APPLICANTS Yunyan Zuo and Qiannan Wu (Subject Land owners)

RESPONDENT Municipal Building Surveyor for the Whitehorse City Council

BEFORE Members E Karabardak (panel chair), P Mulholland and S Wills

CITATION Zuo & Anor v Municipal Building Surveyor for the Whitehorse City Council [2025] VBAB 126

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

1. The BAB does not have jurisdiction to hear and determine the Appeal as the Applicants' application to the BAB was filed out of time for the purposes of reg 271 of the Building Regulations 2018.
2. 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 this determination.

_______________________ ________________________

For the Applicant In person and Mr T Huang (interpreter)

1. The Applicants are the owners of 9 Barkly Street, Box Hill (the Subject Land).

1. The Respondent is the Municipal Building Surveyor for the Whitehorse City Council (MBS).

1. The matter involves the MBS' refusal to cancel a building notice issued in relation to the Subject Land.

1. On 28 November 2024, a delegate of the MBS, James Chen, being a registered building inspector, conducted an inspection of the building on the Subject Land. During his inspection, Mr Chen found:

(a) the rainwater tank overflow pipe not being connected to divert the captured stormwater to the allotment's legal point of discharge;

(b) the dwelling's rear polycarbonate roof not being fitted with functional guttering and downpipes to divert the captured stormwater to the allotment's legal point of discharge; and

(c) the outbuilding in the rear of the property not being fitted with functional guttering and downpipes to divert the captured stormwater to the allotment's legal point of discharge

1. On 17 December 2024, the MBS served the Applicants with a building notice (Notice) pursuant to s 106 of the Building Act 1993 (Building Act), for the following reasons:

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

• 1.1. The rainwater tank overflow pipe has not been connected and divert the captured stormwater to the allotment's legal point of discharge, in contravention to Part 7.4 and Part 3.3 and H2D2 of the Building Code of Australia and Regulation 133 of the Building Regulations 2018; and
• 1.2. The dwelling's rear polycarbonate roof has not been fitted with functional guttering and downpipes to divert the captured stormwater to the allotment's legal point of discharge, in contravention to Part 7.4 and Part 3.3 and H2D2 of the Building Code of Australia and Regulation 133 of the Building Regulations 2018; and
• 1.3. The outbuilding in the rear of the property has not been fitted with functional guttering and downpipes to divert the captured stormwater to the allotment's legal point of discharge, in contravention to Part 7.4 and Part 3.3 and H2D2 of the Building Code of Australia and Regulation 133 of the Building Regulations 2018;

1. The Notice required the Applicants to show cause to the following matters, within thirty (30) days of being served with the Notice:
   1. Why you should not be required to carry out the building work/protection work/work required by the Building Regulations 2018 identified in this notice in relation to the building/land.
      • 1.1 Engage a Licensed Plumber to undertake works to the stormwater system to ensure that all captured stormwater from the all buildings on the land and the water tanks are diverted to the allotment's legal point of discharge via functional guttering and downpipes in accordance with Part 7.4 and Part 3.3 and H2D2 of the Building Code of Australia and Regulation 133 of the Building Regulations 2018; and
      • 1.2 Provide a copy of the Compliance Certificate from the Licensed Plumber for the completed works to the satisfaction of the Municipal Building Surveyor
2. On 18 December 2024, the MBS received a show cause response from the Applicants, which requested the MBS to withdraw the Notice.
3. On 27 December 2024, the MBS provided the Applicants with a response to their show cause response.
4. On 26 January 2025, the Applicants requested an extension of time to respond to the MBS, as they were overseas and intended to have the matter addressed in 'Court' [sic].
5. On 28 January 2025, the MBS acknowledged the Applicants request for an extension of time.
6. On 6 February 2025, the MBS granted the Applicants an extension of time and advised that the Subject Land would be reinspected on 27 March 2025.
7. On 26 March 2025, the MBS received a VCAT Application lodged by the Applicants with respect to the Notice.
8. On 27 March 2025, a reinspection of the Subject Land was conducted by Mr Chen, which confirmed the Applicants had not undertaken any remedial works to address the matters in the Notice.
9. On 10 April 2025, the MBS notified the Applicants that the Notice had expired and that a further reinspection would be carried on 15 May 2025. The MBS also requested that the Applicants undertake the remedial works required in the Notice to avoid the matter escalating to a building order.
10. On 1 May 2025, the Applicants appealed to the Building Appeals Board (the BAB) pursuant to s 142(2)(a) (the Appeal) of the Building Act against the MBS' decision to serve the Notice on the Applicants under s 111 of the Building Act.
11. On 14 May 2025, BAB wrote to the Applicants by email in response to their Appeal, and advised that it appeared that the appeal was received out of time.
12. On 15 May 2025, Mr Chen reinspected the Subject Land and confirmed that the remedial works required to address the Notice had not been undertaken.
13. On 3 June 2025, orders were made by the BAB following a directions hearing held on 27 May 2025, which was attended by the parties. The orders noted under 'Other Matters' that by reason of there being no challenge to the jurisdiction of the BAB, the Appeal was prima facie filed within the time prescribed by the Building Regulations 2018 (Building Regulations)

1. In considering all written submissions and other material filed prior to the hearing, we find that the BAB does not have jurisdiction to finally determine the Appeal, as it was filed out of time for the purposes of reg 271 of the Building Regulations.
2. What follows are our findings and reasons in relation to why we have determined the Appeal was lodged out of time.

The appeal lodged in relation to this matter by the owner is outside the prescribed appeal period of 30 days under Regulation 271 of the Building Regulations 2018. The Building Notice was issued on 17 December 2024, with the appeal being lodged on 07 May 2025, soe 112 days beyond the appeal period.

The prescribed appeal period is clearly denoted on the Building Appeals Board application form and the notes section of the subject Building Notice.[1]

1. We are of the view that the Applicants' Appeal was filed out of time for the purposes of reg 271 of the Building Regulations. We make this finding by reason of the Building Notice being served on or around 17 December 2024 and the Appeal having been lodged with the BAB on 7 May 2025, being more than 30 days after the day the Building Notice was served on the Applicants.
2. For the reasons set out above, the BAB does not have any jurisdiction to determine the matter.

1. We also make the following observations with respect to the Building Notice, which the Respondent may wish to consider:

(a) The Building Notice was issued on the basis that:

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

(b) 'Building work'[2] and 'plumbing work_[3]_' are differentiated under the Building Act:

(c) The Building Notice expressly lists the following alleged 'building work' that is in contravention of the Building Regulations:

(i) The rainwater tank overflow pipe has not been connected and divert the captured stormwater to the allotment's legal point of discharge, in contravention to Part 7.4 and Part 3.3 and H2D2 of the Building Code of Australia and Regulation 133 of the Building Regulations 2018; and

(ii) The dwelling's rear polycarbonate roof has not been fitted with functional guttering and downpipes to divert the captured stormwater to the allotment's legal point of discharge, in contravention to Part 7.4 and Part 3.3 and H2D2 of the Building Code of Australia and Regulation 133 of the Building Regulations 2018; and

(iii) The outbuilding in the rear of the property has not been fitted with functional guttering and downpipes to divert the captured stormwater to the allotment's legal point of discharge, in contravention to Part 7.4 and Part 3.3 and H2D2 of the Building Code of Australia and Regulation 133 of the Building Regulations 2018;

(d) We are of the view (without making any finding) that the above works referenced in the Building Notice are not 'building work' but in fact 'plumbing work', as these works involve stormwater and roof plumbing works.

[2] see s 3(1) of the Building Act 1993

[3] see s 221C of the Building Act 1993