Cardinia Shire Council v Kraan

Case •

[2017] VMC 25

•

21 DECEMBER 2017

No judgment structure available for this case.
IN THE MAGISTRATES’ COURT OF VICTORIA
AT DANDENONG

CRIMINAL DIVISION

Case No. F13189056

ANDRE BREWER

Informant
v
RONALD KRAAN Accused
MAGISTRATE: MAGISTRATE MACCALLUM
WHERE HELD: DANDENONG MAGISTRATES’ COURT
DATES OF HEARING: 29 NOVEMBER 2017
DATE OF DECISION: 21 DECEMBER 2017
CASE MAY BE CITED AS: CARDINIA SHIRE COUNCIL v KRAAN
MEDIUM NEUTRAL CITATION: [2017] VMC025

REASONS FOR DECISION

Building Act 1993 sections 16 and section 118 - Elements of the charges - Whether proof of mens rea required - Whether statutory offences of strict or absolute liability.

---

APPEARANCES:

 Counsel Solicitors
For the Prosecution N. SHERIDAN-SMITH RUSSELL KENNEDY SOLICITORS
For the Accused IN PERSON N/A

HER HONOUR:

  1. This is a prosecution under the Building Act 1993 (“the Act”) brought by the Cardinia Shire Council (“the Council”).
  2. The Accused, Ronald Kraan is charged with the following offences:
    1. at Pakenham Upper, on or about 27 March 2013, carrying out building work, namely construction of a retaining wall, for which no building permit was issued contrary to section 16 of the Act;
    2. at Pakenham Upper, on 30 January 2014, being a person to whom a Building Order was directed, and failing to comply with the Building Order contrary to section 118(1) of the Act;
    3. at Pakenham Upper between 5 April 2013 and 30 January 2014, being a person to whom a Building Order (to Stop Work) was directed, and failing to comply with the Building Order (to Stop Work) contrary to section 118(1) of the Act;
    4. at Pakenham Upper between 31 October 2014 and 23 February 2015, being a person to whom a Building Order (to Stop Work) was directed and failing to comply with the Building Order (to Stop Work) contrary to section 118(1) of the Act.
  3. Pursuant to section 64 of the Criminal Procedure Act 2009, pleas of not guilty were entered by the Court on behalf of the Accused upon his refusal to plead.

The legislation

  1. At all relevant times, section 16 of the Act provided:

“16    Building permit required

(1)A person must not carry out building work unless a building permit in respect of the work has been issued and is in force under this Act and the work is carried out in accordance with this Act, the building regulations and the permit.

Penalty:500 penalty units, in the case of a natural person.

2500 penalty units, in the case of a body corporate.

(2)Subsection (1) does not apply to building work exempted by or under this Act or the regulations.”

  1. Section 3 contains the following definitions:

“building includes structure, temporary building, temporary structure and any part of a building or structure.”

“building work means work for or in connection with the construction, demolition or removal of a building.”

“permit means building permit or occupancy permit.”

  1. At all relevant times, Part 8 Division 2 of the Act relevantly provided:

“106    Building notices

Subject to section 107, a Municipal Building Surveyor or a private building surveyor may cause a building notice to be served on an owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment if the building surveyor is of the opinion that any one of the following circumstances exists—

(a)building work has been carried out on the building, land or place without a building permit required by this Act, or in contravention of a building permit or this Act or the building regulations;

(b)the use of the building or place contravenes this Act or the building regulations;

(c)the building or place is unfit for occupation or for use as a place of public entertainment;

(d)the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property.

….

108Contents and form of building notice

(1)A building notice may require the owner of a building or place of public entertainment to show cause within a specified period—

(a)why occupation of the building or place or its use for public entertainment should not be prohibited; or

(b)why the owner should not do either or both of the following things—

(i)evacuate the building, land or place;

(ii)carry out building work, protection work or work required by the regulations in relation to the building, land or place.

(2)A building notice must be in writing and must contain any matters required by the regulations.

109Representations by owner

An owner may, in the manner specified in the notice, make representations to the relevant building surveyor about the matters contained in the notice.

110Cancellation of building notice

The relevant building surveyor may cancel a building notice if he or she considers it appropriate to do so after considering any representations made under section 109.

111Building orders—general

(1)Subject to section 107, a Municipal Building Surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.

(2)Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.

