Bluestone Resources Pty Ltd v Clancy Victoria Pty Ltd (Ruling)
[2014] VCC 2054
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-03452
| BLUESTONE RESOURCES PTY LTD (ACN 084 731 859) | First Plaintiff (First Respondent) |
| and | |
| R W & A F CAMPBELL (NOMINEES ) PTY LTD (ACN 005 320 329) | Second Plaintiff (Second Respondent) |
| v | |
| CLANCY VICTORIA PTY LTD (ACN 114 861 782) | Defendant (Applicant) |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2014 | |
DATE OF RULING: | 18 December 2014 | |
CASE MAY BE CITED AS: | Bluestone Resources Pty Ltd & Anor v Clancy Victoria Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2054 | |
RULING
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Subject: JURISDICTION OF THE COURT – BUILDING LAW
Catchwords: Resolution of building dispute by terms of settlement – terms required defendant to carry out rectification work at premises owned by first and second plaintiffs – defendant in receivership – rectification works agreed – whether Receivers require building permits, and protection works notice prior to the carrying out of the rectification work – whether the Court has jurisdiction to entertain the application
Legislation Cited: Building Act 1993, s14(a), 16, 17, 85, 106, 107, 111, 119; Building Regulations 2006; Civil Procedure Act 2010, County Court Act 1958, s49
Cases Cited:Tavcol v Valbeet [2014] NSWSC 1563; Caboolture Park Shopping Centre Pty Ltd (in liq) and White Industries (Qld) Pty Ltd v Flower & Heart (a firm) [1993] FCA 471; (1993) 117 ALR 253; Preston Banking Company v William Allsup & Sons (1895) 1 Ch 141; Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd (2008) 246 ALR 113; [2008] FCAFC 47
Ruling: Application fails.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs (Respondents) | Mr R D Shepherd | Van Lierop Lawyers |
| For the Defendant (Applicant) | Ms E A Bennett | Maddocks |
HIS HONOUR:
Preliminary
1 Until recently, the plaintiffs were registered as proprietors of Lots 1 to 7 Clancy Road, Mount Evelyn (“the Bluestone land”). Proprietorship of the various lots has changed and the first plaintiff, Bluestone Resources Pty Ltd (“Bluestone”), is currently the registered proprietor of Lots 1, 2, 6 and 7 on the Bluestone land. Peter and Mardi Van Lierop are registered as proprietors of Lots 3, 4 and 5.[1]
[1][1] Nothing turns on the change of proprietorship of the land. Mr and Mrs Van Lierop, the new proprietors of Lots 3, 4 and 5, are related to the sole director of Bluestone, Mr Richard Van Lierop. Counsel for Bluestone accepted his appearance was adequate to protect their interest in the application.
2 The defendant, Clancy Victoria Pty Ltd (“Clancy”), is the registered proprietor of 5 Clancy Road, Mount Evelyn (“the Clancy land”). Clancy intended to develop the Clancy land by the construction of seven factories. On 9 June 2009, a Building Permit was issued to Clancy for that purpose. During construction work some time in 2010, Clancy encroached upon the Bluestone land, in particular by the pouring of concrete foundations. There is no issue this encroachment occurred, and that the encroachment required the carrying out of significant rectification works to render part of the Bluestone land into the position it was prior to the encroachment.
3 By Writ issued 19 July 2011, the plaintiffs commenced proceedings against Clancy. The Statement of Claim alleged Clancy trespassed upon the Bluestone land and carried out various excavation and footing works. In the prayer for relief, the plaintiffs sought orders reinstating the soil of the Bluestone land, rectifying damage to pipes, the removal of the footings and related other work.
4 After negotiation between the parties, resolution of the proceeding was achieved, and Terms of Settlement were entered by a deed dated 27 July 2012 (“the Terms of Settlement”). The terms included various provisions:
“1.Upon execution of these terms of settlement the parties agree to orders being made by consent by the County Court within 30 days or such other date as agreed between them in writing as described in the schedule marked ‘A’ hereto.
