SJM Property Developments Pty Ltd v Huon Valley Council [2025] TASCAT 114

1. The parties filed a statement of agreed facts, set out in full below:

1. The Huon Valley Council (Council) issued Pluming Permit PA-PPW-60/2023 (Permit) in respect to 21 Walpole Lane, Franklin in Tasmania (Site) dated 23 August 2023, under section 169 of the Building Act 2016 (Tas) (Act).
2. The Party Joined is the "Owner" set out in the Permit.
3. The Appellant is the "Agent" listed in the Permit.
4. The Permit's general descriptor of the approved permit plumbing works (the Works) is as follows:

"Internal and external plumbing works to service a 2-bedroom 2-bathroom dwelling serviced by a dual-purpose septic tanks with absorption trenches and outbuilding."

1. By virtue of condition 4 of the Permit, as well as by operation of section 11 of Act, the Works must comply with the National Construction Code (NCC).
2. The Appellant commenced preparing the stormwater and hot/cold plumbing, which involved, at the request of the owner, installing proprietary blow moulded tanks designed for underground applications.
3. Inspections of various aspects of the Works were conducted by a Council plumbing inspector on:
   1. 25 October 2023;
   2. 2 November 2023;
   3. 8 November 2023;
   4. 9 November 2023;
   5. 5 December 2023.
4. The plumbing excavations were closed and works purportedly "complete" in February 2024.
5. A final inspection of the Works was conducted by a Council plumbing inspector on 19 February 2024 which included direction as to outstanding works.
6. On 5 March 2024 the Council's permit authority under the Act (Permit Authority) issued a Plumbing Inspection Direction regarding the Works to City Plumbing Pty Ltd, which says, inter alia:

Inground water tank installed without applicable approval. Within 14 days: a design by a suitably qualified person, and Certificate of Certification for the tanks and associated plumbing connection works, demonstrating compliance with the National Construction Code TAS B1D7, can be offered for consideration and amendment to the Plumbing Permit PA-PPW-60/2023.

1. On 27 June 2024 the Appellant submitted to Council a Revised From 35 (design drawn by Aecia Engineering) dated 25 June 2024.
2. On 4 October 2024 the Appellant submitted to Council a Form 71B Standard of Work Certificate dated 4 October 2024, relating to the design set out in the Revised Form 35 referred to in paragraph 11 above.

1. The Works must be assessed against Part B1 (Coldwater Supply) and Part B7 (Rainwater storage) of the NCC (specifically, the NCC 2022 Volume Three - Plumbing Code of Australia) to ensure compliance with the Act.
2. The Works must satisfy B7D2 Collection of rainwater, set out in Part B7 (Rainwater storage) of the NCC.
3. The Works satisfy B7D2(1) (Tas Variation) of Part B7 Rainwater storage.
4. B7D2(2) (Tas Variation) of Part B7 Rainwater storage refers to the Directors Guidelines - Charged Downpipes to Rainwater Tanks (the Tas Guidelines).
5. The Version of the Tas Guidelines applicable to the assessment of the Works is v1.0 which was in force until 16 July 2024.
6. The Works do not involve "Charged Downpipes" as defined in the Tas Guidelines.
7. That part of the Works comprising the regular 'dry' or 'non-charged' downpipes satisfies the NCC, including B7D2(2).
8. The Works satisfy Part 5 of the Tas Guidelines, that is, the Works propose leaf guards and a first flush device.
9. The parties agree, and I accept, that I need not make any other findings of fact to determine the preliminary issue.

1. There are two relevant types of downpipes. Adopting the appellant's helpful explanation, a standard downpipe has a continual fall along the pipe. It is dry unless it is raining. There are several names for such a downpipe: dry, standard, or uncharged. In contrast, a charged downpipe does not continually fall with gravity; it levels out or goes up. Although the outlet is lower than the inlet, the lack of a continual fall means that some water stands in the lower section(s) and is flushed through during rain.
2. It is agreed that the works involve an uncharged downpipe.