(3)A building order under this section may—

(a)prohibit the occupation of a building; or

(b)prohibit the occupation of a place of public entertainment or its use for public entertainment; or

(c)require the owner of a building, land on which building work is being or is proposed to be carried out or place of public entertainment to do either or both of the following things within a specified time or times—

(i)evacuate the building, land or place;

(ii)carry out building work, protection work or other work required by the regulations or to carry out a program of that work as directed in the order.

112Building orders to stop building work

(1)Subject to section 107, a Municipal Building Surveyor or a private building surveyor may make a building order that requires an owner or other person to stop building work.

(2)The order may be made if, in the opinion of the relevant building surveyor, the building work—

(a)contravenes this Act or the building regulations; or

(b)is a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property; or

(c)affects the support of any adjoining property.

(3)The order may be made without first serving a building notice.

(4)The order may be made even if a building order has been made under section 111 in respect of the building work or the building, land or place on which the building work is being carried out.

(5)If an order to stop building work is made under this section, the person to whom it is directed must stop the building work except building work carried out in compliance with an order under section 111 in respect of the building work.

113Building orders—minor work

Subject to section 107, a Municipal Building Surveyor or a private building surveyor may make a building order requiring building work, protection work or other work required by the regulations to be carried out without first serving a building notice if the building surveyor is of the opinion that the work required to be carried out is of a minor nature.

114Form and service of building order

(1)A building order—

(a)must be in writing; and

(b)must specify the time or times within which the order must be complied with; and

(c)must contain any other matters required by the regulations.

(2)The relevant building surveyor must cause a building order to be served on the person to whom it is directed without delay after it is made.

….

116Amendment or cancellation of certain building orders

(1)An owner who is required to comply with a building order may, if there is a change in circumstances after the service of the order, request the relevant building surveyor to amend or cancel the building order.

(2)On a request being made, the relevant building surveyor may—

(a)amend or cancel the building order; or

(b)refuse to amend or cancel the building order.

(3)The relevant building surveyor is deemed to have refused a request under this section if he or she has not decided the request within the prescribed time.

117Duration of order

A building order remains in force, and, if amended, remains in force as amended, until—

(a)it is complied with; or

(b)it is cancelled by the relevant building surveyor or the Building Appeals Board.

Division 3—General

118Contravention of emergency order or building order

(1)A person to whom an emergency order or building order is directed must comply with that order.

Penalty:500 penalty units, in the case of a natural person.

2500 penalty units, in the case of a body corporate.

(2)A person must not occupy a building, land or place in contravention of an emergency order or building order.

Penalty:500 penalty units, in the case of a natural person.

2500 penalty units, in the case of a body corporate.

(3)It is a sufficient defence to a prosecution under this section in relation to a public entertainment if the Accused satisfies the court that he or she was unaware and ought not reasonably to have been aware of the fact that the public entertainment was the subject of an emergency order under this Part.”

The Regulations

  1. At all relevant times, schedule 8 of the Building Regulations 2006 (“the Regulations”) provided that “any retaining wall less than 1 m in height that is not associated with other building work or with protection of adjoining property” was exempt from the requirement of a building permit.

The elements of the charges

  1. The Prosecution must prove each element of these charges beyond reasonable doubt. If they are not successful in doing so, the charges will be dismissed.
  2. The elements of the charge for the offence against section 16 of the Act are:
    1. building work was carried out at the direction of the Accused;
    2. a building permit was required for that building work to be carried out;
    3. the Accused failed to obtain a building permit issued and in force under the Act;
    4. the Accused failed to carry out the work in accordance with the Act, the building regulations and the permit.
  3. In relation to charge 2 alleging failure to comply with the Building Order (General), the elements of the charge for the offences against section 118 of the Act are:
    1. a Building Order under the Act was directed to the Accused;
    2. the Accused failed to comply with the Building Order.
  4. The Prosecution must also demonstrate on the evidence the following material facts in relation to the offences under section 118 (charge 2):
    1. a Municipal Building Surveyor served on the Accused a Building Notice pursuant to section 106 of the Act;
    2. the Municipal Building Surveyor did so as he or she was of the opinion that:

i.building work has been carried out on the building, land or place without a building permit required by the Act, or in contravention of a building permit or the Act or the building regulations; or

ii.the use of the building or place contravened this Act or the building regulations; or

iii.the building or place is unfit for occupation or for use as a place of public entertainment; or

iv.the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property;

    1. pursuant to section 108, the Building Notice required the owner of the building to show cause within a specific period:

(a)why occupation of the building or place or its use for public entertainment should not be prohibited; or

(b)why the owner should not do either or both of the following things—

(i)evacuate the building, land or place;

(ii)carry out building work, protection work or work required by the regulations in relation to the building, land or place.

