| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9671 of 2004
| LEIGH ELIZABETH BEECH | Appellant |
| v | |
| G EAGLES, D FAIRWEATHER, P GARDINER, S WILKINSON and T ZOANETTI (sitting as the Building Appeals Board) | First Respondents |
| and | |
| CITY OF YARRA | Second Respondent |
| and | |
| STUART WATERS | Third Respondent |
| and | |
| CASSANDRA HILL | Fourth Respondent |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 4 April 2005 | |
DATE OF JUDGMENT: | 30 June 2005 | |
CASE MAY BE CITED AS: | Beech v Building Appeals Board and ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 231 | |
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STATUTORY INTERPRETATION – Decision of Building Appeals Board to affirm decision by municipal surveyor to make a Building Order under s.111 of the Building Act 1993 (Vic.) – Whether Building Order adversely affected or interfered with property rights – Whether statutory power to make a Building Order authorised municipal surveyor to make an order which affected existing property rights – Building Act 1993 (Vic.), Part 8, ss.102, 103, 105, 106, 108, 109, 110, 111.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Levin, QC Mr A Laird | Lovegrove Construction & Commercial Lawyers |
| For the First Respondent | No appearance | |
For the Second Respondent | Mr D O’Brien | Heather Masters |
| For the Third and Fourth Respondents | Mr K Oliver | Lander & Rogers |
HIS HONOUR:
On 20 December 2004 Master Wheeler granted to the appellant (“Ms Beech”) an order for review under the Administrative Law Act 1978 to review a determination of the first respondent (“the Board”) made on 22 November 2004 (“the Determination”).
By clause 15(3)(c) of Schedule 3 of the Building Act 1993 (“the Act”) the Board is expressly bound to act in accordance with the rules of natural justice. The Determination by it is therefore a decision which is subject to review under the Administrative Law Act.[1]
Determinations of the Board can be reviewed under the Administrative Law Act.[2] In an application of this kind, the actual Board members are appropriate respondents[3], and they are collectively named as the first respondents in this proceeding. In this regard, the Victorian Government Solicitor, has advised the Court that the Board does not intend to take any active role in the proceeding.
The active respondents to the proceeding are the second respondent (“City of Yarra”) and the third and fourth respondents who own a property which is contiguous to the property of Ms Beech (“the neighbours”).
The Determination of the Board was made in respect of two matters. First, the Board heard and determined an appeal by Ms Beech against the decision of the building surveyor of the City of Yarra (“the building surveyor”) to serve a Building Order dated 26…
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- AGLC
- Beech v Building Appeals Board [2005] VSC 231
- Case
- [2005] VSC 231
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the statutory power to make a Building Order allowed the municipal surveyor to issue an order that impacted existing property rights. This required the court to interpret the relevant provisions of the Building Act 1993 (Vic.), particularly sections 102, 103, 105, 106, 108, 109, 110, and 111. The court needed to determine if the legislative intent permitted the municipal surveyor to impose restrictions that could affect property rights.
The Supreme Court found that the Building Order did indeed affect the appellant's property rights adversely. The court held that the statutory power to make a Building Order was intended to protect public safety, health, and amenity, and did not extend to limiting property rights in a manner that went beyond what was necessary for those purposes. The court emphasised that while the Building Order could impact property use, it could not be used to alter the fundamental rights of property ownership. The decision of the Building Appeals Board was therefore quashed, and the Building Order set aside.
The final orders of the court included quashing the decision of the Building Appeals Board and setting aside the Building Order issued by the municipal surveyor. The court also directed that the appellant's property should be restored to its previous status, free from the restrictions imposed by the Building Order.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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