Plaintiff v First Defendant

1 The plaintiff, Livingspring Pty Ltd ('Livingspring') seeks judicial review of a determination of the Building Appeals Board ('the Board') of 5 July 2023 as to the additional fire safety works and measures required for a multi-storey city building.

2 That determination followed the Board's hearing of appeals against a building order made by the Municipal Building Surveyor ('MBS') of the Melbourne City Council ('the Council') in 2017 which required fire safety works and measures to be carried out and undertaken at a multi-storey building at 581-589 La Trobe Street Melbourne, which is the south-east corner of La Trobe and Spencer Streets. The building was constructed in 1999 and 2000.

3 The appeal to the Board was made by the Owners Corporation (PS 419696X) as first applicant, with Dr Tiow-Hoe Goh, Livingspring and J Jireh Pty Ltd as second applicants. Livingspring is the present plaintiff and Dr Goh, the fourth defendant, is a director. The appeal was made under s 142 of the Building Act 1993 ('the Act').

4 The Board, the first defendant and the Owners Corporation, the third defendant made Hardiman appearances in this proceeding. Dr Goh, the fourth defendant wrote to the Court stating that he did not wish to participate in the proceeding and a director of J Jireh Pty Ltd, the fifth defendant, wrote to the Court stating that it did not intend to participate in the proceeding.

5 The Board described its task as to determine whether the Building, which was apparently built in accordance with building permits, should, more than 20 years later, be required to undergo an extensive fire safety retrofit, including installation of sprinklers throughout it.[1] The Board described the following issues as being central to the appeal:[2]

(a) whether the Board should determine that:

(i) the Building has an effective height of more than 25m;

(ii) part of the Building is a Class 3 building as a result of the operation of the Arrow on Spencer (previously known as the Harbour View Apartment Hotel);

(b) whether, for the purposes of s 106(a) of the Act, building work has been carried out on the Building in contravention of the Act or the building regulations;

(c) whether, for the purposes of s 106(d) of the Act, the Building is a danger to the life, safety or health of any member of the public or of any person using the Building; and

(d) whether the Board should affirm the Second Building Order (with or without variations), having regard to:

(i) the effect of the Building Permits and Occupancy Permits;

(ii) the lawfulness of the Second Building Notice and Second Building Order;

(iii) evidential considerations relating to the appeal; and

(iv) a range of statutory interpretation matters relating to the Act.

6 The outcome of the appeal was that the Board varied the building order, but determined that fire safety works were required and ordered that they be carried out.

7 In summary, on 27 January 2023, the Board found that:

(a) the Building was a danger to the life, safety or health of members of the public and people using the Building, including its occupants, within the meaning of s 106(d) of the Act;

(b) it would be appropriate, having regard to the purposes of the Act, to make a building order on the basis of this danger to life, safety and health in order to protect the health and safety of people;

(c) building work was carried out on the Building in contravention of the Act and the Building Regulations 1994 ('the Building Regulations'), being a failure to comply with Clauses E1.5, D2.22, E4.9 and C3.2 of Amendment 5 of the Building Code of Australia 1996 (' BCA') given the absence of alternative solutions; and

(d) it would be appropriate, having regard to the purposes of the Act, to make a building order on the basis of these contraventions in order to protect the health and safety of people.[3]

8 In more detail, the Board's determination found that the Building was in contraventions of clauses E1.5 (sprinkler systems), D.22 (Re-entry from fire-isolated exits), E 4.9 (emergency warning and intercommunication systems) and C 3.2 (protection of openings in external walls) of the BCA based on the following considerations and findings:

(a) the effective height of the building is more than 25m;

(b) the Building Permits and Occupancy Permits do not, in law, deem the Building to comply with E1.5, D2.22, E4.9 and C3.2 of the 1996 BCA;

(c) the MBS (and the Board standing in the shoes of the MBS) is able to determine for themselves whether the Building is in contravention of E1.5, D2.22, E4.9 and C3.2 of the 1996 BCA (despite the existence of the Building Permits and Occupancy Permits);

(d) there was no performance solution regarding E1.5, D2.22, E4.9 or C3.2 of the 1996 BCA;

(e) the Building does not have the following:

(i) an AS1670 Smoke detection & alarm system throughout the entire Building;

(ii) an AS2118.1 fire sprinkler system throughout the entire Building; and

(iii) an emergency warning and intercommunication system throughout the entire building in accordance with E4.9 of the 1996 BCA; and

(iv) suitable fire resisting elements to the unprotected window openings on the south side of the building in accordance with C3.2 of the 1996 BCA.[4]

...

Having regard to the totality of the evidence provided, the Board is satisfied, on the balance of probabilities, that the Building does not have re-entry on all floors, with signage, in accordance with D2.22.[5]

(a) at the time that building notice BUI-2017-498 (Second Building Notice) was made on 21 August 2017 by a delegate of the Municipal Building Surveyor for the City of Melbourne (MBS) in relation to the building at 581-589 La Trobe Street, Melbourne (Building), the MBS held the following opinions, which were, in the circumstances, reasonable opinions:

(i) the apartments at the Building that were used by Arrow on Spencer (Arrow Apartments) were Class 3 (rather than Class 2) buildings;

(ii) given that the Arrow Apartments were being used as Class 3 (rather than Class 2), the absence of an AS1670 Smoke detection and alarm system throughout the Building posed a danger to the life, safety or health of any member of the public or of any person using the building;

(iii) the effective height of the Building was, for the purposes of the Building Code of Australia 1996 (Amendment 5), as adopted by the Building Regulations 1994 (1996 BCA), greater than 25m; and

(iv) the Building contravened the provisions of the 1996 BCA, which are referred to in clauses 2.2.1 to 2.2.5 of the Second Building Notice and, as a result of these contraventions, posed a danger to the life and safety of any person using the Building;

(b) for the purposes of determining the effective height of the Building:

(i) the second level of the topmost residential apartments at the Building (tenth floor) is, for the purposes of the 1996 BCA, a storey;

(ii) the open living area on the tenth floor is not, for the purposes of the definition of storey in the 1996 BCA, a mezzanine;

• was, for the purposes of the 1996 BCA, a storey, when it was used as a gymnasium or exercise room; and
• is, for the purposes of the 1996 BCA, a storey, when it is a vacant room;

(iv) The Lower Ground Floor is, for the purposes of the definition of storey in the 1996 BCA, 'the lowest storey [of the Building] providing direct egress to a road or open space';

(c) the effective height of the Building is, for the purposes of the 1996 BCA, more than 25m, being at least 28.65m;

(d) the Arrow Apartments so closely resemble the residential part of a hotel as properly to be classified by the Board (pursuant to reg 13 of the Building Regulations 2018) as being Class 3 buildings;

(e) there was not a performance solution regarding E1.5 of the 1996 BCA in relation to:

(i) the carparks in the Building; or

(ii) any other aspect of the Building;

(f) building work was carried out on the Building in contravention of the Building Act 1993 (Act) and Building Regulations 1994 because:

(i) the building work failed to satisfy E1.5, D2.22, E4.9 and C3.2 of the 1996 BCA; and

(ii) in the absence of alternative solutions, the building work therefore failed to meet the corresponding performance requirements in the 1996 BCA (BCA contraventions);

(g) it would be appropriate, having regard to the purposes of the Act, to make a building order against Owners Corporation PS 419696X (Owners Corporation) in relation to the Building on the basis of the BCA contraventions in order to protect the health and safety of people;

(h) the Building poses a danger to the life, safety or health of members of the public or people using the Building (including its occupants), within the meaning of s 106(d) of the Act;

(i) if (contrary to the finding in paragraphs (d) above) the Arrow Apartments were Class 2 buildings, the Building would still be a danger to the life, safety or health of any member of the public or of any person using the Building;

(j) it would (irrespective of whether the Arrow Apartments were Class 3 or 2 buildings) be appropriate, having regard to the purposes of the Act, to make a building order against the Owners Corporation in relation to the Building on the basis of this danger to life, safety and health in order to protect the health and safety of people; and

(k) although it is appropriate for the MBS to issue a building order against the Owners Corporation:

(i) the time for undertaking the building work should be more than 120 days; and

(ii) the required works should be limited to-

• installing an AS2118.1 or AS2118.6 fire sprinkler system throughout the entire building, via a building permit; and
• providing re-entry from the stairs in accordance with D2.22 of the 1996 BCA, via a building permit; and
• installing a sound system and intercom system emergency warning and intercommunication systems throughout the entire building in accordance with E.49 of the 1996 BCA, via a building permit.[6]

10 On 5 July 2023, having receiving submissions about the terms of the proposed building order, the Board varied the building order made by the MBS and ordered and directed that the Owners Corporation must carry out the following building work by 1 July 2025:

6.1 Install an AS2118.1 or AS2188.6 fire sprinkler system throughout the entire building, via a building permit; and

6.2 Provide re-entry from the stairs in accordance with D2.22 of the 1996 Building Code of Australia, via a building permit; and

6.3 Install an emergency warning and intercommunication system throughout the entire building in accordance with E4.9 of the 1996 Building Code of Australia, via a building permit. Without limiting this requirement, these works must include the following:

(a) the new emergency warning and intercommunication system must interface with the existing AS 1670 smoke detection and alarm system; and

(b) any upgrade work to the existing AS 1670 smoke detection and alarm system that are required in order to ensure that this interface is effective.[7]

11 The Board gave extensive reasons for its determination of 27 January 2023 and further reasons for its determination of 5 July 2023 explaining its reasons for the terms of the varied building order that it made.

12 Livingspring estimates that the works required by the building order will cost approximately $3 million. Lot owners may have to contribute to that cost.

13 Livingspring contended that the Board erred in finding that the MBS and the Board on appeal had jurisdiction to make the building order when the Building had been constructed in accordance with building permits and had been occupied since 2000 under an occupancy permit. The MBS and the Council had not sought to have these building or occupancy permits set aside.

14 Livingspring also contended that the MBS and the Board erred in deciding that the 'effective height' of the Building was more than 25m, which thereby required more extensive fire safety equipment and measures be installed or implemented. The effective height of the Building required the calculation of the height to the floor of the topmost storey from the floor of the lowest storey providing direct egress to a road or open space. The Board decided that the topmost storey was the tenth floor of the Building, whereas Livingspring contended that that floor was a mezzanine floor and part of the ninth floor, which was therefore the topmost storey.

15 The Council contended, and the Board decided, that the lowest storey providing direct egress to a road was the Lower Ground Floor, being a carpark providing egress onto Spencer Street, whereas Livingspring contended that it was the ground floor which gave direct egress through a lobby to La Trobe Street. Livingspring contended that the Lower Ground Floor did not provide the required direct egress because a person seeking to exit the Building from that point required a pass to open the carpark gate giving egress to Spencer Street and not all persons using the Building would have such a pass. It also argued that the Ground Floor exit to La Trobe Street was the point of direct egress that most building occupants would use in an emergency.

16 I have reached the following conclusions. That the MBS and the Board on appeal, had the jurisdiction to make the building orders that they did, although the Building had been built under building permits and that occupancy permits had been issued. That Livingspring has not established that the Board made a jurisdictional error in determining that the Arrow Apartments should be classified as Class 3 buildings under the Building Code of Australia 1996 ('BCA'). That the Board did not make a jurisdictional error in determining that the topmost storey of the Building was the tenth floor for the purposes of deciding its 'effective height' under the BCA. That the Board did make a jurisdictional error in determining that the lowest storey of the Building for the purposes of deciding its effective height under the BCA was the Lower Ground Floor. That this jurisdictional error was not a material error as there was no realistic possibility that the Board's decision could have been different if the error had not occurred because the effective height of the Building would still have been more than 25m. That, therefore, the proceeding should be dismissed.

17 On 16 July 1999, a private building surveyor issued the first of five building permits for the land on which the Building was to be constructed. The building permit was for stage 1 of a new building. Ground floor shops were classified as Class 6, the ground floor office as Class 5, the ground floor and levels 1 and 2 car parking areas as Class 7 and levels 3 to 10, for apartments, as Class 2. The estimated value of the building work was $12,000,000.[8]

18 A private building surveyor issued four further building permits for stages 2-5 of the Building on 19 August 1999,[9] on 5 October 1999,[10] on 19 October 1999,[11] and on 2 December 1999.[12] On each occasion, the classifications for the building were the same as in the first building permit. The building permits stated that they were subject to the building regulations and the BCA. It appears that the building surveyors calculated the effective height of the Building at less than 25m.

19 On 9 November 2000, a private building surveyor issued an occupancy permit for the Building. The occupancy permit stated that the following parts of the Building were suitable for occupation, subject to the conditions placed on the permit:

(a) ground floor car park (Class 7) and public corridors;

(b) levels 1 and 2 car park (Class 7); and

(c) levels 3 to 8 apartments (Class 2), balconies and public corridors.[13]

20 On 17 November 2000, the private building surveyor issued a second occupancy permit for levels 9 and 10 apartments (Class 2) and for balconies and public corridors in the Building.[14]

The Council's Building Notices and Building Orders

21 Between 17 May 2007 and 5 December 2013, the MBS for the Council served a series of building notices and made building orders requiring fire safety or prevention works to be undertaken on the basis that the Building was a Class 3 building rather than a Class 2 building and therefore required a higher level of fire protection. Those building orders were not enforced.[15]

22 On 17 May 2017, Mr Stephen Braybrook, a deputy building surveyor and delegate of the MBS, made a building order concerning the Building which was addressed to the Owners Corporation. In June 2017, the Owners Corporation appealed against that building order, however a delegate decided that the first building notice needed to be cancelled because of deficiencies in its service.[16]

23 On 21 August 2017, Mr Braybrook caused a second building notice to be served on the Owners Corporation stating that pursuant to s 106 of the Act he was of the opinion that:

2.1. The building is a danger to the life, safety or health of any member of the public or of any person using the building, in that:

2.1.1. Numerous Sole Occupancy Units (SOU) are currently being used as Class 3 hotel rooms (Harbour View Apartment Hotel) without the building having an AS1670 Smoke detection & alarm system throughout the building;

2.2. The building is greater than 25 meters in effective height and does not have several required essential safety measures or components of those measures as required by the relevant BCA. These are as follows:

2.2.1. A fire sprinkler system installed throughout (BCA Clause E1.5),

2.2.2. Re-entry provisions from fire-isolated stairways into the building (BCA Clause D2.22),

2.2.3. A Sound System or Intercom System for emergency purposes (BCA Clause E4.9),

2.2.4. The two fire-isolated stairways are within the same shaft and are not fire isolated from each other (BCA Clause D1.7),

2.2.5. There are south side SOU's on levels 3 to 9 of the building that have unprotected window openings located within 3m of the boundary (BCA Clause C3.2).