    1. the Building Notice was in writing and contained all matters required by the regulations (section 108(2)).
    2. the Accused, in the manner specified in the notice, made representations to a Municipal Building Surveyor about the matters contained in the notice, and those representations were considered by a Municipal Building Surveyor;
    3. after the end of the time allowed by the Building Notice for making representations, a Municipal Building Surveyor made Building Order under section 111:

i.prohibiting the occupation of a building; or

ii.prohibiting the occupation of a place of public entertainment or its use for public entertainment; or

iii.requiring the owner of a building, land on which building work is being or is proposed to be carried out or place of public entertainment to do either or both of the following things within a specified time or times—

(i)evacuate the building, land or place;

(ii)carry out building work, protection work or other work required by the regulations or to carry out a program of that work as directed in the order.

    1. Before the making of the Building Order, the relevant building surveyor considered any representations made by the owner (s 111(2));
    2. the Building Order was in writing and specified the time or times within which the order must be complied with, contained all other matters required by the regulations and was served without delay by the relevant building surveyor on the person to whom it is directed (section 114).
  1. In relation to charges 3 and 4 alleging failure to comply with a Building Order to Stop Work, the elements of the offence against section 118 of the Act are:
    1. a Building Order to Stop Work under the Act was directed to the Accused;
    2. the Accused failed to comply with the Building Order to Stop Work.
  2. The Prosecution must also demonstrate on the evidence the following material facts in relation to the offences under section 118 (charges 3 and 4):
    1.  a Municipal Building Surveyor made a Building Order that required the Accused as the owner of the Property to stop building work (section 112);
    2. the Building Order to Stop Work was made as, in the opinion of the relevant building surveyor, the building work—

(i)contravened the Act or the building regulations; or

(ii)was a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property; or

(iii)affected the support of any adjoining property (section 112(2)).

    1. the Building Order to Stop Work was in writing and specified the time or times within which the order must be complied with and contained all other matters required by the regulations (section 114);
    2. The relevant building surveyor served the Building Order to Stop Work on the Accused without delay;
    3. the Building Order to Stop Work remained in force in that it was not complied with or cancelled by the relevant building surveyor or the Building Appeals Board (section 117);
    4. the Accused was the person to whom the Building Order to Stop Work was directed and failed to stop the building work except building work carried out in compliance with an order under section 111 in respect of the building work.
  1. The Building Order to Stop Work may be made without first serving a Building Notice. The order may be made even if a Building Order has been made under section 111 in respect of the building work or the building, land or place on which the building work is being carried out (section 112(3),(4)).
  2. In relation to the mental element for offences against section 16 or 118 of the Act, the Prosecution has submitted that it is open to the Court to conclude that section 16 is an offence of strict or absolute liability. There are no binding authorities that have considered this issue. The Prosecution directed the Court to a summary of a Magistrates’ Court decision[1] which concluded that section 16 is an offence of absolute liability, but was unable to locate a copy of the decision.
  3. The methodology for construing whether a mental element forms a part of a statutory offence is set out in He Kaw Teh v the Queen.[2] The common law presumption is that mens rea is an essential element in every offence. When determining whether the Parliament, in creating a statutory offence, intended that mens rea need not be proved, the Court must have regard to the following:

a.the wording of the statute creating the offence;

b.the subject matter of the statute;

c.whether imposing strict liability upon an accused would promote the observance of the provision; and

d.whether there is some means available to an accused to assist with compliance with the provision.[3]

[1] Her Honour Magistrate Gwynne in Victorian Building Authority v Westmoreland (unreported) Melbourne Magistrates' Court on 22 May 2015.

[2] (1985) 157 CLR 523.

[3] See for example, Gibbs CJ in He Kaw Teh, paragraph 7.

  1. The Supreme Court has held that the following analysis is to be applied in determining whether an offence is one of strict or absolute liability.