2.The defendant shall by 16 November 2012 or such other later date as may be agreed in writing by the parties:-
(a) remove encroaching footings from the Land including footings:-
i.which are shown on the Plan of Re-establishment and Feature Survey No. 1513511FID prepared by John Chivers & Associates Pty Ltd and dated 29 November 2010 (‘the Chivers Plan’); and
ii.which are located at the toe of the bank behind Factory 1, 5 Clancy Road, Mt. Evelyn on the Chivers Plan;
(b)Remove the pipes to the extent that they encroach over the boundary on to 3 Clancy Road, Mt. Evelyn such pipe outlets being shown on the Chivers Plan;
(c)Seal the pipe outlets shown on the Chivers Plan in a proper and workmanlike manner;
(d)Erect a 1.8 metre high paling fence on the common boundary between the properties situate at Nos. 3 and 5 Clancy Road, Mt. Evelyn save where a concrete tilt panel wall exists;
(e)Remove all wheels, tyres, building materials and other rubbish from the North Eastern Corner of the Common Property at 3 Clancy Road, Mt. Evelyn; and
(f)Reinstate the soil with crushed rock within the bank behind Factory 1, 5 Clancy Road, Mt. Evelyn on the Chivers Plan.
3.The Defendant shall pay to the solicitors for the Plaintiffs, Van Lierop Lawyers, … costs … .
4.The Defendant agrees that in performing the work described in paragraphs 2(a)-(f) (inclusive) it shall by itself, its servants and agents howsoever obtain all necessary building and planning permits, issue all necessary notices including protection work notices and otherwise comply with the requirements of law including the provisions of the Building Act1993.
5.The Defendant agrees to indemnify the Plaintiffs and hold them harmless in respect of any loss or damage caused by it, its servants or agents in the performance of the work described in paragraph 2(a)-(f) (inclusive).
6.The parties agree to do all things reasonably necessary to give effect to these terms of settlement including signing all necessary documents and providing reasonable access pursuant to a protection works notice to the site at 3 Clancy Ro[a]d, Mt. Evelyn.
7.Upon compliance by the Defendant with the requirements of paragraphs 1 to 6 (inclusive) the Plaintiffs release and forever discharge the Defendant from all actions, claims and demands, which they now have or may hereafter have against it the subject of these terms of settlement, the proceedings or any matter in respect of or arising out of the subject matter of the proceedings save as otherwise provided herein.
8.The Plaintiffs jointly and severally shall indemnify the Defendant against any claim made against the Defendant by Owners Corporation No. SP0375885 in respect of matters the subject of or incidental to the matters the subject of the Plaintiffs’ claim in the proceeding.
9.Upon execution of these terms of settlement the Defendant releases and forever discharges the Plaintiffs from all actions, claims and demands, which it now has or may hereafter have against them the subject of these terms of settlement, the proceedings or any matter in respect of or arising out of the subject matter of the proceedings save as otherwise provided herein.
10.The parties agree that production to the Court of a copy of these terms of settlement as an exhibit to an affidavit of Mr. Peter Van Lierop solicitor for the Plaintiffs shall be conclusive proof of the Plaintiffs’ and Defendant’s consent to the making of orders in terms of the order annexed hereto and marked A.
… .”
5 Attached to the Terms of Settlement were Proposed Consent Orders. Those Orders were made by her Honour Judge Davis on 27 August 2012. The Orders replicate exactly paragraphs 2 and 3 of the Terms of Settlement and in addition, dismiss the counterclaim with no order as to costs.
6 The rectification works were not carried out by Clancy. By Deed made 4 April 2014, Craig Peter Shepard and Leanne Kylie Chesser were appointed receivers and managers of Clancy (“the receivers”).
7 By Summons dated 11 November 2014, the receivers, on behalf of Clancy, sought orders:
“1.An order permitting representatives of the Defendant to enter the property at 3 Clancy Road, Mt Evelyn for the purposes of acting in accordance with the Order of this Honourable Court dated 27 August 2012.
2.The costs of this application.
3.Such other orders as the Court considers just.”
