(a) the Applicant was ordered to file with the BAB and send to the Respondent his Statement of Contentions setting the relevant facts and the grounds relied on in support of his Appeal;

(b) the Respondent was ordered to file and serve his Statement of Contentions responding to the Applicant's Statement of Contentions;

(c) The Applicant was ordered to file and serve his Statement of Reply (if any) to the Respondent's Statement of Contentions; and

(d) The proceeding be determined 'on the papers' (the D&O's).

1. The Applicant submits that the dwellings were built between 1966 and 2006; that is at least 18 years ago and possibly longer.
2. The Council's Planning Department confirmed that the Applicant has existing rights for the use over the dwellings as stand-alone for more than 15 years and there have been no planning breaches.
3. Council records show that approved plans for the construction of Unit 2 were issued in 1966, but there are no records for Units 1 and 3.
4. Without evidence of when Units 1 and 3 were built and without building permits, the Applicant contends it is impossible for the Applicant to determine which version of the Regulations apply.

1. The Applicant submits that in order to determine if Units 1 and 3 comply with the relevant regulations, he needs to know when they were built.
2. The Applicant submits that the Respondent needs to confirm that Council's records contain files and plans for all buildings constructed within the City of Hume before 1966 and to date.
3. As regards the Unit 1 east canopy connection to Unit 2, the Applicant submits that Council records confirm that it was approved by the then municipal building surveyor for the City of Broadmeadows.
4. The Applicant submits that the same reasoning applies to Unit 2; when Council approved that unit, Unit 1 was shown as an existing dwelling, so it was built before 1996. Therefore, the fire separation complied with the relevant regulation and was approved approximately 50 years ago.
5. Finally, smoke alarms have been installed in all three units.

1. The units have existed on the Subject Land for at least 50 years and their use as dwellings has not changed.
2. A Building Notice should not have been issued so as to require the Applicant to incur the cost of the units complying with the current Regulations.

1. The Council contends that it was reasonable for the Deputy Municipal Building Surveyor (the MBS) to issue a building notice based on his reasonable opinion that:

(a) Building work, namely the construction of Unit 3 and the rear extension of Unit 1, was carried out without a building permit;

(b) Building work was carried out in contravention of the Regulations; and

(c) There is a danger to life, safety or health from building/land and building work.

Council's records reveal that Unit 1 was built in approximately 1953.

In addition, Council's records show the 1966 Permit Application for Unit 2 and the construction of the flat and metal clad roof joining Units 1 and 2.

However, there is no permit for the rear extension to Unit 1. The rear extension works were not a part of the 1966 Permit Application.

There is also no permit or permit application within Council's records relating to Unit 3. Further, the application for a permit in relation to Unit 2 does not show Unit 3 on the plans.

In the permit application for the garage on the Subject Land in 1957, a building in the place of Unit 2 was shown on the site plan (although just noted as a bungalow). Unit 3 is not shown.

Unit 3 is also not shown in a 1966 permit application relating to Unit 2.

The MBS has appropriately and reasonably relied on Council's records in making his decision.

Google map imaging reveals that all three Units were constructed in at least 2002.

Accordingly, it is reasonable to conclude that at some point between 1966 and 2002, after the 1966 Permit Application and construction of Unit 2, Unit 3 and the rear extension to Unit 1 were constructed without the appropriate permits being obtained.

Work carried out in contravention of the Regulations

The application of the current Building Code of Australia 2022 to the Building Notice has been required given the lack of evidence relating to the construction of the Units

Council will consider the use of an alternative building regulatory requirements once persuasive evidence is provided by the Applicant of the date of construction of the Units and the applicable regulations at the time.

The dwellings currently pose a danger to the life, safety and health of the occupants.

Throughout the period of Council's investigation, the dwellings of the Subject Property have been occupied by approximately 6-8 occupants across all three Units.

The lack of fire separation between the Units presents a clear and identifiable risk to life, which is exacerbated by the number of occupants in each of the Units. More specifically:

(a) The external wall construction of both the Unit 1 dwelling extension and of Unit 3 is of lightweight construction and, when compared to masonry construction, would provide minimal fire resisting attributes.

(b) All of the Units' external walls which are adjacent to another Unit contain some form of opening or services penetration, vents or similar, further compromising any minimal fire resistance.

(c) The Unit 2 external concrete block walls abutting or adjacent to Units 1 and 3 do not extend to the underside of the roof sheeting, creating a further risk where fire could spread into the roof space of the adjoining Unit.

1. In response to the Respondent's Statement of Contentions, the Applicant submits that it was unreasonable and unjust for the Respondent to issue the Building Notice dated 29 August 2024, and to refuse the cancellation of said Building Notice upon the Applicant's request on 8 November 2024 based on the following reasons:

Council misapplied Building Codes and relevant Australian Construction standards in issuing the Building Notice

The Municipal Building Surveyor for the City of Hume (MBS) misapplied the relevant building codes. As per paragraph 29 of the Respondent's Statement of Contentions, all three units were constructed no later than 2002. However, the Building Code of Australia 2022 Volume 2 (BCA) and AS3787-2014, which the Respondent relied upon in issuing the Building Notice (refer to paragraphs 2.1 to 2.8 of the Building Notice), were only adopted and came into force on 1 May 2023 and 2014 respectively. It is, therefore, unjustifiable for the MBS to enforce legislation that was not in effect at the time the construction took place.

