Centurion Australia Investments Pty Ltd v APM Group (Aust) Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0113

CENTURION AUSTRALIA INVESTMENTS PTY LTD (ACN 166 487 118) ATF CENTURION MELBOURNE STUDENT VILLAGE TRUST	Applicant
v
APM GROUP (AUST) PTY LTD (ACN 095 366 546)	Respondent

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JUDGES:	FERGUSON CJ, NIALL and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2023
DATE OF JUDGMENT:	18 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 324
JUDGMENT APPEALED FROM:	[2022] VSC 637 (Stynes J)

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STATUTORY CONSTRUCTION – Residential building used as student accommodation not located within RMIT University – Whether Domestic Building Contracts Regulations 2017, reg 8(b) includes close association or connection, or confined to physical location – Judge’s consideration of Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 went no further than providing an example – ‘At’ can have a variety of meanings – Preposition particularly vulnerable to context – Point of connection not confined to physical location – No error in application of reg 8(b) – Leave to appeal granted – Appeal dismissed.

STATUTORY CONSTRUCTION – Judge said building suitable for permanent habitation and intended to be permanently inhabited residential premises – Whether building work comprises the construction of a ‘home’ – Judge correct to conclude building intended for permanent habitation.

STATUTORY CONSTRUCTION – Judge determined land zoned for residential purposes – Whether mixed use land zoned for residential purposes – Confine Domestic Building Contracts Act 1995, s 5(1)(e) to land exclusively zoned for residential purposes – Grounds of notice of contention upheld.

WORDS AND PHRASES – ‘at’ – ‘permanent habitation’ – ‘home’ – ‘land zoned for residential purposes’.

Domestic Building Contracts Act 1995, ss 3, 5–6; Domestic Building Contracts Regulations 2017, reg 8(b).

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Counsel
Applicant:		Mr R Andrew KC with Mr AMJ Meagher
Respondent:		Mr RG Craig KC with Mr WJ Stephenson
Solicitors
Applicant:	Colin Biggers & Paisley
Respondent:	Thomson Geer

FERGUSON CJ
NIALL JA
KENNEDY JA:

A building case is pending in the Trial Division, which involves a dispute about the construction or alteration of a residential building used as student accommodation in Flemington. An issue has arisen in the proceeding as to whether the building work that is the subject of the dispute is covered by the Domestic Building Contracts Act 1995 (‘the Act’). That issue was resolved in the negative by way of answers to preliminary questions given by the trial judge.[1]
[1]Supreme Court (General Civil Procedure) Rules2015, O 47.
The applicant (‘Centurion’), who is the owner of the building and wants the Act to apply, contended that the building work is covered by the Act on the basis that:
(a)it constituted the erection or construction of a ‘home’ within the meaning of s 3 of the Act and is therefore caught by s 5(1)(a); and/or alternatively
(b)it was associated with the construction of a building on land that is zoned for residential purposes and is therefore caught by s 5(1)(e).
The judge accepted both propositions but went on to hold that the building work was excluded from the Act because one of the exceptions contained in regulations made under the Act applied to it. The relevant exception was that the premises were intended to be used at a university or other educational institution as accommodation for students or staff and thus fell within the meaning of reg 8(b) of the Domestic Building Contracts Regulations2017 (‘the Regulations’).
Centurion seeks leave to appeal that conclusion.
The respondent (‘APM’), who is the builder, seeks by means of a notice of contention to overturn the judge’s conclusions that the premises are both a home and a building on land zoned residential. The first issue turns on whether the premises are residential premises intended for permanent habitation. The second issue turns on whether land that is zoned for mixed purposes, including purposes that extend beyond residential use, is land zoned for residential purposes. As already mentioned, the judge found that the building satisfied both criteria.
For the reasons that follow we would grant leave to appeal but dismiss the appeal. Although strictly not necessary to do so, we have also considered the notice of contention. We would reject grounds 1(a) and (b) but uphold grounds 1(c) and (d).