8 In support of the Summons are affidavits of Craig Peter Shepard sworn 11 November 2014 and 3 December 2014. On behalf of the plaintiffs are affidavits of Richard Paul Van Lierop, the director of Bluestone, sworn 30 November 2014 and 1 December 2014. Those affidavits detail the steps taken by the parties and the receivers in order to attempt to give effect to the Orders made 27 August 2012 to carry out the rectification works. The rectification works have not been commenced. Bluestone has refused the receivers access to the Bluestone land. The receivers’ Summons seeks an order of the Court permitting entry to carry out the rectification works. Bluestone opposes the Summons on a number of bases. Each side provided extensive written submissions.
Jurisdiction
9 Mr Shepherd, for Bluestone, submitted the Summons was misconceived. The Court made final Orders on 27 August 2012 in compliance with the terms of settlement made 27 July 2012. He submitted that the order sought in the Summons was in the nature of a mandatory injunction such as to obtain specific performance. He said the receivers had identified nothing within the Rules of the Court or generally at law, to found a basis for the bringing of the summons.
10 He submitted that the Orders of 27 August 2012 were final Orders, the Court was functus officio and there was no basis to reopen the matter. He submitted that the receivers ought to have brought a new proceeding seeking a mandatory injunction. If that were to occur, it would be necessary for the receivers to show:
·There was a serious issue to be tried.
·The application was likely to succeed at trial.
·There was significant element of urgency.
·There would be a requirement for an undertaking as to damages.
11 He relied upon the decision of the New South Wales Supreme Court of Tavcol v Valbeet.[2]That case concerned an application for a mandatory interlocutory injunction in respect of repairs to be carried out to leased premises. The application was made before the matter went to trial. The case has little relevance to the present situation.
[2][2014] NSWSC 1563
12 Ms Bennett, for the receivers, accepted that as a general rule, a final order renders the Court functus officio without jurisdiction to reopen or review that order. However, she submitted that in some limited circumstances, the Court may make a supplemental order. The parties agreed this was not an application under the slip rule, nor to amend some oversight.
13 According to Williams’ Civil Procedure, Victoria, a supplemental order may be made “in aid of the enforcement and working out of an original order as, for instance, in the case of an order for specific performance”.[3] Further, the jurisdiction to make a supplemental order extends to determine a question not raised in the proceeding, such as an order that another party pay costs in the proceeding; and further, a supplemental order may be made to ensure that justice is done.
[3]Williams’ Civil Procedure, Victoria - 36.07.40
14 This Court has the same power to grant orders or relief as does the Supreme Court.[4] In Caboolture Park Shopping Centre Pty Ltd (in liquidation) and White Industries (Qld) Pty Ltd v Flower & Heart (a firm),[5] the Full Federal Court said:
“There are many cases where supplemental orders will be made and the jurisdiction, while no doubt requiring caution, is not limited merely, as the respondents say, to the making of orders in aid of the enforcement and working out of original orders, although the making of supplemental orders may be appropriate in such cases. … .”[6]
[4]Section 49 of the County Court Act 1958
[5][1993] FCA 471; (1993) 117 ALR 253
[6]At paragraph 53
15 The Court further referred to Preston Banking Company v William Allsup & Sons[7] where Lord Lindley stated that the power may be exercised where circumstances have –
“… since occurred which [have] rendered a supplemental order necessary.”
[7](1895) 1 Ch 141 at 143-144
16 In Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd,[8] the Full Federal Court said there were three principal issues which arose in respect of subsequent orders which were sought after final orders were made:
“… These are, first, whether the March orders were a variation or alteration of the December orders. The second is whether the March orders were ‘supplemental’ orders. The third question is whether they were ‘necessary’ within the test stated in the authorities.”[9]
[8](2008) 246 ALR 113; [2008] FCAFC 47
[9]Remington at paragraph 11
17 The Court went on to say that the word “necessary” as used in Caboolture was not limited to matters which arose subsequent to the final orders being made, but rather the expression meant that a supplemental order could be made if it was appropriate in the circumstances of the case to do so.[10]
[10]See further Pelechowski v Registrar, Court of Appeal (New South Wales) 1999 HCA 19
18 In my view, it is reasonable, indeed necessary, that the receivers, on behalf of Clancy, have access to the Bluestone land in order to give effect to the orders of August 2012. There is no issue it is necessary for their workmen to enter upon the Bluestone land to carry out the rectification works. The order sought in the Summons cannot be categorised as a separate or different mandatory injunction related to the original proceeding. The order is intended to aid in the working out of the original order. Without such access, the receivers’ capacity to complete the order is obviously completely restrictive.