Without these required essential safety measures the building does not provide the minimum required level of life safety for the occupants.[17]

24 The building notice gave the Owners Corporation 60 days to show cause why the following building work should not be carried out:

5.1.1. Install an AS1670 Smoke detection & alarm system throughout the entire building;

5.1.2. Install an AS2118.1 fire sprinkler system throughout the entire building;

5.1.3. Provide re-entry from the stairs in accordance with Building Code of Australia clause D2.22;

5.1.4. Install a sound system and intercom system throughout the entire building in accordance with Building Code of Australia clause E4.9;

5.1.5. Fire isolate the flights of stairs from each other in accordance with Building Code of Australia clause D1.7;

5.1.6. Install suitable fire resisting elements to the unprotected window openings on the south side of the building in accordance with Building Code of Australia clause C3.2.[18]

25 On 23 November 2017, Mr Braybrook made a second building order which was sent to the Owners Corporation. The building order required it to carry out the following building works:

6.1 Install an AS1670 Smoke detection & alarm system throughout the entire building, via a valid building permit;

6.2 Install an AS2118.1 fire sprinkler system throughout the entire building, via a valid building permit;

6.3 Provide re-entry from the stairs in accordance with Building Code of Australia clause D2.22, via a valid building permit;

6.4 Install a sound system and intercom system throughout the entire building in accordance with Building Code of Australia clause E4.9, via a valid building permit;

6.5 Fire isolate the flights of stairs from each other in accordance with Building Code of Australia clause D1.7, via a valid building permit;

6.6 Install suitable fire resisting elements to the unprotected window openings on the south side of the building in accordance with Building Code of Australia clause C3.2, via a valid building permit.[19]

26 On 18 December 2017, the Owners Corporation and the second applicants appealed the building order to the Board. The appeal was heard for four days in October 2021 with the parties thereafter providing written submissions.

27 The appeal to the Board was a re-hearing. Therefore, the Board was obliged to decide whether it should make a building order and, if so, to decide its terms.[20] The Board could exercise all the powers of the MBS and, as it is said, stand in his shoes.[21] The Board had jurisdiction to hear the appeal even if the building order under appeal was invalid.[22]

28 The Owners Corporation and Livingspring brought the appeal in their capacities as owners of common property and a number of apartments within the building complex.

29 The Building contains 236 apartments with part of the ground floor and the two levels below the ground floor allocated for car parking.[23]

30 The Board stated that in November 2021 Livingspring owned 50 lots in the Building being the reception area, 27 car park spaces, 13 storage areas on 9 different floors and 9 apartments.[24] It managed 17 lots on behalf of other owners, being 2 car parks and 15 apartments. The second applicants, Dr Tiow-Hoe Goh, Livingspring and J Jireh Pty Ltd were collectively the registered proprietors of approximately 56 apartment lots in the Building.[25]

31 In November 2021, the Goh related entities, other than Livingspring, owned 6 lots and in total either owned or managed 73 lots, being the reception area, 31 car parks, 14 storage areas and 27 apartments.[26]

32 As at September 2023, Livingspring owned about 16 of the 236 apartments in the Building. It rents those apartments and, some owned by other lot owners, for short-stay or long-stay residential accommodation through an agency which does not own apartments. The apartments are marketed for occupancy as serviced apartments under the business name 'Arrow on Spencer'.[27]

33 The number of apartments that Livingspring manages varies from year to year depending on demand and the willingness of apartment owners, who are not Goh related entities, to provide their apartments for rent as part of Arrow on Spencer. COVID-19 significantly reduced demand for rooms and the number of apartments that Livingspring managed.[28]

34 The relevant legislative instruments are the Building Act 1993, the Building Regulations and the Building Code of Australia 1996 ('the BCA'), in the terms of those instruments in 1999.

35 The relevant provisions of the Act are as follows. Section 3(1) defines a building as including a structure, temporary building, temporary structure and any part of a building or structure. Thus each self-occupancy unit within the Building could be described as a building as could the whole of the Building. Other relevant provisions of the Act are:

4 Objectives of Act

(1) The objectives of this Act are-

(a) to protect the safety and health of people who use buildings and places of public entertainment; ....

(d) to facilitate the adoption and efficient application of-

(i) national building standards; ...

(e) to facilitate the cost effective construction and maintenance of buildings ...; ...

(g) to aid the achievement of an efficient and competitive building ... industry...

(2) 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).

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.

Penalty: 500 penalty units, in the case of a natural person;

2500 penalty units, in the case of a body corporate.

(2) A person must not carry out building work unless the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work and any binding determination that applies to the carrying out of that work.

Penalty: 500 penalty units, in the case of a natural person;

2500 penalty units, in the case of a body corporate.

(3) An owner of land must ensure in relation to building work carried out on that land that a building permit in relation to the work has been issued and is in force under this Act.

Penalty: 500 penalty units, in the case of a natural person;

2500 penalty units, in the case of a body corporate.

(4) A building practitioner, an endorsed building engineer or an architect who is engaged to carry out building work must ensure that a building permit in relation to the work has been issued and is in force under this Act.

Penalty: 500 penalty units, in the case of a natural person;

2500 penalty units, in the case of a body corporate.

(4A) A builder named in a building permit must ensure that the building work to which the building permit applies is carried out in accordance with this Act, the building regulations, the building permit and any binding determination that applies to the carrying out of that work.

Penalty: 500 penalty units, in the case of a natural person;

2500 penalty units, in the case of a body corporate.

(5) Subsection (3) does not apply to an owner if the owner has engaged a building practitioner, endorsed building engineer or architect to carry out the building work on that land.

(6) Subsections (1), (2), (3), (4) and (4A) do not apply if the building work is exempted by or under this Act or the regulations.

(1) Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that -

(a) the building work and the building permit will comply with this Act, the building regulations and any binding determination that applies to the carrying out of that building work; and

(b) any consent of a reporting authority required under this Act or the regulations or under any other Act or regulations is obtained or taken to have been obtained in accordance with Schedule 2; and

(c) any relevant planning permit or other prescribed approval has been obtained; and

(d) the building permit will be consistent with that planning permit or other prescribed approval.

(1) An occupancy permit under this Division is evidence that the building or part of a building to which it applies is suitable for occupation.

(2) An occupancy permit under this Division is not evidence that the building or part of a building to which it applies complies with this Act or the building regulations.

A municipal building surveyor may make an emergency order under this Division if the municipal building surveyor is of the opinion that the order is necessary because of a danger to life or property arising out of the condition or use or proposed use of -

(a) a building; or

(b) the land on which building work is being or is proposed to be carried out; or

(c) a place of public entertainment.

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;

(b) the use of the building or place contravenes this Act or the building regulations;

(ba) safety or emergency services, installations or equipment have not been maintained in accordance with the occupancy permit and the regulations;

(c) the building or place is unfit for occupation or for use as a place of public entertainment;

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

(1) Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.

(2) Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.

(3) A building order under this section may -

(a) direct an owner or occupier to evacuate a building or land or a place of public entertainment within a specified time or times; and

(b) if an order under paragraph (a) is given, direct any person to vacate a building or land or a place of public entertainment within a specified time or times.

(4) A building order under this section may prohibit any person from entering, using or occupying a building, land 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.

(5a) If a municipal building surveyor or a private building surveyor is of the opinion that -

(a) a circumstance referred to in section 106(d) exists in relation to a building, land or place of public entertainment or building work that is being or is proposed to be carried out on the building, land or place; and

(b) certain action is necessary to remove or to wholly or partially reduce, or to contribute to removing or to wholly or partially reducing, the circumstance -

a building order made by the relevant building surveyor under this section may direct the owner of the building, land or place to take the action that is necessary.

(6) A building order may require the owner of a building or land or a place of public entertainment to cause an inspection of that building, land or place to be conducted by a specified person within a specified time.

(7) A building order may require the owner of a building or a place of public entertainment or a builder to cause specified material used in that building or place to be tested (other than destructively tested) by a specified person within a specified time.

(8) A building order may require the owner of a building or a place of public entertainment that is a building, or a builder, to, in accordance with the regulations (if any), arrange for, within a specified time, a specified building product or material used in that building to be subjected to destructive testing conducted by a prescribed testing authority if the relevant building surveyor believes on reasonable grounds that the use of the building product or material is connected with a contravention of this Act or the regulations.

(9) An owner or builder referred to in subsection (8) must provide the results of the destructive testing of the building product or material to the relevant building surveyor or another person authorised by the relevant building surveyor to receive the results within the time specified in the building order.

118A 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.

36 Reg 1.5 of the Building Regulations 1994 defined 'BCA' to mean the 'Building Code of Australia'. Regulation 1.7 adopted the BCA and made it part of the regulations as modified by the regulations. In this judgment, I refer to the Building Code of Australia 1996 as the 'BCA'.

37 The Building was constructed in 1999 and 2000 for approximately $12 million. It contains 236 apartments situated on seven levels, with the upper most apartments containing two levels. The carpark has three levels with two levels below the ground floor. The apartments, which range in size, each contain a kitchen with cooking facilities, bedrooms, bathrooms and toilets and a laundry area with a washing trough and space for a washing machine and dryer. Coin operated washing machines and dryers were located in a dedicated room on the fifth level of the Building, but they were not operating at the time of the Board hearing.

38 The Board found that each of the Arrow Apartments had its own title, including car park space. Each of the apartments was offered and provided as a whole apartment to one or more persons, a pair or groups of persons. Arrow on Spencer's staff met all guests at the apartment to provide access, keys and information on arrival and collected keys on departure. The staff also processed payments, receipts and check-in forms and provided additional storage for occupants' possessions. If the occupants requested, room service comprising laundry and removal of rubbish could be provided.[29]

39 A lobby and reception area was located on the ground floor near the entrance to the Building. The website for Arrow on Spencer stated that it offered a range of facilities, including '24 hour reception', 'exercise room', 'general daily room service', 'onsite coin laundry facilities', 'vending machine', 'tour desk' and 'multi-lingual staff'.[30]

40 Livingspring relied on the following grounds in its amended Originating Motion:

(1) The Board erred in holding that:

(a) the apartments within the building at 581-589 La Trobe Street ('Building') used by Arrow on Spencer ('relevant apartments') were being used as class 3 rather than class 2 buildings because the Board erred in its construction and its application of the definitions of 'Class 2' and 'Class 3' buildings in Part A3 of the Building Code of Australia 1996; (the 'classification ground');

(b) the effective height of the Building was greater than 25m because the Board erred in its construction and application of the definitions of the terms 'effective height', 'mezzanine' and 'storey' in Clause A1.1 of the Building Code of Australia 1996 (the 'effective height ground'); and, as a consequence

(c) the Building

1. was constructed contrary to the requirements of the Building Act 1993, the regulations, and the Building Code of Australia 1996; and
2. posed a danger to the life, safety or health of any member of the public or of any person using the building.

(2) The Board erred in holding that the municipal building surveyor and, on appeal, the Board, had jurisdiction to form the requisite opinions required by ss 106(a) and 106(d) of the Building Act 1993 to issue the 'Second Building Notice' and hence to make (or, for the Board, to vary and affirm) the Building Order because the Building was constructed and occupied in accordance with valid building and occupancy permits. (the 'jurisdiction ground').[31]

41 Livingspring expressed its grounds of appeal as contentions that that the Board's holdings were not open to it. That formulation might suggest a challenge to the Board's findings of fact. Such a challenge could not establish a jurisdictional error unless there was no evidence to support the Board's findings.[32] However, counsel for Livingspring clarified that the grounds were intended to argue that because of errors in the interpretation of terms in the Act, the regulations or the BCA, the Board's conclusions involved legal errors that amounted to jurisdictional error.[33]

42 Arguments that the Board had improperly characterised or classified work, or failed to establish the circumstances necessary to enliven the powers in the Act or regulations or acted on a wrong principle are matters, which if established, may give rise to jurisdictional error.[34]

Ground 2 - The Board erred in holding that the MBS and, on appeal the Board, had jurisdiction to form the requisite opinions as required by s 106(a) and s 106(d) of the Building Act to issue the second building notice and to make (or for the Board to vary or affirm) the building order because the Building was constructed and occupied in accordance with valid building and occupancy permits.

43 The first ground Livingspring argued, ground 2, challenged the Board's decision that the MBS and the Board on appeal, had the jurisdiction to form the requisite opinions required by ss 106(a) and (d) of the Act to serve the second building notice and to make, or for the Board to vary or affirm, the building order when the Building was constructed and occupied in accordance with valid building orders and occupancy permits.

44 The Board concluded that, although under s 24 of the Act, the relevant building surveyor ('RBS'), which term includes a MBS or a private building surveyor, must not issue a building permit unless satisfied of the matters specified in s 24(1) to (d), it did not follow that the building work thereafter undertaken was deemed to comply with those matters. The relevant building surveyor Thus, inflammable cladding would not be deemed to be consistent with the building regulations, merely because the plans attached to the building permit provided for such cladding.[35]

45 The Board also stated that the limited right given by a building permit did not include a right to construct a building that was contrary to the requirements of the Act or the building regulations.[36] Section 16(2) of the Act provides that the building work must be in accordance with the Act and the building regulations, as well as being in accordance with the building permit. Section 46(2) provides that an occupancy permit is not evidence that the building or part of a building to which it applies complies with the Act or the building regulations.

46 The Board stated that the presumption of regularity did not remove the obligation of the MBS and the Board under the relevant provisions in Division 2 of Part 8 of the Act, to hold the requisite opinions and as the relevant building surveyor, under reg 13 of the 2018 Regulations (or the corresponding previous provision) determine the classification of a building.[37]

The relevance of permits on the exercise of the discretion under Division 2 of Part 8 of the Act

From a practical perspective, and having regard to the need for a level of certainty in the building industry, a municipal building surveyor (and the Board) should be cautious about serving building notices and making building orders in relation to buildings that receive building and occupancy permits more than 20 years ago. This is particularly the case when the rectification work is extensive and expensive, and it is likely that relevant documentation and insurance may be inadequate or non-existent.

However, there is a difference between a municipal building surveyor (and the Board) being cautious and a municipal building surveyor failing to act merely because a non-compliant or dangerous building was built in accordance with the relevant building permits and has the relevant occupancy permits.

If the building permit provided for a building design that clearly failed to satisfy the fire safety requirements of the applicable BCA, the existence of building permits and occupancy permits reflect a mistake in the permitting process. The permits would not prevent the municipal building surveyor from serving a building notice or making a building order to protect the life and safety of people who occupied the building.

People who occupy or visit the building should be able to presume that the building is safe and complies with the applicable fire safety standards. Building notices and building orders are an important mechanism to increase compliance with the Act and building regulations and mitigate risks for people who use or visit a building.[38]

48 The Board also accepted that s 106(a) of the Act is enlivened where there are building works carried out 'on the building, land or place in any of four separate and distinct circumstances':

(a) without a building permit required by the Act; or

(b) in contravention of a building permit; or

(c) in contravention of the Act; or

(d) in contravention of the building regulations.[39]

Livingspring's submissions on the Board's jurisdiction

49 Livingspring synthesised its argument as follows: that Parliament did not intend the MBS, or the Board, to make or confirm the building order, given that the building work which it intended to rectify, was carried out in accordance with valid building permits and the Building was occupied in accordance with a valid occupancy permit.[40] Under s 24(1)(a), an RBS must not issue a building permit unless satisfied that the building work and the building permit will comply with the Act and the building regulations.