The facts

As may be expected for the hearing of preliminary questions, the relevant facts are not in dispute.
In or around 2004, two developer companies converted former hotel premises in Flemington Road, North Melbourne, into student accommodation premises. In 2005, the developers of the premises entered into a Student Accommodation Agreement with RMIT University.
Recitals D to F of the Student Accommodation Agreement record:
D.The Owner and the University have agreed to enter into this Agreement pursuant to which the Village will be affiliated with the University to provide accommodation for Students and the parties will co-operate in relation to the operation and marketing of the Village.
E.The University is to be given priority rights for its Students to occupy the Village from 20 January 2005 but the University has no obligation to guarantee any level of usage of the Village.
F.The University has agreed to grant to the Owner a licence to use the Trade Marks in relation to the operation and marketing of the Village on the terms of this Agreement.
‘Student’ was defined to mean ‘any student, academic, or employee’ of RMIT. In broad terms, the ‘Trade Marks’ are ‘RMIT’ or similar. ‘RMIT Village’ is one of the trademarks.
Clause 2.1 of the Student Accommodation Agreement set out the objectives of the agreement, which the parties agreed would inform their respective obligations. Those objectives were:
(a)to make reasonably priced, clean and safe accommodation available for Students in a vibrant and supportive community environment on a priority basis;
(b)to promote the efficient and effective management of the Village; and
(c)to maintain a strong affiliation between the University and the Village to enable these objectives to be achieved.
As part of its obligations, RMIT agreed to identify the Village as a housing option in relevant promotions and publicity; refer any enquiry of a potential student who seeks accommodation to the operator fairly and equitably between the Village and any other facility; and maintain its affiliation with the Village to any extent required by the agreement.
Pursuant to a license in that agreement, the premises also became known as ‘RMIT Village’.
In 2014 Centurion purchased ‘RMIT Village’. The Student Accommodation Agreement was accordingly novated from the previous developers to Centurion. Centurion agreed to reserve a number of rooms for students of RMIT, and RMIT agreed to assist in the marketing of RMIT Village to its students by various means including by promoting RMIT Village as an accommodation option in its publications and via a link in its website to RMIT Village’s website.
Under the Student Accommodation Agreement, RMIT University reserved some rooms for its students. At the same time, the then operators of the premises rented other rooms to students from other universities or tertiary institutions.
The RMIT Village was within approximately four minutes’ walk to the University of Melbourne, 15 minutes’ walk to RMIT University (a distance of approximately one kilometre), 18 minutes’ walk to the William Angliss Institute, 10 minutes’ tram ride to Monash University Parkville Campus and a relatively short trip to other universities and tertiary institutions in and around the Melbourne CBD.

The planning scheme context

The RMIT Village was constructed on a mixed-use zone under the Melbourne Planning Scheme. In or around late 2015, Centurion applied for a planning permit to develop two existing buildings (Building A and Building B) forming part of RMIT Village (‘the Project’). The building works included the construction of an additional two levels on top of Building A, and the demolition of Building B and the construction of a new 12-storey building in its place. The primary purpose of the development was to increase the size of RMIT Village by adding an additional 147 beds.
A planning permit was subsequently issued on 14 July 2016 (‘the Planning Permit’). Condition 5 of the Planning Permit required Centurion to enter into an agreement with the Responsible Authority pursuant to s 173 of the Planning and Environment Act 1987 that would include the following terms:
The accommodation provided on the subject land is to be used for the exclusive accommodation of students enrolled full time at a secondary or tertiary level educational institution and to be vacated within three months of completion of full time studies.
The building to operate at all times in accordance with the Management Plan as required by [a] Condition of this permit to the satisfaction of the Responsible Authority. The Management Plan must establish a set of ‘house rules’ for the use, to be followed thereafter, to the satisfaction of the Responsible Authority. The plan must ensure that a suitably qualified full-time manager with responsibility to oversee student behaviour permanently resides on the site and must detail the maintenance, cleaning, garbage storage and collection, supervision, and security of the site.
Centurion later provided APM with a Preliminary Regulatory Report prepared by the building surveyor for the Project, the McKenzie Group. The Preliminary Regulatory Report identified that the residential component of the building was classified as a class 3 building for the purposes of the Building Code of Australia. Class 3 denotes ‘a residential building … which is a common place of long term or transient living for a number of unrelated persons’.
On 30 May 2017 Centurion entered into a design and construct building contract with APM to act as head contractor for the Project (‘the Building Contract’). The Building Contract was amended for compliance with the Act prior to execution. Page 10 of the Building Contract constituted a warning that the price of the Building Contract was not fixed but subject to change.
As described in the town planning drawings:[2]
(a)levels 1 and 2 largely comprised studio apartments including kitchenettes, bathroom facilities, and an area to serve as both a bedroom and living area; a communal area providing for a student hub and quiet study areas; and two multi-bed units with kitchenettes and two bathrooms; and
(b)levels 3 to 11 comprised studio apartments including a bedroom area, kitchenette and bathroom; a multi-bed unit with its own kitchenette and two bathrooms; and a one-bedroom apartment with kitchenette and bathroom.
[2]Which became the architectural drawings and incorporated into the Building Contract: APM Group (Aust) Pty Ltd v Centurion Australia Investments Pty Ltd [2022] VSC 637, [52] (‘Reasons’).
At the time of entering into the Building Contract, the composition of the students living in the RMIT Village was: RMIT 67%; University of Melbourne 22%; Australian Catholic University 4%; other 7%. The building works were completed in approximately August 2019.
The Student Accommodation Agreement with RMIT terminated on 31 December 2019 and was not renewed.
The premises have since been known as Dwell Village. RMIT continues to advertise Dwell Village on its website with a link to the Dwell Village website.