“The High Court’s ruling in He Kaw Teh regarding the criteria for determining whether the presumption of a mental element (and, by implication, the defence of honest and reasonable mistake of fact) has been displaced was summarised by Warren J, as her Honour the Chief Justice then was, in Wilson v Gahan:[97]  

In He Kaw Teh the High Court referred to the fact that the courts have set down criteria to be applied in determining whether the presumption of mens rea has been displaced. The first criterion is consideration of the words of the statute creating the offence (see Gibbs, CJ and Mason, J 529; Brennan, J 567; Dawson, J 594). The second criterion is consideration of the subject matter of the statute (see Gibbs, CJ and Mason, J 529; Dawson, J 594). The third criterion is whether subjecting the defendant to absolute liability will assist in the promotion of observance of the relevant statute (see Gibbs, CJ and Mason, J 530; Brennan, J 567). The fourth criterion is that where a statute creates an offence for the purpose of regulating social conditions and public safety and where the penalty attached to a statutory offence is monetary and moderately sized, the statute is more easily regarded as imposing absolute liability (see Brennan, J 567; Dawson, J 595).”[4] [citations omitted].

[4] Tsolacis v McKinnon [2012] VSC 627 at paragraph 97.

  1. The defence of honest and reasonable mistake of fact is available for offences of strict liability, and not for offences of absolute liability. Dixon J in Proudman v Dayman explained the defence of honest and reasonable mistake as:

“[A]n honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.”[5]

[5] (1941) 67 CLR 536 at 540.

  1. The High Court held in He Kaw Teh,[6] that the evidentiary onus is on the Accused to raise the defence. Once raised, the legal burden rests with the Prosecution to disprove the defence beyond reasonable doubt.

    2. [6] At paragraph 25.

  2. The following factors tend to support the conclusion that sections 16 and 118 of the Act are offences of strict liability rather than absolute liability:
    1. the absence of any language requiring proof of intention, recklessness, negligence, knowledge or belief as part of the offence;
    2. the first stated objective of the legislation which is to “to protect the safety and health of people who use buildings and places of public entertainment”;
    3. the fact that requiring the Council to prove in all cases a mental element would have the effect of undermining the objective of public safety;
    1. the fact that not requiring the Council to prove in all cases a mental element would promote observance of the statute;
    2. in relation to section 118, the availability of mechanisms within the statutory scheme to make relevant representations to the Council (ss 108, 109, 111) which must be taken into account by the Council;
    3. the fact that imprisonment is not a penalty for breach of the provisions;
    4. the maximum monetary penalty for offences is large.
  1. It is ultimately unnecessary to decide the issue. First, the Accused has not raised on the evidence the defence of honest and reasonable mistake of fact, or any other defence. Further, I am satisfied beyond reasonable doubt that the Prosecution has, for the reasons given below, proven its case on a higher evidentiary standard in relation to both sections 16 and 118, in that there is clear evidence before the Court that the Accused knew:
    1. he did not have a building permit for the retaining wall;
    2. that he had been served with the Building Order, and had failed to comply with the Building Order;
    3. that he had been served with a Building Order to Stop Work on the retaining wall and that he failed to comply with the Building Order to Stop Work.

Legal questions for determination

  1. The Accused raised various legal issues for determination that do not apply to the Act or the Regulations. I have considered and dismissed these submissions in a separate ruling also handed down today.

The factual question for determination

  1. The factual questions for determination is whether the Accused has acted in contravention of sections 16 and 118 of the Act, as particularised in the charges.

The evidence

  1. The Council called evidence from three witnesses:
    1. The Informant Andre Brewer, Municipal Building Surveyor employed at all relevant times by the Council;
    2. Ben Essing, Deputy Municipal Building Surveyor employed at all relevant times by the Council, and reporting to the Informant; and
    3.  Mehren Khademollah, Municipal Building Surveyor employed at all relevant times by the Council, and reporting to the Informant.
  2. The Council relied on eight exhibits which I have reviewed.
  3. The Accused left the court of his own volition before the Council opened its case. The Council made application to proceed ex parte and that application was granted by the Court.
  4. I have considered all of the evidence before the Court. I have assessed the credibility and reliability of the evidence of the witnesses. I make the following findings.
  5. Each of the Council’s witnesses gave uncontested evidence as to their qualifications and extensive experience as qualified, municipal building surveyors empowered to enforce safety and building standards under the Act. I find this element of the above charges proven beyond reasonable doubt.