50 Livingspring argued that s 106(a) did not apply to building work carried out in accordance with a building permit. That provision applied to building work which contravened the regulations, or was not authorised by a building permit or other instrument issued under the Act. The Building was built in compliance with the building permit and it had not been changed in a way that might engage the power of the MBS given by s 72(b) to cancel the occupancy permit. The building owners had received express formal and lawful permission to construct the Building and it was built in accordance with that permission. Accordingly, the full force and effect of the permits could not be disregarded or undermined by making the building orders, as that would be contrary to the regulatory scheme.[41]

51 Livingspring stressed the primacy of the building permit as establishing the validity of work performed under it for building regulation in Victoria. It submitted that it would be extraordinary for the Court to accept as lawful, a determination of the Board that invalidated aspects of the approvals issued by the RBS for the Building. The Building has a new owner and the builder has long gone. The owners no longer have any cause of action against the building surveyors. The rebuild would cost $3 million.[42]

52 Livingspring referred to the Court of Appeal decision in in Moorabool Shire Council v Taitapanui ('Taitapanui')[43] in which Ormiston and Ashley JJA stated of a building permit:

The permit, once issued, both authorised the building work and implied that such work would comply with the Act, the Regulations and the Code as it was imported.[44]

53 Livingspring also relied on the statement of Basten JA, with the agreement of Payne and Brereton JJA, in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd ('Omaya Investments'):[45]

...It would be a surprising result if compliance with plans which were conceded to be consistent with the development consent and had, in each case, been approved by the certifying authority, could result in invalidity of the development undertaken in accordance with them.[46]

54 The fact that the power in s 106(a) of the Act was not subject to temporal constraint, only reinforced the importance of recognising the finality of a RBS's decision to issue building and occupancy permits.

55 Livingspring argued that the Board could not affirm a MBS's decision to make a building order by undertaking what was tantamount to a merits review of long-established decisions by the RBS approving the building work, when it was not suggested that the RBS had failed to comply with his or her duties under the Act. It argued that it appeared that the building notices and orders served and made by the MBS and the Board were to correct what they viewed as errors in the building permits that had been issued.[47] However, the RBS possessed the principal role in assessing and determining applications for building permits, carrying out inspections and then considering whether to issue an occupancy permit.

56 The building and occupancy permits issued for the Building still stand and the MBS lacked power to make a building order and the Board to vary it and thereby chip away at action taken under the building permits. Neither the MBS or the Board had sought to set aside the building or occupancy permits. If the building order stands, the permits would also, thereby establishing two inconsistent instruments governing the building work. The Council has argued for a decade about previous building orders that MBSs had made, but had not sought to enforce them.

57 Livingspring also submitted that the MBS erred by failing to supervise in a timely fashion the issue of the building and occupancy permits upon being given copies of them and of supporting documents in 1999 and 2000.

58 Both the building and occupancy permits conferred valuable rights on the owners and by virtue of ss 28(2)(d) and 28(2)(e) of the Interpretation of Legislation Act 1984 amendments to the BCA could not affect the permits' operation or the rights that the owners had accrued under those instruments unless the contrary intention appeared.[48] The building order deprived the building owners and the original land owners of those rights.

59 Neither the MBS or the Board had considered whether the requirement to comply with the building order might unintentionally affect the performance of the Building under other parts of the BCA. It was unclear whether the building work required by the building order would result in the Building complying with the Act, the regulations and the BCA as at the date of the building permits.

The Council's submissions on the Board's jurisdiction

60 The Council contended that the MBS, and the Board, had the power and jurisdiction to serve the building notice and make the building order.

61 The Council contended that Livingspring's submissions about lack of power were inconsistent with the text, context and purpose of the Building Act, as it was on 16 July 1999, being the date of the issue of the first building permit. Section 106(a) enabled a building order to be made notwithstanding the previous issue of a building permit in respect of the Building. If a MBS could only make a building order when the building work was carried out either 'without a building permit' or 'in contravention of a building permit', the words in s 106 (a) 'in contravention of a building permit or this Act or the building regulations' would have no purpose. Section 111 enables a MBS or private building surveyor to make a building order after the time allowed for making representations following the service of a building notice has ended and the surveyor has considered any representation made by the owner concerned.

62 Second, while building and occupancy permits conferred rights on landowners, they were not without limits. As the Board found, the right conferred by a building permit did not include a right to construct a building in contravention of the requirements of the Act or the building regulations. Livingspring's argument was contrary to the provisions of the Act, including s 16(2) which provides that a person must not carry out building work unless it is carried out in accordance with the Act, the building regulations and the building permit. Section 24(1)(a) provides that a surveyor must only issue a building permit when satisfied that the work and the permit will comply with the Act and the building regulations. While s 46(1) provides that an occupancy permit is evidence that a building or part of a building to which it applies is suitable for occupation, s 46(2) provides that an occupancy permit 'is not evidence that the building or part of a building to which it applies complies with [the] Act or the building regulations'. A MBS could make an emergency order under s 102 if necessary despite the prior issue of a building permit. An MBS can cancel an occupancy permit under s 72 when the building is no longer suitable for occupation for the classification stated on the permit, the use of the building has changed or the strength of the building has become less than required to carry the loads stated on the permit.

63 The suggestion that a building owner has the right to have a building remain in its built condition, is inconsistent with orders that the MBS can make under Part 8 of the Act to require a building owner to carry out building work, e.g. ss 104(1)(b) (emergency orders), 111(5) (building orders) and 113 (building orders minor work). Moreover, it is inconsistent with the Court of Appeal's judgment in City of Port Phillip v Shout Rock Cafes Pty Ltd ('Shout Rock'),[49] which emphasised that orders under Part 8 of the Building Act serve the public interest.

64 Thirdly, Livingspring's assertion that the building order undermined the role of private building surveyors as the principal regulator is incorrect as the power to make building orders is conferred on the MBS in addition to private building surveyors. Moreover, other provisions in the Act expressly confer functions on the MBS which take primacy over the functions of the RBS.

65 Fourthly, the power given to the MBS to serve building notices and make building orders, and for the Board to undertake merits review of such decisions, including in situations where a building permit has been issued but the building work does not comply with the Act, the regulations or the BCA reinforces confidence in the reliability of building permits. It enables deficient buildings to be brought into compliance. Parliament's grant of these powers to MBSs ensures the building compliance regime has appropriate 'checks and balances' on the issue of building and occupancy permits.

66 Fifthly, the power to serve a building notice or make a building order is not subject to a statutory time limit.[50]

67 Sixthly, it is irrelevant whether the MBS received from Livingspring's private building surveyor copies of the permits and documents, or could have requested the private building surveyor to amend the building permit. The Act did not require the MBS to check or verify the permits and the associated documents sent to them under Act.

68 Livingspring's contention that building works performed in order to comply with the requirements of a building order may require the obtaining of further permission from another authority, did not identify what that permission might be. In any event, the building order made by the Board required the Owners Corporation to carry out the building work 'via a building permit'. Thus, the relevant building surveyor would have to be satisfied that the consents or approvals specified in s 24 of the Act had been obtained before issuing a building permit for the building work required by the building order. Moreover, if any further permission required was denied, the Owners Corporation could request the MBS to amend or cancel the building order under s 116 of the Act.

Ground 2 insofar as it relates to the Board's reliance on s 106(d) in making the building order

69 I will briefly consider Livingspring's challenge to the Board's reliance on s 106(d) in making the building order. The issues it raises are largely the same as Livingspring and the Council addressed in submissions about the Board's reliance on s 106(a) in making the building order, which I have discussed above.

The Board's finding that it could make the building order under s 106(d)

70 The Board found that it would be appropriate, having regard to the purposes of the Act, to make a building order under s 106(d) as well as under s 106(a), in order to protect the health and safety of people.

71 The Board considered that it was reasonable for the MBS to have formed the opinion that the Building contravened provisions of the BCA when the building permits were issued and that it posed a danger to the life and safety of any person using it. I refer to the passage in the Board's reasons relevant to this issue that I have set out in paragraph [47] above.

72 The Board found that it was necessary, when considering whether to serve a building notice under s 106(d), to carefully consider the use being made of the building, the persons using the building and whether the building posed a danger to them.[51] The Board found that even if the Building was not a Class 3 building, it still was a danger to the life, safety or health of any member of the public or persons using it so as to engage the power in s 106(d). The Arrow Apartments were being used as Class 3 rather than Class 2 buildings. The absence of an AS1670 smoke detection and alarm system throughout the Building posed a danger to the life, safety or health of any member of the public or of any person using the building.[52]

73 The Board referred to expert evidence, including from fire safety engineers, that had been presented in the appeal. It found that:

Based on the material that was provided to the Board, and the information provided during the hearing, we find that the Building poses a danger to the life, safety or health of members of the public or people using the building (including its occupants), within the meaning of s 106(d) of the Act, due to the following considerations:

(a) the Building has an effective height of more than 25m and fails to have essential fire safety measures that are required, under the 1996 BCA, including fire sprinkler system throughout the entire Building;

(b) the absence of the fire sprinkler system results in a very significant increase in fire risk (compared to the risk that would exist if the sprinkler system was in place);

(c) there are a range of factors that further increase the fire risk associated with the Building:

(i) defects with essential fire safety measures that were identified in the FRG report and the First and Second Basic Reports;

(ii) the tenth floor area, being a sleeping area where the capacity to exit during a fire would involve the occupants needing to find the internal spiral stairway and then exit from the ninth floor;

(iii) there are a significant number of SOUs that are used for short term rentals, including a range of penthouse suites;

(iv) there is not a AS1670 Smoke detection & alarm system throughout the entire Building;

(v) the other forms of non-compliance identified in paragraphs 437 and 438 above; and

(a) there are no special features that significantly reduce the dangers posed by the Building.[53]

We also find that, even if (contrary to our conclusion in section 8 above) the Arrow Apartments were not Class 3 buildings, we would, for the reasons noted above, have still found that the Building is a danger to the life, safety or health of any member of the public or of any person using the Building.[54]

...

Further to the discussion in sections 11 and 12 above, we find that:

(a) the Building is a danger to the life, safety or health of members of the public and people using the Building (including its occupants), within the meaning of s 106(d) of the Act;

(b) it would be appropriate, having regard to the purposes of the Act, to issue a building order on the basis of this danger to life, safety and health in order to protect the health and safety of people;

(c) building work was carried out on the Building in contravention of the Act and building regulations, being the requirement to comply with Clauses E1.5, 02.22, E4.9 and C3.2 of the 1996 BCA (given the absence of alternative solutions); and

(d) it would be appropriate, having regard to the purposes of the Act, to make a building order on the basis of these contraventions in order to protect the health and safety of people.[55]

74 The Board noted that numerous sole-occupancy units were used as hotel rooms by people who were unfamiliar with the layout of the Building thus creating a safety risk in the event of a fire, irrespective of the classification of the Arrow Apartments. This risk was acute for people who were sleeping in the tenth floor open area who in the event of fire would need to evacuate via the internal staircase to the ninth floor.[56]

75 The Board found that it was reasonable for the MBS:

(a) to form the opinion that the Arrow Apartments were Class 3 rather than Class 2;

(b) to form the opinion that, given that the Arrow Apartments were being used as Class 3 rather than Class 2, the absence of an AS 1670 Smoke detection and alarm system throughout the Building posed a danger to the life, safety or health of any member of the public or of any person using the building;

(c) to rely on the string measurement of Brett Dundules to form the opinion that the effective height of the Building was greater than 25m; and

(d) to form the opinion that the Building:

(i) contravened the provisions of the 1996 BCA, which are referred to in clauses 2.2.1 to 2.2.5 of the Second Building Notice; and

(ii) posed a danger to the life and safety of any person using the Building.[57]

76 The Board found that the delegate of the MBS held the opinions set out in the previous paragraph when issuing the building order and noted that:

(a) the 15 June [2017] email demonstrates that Stephen Braybrook had significant knowledge regarding the Building, and the dangers related to the effective height of the Building and the Arrow Apartments;

(b) the Grenfell fire was a stark illustration for members of the building regulatory system throughout Australia of the dangers of non-compliant high rise buildings- the fact that the Second Building Notice was issued months after the Grenfell fire,[58] increases the likelihood that Stephen Braybrook actually had the opinion that the non-compliance created the requisite danger; and

(c) the fact that Stephen Braybrook made the First Building Order is a further indication that he was aware of the nature of the alleged non-compliance and risks.[59]

Livingspring's submissions on the Board's reliance on s 106(d) to make the building order

77 Livingspring in submissions challenging the MBS's and the Board's jurisdiction to rely on s 106(d) to make the building order adopted its submissions made in respect of the Board's reliance on s 106(a), described above, that they had no such jurisdiction. Livingspring argued that the power in s 106(d) could not be exercised when a private building surveyor had issued a building permit for the building work concerned.

78 Livingspring submitted that the Board's findings were interdependent. As I understood the submission, it meant that the Board's ultimate findings of contraventions of the Act, and that the Building was a danger to members of the public and persons using the Building, were based on the totality of its findings and so could not be disentangled.

79 Beach J observed at first instance in Salter v Building Appeals Board[60] (herein referred to collectively with the appeal proceeding Genco v Salter[61] as 'Genco') that:

...[S]ection 106(d) of the Act did not permit a building notice to be served unless the building was a danger to relevant people. In this case, while there might have been some evidence of a relevant danger as a result of the use of the apartments, there was no evidence that the apartments themselves constituted a danger.

The Council's submissions on the Board's reliance on s 106(d) to make the building order

80 The Council relied on its submissions that that s106(a) gave the MBS and the Board the power to make the building order.

81 The Council also noted that there was evidence before the Board that the Building was a danger to members of the public or persons using it.

82 In connection with their submissions about ground 2, the jurisdiction ground, the parties referred to the judgment of Cavanough J in L U Simon Builders Pty Ltd v Victorian Building Authority.[62] That case concerned a direction to fix building works given under s 37B of the Building Act and whether such a direction could be issued after a certificate of final inspection or an occupancy permit had been issued. Cavanough J held that that such a direction could not be issued after the issue of such certificates. His Honour found that s 37B was in a division and part of the Act which dealt with the phase occurring between the issue of a building permit and the issue of a certificate of final inspection or an occupancy permit. He considered that a direction to fix was an intervention in an ongoing process, rather than an intervention after the fact of the completion of the building. His Honour stated:

As indicated above, the plaintiffs also submit that other inconvenient, improbable and irrational consequences would follow from the defendant's construction of Division 2 of Part 4. Among other things, the plaintiffs submit, correctly in my view, that, on the defendant's construction, a direction to fix could be issued long after the event to a person who is no longer a builder or who bore absolutely no responsibility or blame for the alleged defect(s) or who answered both of those descriptions; or who, because of the passage of time, could no longer enforce any rights of contribution the person may have otherwise have had. Examples could be multiplied.[63]

83 I do not consider that the power in s 37B of the Act governs the proper interpretation of the power given by s 106 to the MBS and, on appeal, to the Board.

84 The parties also referred to Elwick 9 Pty Ltd v Freeman ('Elwick 9')[64] in which Quigley J decided that a planning permit was a right conferred under the Planning and Environment Act 1987 and that orders could not be made under the Owners Corporation Act 2006, which were inconsistent with the rights given by the permit. Her Honour quoted from the judgment of Emerton J in Boroondara City Council v Sixty-Fifth Eternity Pty Ltd,[65] who stated:

A planning permit is permissive, but in a limited sense. It entitles the permit applicant to do certain things, but subject to any conditions in the permit and any other restrictions imposed by law on the use or development of the land. The grant of a planning permit will overcome a particular restriction on the use and development of the land, namely the requirement to obtain a planning permit under the Act, but it will leave other restrictions as untouched. As a result, it is not unusual for a planning permit to authorise a use or development that cannot take place until some other legal barrier has been removed, for example, by the grant of a gaming licence or an approval under environment protection legislation. This is a function of the layering of controls over land use and development, including in the Act itself.