19 There are other issues raised by Mr Shepherd as to whether the receivers ought be permitted to carry out the rectification work without obtaining relevant permits, works notices or insurance. I shall deal with those matters shortly. Subject thereto, I am satisfied that there is jurisdiction with this Court to entertain the supplemental order sought.
The need to obtain a building permit to carry out the rectification works
20 Mr Shepherd submits it is necessary for the receivers to obtain a building permit, specific to the Bluestone land, to carry out the rectification work. There is no issue a building permit is required to carry out the rectification work.[11]
[11]Section 16 Building Act 1993
21 On 9 June 2009, a Building Permit (BS-22544/1130/0) was issued to Clancy for the construction of “offices/factories/warehouses” on the Clancy land. On 14 October 2010, Mr Ron Goddard, building surveyor, issued a Building Notice pursuant to s106 of the Building Act 1993.[12] The Notice said building works had been carried out in contravention of the Building Permit previously issued. The Notice required cause to be shown as to why the following works should not be carried out on the land:
[12]See Exhibit CPS3 to the affidavit of Craig Peter Shepard sworn 11 November 2014.
“5.1.1Remove the concrete footings encroaching onto the land at 3 Clancy Rd, Mount Evelyn;
5.1.2Fill the holes dug for the retaining wall & restore the land located on the boundary of 21 Junction Rd and 5 Clancy Rd Mount Evelyn;
5.1.3Provide satisfactory Storm Water drainage to the boundary of 3 & 5 Clancy Rd, Mount Evelyn;
5.1.4Provide full details of the proposed variations to the Building Permit.”
22 On 4 November 2010, Mr Goddard issued a “Building Orders – Minor Work” Notice directed to Clancy. The property affected was the Clancy land. The Notice said that building works carried out on the Clancy land contravened the Building Act in that a “site cut” carried out had caused damage to the Bluestone land and exposed footings on the Bluestone land. The Notice required Clancy to take various steps to remedy those building works.[13]
[13]See Exhibit CPS3 to the affidavit of Craig Peter Shepard sworn 11 November 2014
23 On 17 November 2010, Mr Goddard issued a Building Order in respect of the Clancy land pursuant to s111 of the Building Act. It refers to an inspection of the Clancy land on 23 October 2012. It is difficult to know from the context which date is an error. The Order notes that building work carried out on the Clancy land contravenes the Act and the Building Permit. It notes that footings have encroached onto the Bluestone land and excavation work has been carried out at the shared boundary between the Bluestone and the Clancy land prior to certain protection requirements being met. Further, excavation work carried out has undermined the adjoining property, being the Bluestone land. The Notice required Clancy to take the following steps:
“5.1Remove the concrete footings encroaching onto the land at 3 Clancy Rd, Mt. Evelyn;
5.2Provide satisfactory storm water drainage to the boundary of 3 & 5 Clancy Rd, Mt. Evelyn;
5.3Provide all details of any variations existing or proposed to the Building Permit approved construction;
5.4Shore up the 2m cut adjacent to the front and side boundaries.”[14]
[14]See Exhibit CPS3 to the affidavit of Craig Peter Shepard sworn 11 November 2014
24 Further, on 13 July 2012, Mr Goddard issued a Building Notice pursuant to s106 of the Building Act to Clancy. The Notice said that he had inspected the Clancy land on 9 June 2012 and noted that building work had been carried out in contravention of the Building Permit, in that:
“3.1.1foundations encroach over a boundary in contravention of the approved Building Permit Stamped Plans;
3.1.2in or about October, 2010 Clancy Victoria Pty. Ltd. demolished or caused to be demolished part of a building being part of the foundations located at the rear of Factory 6 and or 7, 5 Clancy Road, Mt. Evelyn without a building permit as required by Section s16 of the Building Act 1993.”[15]
[15]See Exhibit CPS3 to the affidavit of Craig Peter Shepard sworn 11 November 2014
25 The Notice required Clancy to:
“5.1.1remove the foundations to the extent they encroach over a boundary; &
5.1.2repair the foundation where is [scil it] has been demolished to the extent that it does not encroach over a boundary to the satisfaction of the Relevant Building Surveyor.”[16]
[16]See Exhibit CPS3 to the affidavit of Craig Peter Shepard sworn 11 November 2014
26 On 30 July 2012, Mr Laurence Slagter, a registered building surveyor, issued a “show cause” Notice to Clancy. The Notice was said to be a building notice served under Division 2 of Part 8 of the Building Act 1993. It referred to an inspection and photographs taken on 24 July 2012. It noted certain works were carried out in contravention of the Building Permit, in that:
“3.1.1footings and building work are on other land being 3 Clancys Road Mount Evelyn (see attached survey plan); and
3.1.2excavation and fill not shown on the permit plans has been carried out in particular on or near title boundaries of 19-21 Junction Road Mount Evelyn, 3 Clancys Road Mount Evelyn and adjacent to Clancys Road; and,
3.2Pursuant to Regulation 606 the stability of the ground on the adjoining property of 19-21 Junction Road Mount Evelyn, 3 Clancys Road Mount Evelyn and the Clancys Road reserve has been or may be adversely affected by the excavation or filling of soil on the (your) allotment.”
27 The Notice required cause to be shown as to why various reinstatement works should not be carried out.[17]
[17]See Exhibit CPS3 to the affidavit of Craig Peter Shepard sworn 11 November 2014
28 According to the affidavit of Richard Paul Van Lierop sworn 30 November 2014, various Protection Work Notices pursuant to the Building Act were issued over the course of the Clancy land development.[18]
[18]See notices referred to in Exhibit RVL3 annexed to the affidavit of Richard Paul Van Lierop sworn 30 November 2014
29 A Protection Work Response Notice dated 10 September 2012 pursuant to s85 of the Building Act, was issued by Bluestone and directed to Clancy. The Notice requested further information in response to the Protection Work Notice previously issued. The Notice was issued after the resolution of the proceeding, and sought the provision of various permits and reports in relation to the proposed works.[19]
[19]Exhibit RVL4 annexed to the affidavit of Richard Paul Van Lierop sworn 30 November 2014
30 That Notice prompted a reply from Clancy by letter dated September 2012.[20]
[20]Exhibit RVL5 annexed to the affidavit of Richard Paul Van Lierop sworn 30 November 2014
31 Of significance, is a Determination of the Building Appeals Board (“the Determination”) dated 17 January 2013. Bluestone is described as an appellant and the building surveyor, Mr Goddard, as the respondent. The appeal was said to be pursuant to s141(a) of the Building Act 1993 and was said to concern “a determination made by the relevant building surveyor under s87 of the Act as to the appropriateness of protection work”. Although it is not completely clear, it seems probable the determination relates to the Protection Notices earlier issued, and in particular, the Response Notice from Bluestone dated 10 September 2012. The Determination is as follows:
“Determination of the Board
Having considered all the submissions and information placed before it, the Board determines, pursuant to s149(1)(d)(i) of the Act, to set the Respondent’s decisions aside and substitute its own decision as follows:-
1.The Board determines that protection works is not required and the associated building permit is not valid due to the location of the proposed works. Therefore the Respondent is to undertake the following:-
(i) Cancel Building permit for 5 Clancy Road as proposed building works are not located at this address; and
(ii) Issue a Building permit for 3 Clancy Road where the proposed building works will be undertaken to satisfy the Appellant, and also to the satisfaction of the County Court Order, Case ID: CI-11-03452 dated 27 August 2012.
Reason/s of the Board
1.Section 17 of the Act confirms that an application for a building permit may only be made by or on behalf of the owner of the building or the owner of the land, in or on which the building work is to be carried out.