The statutory provisions

Section 1 of the Act relevantly provides that the ‘main purposes’ of the Act are to regulate contracts for the carrying out of domestic building work, provide for the resolution of domestic building disputes by the Victorian Civil and Administrative Tribunal (‘VCAT’), and require builders carrying out domestic building work to be covered by insurance in relation to that work.
Section 3(1) of the Act defines a ‘domestic building contract’ as ‘a contract to carry out, or to arrange or manage the carrying out of, domestic building work other than a contract between a builder and a sub-contractor’, and defines a ‘major domestic building contract’ as ‘a domestic building contract in which the contract price for the carrying out of domestic building work is more than $5,000 (or any higher amount fixed by the regulations)’.
Section 5 provides that the Act applies to certain specified work being:
(a)work associated with the erection, construction or other building work associated with a ‘home’;[3]
(b)any work associated with the construction or erection of a building—
(i) on land that is zoned for residential purposes under a planning scheme under the Planning and Environment Act1987; and
(ii) in respect of which a building permit is required under the Building Act1993.[4]
[3]The Act, ss 5(1)(a)–(d).
[4]Ibid s 5(1)(e).
A ‘home’ is defined in s 3 to mean:
any residential premises and includes any part of a commercial or industrial premises that is used as a residential premises but does not include—
(a)a caravan within the meaning of the Residential Tenancies Act1997 or any vehicle used as a residence; or
(b) any residence that is not intended for permanent habitation; or
(c) a rooming house within the meaning of the Residential Tenancies Act1997;
(d) a motel, residential club, residential hotel or residential part of licensed premises under the Liquor Control Reform Act1998; or
(e)a nursing home, hospital or accommodation associated with a hospital; or
(f) any residence that the regulations state is not a home for the purposes of this definition;
Section 6 identifies work to which the Act does not apply. Relevantly, it says:
(1) This Act does not apply to the following work—
…
(c) any work in relation to a building intended to be used only for business purposes;
…
(2) This Act or a provision of this Act does not apply to any work that the regulations state is not building work to which this Act or that provision (as the case requires) applies.
Section 16(1) provides that a ‘builder who enters into a domestic building contract must not demand, recover or retain from the building owner an amount of money under the contract in excess of the contract price unless authorised to do so by this Act’, under pain of 100 penalty units.
Section 27(1) provides in substance that a domestic building dispute exists between a builder and a building owner if the latter fails to pay the former any amount due to the former under a domestic building contract by the date it is due. Section 27(2) provides, however, that a building owner may still dispute any matter relating to work carried out under a domestic building contract notwithstanding having paid for the work.
Section 31 provides that a builder must not enter into a major domestic building contract unless the contract contains certain prescribed detail.