Ground 2-Analysis of the Board's jurisdiction - reliance on ss 106(a) and (d) to make the building order

85 The scheme enabling private building surveyors to issue building and occupancy permits was introduced by the Building Act in 1993 following a major review of the Building Control Act 1981. The second reading speech indicates that one of the objectives was to provide for a privatised option for building approval. The Minister in the second reading speech stated:

When the Bill becomes law, builders will be able to choose to engage a private building surveyor to carry out the building permit, inspection and occupancy permit functions and responsibilities or, where available, they may use to choose the system provided by local councils. The present system of private certification of non-structural aspects of a building design for submission to a council will remain as an option.

The private building surveyor will be required to work in a professional and impartial manner.[66]

86 In the Bill's debate in the Legislative Council, an opposition member raised the question of how the division of responsibility between private building surveyors and municipal building surveyors would work out.[67] However, the debates do not throw light on the issues of jurisdiction that are to be decided in this case.

87 The circumstances of this case in which a building order has been made years after the construction of a building, and the Council's failure to act on previous building orders, provides a stark situation in which to decide these issues of jurisdiction.

88 Livingspring contended that the building and occupancy permits conferred valuable rights on it. But as Emerton J stated, 'A planning permit is permissive, but in a limited sense'.[68] A building permit cannot authorise building work that is contrary to the Act, the regulations or the BCA.

89 The Act must be interpreted in accordance with the text of its provisions considered in light of their context and purpose.[69] A principal purpose of the Act is to protect the safety of persons using buildings.

90 The first statutory objective of the Act in s 4 is:

(a) to protect the safety and health of people who use buildings and places of public entertainment.

91 The most relevant principle of statutory interpretation to the present dispute is that the Act and the regulations must be read as a whole. As the plurality of the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority:[70]

The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) V Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

92 Applying that principle, it is apparent that the Act requires that building work must be carried out in accordance with the Act, the building regulations and the building permit issued in relation to that work. The effect of Livingspring's submission is that the Act requires that a person must not carry out building work that does not comply with the building permit, rather than the work must also comply with the Act and the building regulations. The submission proceeded on the assumption that the building work would be deemed to comply with the Act and the building regulations if it complied with the building permit.

93 The relevant provisions of the Act, when read together, make clear that the issue of a building permit or a certificate of occupancy is not conclusive evidence that the building complies with the Act and regulations. They also establish that a building must comply with the Act and the regulations as well as the building permit. Section 16(2) provides that a person must not carry out building work unless the work is carried out in accordance with the Act, the building regulations and the building permit issued in relation to that work. Section 38, which deals with certificates of final inspection, provides in sub-section (2) that such a certificate is not evidence that the building or building work concerned complies with the Act or the building regulations. Section 46(2) states that an occupancy permit is not evidence that the building or part of a building to which it applies complies with the Act or the building regulations.

94 The central provision in this case, s 106(a), provides that a MBS or private building surveyor may cause a building notice to be served on an owner if the surveyor is of the opinion that the building work has been carried out in contravention of a building permit, the Act or the regulations. Section 106(b) provides for circumstances when the use of the building or place contravenes the Act or the building regulations. Sub-sections (ba), (c) and (d) provide other circumstances in which a building notice may be served. Section 111 provides for the making of a building order.

95 Municipal building surveyors also have power under s 102, even after a building has been constructed and occupied, to make emergency orders if they are of the opinion that such an order is necessary because of a danger to life or property arising out of the condition or use or proposed use of a building. An emergency order can require the evacuation of the building, land or place of public entertainment and can require building work to stop, or require the carrying out of building work or other work necessary to make the building safe.

96 The scheme of the Act was considered in detail by the Court of Appeal in Shout Rock.[71] That case concerned a building order for minor works issued under s 113 of the Act. The Court noted that the Act contained provisions directed to two overriding principal purposes:

(a) the establishment and enforcement of appropriate standards for building works ('the standards objective'); and

(b) the prevention and remediation of hazards to the safety of person and property arising from the condition of buildings ('the safety hazards objective').[72]

97 The Court considered that the application of the building regulations was central to the scheme of the Act and described the regulation making power, which included regulations as to the safety of buildings and places of public entertainment.[73]

98 The Court considered that Part 3 of the Act provided for building permits as the primary mechanism for the regulation of construction work. However, it also noted that s 16(2) required compliance not only with the building permit, but also the Act and the regulations.[74] The Court noted that s 24 required a building surveyor to refuse to issue a building permit unless they were satisfied that the building work would comply, inter alia, with the Act and the regulations.

99 The Court also noted that Part 8 of the Act, in which s 106 is contained, concerned the enforcement of safety and building standards.[75] It noted that s 106(a), (b) and (ba) gave effect to the standards objective of the Act and referred to the regulations.[76]

100 Importantly for present purposes, the Court noted that the s 106 building notice regime was directed to the contravention of both the Act and the regulations (see ss 106(a) and (b)). The Court also noted that building orders to stop building work may be made if, in the opinion of the building surveyor, the building work contravenes the Act or the building regulations (see s 112(2)(a)).[77]

101 The decision in Shout Rock is an application of the principle that the interpretation of a statute must consider its terms and provisions as whole. It emphasises that building work must be carried out not only in compliance with the requirements of the building permit, but also the requirements of the Act and the regulations. A reading of those provisions establishes that the MBS in this case had the power to serve the building notice and to make the building order, which were the subject of the appeal to the Board, and the Board's determination which is challenged in this proceeding. The Board had the power to make the building order on appeal, based on its findings that the building work contravened provisions of the BCA.

102 When the Act is considered as a whole, it is clear that it does not deem building work carried out in compliance with a building permit to have also been carried out in accordance with the Act and the building regulations. The requirement to carry out building work in compliance with the Act and building regulations are separate and additional requirements. The fact that the building work has been performed in accordance with the requirements of a building permit does not remove the MBS's power to serve a building notice or make a building order in respect of that building work, or the power of the Board to hear and determine an appeal against such a notice or order.

103 The Act thereby provides checks and balances to ensure that building work is carried out not only in compliance with the building permit, but also in compliance with the Act, the regulations and the BCA.

104 To read s 106(a) as only applying to building work not carried out in compliance with the building permit, as Livingspring suggested, would remove the important statutory requirements that the building work also be carried out in compliance with the Act, the regulations and therefore, the BCA. Those additional requirements are directed at protecting public safety.

105 There is no basis for the implication of words in s 106 that would prevent the exercise of the powers that it confers to make a building order whenever the circumstances described in s 106(a)-(d) exist. The circumstances that might justify the implication in s 106(a) that Livingspring suggested have not been established. A statutory implication must be reasonably open having regard to the statutory scheme. A construction that fills 'gaps disclosed in legislation' or 'makes an insertion which is 'too big or too much at variance with the language in fact used by the legislature' is not permitted.[78] The implication that Livingspring sought would be contrary to the statutory scheme outlined above.

106 The Board was not, as Livingspring argued, standing in the shoes of the original building surveyor when making its determination. It was standing in the shoes of the MBS. The Act gave a right of appeal against the MBS's decision, not the original building surveyor's decisions to issue building permits.

107 The fact that the original building permits and occupancy permit will remain unamended if the building order stands is not decisive. The Act accepts that as a possibility and expressly provides in s 119 that to give effect to a building order no building permit is required. In any event, in this case the Board's orders direct that the building work be carried out via a building permit.

108 The Council was not required to commence a legal challenge to the issue of the building permits or occupancy permit. The exercise of the powers that s 106 gives the MBS, and the Board on appeal, is not dependent on the MBS first setting aside the building or occupancy permits. Rather, it is directed at regulating compliance with the Act, the regulations and therefore the BCA.

109 While copies of the building and occupancy permits apparently were given to the Council and formed part of the records maintained under ss 30 and 73 of the Act, the MBS was not, as a result, required to undertake a review of the issue of the building permits.

110 The two authorities on which Livingspring relied had a different context from the present and thus do not lend assistance to the resolution of the issues in this case. The judgment in Taitapanui[79] concerned a claim by the current owners of a property for economic loss arising out of the negligent issuing by a building surveyor of a building permit for the construction of a dwelling for the previous owner. The passage relied on by Livingspring was directed at the duties of private building surveyors at common law and not at the powers given by s 106 to a MBS.

111 The judgment in Omaya Investments[80] was an appeal from the dismissal of claims by an adjoining owner in a proceeding seeking declarations and restraining orders concerning a building development. The ground of appeal that led to the observation on which Livingspring relied was whether under the Environmental Planning and Assessment Act 1979 (NSW) the modification of a construction certificate only occurred in law when the new plans were stamped by the certifier. Viewed in that context, the observation on which Livingspring relied has no relevance to the determination of the present issues.

112 It is important to emphasise that Livingspring did not argue before this Court that the building notice or the building order were invalid for unreasonableness or irrationality or that the elapse of time meant that the Council was estopped from issuing a building order.

113 Some decisions have considered discretionary factors that may arise in enforcement proceedings when work has been performed under an invalid building permit. An example is Thorne v Doug Wade Consultants Pty Ltd,[81] where the trial judge held that a permit issued under the City of Melbourne's Interim Development Order was invalid because the obligations of consultation with people whose amenities might have been affected by the development which were required by s 18B(1) of the Town and Country Planning Act 1971 had not been observed. But the development, having been completed, the trial judge in the exercise of discretion refused to grant a mandatory injunction for the demolition of the development when the owners had relied on the IDO in good faith.

114 On appeal, the Full Court decided that the trial judge's refusal to grant relief, notwithstanding finding that the IDO permit was void, did not involve an improper exercise of discretion.[82]

115 For the reasons given above, I consider that Livingspring has not established that the MBS lacked power, after having formed the necessary opinions, to cause the building notice to be served and then to make the building order, nor has it established that the Board on appeal did not have power under s 106(a) to make the building order in its varied form. Therefore, Livingspring has not established that the Board made any jurisdictional error in deciding the issues raised concerning the powers given to it by s 106(a).[83]

Ground 2-Analysis of jurisdiction-Board's reliance on s 106(d) to make the building order

116 Livingspring's submissions contesting that the building order could be made in reliance on the power in s 106(d) repeated its submission that s 106(a) did not provide such power. For the reasons given above, I do not accept that submission.

117 There are additional matters of relevance that should be mentioned at this point. The Board found that even if contrary to its conclusions, the Arrow Apartments were not Class 3 buildings, it would still have found that the Building was a danger to the life, safety or health of any member of the public or of any person using the Building.[84] The Board gave detailed reasons for that finding at [437]-[440], referring particularly to the Fire Research Group Report, which was relied on by the Owners Corporation[85] and the First and Second reports by Basic Expert Pty Ltd, which were relied on by the MBS,[86] which all noted 'defects with essential safety features' in the Building.[87] Those reports were discussed by the Board in detail in sections 12.2 and 12.6 of its Reasons. Section 12 of the Board's Reasons is titled 'THERE IS A DANGER TO LIFE, SAFETY OR HEALTH'. Based on the evidence provided, the Board accepted that:

(a) essential safety measures were not adequately maintained; and

(b) these defects could affect the fire brigade intervention and occupant egress.[88]

118 I have previously in paragraph [72] set out the Board's findings on this issue

119 Livingspring did not challenge the Board's findings of fact about the danger that the Building presented to the life, safety or health of members of the public or any person who used it.

120 I conclude that Livingspring has not established that the MBS, and the Board on appeal, did not form the necessary opinions and have power to make the building order in reliance on the power conferred by s 106(d).

Ground 1(c) the Board erred in holding that the Building:

i. was constructed contrary to the requirements of the Building Act 1993, the regulations, and the Building Code of Australia 1996; and

ii. posed a danger to the life, safety or health of any member of the public or of any person using the Building.

121 It is appropriate to deal with ground 1(c) at this point as I have just dealt with Livingspring's challenges to the MBS's and the Board's reliance on s 106(d) in making the building order.

122 The Board in its determination of 27 January 2023 stated that:

(iv) the Building contravened the provisions of the BCA, which are referred to in clauses 2.21 to 2.2.5 of the Second Building Notice and, as a result of these contraventions, posed a danger to the life and safety of any person using the Building.[89]

123 Livingspring made no separate submission of any substance as to the merits of the Board's findings that the Building lacked the necessary fire safety features. The Board's findings meant the Building contravened the requirements of the BCA and thus posed a danger to the life, safety or health of any member of the public or of any person using it. It appeared that the Livingspring's argument on this ground was the same argument advanced under ground 2, that the Board lacked jurisdiction to make the building order.

124 I have set out, when considering Livingspring's challenge to the MBS's and the Board's reliance on s 106(d), the Board's findings and reasoning as to why the Building posed a danger to the life, safety or health of any person using it. Livingspring did not challenge the Board's findings as to those facts.

125 In those circumstances, Livingspring has not established ground 1(c).

Ground 1(a) that the Board erred in holding that the Arrow Apartments were being used as Class 3 buildings

126 Ground 1(a) of Livingspring's Amended Originating Motion contends:

The Board erred in holding that:

(a) the apartments within the building at 581-589 La Trobe Street ('Building') used by Arrow on Spencer ('relevant apartments') were being used as class 3 rather than class 2 buildings because the Board erred in its construction and its application of the definitions of 'Class 2' and 'Class 3' buildings in Part A3 of the Building Code of Australia 1996; (the 'classification ground');[90]

127 I have decided that the MBS did have power to issue a building notice and a building order despite the building work have been performed under a building permit. I have also decided that the Board on appeal had power to affirm the building order as varied. Livingspring presented arguments in the alternative if the Court reached such conclusions. These alternative arguments were that the power to make the building order had been invalidly exercised. The first part of this argument was that the Board erred in classifying the Arrow Apartments as Class 3 buildings, rather than Class 2.

128 As I conclude below, I consider that, if the Board erred by not classifying the Apartments as Class 2, that error was not material because it did not affect its determination. Despite that conclusion, I will consider Livingspring's argument that the Apartments should have been classified as Class 2. I first set out the key provisions of the BCA dealing with the classification of buildings, as the classification can affect the fire safety features that the building must have.

129 Part A3.1 to A3.4 of the BCA which deal with the classification of buildings provides:

A3.1 Principles of classification

The classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used.

A3.2 Classifications

Buildings are classified as follows:

Class 2: a building containing 2 or more sole-occupancy units each being a separate dwelling.

Class 3: a residential building, other than a building of Class 1 or Class 2, which is a common place of long-term or transient living for a number of unrelated persons, including -

(a) a boarding-house, guest house, hostel, lodging-house or backpackers accommodation; or

(b) a residential part of a hotel or motel;

(c) a residential part of a school; or

(d) accommodation for the aged, children or people with disabilities; or

(e) a residential part of a health-care building which accommodates members of staff; or

(f) a residential part of a detention centre.

A3.3 Multiple classification

Each part of a building must be classified separately, and -

(a)(i) where parts have different purposes - if not more than 10% of the floor area of a storey which is not a laboratory is used for a purpose which is a different classification, the classification applying to the major use may apply to the whole storey; ...

(d) A plant room, machinery room, lift motor room, boiler room or the like must have the same classification as the part of the building in which it is situated.

A3.4 Parts with more than one classification

(a) Notwithstanding A3.3, a building or part of a building may have more than one classification applying to the whole building or to the whole of that part of the building.

(b) If a building or part of a building has more than one classification applying to the whole building or part in accordance with (a), that building or part must comply with all the relevant provisions of the BCA for each classification.