Charge 1

  1. The Informant gave evidence that the Accused is the sole registered proprietor of the property located at 715 Gembrook Road, Pakenham Upper (“the Property”), and has been the sole registered proprietor of the Property at all relevant times. He said that after he began his investigation into the building works being constructed on the Accused’s land in March 2013, he undertook enquiries to establish the ownership of the Property. In addition to the searches that he undertook, in all of their dealings, the Accused presented himself as the registered proprietor. Further all of the correspondence tendered is directed to the Accused at the Property, and the Accused has responded to the Council’s correspondence holding himself out as the owner of the land. I am therefore satisfied beyond reasonable doubt with respect to this element of the charges.
  2. The Informant said that throughout the period of the charges he was “90% sure” there were no building permits issued in respect of the Property. He explained said that the Council does not issue building permits but sometimes private building surveyors undertake assessments for applications for building permits. When this occurs, the private building surveyor is required to submit all approved documents to the Council within seven days for record-keeping purposes. Sometimes, however that does not occur.
  3. He said that the Accused had never produced a building permit in response to the correspondence sent by Council, or in response to the Accused’s multiple discussions over the phone and in person with himself, Essing or Khademollah over the charge period. This evidence was corroborated by Essing and Khademollah.
  4. On 20 March 2013 he received a telephone call from a person who was upset about the scale of the retaining wall being constructed by the Accused on the Property. The Informant met the person at their property to investigate their report a few days later. The Informant observed from a distance of five metres from the Property on the adjoining land the ongoing construction of a very large retaining wall constructed out of concrete and wooden power poles. Whilst the structure did not appear to pose an imminent threat, he said it was clearly an unusual and unorthodox method of construction that he was not comfortable with it. He said the poles were second hand and appeared to have defects. He was also unsure as to the appropriateness of the construction method.
  5. He returned to the office and reviewed the building permit history of the Property. He did this on a number of occasions as it did not appear to him orthodox to have a construction project of this scale without a valid building permit. He discussed it with Khademollah, and they decided to formally review the works at the Property.
  6. After giving the notice required by the Act, Khademollah attended the Property with local laws officer Ashley Reed. Khademollah gave evidence that the inspection time was set in consultation with the Accused. Khademollah and Reed attended the Property on 5 April 2013 for the purposes of the inspection. Khademollah said the Accused was present. The Accused refused to sign a consent form authorising Khademollah and Reed to be present on his land for the inspection, claiming that he was illiterate. He consented verbally to them being there. Khademollah gave evidence that he saw an unusual construction. The Accused claimed the retaining wall was four metres high. Khademollah said he had serious concerns about the safety of the structure. He asked the Accused if he had a building permit. The Accused told him he did not need one, as the VCAT decision to which he had been a party required him to build a retaining wall as a sound barrier. Khademollah said that after the inspection he checked the VCAT order to which the Accused was subject, and it did not exempt him from complying the Act and Regulations.
  7. Khademollah and Reed took photographs which were tendered in evidence. They show a large retaining wall well in excess of the one metre exemption provided by Schedule 8 of the Regulations. A Plan of Survey of the Property dated 31 October 2014 was tendered by the Informant. The Informant gave evidence that as of 27 March 2013, the height of the partially constructed retaining wall was between 2.7 and 2.91 metres.
  8. I am satisfied beyond reasonable doubt that on or about 27 March 2013, the Accused carried out building work at the Property and he did so without a building permit issued and in force under the Act and the Regulations as required by section 16 of the Act. As I have said, in my view the above legal analysis supports the conclusion that the Council does not need to prove that the Accused knew that he did not have a building permit. I am nevertheless satisfied beyond reasonable doubt that the Accused knew that he did not have a building permit. I find the charge proven.

Charge 2

  1. The Informant gave evidence that when Khademollah confirmed his observations and concerns about the retaining wall, he concluded that a Building Order should be issued in order to stop the works and allow the Accused to make representations regarding compliance with the Act and Regulations.
  2. Exercising his powers under the Act, on 5 April 2013, Khademollah issued a Building Order to Stop Work addressed to the Accused as the owner of the Property. The form of the Building Order to Stop Work complies with the requirements of the Act and Regulations. Khademollah gave evidence that on 8 April 2013 he telephoned the Accused and advised him that the work should stop. He said that the Accused said “yes” or words to that effect.
  3. The Building Order to Stop Work states that Khademollah is of the opinion that the building work at the land contravenes the Act, in that:

“3.1.1. Building work including construction of retaining wall is being carried out in contravention of the Act, whereas Section 16 requires that a person must not carryout building work unless a building permit in respect of the building work has been issued and is in force under the Building Act 1993, the building regulations and the permit.

NOW THEREFORE TAKE NOTICE THAT:

The Owner and all other persons are required to stop the building work on the building immediately.”

