4.4.

[177] Mr Morris' Submission to Board, 28 June 2022, 1-2.

[178] Plaintiff's Submissions dated 9 May 2023, 3.4.5.

[179] Plaintiff's Submissions dated 9 May 2023, 3.4.6.

[180] Plaintiff's Submissions dated 9 May 2023, 3.4.7.

[181] Plaintiff's Submissions dated 9 May 2023, 3.4.8.

[182] Plaintiff's Submissions dated 9 May 2023, 3.4.9.

[183] Plaintiff's Submissions dated 9 May 2023, 3.4.10.

[184] Grogan Affidavit, Exhibit SG-26, 173-174 (Mr Morris' Reply Submissions to the Board).

[185] Plaintiff's Submissions dated 9 May 2023, 3.7.1, 3.7.4.

[187] Grogan Affidavit, Exhibit SG-07, 32-36.

[188] Grogan Affidavit, Exhibit SG-08 (Letters from Mr Morris to Council dated 4 and 7 March 2022), 39-40.

[189] Grogan Affidavit, Exhibit SG-09 (Letter from Council to Mr Morris dated 10 March 2022), 44-45.

[190] Grogan Affidavit, Exhibit SG-14 (Letter from Mr Morris to Council dated 22 March 2022), 57-58.

[191] Grogan Affidavit, Exhibit SG-15 (Letter from Council to Mr Morris dated 4 April 2022), 61-62.

[192] Grogan Affidavit, Exhibit SG-16 (Letter from Mr Morris to Council dated 6 April 2022), 65.

[193] Grogan Affidavit, Exhibit SG-18 (Letter from Council to Mr Morris date 14 April 2022), 74-75.

[194] Grogan Affidavit, Exhibit SG-19 (Letter from Mr Morris to Council dated 26 April 2022), 77-78.

[195] Grogan Affidavit, Exhibit SG-20 (Letter from Council to Mr Morris dated 9 May 2022), 80.

[196] Plaintiff's Submissions dated 9 May 2023, 3.9.1.

[197] Grogan Affidavit, Exhibit SG-23 (Mr Morris' Submission to the Board), 131.

[198] Transcript 12/03/24, T29.01-.04.

[199] Plaintiff's Submissions dated 9 May 2023, 3.9.1.

[200] Building Act, s 3(1).

[201] Plaintiff's Submissions dated 9 May 2023, 3.10.

[202] Grogan Affidavit, Exhibit SG-25 (Submissions to the Board), 153.

[203] Transcript 12/03/24, T42.16-43.19.

[204] Submissions of First Defendant dated 27 June 2023, [77].

[205] Paragreen v Lim Group Holdings Pty Ltd (No 2) [2020] VSCA 97, [5] (Tate, Kaye and Niall JJA).

[206] Compare McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250 , 289-92 [152]-[159] (Warren CJ, Nettle and Redlich JJA); Chen v Chan (No 2) [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA).