APPEAL 2 - 456510 - Appeal made under s 142(2)(a) of the Building Act 1993 (the Act) by the owner of the building or land against the making of a building order by the relevant building surveyor under s 111 of the Act.

APPLICANTS Kepil Dev Verma and Vishakha Verma (Subject Land owners)

RESPONDENT Municipal Building Surveyor for the Shire of Cardinia

INTERESTED PARTY Regional Workforce Management Pty Ltd (ACN 601 595 091) (tenant of the Subject Land)

BEFORE Members A Maynard (panel chair) and P Jolly

CITATION Verma & Anor v Municipal Building surveyor for the Shire of Cardinia [2025] VBAB 96

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines that:

1. Pursuant to s 149(1)(b) of the Building Act 1993 (the Act), the decision of the Respondent to refuse to cancel the building notice dated 18 December 2024 (Building Notice) is quashed.
2. Pursuant to s 149(4) of the Act, the Building Notice is cancelled.
3. Pursuant to s 149(1)(b) of the Act, the decision of the Respondent to make a building order dated 31 January 2025 is quashed.
4. Pursuant to s 149(4) of the Act, the Building Order is cancelled
5. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days from the date of these determinations.[1]

_______________________ ________________________

For the Applicants and Interested Party Mr C Mossman, solicitor

1. Kepil Dev Verma and Vishakha Verma (the Applicants) own a house located at 64 Oaklands Way, Pakenham (the Subject Land).
2. The house on the Subject Land has four bedrooms, with one of those bedrooms having an ensuite. In addition, it has a lounge room, an open plan kitchen, dining and living area, bathroom, toilet, laundry and a double garage.
3. The house on the Subject Land is leased to Regional Workforce Management Pty Ltd (the RWM), which is the Interested Party in these appeals.
4. On or around 18 December 2024, a delegate of the municipal building surveyor served a building notice under s 106 of the Building Act 1993 (the Act) on the Applicants.
5. The building notice stated that the delegate had formed the view that premises were being used as a rooming house without the required building permit for change of use and noted the lack of consideration of the disability provisions and the lack of consideration of essential safety measures.
6. The building notice stated:

The building is a danger to the life, safety or health of any member of the public or of any person using the building or to any property.

The use of the dwelling as a rooming house without the required evacuation lighting or smoke alarms puts occupants at risk in an emergency; and There is no Maintenance Schedule for the minimum required testing of essential safety measures to ensure safety equipment is tested regularly.

1. In addition, the building notice required the Applicant to show cause:

why entry, use, or occupation of the building should not be prohibited.

why you should not be required to carry out the building work, protection work or work required by the Building Regulations 2018 identified in this notice in relation to the building.

Convert the dwelling into a rooming house in accordance with a building permit once obtained; and

Provide a copy of the occupancy permit once issued.

1. After consideration of the representations made by the Applicant the municipal building surveyor for the shire of Cardinia (the Respondent) made a building order under s 111 of the Act requiring the Applicants to:

evacuate or cease the use of the building as a rooming house (class1b) and reinstate the use as a dwelling (class 1a).

APPLICANTS' AND FIRST INTERESTED PARTY (RWM)'S SUBMISSIONS (relevant submissions summarised)

1. The Applicants and RWM provided submissions which are similar, and they are summarised together below:

(a) RWM uses the house to accommodate workers who are mostly seasonal workers under the Pacific Labour Mobility Scheme (PALM). Under the PALM scheme RWM is obliged to source accommodation for its workers.

(b) RWM passes on the cost of the rent divided between the workers.

(c) There are no more than four workers living in the house at any time.

(d) If there are less than four workers in the house, then the rent is divided equally between the workers living in the house.

(e) No worker in the house has a right to a particular room, or to exclusively occupy any part of the premises.

(f) RWM does not rent out rooms to the general public.

(g) Ability to reside in the house is dependent on the worker continuing to be employed by RWM.

(h) It is not correct that having unrelated occupants changes the classification of the building from class 1a to class 1b.

(i) Section 17 of the Residential Tenancies Act 1977 provides that the rooming house provisions do not apply to a room occupied by an employee of the rooming house operator. Although RWM submits that RWM is not a rooming house operator within the meaning of the legislation, in any case, the premises cannot be considered a rooming house because the rooms are occupied by employees of RWM.

(j) RWM submitted that because the Public Health and Wellbeing (Prescribed Accommodation) Regulations 2020 provides a definition of 'labour hire accommodation' and a separate definition of 'rooming house' they wouldn't be differentiated, if they were not intended to be treated as different forms of accommodation.

RESPONDENT'S SUBMISSIONS (relevant submissions summarised)

1. The Respondent submits that in the opinion of the Council's environmental health officer, the house is being used as a rooming house and should properly be classified as a class 1b building.
2. The Respondent submits that having unrelated persons living in the same building means the building is deemed to be a class 1b by the Building Code of Australia - Volume 2 (BCA).
3. The Respondent submits the requirements for a class 1b building take into account the higher risk of a fire occurring in these premises when compared with a class 1a building.

1. For the purposes of these Regulations, buildings must be classified as set out in the BCA.
2. Relevant building surveyor must determine the classification of a building

(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.

Class 1 and 10 buildings are classified as follows:

Class 1 - one or more buildings, which in association constitute-

(a) Class 1a - a single dwelling being-

(i) a detached house; or

(ii) one or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; or

(b) Class 1b - a boarding house, guest house, hostel or the like with a total floor area not exceeding 300 m2 and in which not more than 12 persons would ordinarily be resident; ...

Rooming house means a building, other than an SDA enrolled dwelling, in which there is one or more rooms available for occupancy on payment of rent -

(a) In which the total number of people who may occupy those rooms is not less than 4; or

(b) In respect of which a declaration under section 19(2) or (3) is in force.

The rooming house provisions do not apply to a room used or intended to be used as a residence by the rooming house operator, a member of the operator's family or an employee of the operator.

The Consumer Affairs Victoria website describes the difference between a rooming house and a share house. It states that in a rooming house the "residents will usually have separate agreements with the operator", and being "different to a share house, where everyone signs the same agreement."

1. We have taken into account all of the parties' oral and written submissions.
2. We note the Respondent's submission that the BCA deems a house to be 1b when there are four or more unrelated people living in the house; however, we are unable to find a specific provision in the BCA that states as much. We accept, as noted above, the Residential Tenancies Act 1997 does make reference to 'not less than four' people.
3. In determining this appeal, we stand in the shoes of the Respondent and therefore in accordance with reg 13(2) of the Regulations, we are obliged when considering the classification of a building to classify it as belonging to the class it most closely resembles.
4. We consider there to be two options for classifying the house on the Subject Land. Either it is a class 1a single dwelling or a class 1b boarding house, guest house or similar. We regard a rooming house to be similar to a boarding house and will therefore consider the Respondent's assertion that the house is being used as a rooming house.
5. There are some factors that make the house on the Subject Land more likely to be a rooming house:

(a) There is a separate agreement between RWM and each worker occupying the house; however, each of these agreements is in the same terms.

(b) RWM exercises a degree of control over the workers in the house, which would not be expected in a standard share house or leasing arrangement. For example, no drugs or alcohol to be kept or used in the house and no smoking inside the house.

1. There are other factors, however, that make the house more likely to be a single dwelling occupied as a share house:

(a) The rent paid by (or deducted from the salary of) a worker in the house is a share of the total rent paid by RWM depending on the number of workers in the house.

(b) Although the workers pay or have deducted a fixed weekly amount for utilities, this amount is applied to the actual utility invoices and additional amounts deducted or refunded. Therefore, the workers pay a share of the actual cost of the utilities.

(c) No individual worker has a right to occupy any particular room and has no right to a particular part of the premises.

(d) The agreements between RWM and the workers are in the same terms.

(e) RWM does not profit directly from providing the house. Rent and utilities are passed on at cost and shared between the workers living in the house.

(f) The workers in the house operate as one household.

(g) The workers in the house are all employees of RWM, therefore, even if RWM was considered to be a 'rooming house operator' the rooming house provisions of the RTA do not apply to rooms they occupy. In addition, the Applicants cannot be considered to be 'rooming house operators' because they only have a single lease with RWM.

1. The Respondent has submitted that there is an increased fire risk in the premises. We accept that proposition and note that it is the reason why increased fire safety measures apply to a class 1b rooming house.
2. We find, however, that the risk of fire in the house on the Subject Land is no different from the risk of fire in a share house.
3. On balance, after considering all of the submissions and evidence, we find that the house on the Subject Land most closely resembles a class 1a single dwelling.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.