  1. The Informant gave evidence that he caused a Building Notice to be issued to the Accused to “make representations”, namely, to allow the Accused to demonstrate that the retaining wall was correctly constructed in accordance with the Act and Regulations. The Accused refers to the Building Notice in his letters to Khademollah dated 29 April 2013 and 31 July 2013 and I am satisfied that it was served on him. The Building Notice dated 8 April 2013 is compliant with the Act and Regulations.
  2. After the issuing of the Building Order to Stop Work, on 10 April 2013 the Accused sent a letter to the Informant and Khademollah, stating inter alia, that the works were necessary in order for him to comply with a VCAT Order requesting a sound barrier. The Accused also stated that he intended to appeal the decision.
  3. On 16 April 2013, Khademollah responded to the Accused and notified him that his representations had been considered, but further representations were required to justify the cancellation of the Building Order to Stop Work. Khademollah indicated that those representations may include a copy of a building permit issued for the construction of the retaining wall. In that letter, Khademollah states further:

“Cardinia Shire Council would also like to draw your attention to the issued Building Notice dated 8 April 2013 and your opportunity to make representation for consideration of the Municipal Building Surveyor. It is important that you address the matter/s in writing as soon as possible and within the timeframe stipulated in the Building Notice dated 8 April 2013 (copy attached).”

  1. On 29 April 2013, Khademollah received a letter from Bushy Miles, Building Surveyor of Allied Building Services Pty Ltd. That letter states that Mr Miles had been engaged as a consultant on the project in respect of the Property and that the Building Notice had been handed over to him to resolve. He stated that he needed to prepare plans, seek a town planning permit and structural certification. Given that the Building Order to Stop Work was due to expire in one week, an extension of time was requested.
  2. On 31 July 2013, the Accused sent another letter to Khademollah stating that he was aware of the time constraints of the Building Notice. He continues:

“While I cannot show compliance at this time, I have not been idle.

A building surveyor and engineer has attended site. A plan of the project was requested, and this was prepared. After several weeks the engineer responded with a request for technical information on the concrete poles used. This request has been forwarded onto the supplier of the poles, and I await their further information. The engineer is unable to offer any advise [sic] until this information is received.

A letter and plans have been forwarded to the Cardinia Shire Council, Town Planning department, also several weeks ago. I have not heard anything from them, and do not expect to in the near future. Previous dealings showed that a response would not be offered for months - even running into years.

I understand that you have a duty to perform, and will need to issue further notices. This I understand and accept. As soon as a structural report or planning information is available it will be forwarded to the Council.”

  1. The Informant gave evidence that a number of months had passed since his and Khademollah’s site visit, and he was not satisfied with the Accused’s representations. On 13 November 2013, the Informant issued a Building Order. The Building Order was sent under cover of a letter to the Accused stating that:

“A Building Notice dated 8 April 2013 was served on you and any representations made by you have been considered. I am of the opinion that insufficient cause has been shown by the owner of the land\building to warrant closure of the Building Notice. Therefore for the reasons set out in the Building Notice, I am issuing the attached Building Order. The Building Order requires you to complete work and call for an inspection within the stated compliance period. In the event that the listed works are not completed to Councils satisfaction within that period, Cardinia Shire Council will record a breach of the Building Act 1993 (Act) and refer the matter for legal proceedings at Dandenong Magistrates Court.

Council may seek a court order for the rectification of the issues and conviction against the owner/s for failure to comply with a Building Order and any other breaches of the Act.

….”

  1. The Building Order issued pursuant to section 111 of the Act is compliant with the Act and Regulations. It relevantly states, that following the inspection on 5 April 2013 by authorised council officer Khademollah, a Building Notice dated 8 April 2013 was served on the Accused and representations made by him had been considered. However, insufficient cause had been shown by the Accused and that for the reasons set out in the Building Notice the making of the Building Order was warranted. The Accused was required by the Building Notice to demolish, reconstruct or repair all retaining walls exceeding one metre in height that were constructed to the south-east of the land within 60 days of the date of service of the Building Order. The Building Order specified that the demolition work must be carried out in accordance with a structural engineer’s direction and reconstruction and repair work must be carried out in accordance with a building permit.
  2. The Informant gave evidence that on 27 November 2013 he received another letter from Allied Building Services Pty Ltd. In that letter, Trevor Miles, Building Surveyor, states that he had been appointed to act as a Private Building Surveyor for the retaining wall project at the Property. The Informant said he believed as a result of that letter that the Accused was going to obtain a building permit. He said he felt more positive about the possible outcome, but the receipt of the document did not affect the validity of the Building Order and that the period of time for compliance with the Building Order remained unchanged.
  3. Upon notification that further works had been undertaken at the Property, the Informant arranged another inspection. He and Essing attended the property on 30 January 2014 and observed a substantial increase in the retaining wall to the north side of the shed and extended along the boundary. The heights of the retaining walls were measured to be in excess of one metre, and measured between 1.8 and 2.1 metres. The Informant said that he formed the opinion that the Accused had failed to comply with the Building Order issued by him on 13 November 2013. Photographs were tendered which evidence significant additional building work had been undertaken on the wall compared with the first inspection which took place on 5 April 2013. The Informant estimated that compared to the first inspection an additional 30 to 50 metres in length had been added to the wall, as well as the addition of many more horizontal poles. He also noted structural concerns including soil spillage between the poles.
  4. The Informant gave evidence that he believed that the Accused had also made an application for a planning permit approval around 19 June 2013, but he did not know whether it was approved. He said although it had no bearing on the enforcement matters, a building permit can only be issued once a planning approval is granted. He said that the Plan of Survey for the Property was shown to him because the planner was seeking assistance as to whether the height of the retaining wall was compliant with the Regulations. The Plan of Survey is prepared by Nobelius Land Surveyors and was submitted to the Council on 10 January 2014.
  5. Using the Plan of Survey, the Informant demonstrated the significant increase to the length of the retaining walls as between the dates of 27 March 2013 (first site visit), 30 January 2014 (second site visit), October 2014 (filing of the Plan of Survey with the Council) and April 2015 (third site visit).
  6. Essing gave evidence that on 30 January 2014 he attended the Property with the Informant. He said the purpose of the inspection was to make observations from the adjoining property as to whether construction of the retaining wall had been stopped. He estimated the height of the wall to be in excess of six metres in height. Although he was not present at the previous inspections, he was of the view that the construction was continuing. He observed that there was corrosion in some of the poles where the concrete had spalled away from the concrete reinforcement exposing the steel. He also noticed soil coming through the fence which in his view posed a structural concern. He said that whilst at that time he did not form the opinion that the wall was dangerous, the works were continuing.
  1. All of this evidence in relation to charge two was uncontested. I am satisfied beyond reasonable doubt that:
    1. a Municipal Building Surveyor served on the Accused a Building Notice dated 8 April 2013, pursuant to section 106 of the Act;
    2. a Municipal Building Surveyor, was of the opinion that:

i.building work had been carried out on the building, land or place without a building permit required by this Act, or in contravention of a building permit or this Act or the Regulations;

    1. The Building Notice required the owner of the building to show cause within 30 days why “the retaining wall constructed approximately to the south and east of the land should not be demolished and reconstructed in accordance with the requirements of a building permit”;

.

    1. The Building Notice was in writing and contained all matters required by the Act and the Regulations;
    2. The Accused, in the manner specified in the Building Notice, made representations to a Municipal Building Surveyor about the matters contained in the Notice, and those representations were considered by a Municipal Building Surveyor;
    3. After the end of the time allowed by the Building Notice for making representations, on 13 November 2013 a Municipal Building Surveyor made Building Order under section 111 of the Act to carry out building work, protection work or other work required by the Regulations or to carry out a program of that work as directed in the order;
    4. Before making the Building Order, the relevant building surveyor considered any representations made by the owner;
    5. The Building Order was in writing and specified the time or times within which the order must be complied with and contained all other matters required by the Regulations;
    6. The Informant, a Municipal Building Surveyor, caused the Building Order to be served on the Accused without delay after it was made.
    7. The Building Order remained in force in that it was not complied with or cancelled by the relevant building surveyor or the Building Appeals Board.
    8. The Accused failed to comply with the Building Order.
  1. Further, I am satisfied beyond reasonable doubt that the Accused knew that he had been served with the Building Order, and failed to comply with the Building Order.