The Board's reasons for classifying the Arrow Apartments as Class 3

130 The Board found that uncertainty existed whether the Arrow Apartments were properly classified as Class 2 or 3. However, it decided that the Arrow Apartments so closely resembled the residential part of a hotel as referred to in cl A3.2, definition (b) ('Class A3.2 (b)) as properly to be classified pursuant to reg 13 of the Building Regulations 2018 as Class 3 buildings. Regulation 13 states:

(1) The relevant building surveyor must determine the classification of a building when performing a function under the Act or these Regulations.

(2) If there is any doubt as to the classification of a building under the BCA, the relevant building surveyor must classify the building as belonging to the class it most closely resembles.[91]

131 I will refer to reg 13(2) as the 'most closely resembles regulation'.

132 The Board's reasoning on this issue of classification of the Arrow Apartments and the parties' submissions in this Court relied significantly on the judgment of Beach J[92] at first instance and of Nettle JA and Osborn JA in the Court of Appeal[93] in Genco. That was a judicial review application commenced by Mr Salter of a Building Appeal Board's determination to uphold a MBS's reclassification of three apartments in a multi-storey complex in Melbourne's Docklands from Class 2 to 3. That reclassification followed the apartments' owner advertising them and providing them to customers as serviced apartment accommodation.

133 The Board relied on the Court of Appeal judgments in Genco and did not accept that the apartments could not satisfy the Class 3 definition. The Board stated:

Instead, Nettle JA and, apparently, Osborn JA noted that:

(a) a building with apartments could be a Class 3 building if (having regard to various factors) it so resembled the residential part of a hotel;

(b) such a classification could apply even if the residential part is wholly comprised of self-contained sole-occupancy units each of which includes sleeping facilities, bathing facilities and cooking facilities; and

(c) if the building was similar to a Class 2 building and similar to being a hotel, consider what the building most closely resembles.[94]

134 Nettle JA stated that there was a strong implication that hotel and motel units of the kind in question in that case were not within the conception of a sole-occupancy unit so as to be a Class 2 dwelling, but rather should be classified as a residential part of a hotel within Class A3.2(b). He considered that, subject to the facts and circumstances of a given case, it might well be appropriate to classify such units as Class A3.2(b) as the class they most closely resembled within the meaning of the predecessor of reg 13.[95] While his Honour did not consider that the units much resembled the residential part of an hotel or a motel comprised of sole-occupancy units, he regarded that issue to be a question of fact and degree and that the Board's decision ought not to be set aside unless it was not open on the evidence or otherwise informed by wrong principle. Nettle JA expressed these conclusions in the following passages of his judgment:

... there are any number of motels and not a few hotels of which the residential part is wholly comprised of self-contained sole­occupancy units each of which includes sleeping facilities, bathing facilities and rudimentary cooking facilities. With facilities of that kind, it would be possible to live in one of those units indefinitely. On one view of the matter, that is sufficient reason to classify each such unit as a sole-occupancy unit being a dwelling within the meaning of Class 2. But, if that were so, Class 3(b) would have no application to hotel and motel units of that kind. That can hardly have been the intention. Bearing in mind the evident purpose of this legislation, which is to provide for construction, fire and safety standards of buildings according to their design, construction and use, there is a strong implication that hotel and motel units of the kind in question are not within the conception of a sole-occupancy unit being a dwelling in Class 2 but rather within Class 3(b).[96]

...

In terms of function, there is not a lot of difference between an hotel or a motel of which the residential part is comprised of self­contained units of the kind just described and a serviced apartment enterprise comprised of self-contained sole occupancy units hired out as short-term hotel-style accommodation. Subject, therefore, to the facts and circumstances of a given case, it might well be appropriate to classify such units (pursuant to reg 112(2))[97] as Class 3(b) (as the class they most closely resemble). But whether or not they should be so classified is liable to depend on a range of factors including whether the apartments are of such a number and so physically disposed in relation to each other as to resemble the residential part of an hotel, and the range and nature of services provided to patrons of the apartments. I have in mind in particular the provision of common facilities such as a dining room, restaurant, swimming pool, gymnasium, laundry and business facilities.

So, for example, if all of the apartments in an apartment building, or all of the apartments in an identifiable section of an apartment building, are adapted for use as serviced apartments and provided with the full gamut or a substantial cross-section of the services customarily expected of a decent hotel, such as reception facilities, dining and restaurant facilities, laundry facilities, a swimming pool and gymnasium and a business centre, one might reasonably conclude that the apartments so much resemble the residential part of an hotel as properly to be classified (pursuant to reg 112(2)) as Class 3(b). Contrastingly, if there are only one or two such apartments scattered throughout a large apartment building and they are provided with but a few hotel like services and facilities of the kind I have mentioned, I should think that it would be very difficult to conceive of them as sufficiently similar to the residential part of an hotel to come within Class 3(b). Obviously, between those two extremes lies a range of possibilities.[98]

135 Nettle JA applied these general considerations to the three apartments in issue in the following passage:

... in this case there were only a few short term serviced apartments scattered randomly among a much larger number of units not adapted for use as serviced apartments. The services which Mr Salter provided to the patrons of the subject serviced apartments were also relatively exiguous. Essentially, they consisted of putting customers in touch with third party providers of laundry services and food and the like. Consequently, it does not seem to me that the units operated by Mr Salter much resembled the residential part of an hotel or a motel comprised of sole-occupancy units. In the end, however, that is a question of fact and degree and the Board's decision on such a question ought not be set aside unless it appears not to have been open on the evidence or otherwise as informed by wrong principle. As matters stand, I am not persuaded that the Board's decision was not open on the evidence.[99]

136 The Board also referred to Osborn JA's statement in Genco that in order for a sole-occupancy unit to be a dwelling and therefore be classified as Class 2, it must have the essential facilities necessary for separate residential accommodation, such as a 'toilet, bathroom and cooking facilities as well as a room or rooms appropriate for sleeping and daily living'.[100] However, his Honour doubted that the apartments in that case satisfied the description of being a hotel, noting that the services supplied did not involve use of the apartment building as a whole, or the joint use of a section of the apartment building comprising a number of units, in the manner usual for a hotel.[101]

137 Nettle JA and Osborn JA ultimately dismissed the appeal from Beach J's judgment because the Board's decision involved an error of law in that it had been materially influenced by a misconception that a 'dwelling' and thus a 'separate dwelling' in Class 2 were essentially a place of permanent or long term residence.[102]

138 The Board in the present case considered that the Court of Appeal judgment in Genco established that the determination whether a building was Class 2 was to occur holistically, having regard to the purpose of the BCA and the definition of Class 3 buildings.[103] This determination required an overall assessment of how similar the units were in their use and the infrastructure of the building, to 'the residential part of a hotel' within the meaning of Class A3.2(b).[104] The factors to be considered included whether the apartments were of such a number and so physically disposed in relation to each other as to resemble a residential part of a hotel and also the range and nature of common services provided to the patrons of the apartments.[105]

139 The Board concluded that the Arrow Apartments had essential facilities for separate residential accommodation, and, if each was considered separately, the Apartments would be a Class 2 building.[106] Each of the Apartments, while ranging in size, was the subject of its own title, including car parking space and had one or two bedrooms, a bathroom and toilet, a space for a washing machine and drier, although laundry facilities for most guests were in a communal area with coin operated washing machines and driers, a domestic smoke alarm and smoke detectors in the corridors. The Apartments were equipped and used for residential use only and were advertised online and booked through the business name 'Arrow on Spencer'.[107] Each of the Apartments was offered and provided as a whole apartment to one person, a pair, or group of persons, pursuant to one licence the terms of which included that the licensee enjoyed the exclusive right to reside in the apartment for the period of the licence, the number of occupants was not to exceed the number of occupants stated on the enquiry form and any party or function in the apartment was strictly prohibited.[108]

140 The Board stated that, if the Building, or its relevant part, did not operate as a hotel, then each sole-operated unit had to be considered separately and a determination made whether in the case of each sole-operated unit the people staying in it were related to each other.[109]

141 The Board then considered whether the Arrow Apartments were appropriately classified as sole-occupancy units that were part of a hotel. As previously stated, it found that their classification was uncertain.[110] It concluded that, on balance, the Apartments so closely resembled the residential part of a hotel as properly to be classified in accordance with reg 13 as most closely resembling Class 3 buildings.[111] This finding reflected that the number of the Arrow Apartments was significant, being 20% of the total number of apartments in the Building, the range of 'common infrastructure' within the Building of the type frequently provided in serviced apartment complexes and the staff employed who staffed the reception desk and provided general services and arranged room services.[112]

142 The Board found that not all of the Building was Class 3 and the number of sole-occupancy units offered by Arrow on Spencer changed from time to time.[113] While the reception and storage areas were part of Arrow on Spencer, since they were not 'a residential part of an hotel or motel,' they were not Class 3 buildings.[114] The residential apartments that were not available to people who used Arrow on Spencer were Class 2, even if they were available for short term accommodation.[115] While the Board accepted that, as the building notice stated, there were 'numerous' sole-occupancy units that were Class 3, the majority of the sole-occupancy units were Class 2. For at least some storeys, the Arrow Apartments were more than 10% of the floor area of a storey. Accordingly, cl A3.3(a) of the BCA would not apply to those storeys and, therefore, distinct parts of the Building were Class 3 and other parts Class 2.[116]

Livingspring's submissions on the classification of the Arrow Apartments

143 Livingspring relied on Beach J's conclusion in Genco at first instance,[117] that by definition, if a building satisfied the Class 2 definition, then it could not satisfy the Class 3 definition. Beach J stated:

Secondly, to the extent that the second and third defendants submitted that the apartments more naturally satisfied the definition of Class 3, I reject that submission. The definition of Class 3 buildings in clause A3.2 of the Building Code commences with the words 'a residential building other than a building of Class 1 or 2...' By definition, if a building satisfies the Class 2 definition, then it cannot satisfy the Class 3 definition.[118]

144 Livingspring submitted that the clear language of the definition of Class 3 buildings, which referred to a building other than a building of Class 1 or 2, meant that in order to classify the Arrow Apartments, the Board was first required to determine whether those apartments were a Class 1 or Class 2 building. Only if they were not, could they fall within the definition of a Class 3 building.

145 Livingspring argued that the judgments of Beach J and of the Court of Appeal in Genco demonstrated a clear distinction between the built form that met the definition of a Class 1 and Class 2 building, both of which provided 'entirely self-contained facilities for residential accommodation' and allowed each apartment to be occupied by related persons and, on the other hand, buildings that were Class 3. A building or part of a building ceased to be a Class 2 building and became a Class 3 building if it provided accommodation to unrelated persons. Two elements must be present for a building to be a Class 2 building and therefore not a Class 3 building. First, there must be two or more self-occupancy units, and second, each self-occupancy unit must be a separate dwelling.

146 Livingspring contended that the Board had taken the reverse approach, assessing whether the Apartments met the definition of a 'residential hotel' and then, because it was uncertain about whether they were a Class 2 or Class 3 building, leaning towards the latter. The Board's conclusion was solely directed to whether the Apartments formed a Class 3 part of the Building, without first grappling with whether they were excluded from that classification by virtue of being a Class 2 part of the Building.[119] The Board acknowledged that the Apartments were 'sole occupancy units' and could fall within the definition of Class 2. Having reached that point, the Board erred by not determining whether the Apartments were Class 2 buildings. If they were, they could not be classified as a Class 3 building. The Board erred by asking whether the Apartments were Class 3 buildings irrespective of whether they were Class 2 buildings. It did not properly consider whether the Apartments were Class 2 buildings. The passages from Genco on which the Board relied did not suggest that there was an overlap between the definition of Class 2 and Class 3 buildings so that a building could be classified as both.

147 If the Board did make an error of law as to the classification of the Building, then that error was inseparable from the balance of the Board's reasons and determination, especially as it sought to undertake an holistic assessment of the Building to determine the appropriate classification of the Arrow Apartments. The error as to the classification of the Building vitiated the Board's determination and the proceeding must be remitted to the Board for redetermination in accordance with law.

148 Livingspring relied on the decision of the Environment Resources and Development Court of South Australia in The Oaks Hotels & Resorts Pty Ltd v City of Holdfast Bay,[120] which concerned an application for permission to use 69 apartments in a 253 apartment building as serviced apartments for short term accommodation. The remaining apartments were residential apartments. The Court dealt with a submission that serviced apartments were a 'residential part of a hotel' and that the 69 apartments should be classified as Class 3 under the BCA. This submission was based on the suggested nature of the short term basis by which unrelated person would use the proposed serviced apartments that it was said would occur. The Court disagreed with the submission and said that the Code did not create a distinction between Class 2 and Class 3 buildings based on length of stay.[121] That was also the conclusion at first instance, and on appeal, in Genco. The Court said that it was clear from the classification descriptions in the BCA that the building under consideration was a Class 2 building whether the 69 apartments were inhabited by their owners, rented out for short or long terms by their owners, or rented out for short or long terms by a management company.[122] That conclusion has no direct application to the issues in this proceeding as it followed from the application of the classification descriptions to the features and use of the building.

The Council's submissions on the classification of the Arrow Apartments

149 The Council argued that the Board had correctly decided that the determination of whether the Building was Class 3 depended on how similar it was to the residential part of a hotel within the meaning of Class A3.2(b), including whether it provided hotel-like services. If the Building did not operate as a hotel, then each sole-occupancy unit was to be assessed separately to ascertain if the people staying in them were related to each other, in which case they would be classified as Class 3.

150 The Board properly recognized that a holistic assessment was required to determine whether the Arrow Apartments were akin to the residential part of a hotel under Class A3.2(b). If there was doubt as to their classification, including the extent to which different parts of the building should be classified, the most closely resembles regulation, reg 13, was to be applied to classify the Building.

151 In Genco, Nettle JA considered that the phrase 'other than a building of Class 1 or 2' in the definition of Class 3 needed to be understood in the context of the requirement of the most closely resembles regulation so that '[i]f there is any doubt as to the classification of a building under the BCA, the RBS must classify the building as belonging to the class it most closely resembles'[123]. His Honour considered that a building or part thereof that could fall within the definition of Class 2 might instead be classified as Class 3 pursuant to the most closely resembles regulation. Osborn JA did not suggest that a building could not be classified as a Class 2 or Class 3 building pursuant to the most closely resembles regulation.

152 In addition, the Council contended that the classification issue was not material or decisive to the Board's determination. This was because the Board found that, even if the Arrow Apartments were not Class 3 buildings, it would still have made a building order under s 106(d) because the Building was a danger to the life, safety or health of any member of the public or any other person using the Building.[124] The Board found that the Building's failure to satisfy sprinkler requirements, provide re-entry from fire-isolated exits and provide emergency warning and intercommunication systems were relevant because the Building had an effective height of more than 25m and not because it found that the Arrow Apartments were Class 3. The Board's only finding that was based on its classification of the Arrow Apartments as a Class 3 building was the absence of a AS1670 smoke detection alarm system throughout the Building. But the Board decided to remove that requirement from the modified form of building order that it issued on 5 July 2023 because it found that the safety purpose of the smoke detection alarm system would be achieved by the existing smoke detection alarm system in conjunction with the requirement to install a AS2118.1 or AS2118.6 fire sprinkler system. Therefore, none of the building works the Board ordered were based on a finding that the Arrow Apartments were Class 3.