1. Plumbing works must comply with all applicable provisions of the NCC unless otherwise authorised by the Act: s 11.
2. The respondent referred me to the introductory provisions of Volume 1 of the National Construction Code 2016, which states:

The National Construction Code (NCC) is an initiative of the Council of Australian Governments developed to incorporate all on-site construction requirements into a single code. The NCC is produced and maintained by the Australian Building Codes Board (ABCB) on behalf of the Australian Government and each State and Territory government. The NCC is a uniform set of technical provisions for the design and construction of building and other structures, and plumbing and drainage systems throughout Australia. It allows for variations in climate and geological or geographic conditions.

3. Although the introductory provisions relate to the 2016 version of the NCC, they are nonetheless relevant.
4. The NCC uses various phrases to describe pathways for complying with it. As a starting point, there are 'performance requirements', being minimum requirements or standards that a plumbing system must meet. There are typically two pathways to meet a performance requirement: a 'performance solution', or a 'deemed-to-satisfy solution'. Broadly speaking:
   1. a deemed-to-satisfy solution is conceptually analogous to an acceptable solution; and
   2. a performance solution is conceptually analogous to 'performance criteria'

in the Tasmanian Planning Scheme under the Land Use Planning and Approvals Act 1993.

1. A performance solution is unique for each situation. It typically requires the exercise of a discretion or requires that regard be had to qualitative factors. In contrast, a deemed-to-satisfy solution is just that: a performance requirement is deemed to be satisfied if something is done (that is, using the wording of guidance material associated with the NCC, if a particular 'recipe' is used).
2. I accept the respondent's submission that the NCC is not legislative in character and should not be interpreted as if it were a statute. It was not prepared by a statutory draftsperson. It should be interpreted in accordance with the plain words of the text having regard to its objectives and purposes. See generally H J Heinz Company Australia Pty Ltd v Kotzman [2009] VSC 311; (2009) 31 VAR 206 (Heinz) at [26].
3. B7P1 is a performance requirement. Headed 'Contamination control', it states:

(1) Stored rainwater must reduce the likelihood of contamination. > > (2) Stored rainwater must not pose a hazard to public health.

4. B7D1 is a deemed-to-satisfy provision. It provides:

(1) Where a Deemed-to-Satisfy Solution is proposed, Performance Requirements B7P1 and B7P4 are satisfied by complying with B7D2 and B7D3. > > (2) Where a Performance Solution is proposed, the relevant Performance Requirements must be determined in accordance with A2G2(3) and A2G4(3) as applicable.

5. B7D2 is also a deemed-to-satisfy provision. It provides:

(1) Rainwater storage must only collect roof water. > > (2) A rainwater storage system for Class 1 and Class 10 buildings satisfies B7D1 if it is installed in accordance with the requirements within the Tasmanian Building Act - Directors Guidelines - Charged Downpipes to Rainwater Tanks of Class 1 and Class 10 buildings for drinking water purposes document.

1. The NCC is not the only instrument under the Act. The Director of Building Control (the Director), being a statutory office to which a person may be appointed under s 15 of the Act, may make guidelines and determinations under ss 19 and 20. Unlike the NCC, guidelines are a form of delegated legislation. Guidelines are therefore interpreted in the same way as planning schemes. The starting point is the ordinary and grammatical meaning of the text, with assistance to be gained from the context, including the surrounding provisions, the guidelines as a whole, and the purpose or objects: Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd [2021] TASFC 12; [2021] TASFC 12; (2021) 34 Tas R 341 (Wild Drake) at [112]- [114] (Porter AJ, Blow CJ agreeing). The Director's subjective intention in making guidelines is not relevant.
2. The only guidelines in issue are the 'Director's Guidelines - Charged Downpipes to Rainwater Tanks of Class 1a & 10 Buildings for Drinking Water Purpose Version 1.0' (the Guidelines). These are incorporated by B7D2(b) of the NCC, set out above. It is unnecessary to set the Guidelines out in full. They are a relatively short and practical document and include a diagram.
3. The Guidelines have since been superseded by a newer version. The parties agree that I am to apply the guidelines that were in force when the appellant's permit was assessed and these proceedings were commenced.
4. The Guidelines' description states:

This guideline provides guidance to plumbing permit authorities and contractors on the installation or charged down pipes on Class 1a & 10 buildings for drinking water purposes.