Charges 3 and 4

  1. The Informant gave evidence that in February 2015 he received information from local law officers that further retaining walls were being constructed on the Property. On 21 April 2015 he attended with Essing to view further works that may have occurred. They spoke to the Accused who once again declined to sign a consent form, but verbally consented to their presence at the Property. They did not take any photos because the Accused had refused to provide his consent. The Informant gave evidence of the further changes he observed by reference to the Plan of Survey. He indicated that there had been two further extensions to the wall to the north. He said that he believed that there were further constructions but given the absence of the Accused’s consent to collect evidence, he could not take photographs. He formed the view that there has been a further breach of the Act.
  2. Essing corroborated the Informant’s evidence stating that he attended the Property with the Informant on 21 April 2015. He said the Accused was not willing to sign the relevant consent form. The Accused told them that he did not require a building permit. The Informant told him that their expectation was that a structural engineer would need to certify compliance with the Act and Regulations. By the end of the conversation the Accused appeared willing to comply with that requirement. He said further that the Informant told the Accused they would need to obtain a search warrant given the Accused’s refusal to sign the relevant consent form.
  3. Essing gave evidence that at these inspections, at no time did the Accused to produce a building permit.
  4. On 22 April 2015, Essing spoke to a structural engineer by the name of James Croxford. He could not recall if he called Croxford, or vice versa. He said he believed Croxford was the Accused’s preferred engineer, but he did not know if Croxford was ultimately engaged by the Accused. The substance of that conversation was that Croxford would attend the Property the following day in order to do calculations and check loading requirements, and said that if he was satisfied he would issue a compliance certificate.
  5. The Informant obtained a search warrant pursuant to the Act. On 5 August 2015 he attended the Property with two members of Victoria Police to execute the warrant. The Accused was not present but a work colleague of his was. They handed him the search warrant and the Accused’s colleague provided advice and direction to police and the Council officers. On this occasion the Informant said he was accompanied by Mark Hayward, who was at that time a Council employee. He and Mr Hayward took measurements. The wall was 1.8 to 2.1 metres high. He observed a big pile of concrete poles in the south part of the adjoining yard, which in his view indicated the potential for further building work.
  6. The Informant said that at no time did the Accused inform him that he had obtained a building permit and his enquiries of Council records confirmed that no building permit had been issued or filed during the period of the charges.
  7. In the period after the charges were filed on 28 August 2015, the Accused provided to the Council certification as to compliance with the Act and Regulations from a structural engineer, but that was not until after the first mention on 24 September 2015. The retaining wall is now wholly compliant with the Act and the Regulations.
  8. In relation to charge 3, I am satisfied beyond reasonable doubt that between 5 April 2013 and 30 January 2014:
    1.  On 5 April 2013 a Municipal Building Surveyor made a Building Order that required the Accused as the owner of the Property to stop building work;
    2. The Building Order to Stop Work was made as, in the opinion of the relevant building surveyor, the building work—

(i)contravened the Act or the building regulations; or

(ii)was a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property;

    1. The Building Order to Stop Work was in writing and specified the time or times within which the order must be complied with and contained all other matters required by the Regulations;
    2. The relevant building surveyor caused the Building Order to Stop Work to be served on the Accused without delay after it was made;
    3. The Building Order to Stop Work remained in force in that it was not complied with or cancelled by the relevant building surveyor or the Building Appeals Board;
    4. The Accused was the person to whom the Building Order to Stop Work was directed and between 5 April 2013 and 30 January 2014, the Accused failed to stop the building work.
  1. In relation to charge 4, I am satisfied beyond reasonable doubt that:
    1. On 5 April 2013 a Municipal Building Surveyor made a Building Order that required the Accused as the owner of the Property to stop building work;
    2. The Building Order to Stop Work was made as, in the opinion of the relevant building surveyor, the building work—

(i)contravened the Act or the building regulations; or

(ii)was a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property;

    1. The Building Order to Stop Work was in writing and specified the time or times within which the order must be complied with and contained all other matters required by the Regulations;
    2. The relevant building surveyor caused the Building Order to Stop Work to be served on the person to whom it is directed without delay after it was made;
    3. The Building Order to Stop Work remained in force in that it was not complied with or cancelled by the relevant building surveyor or the Building Appeals Board;
    4. The Accused was the person to whom the Building Order to Stop Work was directed and between 31 October 2014 and 23 February 2015 failed to stop the building work.
  1. Further, in relation to charges 3 and 4, I am satisfied beyond reasonable doubt that the Accused knew that he had been served with a Building Order to Stop Work and that he failed to comply with the Building Order to Stop Work.
  2. I find the charges proven.
  3. I will now hear the parties on the issue of costs.

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

He Kaw Teh v The Queen [1985] HCA 43
Tsolacis v McKinnon [2012] VSC 627
Proudman v Dayman [1941] HCA 28