Analysis of ground 1(a)-the classification of the Arrow Apartments

153 The provisions of the BCA are subject to the requirements of reg 13 of the building regulations. Therefore, if there is uncertainty whether a building should be classified as Class 2 or 3, it was open to the Board to apply the terms of reg 13 as Nettle JA suggested in Genco and decide that the Arrow Apartments most closely resembled the residential part of a hotel and were therefore Class 3. To repeat his Honour's statement on this issue:

For similar reasons, if a building comprised of a number of sole-occupancy units each being a separate dwelling is in the first place properly classified as Class 2, but later all or a substantial number of the units is adapted for use as a short term hotel style serviced apartment accommodation then, depending on all the facts and circumstances, it may be that each of the units they use should properly be re-classified as Class 3.[125]

154 The result of Nettle JA's reasoning is that a sole-occupancy unit can, depending on its use, be re-classified as Class 3. His Honour's approach was that a building that might have been a Class 2 building might by its use be properly re-classified as a Class 3 building. The wording of the Class 3 definition does not preclude that approach. Apartments that were not available for short term accommodation of a hotel style, when made available to Arrow on Spencer for such use, could be re-classified as Class 3. The Board found that such a change of use had occurred in this instance. I consider that that finding was open to it, as Nettle JA concluded of the Board's finding in Genco.

155 I consider that it was open to the Board to find that the Apartments were Class 3 buildings because they could be found to be providing services similar to a hotel. The Board's decision in this regard involved a matter of 'fact and degree' to use Nettle JA's expression in Genco.[126] The Board based its decision on its findings of fact when applying reg 13(2). Livingspring did not challenge the Board's findings of fact and has not established any error jurisdictional or otherwise in the Board's approach.

156 I also accept the Council's submission that any error by the Board regarding the classification of the Building would not vitiate its determination. This is because the Board also relied on its findings about danger to the life, safety or health of any member of the public in making the building order in reliance on s 106(d) as distinct from its classification of the Building as Class 3. The Board's classification of the Building as Class 3 would only have been relevant if it had included in its modified building order the terms of paragraph 6.1 of the MBS's original building order which required the building owner to 'install an AS1670 Smoke Detection & Alarm System throughout the entire building, via a valid building permit'. However, the Board did not include that requirement in its modified building order. Therefore, the Board's classification of the Building has not led to any material error in its determination. An error will only be jurisdictional if the error was material in the sense that there is a realistic possibility that the decision that was made in fact could have been different if that error had not occurred.[127] Livingspring has not established that the Board made a material error because of its classification of the Arrow Apartments.

157 Livingsprings has not established ground 1(a) challenging the Board's classification of the Building as Class 3.

Ground 1(b) The effective height of the Building

158 Livingspring's second ground 1(b) for challenging the Board's exercise of jurisdiction under ss 106(a) and (d), if contrary to its submission such jurisdiction existed, is that the Board erred in holding that:

The effective height of the Building was greater than 25 m because the Board erred in its construction and application of the definitions of the terms 'effective height', 'mezzanine' and 'storey' in Clause A1.1. off the Building Code of Australia 1996[128]

159 Particular requirements of the BCA apply to a building which has an effective height of more than 25m. Some of these requirements were reflected in cl 2.2 of the second building notice[129] as follows: a fire sprinkler system throughout the Building; that there be re-entry provisions from fire-isolated stairways into the Building; that a sound system or intercom system for emergency purposes was required; that two fire-isolated stairways were within the same shaft and were not fire isolated from each other and that south side sole-occupancy units on levels 3 to 9 of the Building had unprotected window openings located within the 3m of the boundary. The notice stated that without these required essential safety measures the building did not provide the minimum required level of life safety for the occupants.

Effective height means the height to the floor of the topmost storey (excluding the topmost storey if it contains only heating, ventilating, lift or other equipment, water tanks or similar service units) from the floor of the lowest storey providing direct egress to a road or open space.

161 'Open space', which forms part of the definition of 'direct egress', was defined in the BCA as:

a space on the allotment, or a roof or similar part of a building adequately protected from fire, open to the sky and connected directly with a public road.

162 In order to find the Building's effective height, the MBS and the Board had to decide what were the topmost storey and the lowest storey providing direct egress to a road or open space. Livingspring's case is that the Board made jurisdictional errors in deciding these questions.

163 The definition of a storey in the BCA was: 'A space within a building which is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but not... (b) a mezzanine'.

164 A mezzanine was defined as 'an intermediate floor within a room'. The ordinary meaning of room is 'a portion or a space within a building or other structure, separated by walls or partitions from other parts.'[130]

The Board's findings on the Building's topmost storey

165 The competing contentions before the Board as to the Building's topmost storey for the purpose of the definition of 'effective height' were: Livingspring's contention that the topmost storey was the ninth floor as the tenth floor open area was a mezzanine and the Council's contention that the topmost storey was the tenth floor as its open areas were not a mezzanine.

166 The Board found that that the tenth floor was the topmost storey of the Building and that the Lower Ground Floor was the lowest storey providing direct egress to a road or open space. If either of those findings was correct, the effective height of the Building was more than 25m as the Board determined. On that basis, Livingspring therefore had to successfully challenge both the Board's findings in order to obtain orders quashing its determination of the effective height of the Building.

167 The Board found that the tenth floor, being the upper level, contained an open living area, which typically contained beds, seating and similar types of furniture and a bathroom. It also contained a small void through which a person entered the tenth floor open area, via an open spiral stairway that connected the ninth floor to the tenth floor. It also contained an external terrace.[131] The Board found that the tenth floor open area was not a mezzanine.[132] Photographs of the two levels of the topmost residential apartments were in evidence.

168 In reaching the conclusion that the tenth floor was the 'topmost storey',[133] the Board applied the following reasoning. It found that whilst the tenth floor open area was not a sole-occupancy unit that was separate to the area on the ninth floor, the tenth floor open area was an area or space that was separate to the living area on the ninth floor. It was appropriately described as a room that was separate to the living area on the ninth floor.[134] It was therefore not an intermediate floor within a room and thus not a mezzanine.

169 The Board stated its conclusions in the following passages:

We do not accept that the whole of the SOU (despite it having separate bathrooms and bedrooms) is, for the purpose of the definition of mezzanine in the 1996 BCA, a single room.

Whilst the tenth floor open area is not a SOU that is separate to the area on the ninth floor, the tenth floor open area is an area or space that is separate to the living area on the ninth floor and, in the circumstances, is appropriately described as being a room that is separate to the living area on the ninth floor.

The tenth floor open area is separated from the ninth floor by a ceiling/floor and the existence of a small void does not result in the tenth floor open area being part of the same room as the living area on the tenth floor. The tenth floor open area is not a mezzanine and the tenth floor is, for the purposes of the definition of 'effective height' a storey that is distinct and separate from the ninth floor.[135]

170 The Board also decided that if, contrary to that conclusion, it had formed the view that the whole sole-occupancy unit, including the tenth floor area was part of the same room, it would still have determined that the tenth floor was not a mezzanine because it was not an 'intermediate floor' within the sole-occupancy unit. It was a floor which constituted a storey and was a distinct and separate floor from the ninth floor. The Board noted that the only shared boundary was the ceiling of the ninth floor, which consistently with other contiguous storeys, was a shared boundary with the floor of the tenth storey. There were no portions of the walls of the ninth floor that were part of the tenth floor and the space on the ninth floor was not the same height above ground level as the space on the tenth floor. The absence of a trap door at the small void did not result in the tenth floor being an intermediate level.[136]

171 The parties made separate submissions about Lot 1019 which was a common area on the tenth floor. It was the only lot on the tenth floor save for the upper levels of the apartments. The Council contended that if the tenth floor was a mezzanine, then Lot 1019 served as the topmost storey for the purposes of the definition of 'effective height'. In that event, the effective height of the Building was still more than 25m.

172 The Board found that Lot 1019 was the same level as the tenth floor open area within the top floor apartments.[137] It considered that, given its finding that the tenth floor open area was not a mezzanine and was a separate storey which was above the ninth floor storey, the status of Lot 1019 did not affect the effective height of the Building.[138] However, it did express its conclusions on the status of Lot 1019. They were that, if hypothetically, it had found that the tenth floor was a mezzanine, Lot 1019 would have been a storey for the purposes of the BCA and thus the topmost for the purposes of determining the effective height of the Building.[139]

173 The Board concluded that when, in the past, Lot 1019 was used as a gymnasium, it was a 'storey' above the ninth floor and would have been included in determining the effective height of the Building. The evidence was that Lot 1019 was now an empty space and would not be used as an exercise room in the future.[140] But it was still a room. The fact that it was the only way of accessing the plant room did not mean that the exception to the definition of 'storey', that includes a space that contains only a 'stairway', 'laundry' or a sanitary compartment ' or a combination of these features, applied. Lot 1019 was a room and not a stairway.[141] Nor did the exemption in the definition of 'effective height' apply. It excludes 'the topmost storey if it contains only heating, ventilating, lift or other equipment, water tanks or similar service units'.

Livingspring's submissions on the topmost storey

174 Livingspring relied on the definition of mezzanine and submitted that the Board could not have found that the tenth floor was anything other than a mezzanine space, accessible by a staircase. A mezzanine did not count as a floor, but was an intermediate floor and part of the space of the room in which it was contained. As a mezzanine, the tenth floor should have been excluded from the calculation of the effective height of the Building.

175 Livingspring submitted that the MBS and the Board had incorrectly characterised the effective height of the Building by incorrectly classifying a mezzanine as an additional storey and also incorrectly classifying Lot 1019 as an additional storey. The Board had made findings of fact which were based on an incorrect construction of the definition of effective height.

176 Livingspring noted that the Board decided that each of the Apartments on the ninth and tenth floors comprised a sole-occupancy unit. The Board's error was in concluding that the existence of an intermediate floor invalidated the existence of a room.

177 Livingspring argued that the tenth floor served as an intermediate floor or habitable space within the sole-occupancy unit. It formed part of the one single habitable space within the walls of the sole-occupancy unit on the ninth floor. The tenth floor could not be used as a separate area, space or sole-occupancy unit and therefore could not be found to be a sole-occupancy unit in its own right.[142] The ninth and tenth level living spaces formed an indivisible whole. The tenth floor had no door giving access to the lobby area on that floor and the exit from the tenth floor was via the staircase to the ninth floor and the door giving access to the lobby area on that floor.

178 Livingspring submitted that the existence of an intermediate floor did not automatically invalidate the existence of a room that contained a mezzanine, otherwise no room could contain a mezzanine. It was not clear how the 'small void' could not result in the tenth floor open area being part of the same room as the living area on the ninth floor when the only thing separating them was the intermediate floor.

179 The Board did not address whether 'the tenth floor' was the same shared space as the 'ninth floor' within the context of each relevant sole-occupancy unit. The purpose of a mezzanine level was to separate a portion of the space of a room into a separate and distinct level between the base floor and the ceiling. Thus, the base floor, in this case the floor of the ninth floor, would always be set apart from the intermediate floor and the levels of the two floors would differ. An intermediate floor will always form a shared boundary with the ceiling of part of the base floor. The space in the shared void shared the same ceiling as the space supported by the intermediate level. The intermediate levels of each of the ninth-level sole-occupancy units formed the topmost storey of the Building. A mezzanine floor is part of the space of the room in which it is contained and here the mezzanine was accessible via the staircase.

180 Livingspring at first accepted that, unless it successfully established that the MBS and Board had erred in its findings as to the topmost storey and lowest storey providing direct egress to a road or open space, then the effective height of the Building would be greater than 25m.[143] However, it later submitted that the Board's ultimate findings were interdependent. By this it appeared to mean that the finding as to classification bore upon the finding of the adequacy of the fire safety features and the finding as to effective height also bore upon that matter. It contended that it was impossible to disentangle the various intermediate findings to salvage part of the Board's determination. The Board's finding that the Building was a danger to occupants was based on the totality of its findings and could not be disentangled. As I understood it, Livingspring argued that an error on any such finding vitiated the Board's determination and the building order that it made.[144]

181 I do not accept this submission because, as I discussed when considering the classification issue, an error is only jurisdictional if the error was material to the decision that was made in fact, in the sense material if there was a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.[145]

182 In any event, the effect of this judgment is that Livingspring has not established that the Board made a material error in the findings set out under the heading 'OTHER MATTERS' on the first page of its Determination of 27 January 2023 in which it found that the MBS held the following opinions, which in the circumstances were reasonable at the time that the building notice was served on 21 August 2017. They include that it was open to the Board to find that the Arrow Apartments were Class 3 buildings. The Board's findings also included that the effective height of the Building was greater than 25m, and that the Building contravened the provisions of the BCA referred to in the second building notice and, as a result, posed a danger to the life and safety of any person using the Building.

183 Livingspring argued that it was not open to the Board to determine that Lot 1019 was a storey and that the Board had erred by deciding that it was a room without finding what it was used for.

184 At most, Lot 1019 was a 'topmost storey' that 'contains only heating vents, ventilation, a lift or other equipment, water tanks or similar service units' and was thus excluded from the definition of 'effective height'. It was at the same level as the mezzanine level of the Arrow Apartments and was not a space that fell within the definition of a storey.

185 The Board fell into error by focussing on Lot 1019 to the exclusion of the balance of the 'storey'. The definition of 'storey' did not encompass a vacant space not commonly accessed by occupants of the building other than for maintenance, building services and the like. Before the Board, Livingspring argued that the Lot 1019 area was effectively a corridor, access space and utility space passing to other spaces ie to the plant room, which contained only heating, ventilating, lift or other equipment and thus came within cl A3.3(d) of the BCA or was excluded under the definition of 'effective height'. The evidence was that Lot 1019 was either a gym; or vacant; or a corridor; or an unused space.[146]

The Council's submissions on the topmost storey

186 The Council submitted that the critical question was whether the Building had a tenth floor or whether the ninth floor has an upper intermediate floor that could be described as a mezzanine. If the upper floor, the tenth floor, was a separate floor, then the effective height of the Building was more than 25m.

187 The Council contended that the tenth floor was a distinct and separate floor from the ninth floor. It covered the full extent of the lower level except for the spiral staircase.

188 The Board's findings did not rest solely on the existence of a floor separating the two levels. Rather, the two floors had separate bathrooms and bedrooms. The Board did not suggest that the existence of a floor separating two levels would necessarily mean that the two levels could not be within a single room. Its finding was that 'in the circumstance, [the tenth level] was appropriately described as being a room that is separate to the living area on the ninth floor'.[147] The void between the ninth and tenth floors in the Building was 'small'.

189 The Board correctly identified features of the sole-occupancy units which indicated that the tenth floor did not form part of a shared space with the ninth floor so as to be an 'intermediate floor'. In contrast to a space that would usually be described as a mezzanine, no part of the walls of the ninth floor were part of the tenth floor. The space on the ninth floor was not at the same height above ground level as spaces on the tenth floor. The only shared boundary was the ceiling of the ninth floor in a manner consistent with contiguous storeys. The absence of a trap door at the small void did not result in the tenth floor being an intermediate level.

190 It was therefore open to the Board to find that the tenth floor was not a mezzanine, but was the 'topmost storey for the purpose of the definition of 'effective height'.

191 The Council submitted that, as the Board found that the tenth floor open area was a separate storey and not a mezzanine, the status of Lot 1019 did not affect the Board's determination of the effective height of the Building. Therefore, if the Court found that it was open to the Board to decide that the tenth floor open area was not a mezzanine, this further question did not have to be decided.

192 In any event, the Board correctly found that Lot 1019, which was clearly a room, could not be deemed to be a stairway, which would have excluded it from the definition of 'storey'.

