Anstee & Calnan v Eyers - [2011] VSC 79

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEAL LIST

No. 9134 of 2009
No. 4207 of 2010

MATTHEW ANSTEE AND LEAH DIANNE CALNAN	Applicants
v
PETER EYERS AND ORS (According to the schedule attached)	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February and 1 March 2011
DATE OF JUDGMENT:	11 March 2011
CASE MAY BE CITED AS:	Anstee & Calnan v Eyers & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 79

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ADMINISTRATIVE LAW – Judicial review – Building Appeals Board – Whether failure to consider relevant considerations – Whether reasons demonstrate failure to have regard to relevant considerations – Whether failure to provide natural justice – Whether failure to give adequate reasons – Whether deficient reasons vitiate decision-making process – Sherlock v Lloyd [2010] VSCA 122.

ADMINISTRATIVE LAW – Judicial review – Building Appeals Board – Refusal to exercise jurisdiction – Construction of Building Regulations 2006 (Vic) – Whether siting regulations apply to finished occupied buildings – Power to modify regulations – Modification potentially provides a change in circumstances relevant to enforcement provisions – Building Act 1993 (Vic) ss 1, 3, 111, 116, 160, 161, 162 – Building Regulations 2006 (Vic) r 417.

PRACTICE AND PROCEDURE – Building Appeals Board – Standing – Meaning of ‘any other party concerned’ – Procedural fairness – Building Act 1993 (Vic) sch 3 cls 13, 14.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr D Collins SC with Mr L Brown	Fairweather Legal
For the Firstnamed Respondent	Mr D McLeod	Ryan Commercial Lawyers
For the Secondnamed, Thirdnamed and Fourthnamed Respondents	Mr S Reid	Victorian Government Solicitor’s Office
For the Fifthnamed and Sixthnamed Respondents:	Mr J M Forrest	Peter Speakman & Co

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The first application for review...................................................................................................... 8

The second application for review............................................................................................... 18

Conclusion......................................................................................................................................... 28

HIS HONOUR:

Introduction

Section 16 of the Building Act 1993 (‘the Act’) provides that a person must not carry out building work unless a building permit has been issued in respect of the work and remains in force and the work is carried out in accordance with the Act, the Building Regulations 2006 (‘the Regulations’) and the permit.

In late 2007 the appellants as owner-builders (‘the owners’) commenced construction of a two storey timber extension to a dwelling in Murrumbeena.

The work was commenced without a building permit, although the owners maintain they believed one had issued as a result of advice from their architect.

The works also failed to comply with building regulations requiring specified setback separations from the southern side boundary of the owners’ property.

The most significant of these requirements was that of reg 417, which imposes additional setback requirements where a north facing habitable room window of an existing dwelling on any adjoining allotment is within three metres of the boundary of the allotment on which the building is to be constructed.

Regulation 417 required setbacks in accordance with the following table:[1]
[1]Building Regulations

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.

Continue reading Anstee & Calnan v Eyers

Details

AGLC: Anstee & Calnan v Eyers [2011] VSC 79
Case: [2011] VSC 79
Decision Date: 11 March 2011

CaseChat Overview and Summary

Anstee & Calnan, as appellants, sought judicial review of a decision made by the Building Appeals Board in relation to a building permit appeal lodged by Eyers. The central dispute revolved around whether the Board had correctly exercised its jurisdiction and whether its decision-making process was compliant with statutory requirements. The court was tasked with examining the Board's interpretation of building regulations and the adequacy of the reasons provided for its decision.

The legal issues before the court included whether the Building Appeals Board failed to consider relevant considerations, whether the reasons provided demonstrated a failure to have regard to these considerations, and whether the Board had adhered to principles of natural justice. Additionally, the court had to determine if the Board's reasons were deficient to the extent that they vitiated the decision-making process, as well as the applicability of certain building regulations to finished occupied buildings and the Board's jurisdiction to modify these regulations.

The court found that the Board had indeed failed to consider all relevant factors and did not adequately address the statutory requirements for its decision-making process. The reasons provided were insufficient to demonstrate that the Board had considered all necessary considerations. The court also held that the Board had not exercised its jurisdiction correctly, particularly in relation to the interpretation and modification of building regulations. These deficiencies in the Board's reasoning and decision-making process led the court to conclude that the decision was flawed and required annulment.

As a result, the court quashed the decision of the Building Appeals Board, finding it was not in accordance with the law and was therefore invalid. The matter was remitted to the Board for reconsideration, with directions to properly consider all relevant factors and provide adequate reasons for its decision.

Orders