Council issued the Building Notice based on mere inference and assumption rather than conclusive facts

Further, the Applicant asserts that the Building Notice was issued erroneously, based on mere inference and assumption rather than facts. The MBS alleged that Unit 3 and the dwelling extension constructed on the east side of Unit 1 (Unit 1 extension) lack building permits solely because the Respondent cannot locate such documents in their system. However, the inability to retrieve the documents does not conclusively prove that the building permits were never issued. It is possible that the Respondent misplaced the documents due to improper storage. In summary, the assertion that Unit 3 and the Unit 1 extension were built without building permits is based on the MBS's pure assumptions and/or inferences, rather than conclusive evidence.

Upholding this Building Notice could potentially obscure instances of significant negligence by the Council and result in broader societal repercussions.

Assuming no building permits were issued for Unit 3 and the Unit 1 extension, these structures have existed for more than 20 years. Allowing them to remain without issuing a Building Notice and/or Building Order for over two decades , could this be considered gross negligence on the part of the Council.

Victoria's building control system established through the Building Act 1993 (Building Act) and Building Regulations 2018 (Regulations), aims to promote a safe built environment, a market that consumers can have confidence in, and high levels of professionalism among practitioners. Section 212 of the Building Act makes councils responsible for the administration and enforcement of key parts of the Building Act and Regulations within its municipal district.

Had the MBS identified and addressed the alleged non-compliance issues in a timely manner, the Applicant would have been notified about the outstanding building notices of the property from the Building Information Certificate 51(1) in the Section 32 when purchasing the property. It is highly likely that the Applicant would not have proceeded with the purchase due to the pre-existing non-compliances.

Attached as Annexure A is a copy of the Building Information Certificate 51(1) dated 25 October 2022, from the Contract of Sale when the Owner purchased the property. No outstanding building notice was disclosed in the document at that time.

Complying with the Building Notice would cause significant disruption, being impractical, and affect the use of the building. The requirements of the Notice are unreasonable or disproportionate

The Applicant further submits that mandating the demolition or rectification of structures over 20 years old to comply with the latest Building Code of Australia 2022 (BCA) and relevant standards is unreasonable.

Below is a quote from the Building Practice Note dated 13 May 2024 issued by VBA addressing this issue:

In Victoria, buildings and building work must comply with the Building Act and the Regulations, including the National Construction Code (NCC). The Building Act, Regulations and NCC are amended from time to time as new building methods and technologies emerge and as community expectations and public policy change. Buildings that comply with today's regulatory requirements should be safer and more efficient than buildings built under previous regulations. However, when regulations change, there is generally no obligation for owners of existing buildings to automatically upgrade their building to meet the current regulations unless there is an express requirement to bring an existing building into compliance with the regulations. This means existing buildings will only need to be upgraded to current standards if there are substantial alterations to the building, it is sub divided, or the use of the building is changed...."

On the facts, the building has remained unchanged for over two decades, with no substantial alterations or subdivision plans being proposed. The Respondent's action of assessing aged properties using current laws and standards is unjustified.

Regarding the alleged danger to life, safety, and health, to the best knowledge of the Applicant, the three units in question have existed for 20-60 years without any recorded safety incidents.

1. The Building Notice was served by the deputy municipal building surveyor as he formed an opinion that the following circumstances existed:

a) Building work had been carried out without a building permit being issued and in force under the Act; > > b) Building work had been carried out in contravention of the Regulations, including building work carried out in contravention of the Building Code of Australia; and > > c) There was a danger to life, safety and health from the building, land or building work.

2. The building work carried out without a building permit is described in section 2.1 and 2.6 of the Building Notice. Section 2.1 nominates the construction of a self-contained dwelling, unit 3 at the rear of the existing property. Section 2.6 nominates the dwelling extension to the east side of the existing unit 1 dwelling.
3. In relation to building work carried out in contravention of the Regulations and _Building Code of Australi_a (BCA), the Building Notice refers to technical requirements from the BCA 2022 Volume Two.
4. The Building Notice does not nominate any specific reasons why the building, land or building work was a danger to life.
5. The Respondent's submission indicated that based on aerial photography, it was reasonable to conclude the unit 3 dwelling and extension to the unit 1 dwelling, was undertaken between 1966 and 2002.
6. The Respondent in its submission did not detail why the building work required a building permit or what technical building requirements would have applied to the building work at the time the work was undertaken.
7. As it is unknown when between 1966 and 2002 the building work was undertaken, it also unclear what were the relevant building permit requirements at that time, or what were the technical building requirements that would have applied to the building work. The Building Notice refers to the building work contravening the BCA 2022. However, as the works were undertaken between 1966 and 2002, these requirements would not have been applicable to the building work.
8. We are not satisfied at the time of service of the Building Notice that an opinion could be formed that building work had been undertaken without a building permit, as it has not been established when the building work was undertaken and that a building permit was required at that time for the building work carried out. We are also not satisfied that an opinion could be formed that there has been a contravention of the BCA 2022 as the building work was undertaken between 1966 and 2002 and therefore the BCA 2022 would not have been applicable.
9. For these reasons, the Building Notice will be quashed.