Beech v Building Appeals Board - [2005] VSC 231

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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]
[1]City of Boorandara v Building Appeals Board [2000] VSC 564.

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.
[2]Moreland City Council v Building Appeals Board & ors [2000] VSC 84; City of Boorandara v Building Appeals Board [2000] VSC 546.
[3]Van Phuc Diep v Appeal Costs Board [2003] VSC 386.

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…

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 Beech v Building Appeals Board

Details

AGLC: Beech v Building Appeals Board [2005] VSC 231
Case: [2005] VSC 231
Decision Date: 30 June 2005

CaseChat Overview and Summary

In the case of Beech v Building Appeals Board, the appellant challenged the decision of the Building Appeals Board to affirm the municipal surveyor's decision to issue a Building Order under section 111 of the Building Act 1993 (Vic.). The dispute centred on whether the Building Order adversely affected or interfered with the appellant's property rights, specifically by limiting the use of his property. The matter was heard in the Supreme Court of Victoria.

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