Anderson v Building Appeals Board - [2017] VSC 415

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 04773

JOHN RAYMOND ANDERSON	First Plaintiff
DEMITRA ANDERSON	Second Plaintiff
v
BUILDING APPEALS BOARD	First Defendant
CITY OF STONNINGTON	Second Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2017
DATE OF JUDGMENT:	21 July 2017
CASE MAY BE CITED AS:	Anderson v Building Appeals Board
MEDIUM NEUTRAL CITATION:	[2017] VSC 415

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JUDICIAL REVIEW – Decision of Building Appeals Board upholding City of Stonnington’s refusal to consent to a proposed development not complying with reg 414 of the Building Regulations 2006 (Vic) – whether the Board’s decision was attended by jurisdictional error by reason of taking into account an irrelevant consideration – application for judicial review dismissed – ss 1, 4, 188A Building Act 1993 (Vic) – regs 101, 414, 416 Building Regulations 2006 – order 56 Supreme Court (General Civil Procedure) Rules 2015 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M G Roberts QC with Mr I Munt	Fairweather Legal
For the First Defendant	Mr A Woods	Solicitor for the Building Appeals Board
For the Second Defendant	Mr J M Forrest	Russell Kennedy

HIS HONOUR:

On 22 June 2017 the Court heard an application for judicial review of a decision of the Building Appeals Board (‘the Board’) dated 19 September 2016. The application is brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiffs contend that the decision of the Board discloses jurisdictional error and should be quashed. For the reasons which follow I reject this contention. The plaintiffs’ application for judicial review is dismissed.

Background

The plaintiffs in this proceeding are the registered proprietors of a residential property located at 21 William Street, South Yarra (‘No 21 William St’). No 21 William St is a double storey Italianate villa located on the western side of William Street. The property adjoining the northern border of No 21 William St is a three storey block of flats (‘No 23 William St’).

In 2014 and 2015 the plaintiffs undertook various building works at No 21 William St. On 22 December 2014 the plaintiffs were issued a building permit in respect of stage one of works to be carried out on the rear of the dwelling. The building permit identified the plaintiffs’ chosen builder as ‘Period Extensions & Designs’ (‘the Builder’). The building permit extended only to the partial demolition, construction of ground floor works and the first floor sub frame.

In December 2014 the Builder prepared working drawings in respect of further works to be carried out on the rear of the dwelling. This included the addition of a third storey ‘loft’. However, these proposed works would encroach on the minimum setbacks from both the northern and southern side boundaries and the rear boundary prescribed by reg 414 of the Building Regulations 2006 (Vic) (‘the Regulations’). The Regulations have since been revoked but were in force at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 415
Decision Date: 21 July 2017

CaseChat Overview and Summary

The case of Anderson v Building Appeals Board involved a dispute over the Building Appeals Board’s decision to uphold the City of Stonnington's refusal to grant consent for a proposed development. The dispute centred on whether the proposed development complied with regulation 414 of the Building Regulations 2006 (Vic). The applicant sought judicial review of the Board's decision in the Supreme Court of Victoria. The primary legal issue before the court was whether the Building Appeals Board had made a jurisdictional error by taking into account an irrelevant consideration in reaching its decision.

The court examined the grounds of the application for judicial review, focusing on the assertion that the Board had improperly considered an irrelevant factor. The applicant argued that the Board had failed to properly apply the statutory provisions and regulations in reaching its decision. The court considered the relevant provisions of the Building Act 1993 (Vic) and the Building Regulations 2006 (Vic), specifically regulations 101, 414, and 416. The court assessed whether the Board had correctly interpreted and applied these provisions in its decision-making process.

In dismissing the application for judicial review, the court found that the Building Appeals Board had not erred in its jurisdictional capacity. The Board had appropriately considered all relevant factors and statutory provisions in its decision. The court concluded that the Board’s decision was not flawed by any jurisdictional error. Consequently, the applicant's application for judicial review was dismissed.

Orders