Despite the relevant building survey determining the appropriateness of protection works pursuant to s87 of the Act and issuing a Building Permit for works at 5 Clancy Road, Mount Evelyn, both parties at the appeal hearing agreed that the building works required to be undertaken to rectify footings are located on land known as 3 Clancy Road, Mount Evelyn.
2.Regulation 602 of the Regulations confirms that protection work must be provided only in respect of an adjoining property to the property where the works are proposed to be undertaken if required by the relevant building surveyor.
Note: This determination is re-issued pursuant to Clause 18(1)(c) of Schedule 3 of the Building Act 1993 to amend an earlier determination signed 17 April 2013 to read as follows:-
Add to include the Appellants ‘R.W. & A.F. Campbell (Nominees) Pty Ltd) to read as:
AppellantsBluestone Resources Pty Ltd &
R.W. & A.F. Campbell (Nominees) Pty Ltd
Delete ‘and’ at the end of Point (i) of the determination to read as follows:-
(i) Cancel Building permit for 5 Clancy Road as proposed building works are not located at this address.
Delete ‘Point (ii)’ from the Determination and substitute as a Note following Point 2 of the Reasons, which read as follows:-
Note: The Board acknowledges a new Building permit is required to be issued for 3 Clancy Road where the proposed building works will be undertaken to satisfy the Appellants, and also to the satisfaction of the County Court Order, Case ID: CI-11-03452 dated 27 August 2012.”[21]
[21]Exhibit RVL6 annexed to the affidavit of Richard Paul Van Lierop sworn 30 November 2014
32 Whatever the reason, it is clear that the original Building Permit was improperly issued. Further, the Building Appeals Board determined that protection works were not required because the Building Permit was issued in respect of the wrong parcel of land.
33 Ms Bennett makes two points in this regard. The first is that s17 of the Building Act provides that a building permit may be applied for “by or on behalf of the owner of the … land …”. Further, she refers to s119 of the Act which provides that:
“Despite anything to the contrary in the Act or the Building Regulations, a person who carries out work in accordance with a Building Order is not required to obtain a building permit. … .”
(emphasis added).
34 On 26 September 2014, Mr Goddard issued a Building Order pursuant to s111 of the Building Act. The Order is addressed to Clancy, and the property address is said to be 5 Clancy Road, Mount Evelyn. It states as follows:
“WHEREAS:
1.I am the Relevant Building Surveyor for the building work at 5 Clancy Road, Mount Evelyn under Building Permit No 22522/1130/0 dated 9 June 2009 (‘Building Work’) and am authorised to make a building order under Section 111 of the Building Act 1993 (‘Act’).
2.I have considered any representations made by the Owner following the serving of the Building Notice dated 13 July 2012 and have caused a further inspection of the Building Work on 20 May 2014.
3.I am of the opinion that the Building Work has been carried out in contravention of the Act and Building Permit No 22522/1130/0 dated 9 June 2009, in that the footings for the west wall of the Building Work along the boundary of 5 Clancy Road, Mount Evelyn have not been constructed in accordance with the Building Permit as they have been ‘over poured’ and have encroached between 0mm and 240mm over the boundary with
No 3 Clancy Road, Mt Evelyn.
4.The above are the reasons why this Order was issued.
NOW THEREFORE TAKE NOTE THAT:
5.The Owner is required to carry out the following building work within 30 days of the date of service of this Building Order:
5.1Remove the ‘over poured’ parts of the footings of the Building Work that encroach over the boundary with No 3 Clancy Road, such works to be carried out in accordance with the ‘Rectification and Scope of Works’ recommendations in the structural report of TMC & Associates, Consultancy Structural Engineers (no 1337) dated 16 August 2012; and
5.2Remove all resulting spoil, waste and debris from the land at 3 Clancy Road, Mt Evelyn; and
5.3Restore the land of 3 Clancy Rd Mount Evelyn to the satisfaction of the Relevant Building Surveyor.”