This Guideline is to confirm that the details in relation to charged downpipes that are installed in accordance with this guide note have been determined to be a "deemed to satisfy solution" in Tasmania and rated as low risk plumbing work in Category 2B.

6. These statements inform the Guidelines' purpose and interpretation.

1. B7D2(2), set out above, provides that a rainwater storage system "satisfied B7D1 if it is installed in accordance with the requirements within the [Guidelines]".
2. It is plain that B7D2 has two requirements. That is, paragraphs (1) and (2) must both be met in order to satisfy B7D2. However, that does not answer the question. Paragraph (2) is met if, in the case of a Class 1 or Class 10 building, the Guidelines are met. Accordingly, it is necessary to consider the Guidelines and their applicability to the works.

1. The central question is whether the Guidelines apply to uncharged downpipes. The council says that they do. The appellant and party joined say that they do not. There are factors militating in each direction.
2. The Guidelines' text does not expressly exclude uncharged downpipes. They may be read as addressing downpipes generally rather than being limited to charged downpipes. That is the consequence of a literal reading. However, that is not the end of the matter. In Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 (Taylor), Gageler and Keane JJ said at [65]:

Statutory construction involves attribution of legal meaning to statutory text, read in context. "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always." Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. [Citations omitted]

3. The Guidelines' name includes the phrase 'Charged Downpipes to Rainwater Tanks'. This suggests that their application is limited to charged downpipes. On the other hand, the respondent submits that their name does not limit their application and that, had a limitation been intended, this could have been stated.
4. I prefer the appellant's submissions on this point. I am required to have regard to the Guidelines' context, including their purpose or objects: Wild Drake at [113]. The Guidelines' description and application statements inform the purpose and objects. Significantly, these statements, set out above, refer expressly to charged downpipes yet are silent as to uncharged ones.
5. Further support is found from the Guidelines' contents. While there are, as the council contends, some requirements which are applicable to uncharged downpipes, the majority of the Guidelines' and the sole example of a "[t]ypical installation layout" are relevant to charged downpipes only. This is important context.
6. The council correctly submits that the NCC's objects and purpose are relevant, although I do not think that they should be elevated above matters informing the Guidelines' objects and purpose. B701 defines the objective of Part B7 'Rainwater storage'. It is to, relevantly, "safeguard people from illness..." and "ensure that the rainwater storage throughout its serviceable life will continue to satisfy [the other objectives". I will return to the question of safeguarding in the context of contamination.
7. I accept the appellant's contention that the mischief to which the Guidelines are directed relates to charged downpipes only. This context assists their interpretation: Wild Drake at [113]. Charged downpipes, by their nature, involve water sitting for periods of time. This may carry with it risks of contamination. This necessitates inspection points. Those risks do not arise in the case of dry downpipes. While there may nonetheless be risks of contamination to stored water which has been transported by charged or dry downpipes, these risks are, as the appellant points out, addressed by requirements which exist outside of the Guidelines (for example, B1D7's incorporation of a relevant Australian Standard). To the extent that there may be a gap, this does not justify an expansive reading of the Guidelines. As Gageler and Keane JJ said, "[c]onstruction is not speculation, and it is not repair": Taylor at [65].
8. Balancing all these matters, I find that that the Guidelines do not apply to uncharged downpipes. Put differently, the works do need to be assessed against B7D2(2), but satisfaction is achieved on account of the Guidelines imposing no requirements applicable to the works.
9. It follows that the second question does not arise. I have found that the Guidelines do not apply to uncharged downpipes.

1. I answer the questions (with minor grammatical rewording) as follows:
   1. Must the works be assessed against, and satisfy, both sub-paragraphs (1) and (2) of B7D2 in order to take the benefit of B7D1(1), i.e. the ability to satisfy B7P1 (Contamination control) via a Deemed-to-Satisfy Solution?

Answer: No. 2. If the answer to the question above is 'yes', do the Guidelines require above-ground storage, therefore where below-ground storage is proposed such a system cannot satisfy the Guidelines (therefore a Performance Solution is required to satisfy Performance Requirement B7P1 (Contamination control))?

Answer: Does not arise. 2. This disposes of the preliminary issue but not the appeal itself. I direct that the appeal be listed for directions on a date to be fixed.