193 Equally, it was open to the Board to find that Lot 1019 did not contain only heating, ventilating, lift or other equipment, water tanks or similar service units, which would have excluded it from being the topmost storey within the definition of 'effective height'. The fact that Lot 1019 was the only way of accessing the plant room did not mean that cl A3.3(d) applied so that Lot 1019 had to be classified separately. Lot 1019 was a separate room from the plant room.

194 In my opinion, Livingspring has not established any jurisdictional error in the Board's finding that the tenth level of the Building was a storey as defined because, apart from the void over the spiral staircase, it was a complete floor, self-contained and not part of the ninth floor or its volume.

195 The Board addressed the terms 'storey' and 'mezzanine' and made findings of relevant facts to the proper application of those terms and those findings were open to it on the evidence.

196 It is important to note that the floor of the tenth level, with the exception of the void, extended for the whole width of the area of the ceiling of the ninth floor. It was not suggested that the ceiling heights of the ninth and tenth floors were less than normal height. The floor of the tenth level occupied a significant space. It was open to the Board to take into account that there were no portions of the walls of the ninth floor that were part of the tenth floor, and that the height of the ninth floor was not the same height above ground level as the space on the tenth floor.

197 It is also important that the tenth level had separate bedrooms, bathrooms and access to a terrace. These features suggest that the tenth level was not an intermediate floor that formed part of the ninth storey, but was a distinct space and a separate floor.

198 The fact that the tenth level did not have an exit to the lobby area of the tenth floor is not decisive. The definition of 'storey' does not required that 'the space', within the definition of 'storey', have an exit to the rest of the same level.

199 I agree with the Board's conclusion that the tenth level was a room that was separate to the living area on the ninth floor. As mentioned, the ordinary meaning of 'room' is 'a portion or space within a building or other structure, separated by walls or partitions from other parts'[148]. The tenth level was therefore a storey as defined as it was a space situated between one floor level, being the ninth level, and the ceiling or roof above.

200 I consider that the tenth floor was not a mezzanine as defined in the BCA. It was not an intermediate floor within a room, but was a separate, self-contained room, although the exit was by the spiral staircase to the ninth floor.

201 Therefore, the Board correctly applied the terms 'effective height', 'storey' and 'mezzanine' to the facts that it found and which I have set out above. Livingspring has not established that the Board did make a jurisdictional error in deciding that the tenth floor was the topmost storey for the purposes of the definition of 'effective height' in the BCA.[149]

202 The Board stated, in effect, that if had to decide the status of Lot 1019 it would have decided that it was:

(a) a storey for the purposes of the definition of 'storey' in the 1996 BCA; and

(b) included as a storey, for the purposes of determining the effective height of the Building.[150]

203 While it is unnecessary to decide the point, I am not persuaded that the Board erred in its 'hypothetical' conclusion about the status of Lot 1019. The term storey means a space within a building which is situated between one floor level and the floor next above, or if there is no floor above, the ceiling or roof above. There are exceptions to that definition, but Lot 1019 does not come within them. It appeared to be assumed that Lot 1019 was a space that led to the plant room and now has no other use. I consider that it was open to the Board to proceed on the basis that it was a space within a building, which was situated between one floor level and the ceiling or roof above, and therefore came within the definition of 'storey'.

204 Livingspring bore the onus of establishing that the Board would have erred if it had found it necessary to make that hypothetical finding about Lot 1019. I do not consider that it has established that if the Board had made such a finding it would have made a jurisdictional error.

The Building's lowest storey providing direct egress to a road or open space

205 Two possibilities as to the Building's lowest storey providing direct egress to a road or open space were suggested. One was the egress from the Ground Floor to La Trobe Street for which Livingspring contended. The other was the egress provided by the car park from the Lower Ground Floor onto Spencer Street for which the Council contended.

Board's findings on the Building's lowest storey

206 The Board decided that the lowest storey providing direct egress to a road or open space was the Lower Ground Floor through the car park exit.

207 The evidence was that egress from the car park required a remote control device to open the car park door. There was no evidence of an exit next to, or near, the car park doors, as sometimes is present in car parks, that might have separately provided for pedestrian egress.

208 The Board stated that the text of the BCA related to egress, and therefore, relates to the ability of occupants within the Building to safely leave it.[151]

[T]he definition of effective height does not refer to 'pedestrian' egress and it is therefore irrelevant whether the 'egress' is for a vehicle or pedestrian.[152]

... the reference to 'direct egress' requires the existence within the Building of a pathway, or pathways, reasonably accessible, from the point of egress to a substantial part of the Building on the basis that:

(a) this reflects the actual words of the definition of 'effective height' (whilst avoiding an interpretation that would capture an external door leading from a storeroom that did not have a pathway to any other part of the Building);

(b) the purpose of the definition of 'effective height' was to provide an objective measure to permit an assessment to be made of fire safety regulatory requirements that would, or may, have a bearing on the internal configuration of the building the subject of measurement - the internal configuration should therefore not be a principal consideration that determines the effective height of the building; and

(c) in an emergency there can be significant confusion and some exits may be inaccessible due to the fire or other events-it is therefore appropriate to adopt an interpretation of 'effective height' that reflects that a person evacuating a building may not use the most direct form of exit from a building.

In this case, we find that the Lower Ground Floor is the lowest storey because it is a pathway, or pathways, reasonably accessible, from the point of egress to a substantial part of the Building. The Lower Ground Floor is a pathway that is reasonably accessible from most of the building, even if it is not the only point of egress, or the quickest or most direct point of egress from much of the Building.

211 The Board noted that in an emergency, significant confusion may occur and some exits may be inaccessible due to a fire or other events. It was therefore appropriate to adopt an interpretation of 'effective height' that reflected that a person evacuating the building may not use the most direct form of exit.[154]

212 The Board therefore found that the effective height of the Building was more than 25m, being at least 28.65m.[155]

Authorities on the meaning of 'direct egress' in the BCA

The Owners-Strata Plan No 69312 v Rockdale City Council

213 The Board in its determination, and the parties in this proceeding, referred to the judgment of Lindsay J in The Owners - Strata Plan No 69312 v Rockdale City Council[156] ('Rockdale') on the meaning and application of the term 'direct egress' in the BCA. In that case an Owners Corporation of a residential and commercial development sought indemnity from the insurer for loss and damage allegedly suffered in rectifying defects in the construction of the building. It also sued the Council for damages on the basis that it had approved the development and was also the principal certifying authority for the construction of the building, alleging that it was negligent in the discharge of its duties. The Owners Corporation alleged that the lowest point of exit was the vehicle entrance, and, therefore the building's effective height was 26m, while the Council contended that the lowest point of measurement was the pedestrian entrance, and therefore the building had an effective height of 25m.

In my opinion, the word 'egress' implied identification in the features of a building of:

(a) at least one, and possibly more than one, point at which occupants of the building could exit it to a road or open space; and

(b) the existence within the building of a pathway, or pathways, reasonably accessible, from the point of egress to the whole of the building or, at least, a substantial part of it. [157]

215 Lindsay J found that the Lower Ground Level fell within the definition of a 'storey'. It was a 'space within a building which was situate between one floor level and the floor level next above'.[158] It provided accommodation for well in excess of three vehicles and the entrance to, and exit from the Lower Ground Level accommodated vehicles driven into, and out of, the car park.[159] The fact that para (a)(iii) of the exclusions from the definition of storey contemplated accommodation of not more than three vehicles confirmed that a larger car parking area, such as that of the proposed building, was capable of falling within the definition of storey and thus being the floor of the lowest storey from which direct egress might be provided.[160]

The Lower Ground Level had 'direct egress' to Market Street, patently both a 'road' and 'open space''. It could hardly have been more direct. The entrance to, and exit from, the Lower Ground Level accommodated vehicles driven in to, and out of, the car park. No awning covered the point of entrance/exit.

On the other hand, the language of the definition of 'effective height' does not sit altogether comfortably with identification of the pedestrian entrance to the Upper Ground Level of the building as 'the floor of the lowest storey providing direct egress to a road or open space'. It plainly fell within the definition of storey, but other features call for comment.[161]

217 The alternative pedestrian entrance to the building was via doors that divided a foyer area inside the doors from a covered verandah area outside the doors which was several steps up from the footpath.[162]

The focus of attention is, and should remain, on the text of the BCA. The task of the Court is to construe the definition of 'effective height' according to law, not by reference to what may, or may not, be the opinion of an expert or an assumption about the practical operation of the BCA amongst fire control experts.

In my opinion, the text of the BCA is clear and is capable of ready reasonable application to the plans identified in the separate question. That flows from the construction of the words 'direct egress' as referring to a point of exit rather than the line of march from the storey of the proposed Building and, to a lesser extent, from the internal connection, via stairs, between the Lower Ground Level and the Upper Ground Level on the Ground Floor. The existence of the internal stairway between the Upper and Lower Ground Levels reinforces, but is not essential to characterisation of the vehicular entrance to, and exit from, the proposed Building (at RL 17.19) as a point of egress. That point was lower than the pedestrian entrance/exit at RL 18.19.

In my opinion, the fact that, in the abstract, the pedestrian entrance to the proposed Building at the Upper Ground Level could have qualified as a point of egress to which the definition of 'effective height' referred, does not detract from that the vehicular entrance to the car parking area at the Lower Ground Level also fell within that description. The definition of 'effective height' was not inconsistent with a building having points of egress at more than one level.

In my opinion, the Lower Ground Level was 'the lowest storey providing direct egress to a road or open space' of the proposed Building. Accordingly, the 'effective height' of the proposed building was 26 metres.[163]

The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3)

219 A second judgment of the New South Wales Supreme Court, The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) ('Omaya Holdings'),[164] also considered the application of the term 'direct egress' in the BCA. This recent judgment was delivered after I had reserved judgment and I gave the parties the opportunity to make submissions about its relevance. The case concerned a residential apartment building comprising 99 lots and common property in Strathfield. The Owners Corporation sued alleging that the building had general building and fire safety defects and sought damages from the builder and developer.

220 The Owners Corporation contended that the effective height of the building was more than 25m and, if that was so, it was common ground that adequate fire safety equipment had not been installed and more than $3 million was required to install it. Three possibilities existed as to the lowest ground floor: the ground floor of the building, the garbage collection area or the car park entry area.

As constructed, the Garbage Area cannot be the 'lowest storey providing direct egress to a road or open space' as, although it might provide a point of such egress internally from the Garbage Area itself, there [is] no 'reasonably accessible' pathway, indeed no pathway at all, to that point of egress from any other part of the Building.[165]

222 His Honour also decided that the car park entry could not be described as 'the lowest storey providing direct egress' to the street. He stated that it would strain language to describe the entry pad of the car park entry as a 'floor level' as it was a driveway, or perhaps, part of the ramp descending to the car park. Accordingly, the car park entry itself was not a 'storey' because it was not a space within the Building situated between one 'floor level' and the floor level next above.[166] In any event, it was not a point of egress that was reasonably accessible from the whole or part of the building, especially in the case of fire, as it was accessible only from the car park which, in turn, was accessible from the other storeys only by a lift.[167] His Honour also considered it was hard to see how the car park entry could be described as 'within a building' when, although within the building envelope, it was exposed to the open air and was described by experts as a 'undercoft'.[168]

223 His Honour therefore decided that the ground floor was the lowest storey providing direct egress to a road or open space. The effective height of the building was exactly 25m as it was designed to be.[169]

Livingspring's submissions on the lowest storey

224 Livingspring submitted that the Board had incorrectly determined the lowest storey of the Building providing direct egress to the road and should have determined it to be the Ground Floor which gave access to La Trobe Street. It was not open to the Board to find that the Lower Ground Floor, ie the car park, was reasonably accessible.

225 The Building, at the point that it opens onto La Trobe Street, is a little higher than it is at the car park entrance onto Spencer Street, as that street slopes down southwards from the La Trobe Street intersection. If the assessment of the lowest storey was from the carpark in Spencer Street then the effective height of the building was greater than 25m, assuming that the tenth floor was not a mezzanine and Lot 1019 was not a storey. If it was accepted as the lowest storey, the La Trobe Street Ground Floor entrance would provide a lower height to the Building.

226 Livingspring submitted that although the Board referred to the judgment in Rockdale,[170] it erred in its application of Lindsay J's reasoning. Livingspring submitted that the decision in Omaya Holdings was consistent with its submissions. The Board had not considered whether the Lower Ground Floor entry and egress point to Spencer Street was 'reasonably accessible' to the Building or a substantial part of it, but instead asked whether 'a person evacuating' the Building might use it. The Board erred in considering that the Lower Ground Floor 'was a pathway, or pathways, reasonably accessible to a substantial part of the Building even if it was not the only point of egress, or the quickest or direct point of egress from much of the Building'.[171] The need for access to the basement car park would only arise if an occupant or occupants of the Building who were leaving in the event of a fire were to forego the access point to La Trobe Street that was accessible to all occupants of the Building irrespective of whether they had the capacity to exit the Building from the Lower Ground carpark

227 The Board failed to consider, as Stevenson J put it, 'the possibility of that pathway being used in the event of fire'.[172] Livingspring argued that pedestrian access to the car park in this case was both out-of-the-way and limited.

228 Livingspring submitted that the Board erred in finding that the point of vehicle access from the Lower Ground car park to Spencer Street was, and is, 'reasonably accessible to a substantial part of the Building'. The Board appeared to accept, or at least did not reject, that a person could only exit the Lower Ground Floor car park via an electronic gate intended for those driving vehicles. Livingspring contended that not every lot or unit had a carparking space.[173]

The Council's submissions on the Building's lowest storey

229 The Council submitted that the Lower Ground Floor was the lowest storey because it provided a pathway that was reasonably accessible from most of the Building even if it was not the only point of egress or the quickest. The Lower Ground Floor connected through the stairway to the lobby and the remainder of the Building.

230 An evaluative judgement of whether an egress is 'reasonably' accessible is a matter over which reasonable minds might permissibly differ.

231 The Council submitted that egress was not reasonably inaccessible merely because of the presence of an electronic gate that was opened by remote control. The Lower Ground Floor provided an accessible pathway to or from the rest of the Building. It could be inferred that the occupants of the Building who used the car park were issued with passes to enable them to open the electronic gate to exit into Spencer Street either by foot or by vehicle.

232 The fact that not every person in every situation could exit by that pathway was not decisive as it was an exit that provided 'direct egress'. The Board's task was not to identify the point from which all people within the Building would exit during a fire or whether it provided an escape route.

233 The Council pointed out that the adoption of Livingspring's suggested point of egress, being the Ground Floor, would be counterproductive to the provision of fire safety equipment because it would reduce the height of the Building and make it more likely that it would be less than 25m in effective height and therefore would be required to have less fire safety equipment.[174]

234 Livingspring's argument that access to the Lower Ground Floor car park would only arise if occupants of the Building who were leaving in the event of a fire were to forego the access point to La Trobe Street that was accessible to all occupants of the building was inconsistent with the principle in Rockdale that 'direct egress' meant 'a point of exit rather than an escape route.

235 The Council submitted that Stevenson J's decision in Omaya Holdings largely endorsed the approach of Lindsay J in Rockdale. Thay each recognized that the 'purpose of the definition of 'effective height' was to provide an objective measure to permit an assessment to be made of fire safety regulatory requirements and to facilitate the safe evacuation of people from buildings.[175]

236 The approach in Omaya Holdings were not inconsistent with the Board's finding that the Lower Ground Floor was the lowest storey for the definition of 'effective height'. The purpose of that definition was to provide an objective measure beyond which further fire protection measures were required.