35 Ms Bennett submits that this Building Order is a “building permit” by reason of the operation of s119 of the Building Act and thus, according to the Terms of Settlement, her client has obtained “all necessary building and planning permits … ”.
36 In my view, this Building Order suffers from two defects. The first is that the Building Order has been issued in respect of the Clancy land, and not the Bluestone land. The second is that it was made by Mr Goddard who, it would appear clear from various documents, is authorised to issue building notices or orders in respect of the Clancy land. There is no evidence to suggest he is so authorised in respect of the Bluestone land. Section 107 of the Act makes it clear that a private building surveyor may issue such notices only in respect of land for which he is appointed to carry out a function under the Act.
37 In my view, these matters are fatal to Ms Bennett’s argument. It is clear from the Building Appeal Board’s Determination that any building permit (or in fact building order) is to be issued in respect of the Bluestone land and not the Clancy land, in order for the rectification works to be carried out. Despite this, the Notice relied upon by the receivers is in respect of the Clancy land. Further, as stated, there is no evidence to suggest Mr Goddard is appropriately authorised in respect of the Bluestone land. In my view, therefore, the necessary building permit (or order) has not been obtained nor issued in respect of the Bluestone land. Clancy (or the receivers in its stead) has therefore not obtained “all necessary building and planning permits … ”.
38 Part 7 of the Act provides for the protection of adjoining properties. It is uncertain as to whether there will be the need for protection works to be carried out in accordance with the Building Regulations as provided by s84. That will be a matter to be determined once the appropriate building permit or order is issued. It may be, in the event of any disagreement, the relevant building surveyor will be called upon to make a determination pursuant to s87 of the Act. I make no findings as to whether, as submitted by Ms Bennett, the Determination of the Building Appeals Board of 17 January 2013 means no protection works are required. It may be that protection works are only required in respect of an “adjoining property” as is referred to in the definition of “protection works” set forth in s3 of the Act. If the building permit is issued in respect of the Bluestone land, it is difficult to know how the buildings erected on the Bluestone land are part of an “adjoining property”. However, that can only be determined once the appropriate permit or order has been issued.
Conclusions
39 The receivers’ application fails, as an appropriate planning permit or order has not been obtained as was necessary pursuant to the Building Act.
40 What is clear from this litigation is that both parties seek to achieve the same end; that is, the carrying out of the rectification works on the Bluestone property to reinstate it to the condition it was before the encroachment works were carried out by Clancy. From the nature of this application, and the manner in which it was conducted before me, each party has taken an aggressive legalistic approach which has done little to achieve a mutually beneficial resolution, rather has resulted in an atmosphere which has made sensible negotiation difficult.
41 To that end, I make the following comments:
(1)In order to give effect to the Orders of 27 August 2012, and the Terms of Settlement, it will be necessary for the receivers to make application for the appropriate building permit in respect of the Bluestone land. That application, in accordance with s17 of the Act, may be made by or on behalf of the owner of the land. Bluestone should permit the receivers to make the application for the permit on its behalf and consent to the receivers so doing. Bluestone should use every endeavour to assist the receivers to successfully obtain the issue of the appropriate permit. There is no basis upon which Bluestone (or the other registered proprietors) may require the receivers to carry out any works, provide any reports or do anything save as is required by the terms of the Deed of Agreement, or the appropriate legislative requirements, in particular the Building Act and the Regulations.
(2)Whether or not a protection works notice ought to issue, or other aspects of the Building Act must be complied with in particular, for example as to insurance, will be a matter to be determined after the building permit has been issued and in accordance with the provisions of the Act;
(3) All parties should bear in mind the relevant provisions of the Civil Procedure Act 2010, in particular those provisions which require:
· the avoidance of undue delay and expense;
· must cooperate with each other to reach a conclusion of the litigation;
· must take every reasonable step to resolve the matters in dispute;
· ensure the costs are reasonable and proportionate.
42 The parties are no doubt aware of significant sanctions, including costs sanctions available to the Court if it is determined, even after an investigation of its own volition, that the terms of the Act have been breached.
43 I shall hear from the parties further as to costs and other appropriate orders to be made.
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