237 In the present case, unlike in Omaya Holdings, the Lower Ground Floor could be accessed from the Ground Floor of the Building via a hallway and stairs. Access was not only via a lift. Pedestrian access to the Lower Ground Floor was not, as Livingspring contended 'out-of-the-way and limited'.

238 The Board's findings were consistent with Lindsay J's finding in Rockdale that both the Ground Floor pedestrian exit and the Lower Ground Floor vehicle exit were points of 'direct egress'.

239 Livingspring advocated for an interpretation for 'effective height' that would elevate the text of the Guide to the BCA to the same status as the text of the BCA and beyond any utility as an interpretive aid. That approach was contrary to the purposive approach evident in the authorities and principles of statutory interpretation.

Analysis of the issue of the Building's lowest storey

240 The Board's task in determining the Building's lowest storey for the purposes of its 'effective height' of the Building was, as Lindsay J stated in _Rockdal_e, to identify in the features of a building:

(a) at least one, and possibly more than one, point at which occupants of the building could exit it to a road or open space; and

(b) the existence within the building of a pathway, or pathways, reasonably accessible, from the point of egress to the whole of the building or, at least, a substantial part of it.[176]

241 The point of egress must provide direct egress. Lindsay J considered that in the definition of 'effective height', 'direct egress' could be read as directed towards the point at which a person could exit the building or the route that connected that point and the topmost storey.[177] However, the dictionary definition of 'direct' is 'proceeding in a straight line or by the shortest course; straight; undeviating; not oblique'.[178]

242 With respect, I do not consider that the Board correctly approached the question of identifying the lowest floor of the Building for the purposes of applying the definition of 'effective height'.

243 I consider that the Board erred by not considering whether people using the Building had reasonable access by pathways to the egress provided by the Lower Ground Floor car park to a road in circumstances where they were likely to have required a pass to open the car park's electronic gate.

244 In my opinion, the meaning of 'direct egress to a road or open space' in the definition of 'effective height' requires reasonable access to such egress and the pathways to it, for pedestrians, and for people in vehicles, who are seeking to exit the Building, including in the event of a fire.

245 It is noteworthy that Lindsay J in Rockdale appeared to consider that the purpose of the definition of 'effective height' was to enable 'the safe evacuation of people from buildings'.[179] In like manner, Lindsay J stated that the word 'egress' implied identification in the features of a building of the 'point[s] at which occupants of the building could exit it to a road or open space'.[180] Occupants must include people using or visiting the building.

246 The use of the nouns 'people' and 'occupants' reflect that the direct egress required must enable reasonable access for people who are likely to seek to exit a building, including when a fire breaks out.

'Although, for convenience, reference may be made to points of 'entrance' to the proposed Building, the focus of the definition of 'effective height' is, by virtue of the word 'egress', on points of exit. For the most part, this distinction may not be important. However, I do not exclude the possibility that it may have some importance, for example, in the regulation of the types of doors or other barriers that might affect the flow, or direction of movement through a point of entrance/exit.[181]

248 In my opinion, the effect on the flow or direction of movement through a point of entrance or exit is particularly important in this case, where the car park exit on the Lower Ground Floor could only be used by persons with a pass to open the car park door or by persons accompanying persons who had such a pass.

... As the point of an Effective Height of more than 25 metres is, relevantly, as a determinant of the point beyond which further fire protection measures are required, consideration in each case of what would be a reasonably accessible pathway to the point of egress or exit to a road or open space must take into account the possibility of that pathway being used in the event of fire.

I do no read Linsday J's reasons as reaching a different conclusion or finding that the reasonably accessible pathway to the point to exit to a road or open space should be determined by reference to whether a particular pathway was reasonably accessible whether or not there was a fire, or when there was no fire.[182]

250 The Board, itself, referred to 'an emergency [in which] there can be significant confusion and some exits may be inaccessible due to a fire or other events' and it was 'therefore appropriate to adopt an interpretation of 'effective height' that reflects that a person evacuating a building may not use the most direct form of exit from the building'.[183] However, with respect, the Board did not take into account that the persons evacuating the Building to whom it referred, may well include people on foot hurrying to escape a fire, who may not have a pass to open the Lower Ground Floor car park door.

251 I accept that the Lower Ground Floor provided a reasonably accessible pathway to and from the rest of the Building as depicted in diagram 10 relied on by the Council. But the question to be answered when applying the definition of 'direct egress' is a different one. It is what is the lowest storey which provides direct egress to a road or open space. That question cannot be answered in this case in the abstract without regard to the fact that, in the case of a fire breaking out in this multi-storey Building, many occupants or people visiting the Building may attempt to exit it on foot without a car park pass. The identification of the lowest point of direct egress can only be answered after consideration of the persons who may be seeking direct egress and the means by which they may seek it. The users and occupants of the Building have to be considered in assessing what pathways may lead to direct egress to a road.

252 In my opinion, the Board erred in deciding that, because the definition of effective height did not refer to 'pedestrian' egress, it was irrelevant whether the 'egress' was for a vehicle or pedestrian. The definition does not refer to either persons seeking to exit the Building in vehicles or exit it on foot. But, in applying the definition of 'effective height', the Board was obliged to consider whether some persons likely to be present in the Building if a fire broke out, and seeking to leave the Building quickly on foot, were likely to be able to use the egress of the car park exit on the Lower Ground Floor. As the passages I have quoted above from the judgments of Lindsay J and Stevenson J and from the Board's own reasons make clear, the focus must on the safe evacuation of people from the Building.

253 With respect, in my opinion, the Board did not apply the definition of direct egress to the circumstances of possibly significant numbers of people who are likely to be seeking egress from the Building on foot in case of fire and whether the Lower Ground Floor and its exit would be reasonably accessible to them. That issue is not just one of fact, but of the application of the definition of 'direct egress' to the facts of the case.

254 I therefore consider that the Board made a jurisdictional error in its application of the definition of 'effective height' and its approach to the identification of the lowest storey providing direct egress to a road. To adapt Nettle JA's remarks in Genco,[184] the Board proceeded 'according to wrong principle' in that it failed to consider for the purpose of determining whether the Lower Ground Floor provided a reasonably accessible point of direct egress, the question whether a number of occupants of the Building were unlikely to be able to use the Lower Ground Floor car park exit to obtain egress to Spencer Street if a fire broke out because they may not have a pass to open the electronic car park gate.

255 The Board therefore made a jurisdictional error by not correctly applying the definition of 'effective height' and the words 'the floor of the lowest storey providing direct egress to a road' to the facts of this case.

256 If that jurisdictional error had been material in the legal sense I have described previously, I would have remitted the issue of the 'effective height' of the Building to the Board for rehearing and redetermination according to law. However, the Board's jurisdictional error was not material. The only options suggested for the lowest storey providing direct egress to a road were the Lower Ground Floor and the Ground Floor. Because I have rejected Livingspring's challenges to the Board's conclusion that the topmost storey was the tenth floor, either of these options would have resulted in the effective height of the Building still being more than 25m. Three measurements were in evidence which gave the effective height of the Building from the tenth floor, the topmost storey to the Ground Floor, the La Trobe Street exit, as 27.82m, 27.73m and 27.77m.[185]

257 There was therefore no realistic possibility that the Board's decision that was made in fact could have been different if it had not made the error in its approach to the identification of the lowest storey of the Building for the purposes of the definition of 'effective height'.[186]

258 I have previously explained why I do not accept Livingspring's argument that the interdependence of the Board's findings made an error on any of the key issues, a material error.

259 I add for the sake of completion, that I do not accept Livingspring's submission of the significance, per se of the likelihood that, in the event of a fire, occupants would not forego the Ground Floor, La Trobe Street exit. I do not consider that that fact alone makes the Ground Floor the lowest storey. As Lindsay J concluded in Rockdale, the definition of 'effective height' is not inconsistent with a building having points of egress at more than one level.[187]

260 The proceeding is dismissed. I will hear the parties about costs.

[1] Owners Corporation PS 41996X v Municipal Surveyor for the City of Melbourne [2023] VBAB 7, 10 [15] ('Reasons').

[7] Owners Corporation and Ors v Municipal Surveyor of the City of Melbourne (No 2) [2023] VBAB 157, 1-2.

[8] Affidavit of David Ashley Fairweather, 4 September 2023, Exhibit 'DAF-1', 17-18 ('Fairweather Affidavit'), Court Book ('CB') 22-23.

[9] Ibid, Exhibit 'DAF-1', 19-20, CB 24-25.

[10] Ibid, Exhibit 'DAF-1', 21-22, CB 26-27.

[11] Ibid, Exhibit 'DAF-1', 23-24, CB 28-29.

[12] Ibid, Exhibit 'DAF-1', 25-26, CB 30-31.

[13] Ibid, Exhibit 'DAF-1', 27-28, CB 32-33.

[14] Ibid, Exhibit 'DAF-1', 29-30, CB 34-35.

[20] See Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

[21] Building Act 1993 (Vic) s 149(2).

[22] See Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338.

[23] Fairweather Affidavit, 2 [8], CB 7.

[27] Fairweather Affidavit 2 [11]; CB 7.

[31] References to the 'First Defendant' in this quotation have been amended to 'the Board' to maintain consistency in references to the Board in this judgment.

[32] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[33] Transcript of Proceedings Livingspring Pty Ltd (ACN 078 943 352) v Building Appeals Board (Supreme Court of Victoria, S ECI 2023 04144, Ginnane J, 31 July) ('T') 139.

[34] City of Port Phillip v Shout Rock Cafes Pty Ltd [2023] VSCA 327 [10]; Genco v Salter [2013] VSCA 365; (2013) 46 VR 507, 516 [39[ (Nettle JA).

[42] Fairweather Affidavit 11 [42], CB 16.

[43] [2006] VSCA 30; (2006) 14 VR 55.

[45] [2021] NSWCA 2; (2021) 247 LGERA 62.

[48] See Elwick 9 Pty Ltd v Freeman [2018] VSC 234 ('Elwick 9'); Sixty-Fifth Eternity [2012] VSC 298.

[49] [2023] VSCA 327 [102].

[50] L U Simon Builders Pty Ltd v Victorian Building Authority [2017] VSC 805, [46].

[54] Ibid 118-119 [439]-[440].[55]

[60] [2013] VSC 279 [56].

[61] [2013] VSCA 365; (2013) 46 VR 507.

[62] [2017] VSC 805.

[64] [2018] VSC 234.

[65] [2012] VSC 298 [47].

[66] Victoria, Parliamentary Debates, Legislative Assembly, 11 November 1993, 1690, Robert Maclellan.

[67] Victoria, Parliamentary Debates, Legislative Council, 1 December 1993, 1494-1495, Barry Pullen.

[68] Sixty-Fifth Eternity [2012] VSC 298, [47].

[69] SAS Trustees Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ), 157 [41] (Gageler J), 162-3 [64] (Edelman J).

[70] [1998] HCA 35; (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).

[71] [2023] VSCA 327.

[78] Taylor v The Owner-Strata Plan No 11564 (2014) 253 CLR 531, 548 [38] (French CJ, Crennan and Bell JJ).

[79] [2006] VSCA 30; (2006) 14 VR 55.

[80] [2021] NSWCA 2, [70]; [2021] NSWCA 2; (2021) 247 LGERA 62.

[81] [1985] VicRp 48; [1985] VR 433, 473; see Enid Campbell, Revocation and Variation of Administrative Decisions[1996] MonashULawRw 2; , (1996) 22 Monash University Law Review 30, 45-6 fn 93, citing cases including Attorney-General v Greenfield [1961] NSWR 824, Attorney-General (NSW) v BP Australia Ltd [1964-1965] NSWR 2055; Woollahra Municipal Council v Morris [1966] 1 NSWR 136, cf Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538.

[82] [1985] VicRp 48; [1985] VR 433, 494-5.

[83] Livingspring bore the onus of proof: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 524 [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[90] References to the 'First Defendant' in this quotation have been amended to 'the Board' to maintain consistency in references to the Board in this judgment.

[91] Building Regulations 2018 (Vic) reg 13.

[92] Salter v Building Appeals Board [2013] VSC 279.

[93] Genco v Salter [2013] VSCA 365; (2013) 46 VR 507.

[95] Being Building Regulations 2006 (Vic) reg 112.

[96] Reasons 64 [234] quoting the Court of Appeal in Genco [2013] VSCA 365; (2013) 46 VR 507, 515 [32].

[97] Reg 112(2) of the Building Regulations 2006 (Vic) was the predecessor of reg 13(2) of the Building Regulations 2018 (Vic).

[98] Reasons 64-65 [236] quoting the Court of Appeal in Genco [2013] VSCA 365; (2013) 46 VR 507, 515 [33]-[34].

[99] Ibid 65 [237] quoting the Court of Appeal in Genco [2013] VSCA 365; (2013) 46 VR 507, 516 [35].

[100] Ibid 73 [267] quoting the Court of Appeal in Genco [2013] VSCA 365; (2013) 46 VR 507, 527 [101].

[101] Ibid 67 [244] quoting the Court of Appeal in Genco [2013] VSCA 365; (2013) 46 VR 507, 530-531 [126-7].

[102] Ibid 65 [238] citing the Court of Appeal in Genco [2013] VSCA 365; (2013) 46 VR 507, 516 [39].

[106] Ibid 70-72 [251]-[256], 73 [268].

[117] Salter v Building Appeals Board [2013] VSC 279, [53].

[119] Plaintiff's Outline of submissions, dated 29 April 2024, 41 [101], CB 1078.

[120] [2010] SAERDC 16; (2010) 172 LGERA 195.

[123] [2013] VSCA 365; (2013) 46 VR 507, 513 [22].

[125] [2013] VSCA 365; (2013) 46 VR 507, 513 [25].

[127] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, [7]; [2024] HCA 12; (2024) 98 ALJR 610, [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).

[128] References to the 'First Defendant' in this quotation have been amended to 'the Board' to maintain consistency in references to the Board in this judgment.

[130] Macquarie Dictionary, (8th ed 2020) 'Room' (def 1).

[145] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Services [2024] HCA 12; (2024) 418 ALR 152, (2024) 98 ALJR 610 [7].

[148] Macquarie Dictionary, (8th ed 2020) 'Room' (def 1).

[156] [2012] NSWSC 1244; (2012) 191 LGERA 160.

[164] [2024] NSWSC 1511.

[170] [2012] NSWSC 1244; (2012) 191 LGERA 160.

[172] The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511, [44].

[175] The Owners - Strata Plan No 69312 v Rockdale City Council [2012] NSWSC 1244; (2012) 191 LGERA 160, [90].

[178] Macquarie Dictionary, (8th ed 2020) 'Direct' (def 11).

[179] The Owners - Strata Plan No 69312 v Rockdale City Council [2012] NSWSC 1244; (2012) 191 LGERA 160, [48], [90] (emphasis added).

[182] The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511, [44]-[45].

[183] Reasons 60-61 [218] (emphasis added).

[184] [2013] VSCA 365; (2013) 46 VR 507, 516 [39].

[185] T 189; CB 898.

[186] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 [7]; [2024] HCA 12; (2024) 98 ALJR 610 [7].

[187] The Owners - Strata Plan No 69312 v Rockdale City Council [2012] NSWSC 1244; (2012) 191 LGERA 160, [113].