The Regulations

Regulation 8 provides:
For the purposes of section 6(2) of the Act, work carried out in relation to any of the following is not building work to which the Act applies—
(a)the official residence of the Governor of Victoria;
(b)     premises that are used or intended to be used at a school, university or other educational or training institution as accommodation for students or staff;
(c) premises that are used or intended to be used as—
(i) a community service established under section 44 of the Children, Youth and Families Act 2005; or
(ii)a community service registered under section 46 of that Act, which is situated on Crown land or land in relation to which the Secretary to the Department of Health and Human Services or the Director of Housing is registered as proprietor; or
(iii)      a remand centre within the meaning of that Act; or
(iv)      a secure welfare service within the meaning of that Act; or
(v)     a youth residential centre within the meaning of that Act; or
(vi)      a youth justice centre within the meaning of that Act;
(d) premises that are used or intended to be used as—
(i) a prison established under section 10 of the Corrections Act 1986; or
(ii) a community corrections centre established under Part 9 of that Act;
(e) premises that are used or intended to be used as—
(i) a residential institution within the meaning of the Disability Act 2006; or
(ii)      a residential treatment facility within the meaning of that Act;

(f) premises that are used or intended to be used to provide accommodation within the Parliamentary reserve within the meaning of the Parliamentary Precincts Act 2001;
(g) a movable unit within the meaning of the Housing Act 1983 that is constructed for Kids Under Cover Inc. that is used or intended to be used to provide accommodation on a non-profit basis.[5]

[5]Emphasis added.

The reasons of the judge

The judge found that the building work was in respect of a ‘home’ and a building that was constructed on land that was zoned residential. By reason of those findings, the Act would apply unless it was excluded by reg 8.

Were the premises a ‘home’?

It was not in dispute that the building work concerned a residential building. The relevant question was whether it was excluded from being a home because it was ‘not intended for permanent habitation’.
The judge took into account dictionary definitions of ‘permanent’ and ‘temporary’ and referred to two authorities,[6] from which she derived the following principles:
(a)‘permanent habitation’ is a reference to future use rather than current use;
(b)the question of whether a premises is ‘intended for permanent habitation’ is to be approached with regard to the design purpose of the premises as determined by the application of objective criteria, including the physical characteristics of the building (ascertained by reference to the design and specification of the relevant works), at the time the contract is entered into; and
(c)whether a structure falls within the definition of a ‘home’ in ss 3 and 5 of the Act, also taking into account the exclusions in s 6, requires the determination, inter alia, of whether that structure is, at the time of entry into the contract, intended to be used as residential premises.[7]
[6]Maclaw No 651 Pty Ltd v HIH Casualty and General Insurance Ltd (1999) 15 VAR 302; [1999] VCAT 24 (‘Maclaw’); H Buildings Pty Ltd v Owners Corporation 1 PS537642N [2017] VSC 802 (‘H Buildings’).
[7]Reasons, [50].
The judge took into account the conditions on the planning permit including that rooms were required to be vacated within three months of completion of full-time studies. She gave that condition some weight but said that the issue was whether the residential premises are intended to be permanently inhabited. It is not concerned with the actual length of stay of any particular occupant.
The judge concluded:
Having regard to the design purpose of the Premises, it is plain that it was suitable for permanent habitation and that it was intended to be a permanently inhabited residential premises. To put it another way, there is no evidence to suggest that it was intended to be used as a residential premises for only a temporary period and then used, say, as a business premises thereafter.[8]

Were the premises a building on land zoned residential?

[8]Ibid [69].

Having found that the premises were a ‘home’ and fell within s 5(1)(a) of the Act, it was unnecessary for the judge to determine whether the building work was work associated with the construction or erection of a building on land that is zoned for residential purposes under a planning scheme and thus caught by s 5(1)(e). The judge did however determine that question and resolved it in the affirmative, providing an additional basis on which the building work might come within the Act.

In reaching that conclusion, the judge referred to and applied two decisions of the Trial Division.[9] Essentially, the judge adopted the approach taken by Byrne J in Fletcher, which asks whether the principal or predominant purpose of the relevant zone is residential use. Applying Piastrino, the judge held that these criteria will be satisfied where the land is a ‘residential zone’ within the meaning of the Victorian Planning Provisions (‘the VPPs’). In effect the judge read the decisions in Fletcher and Piastrino together and concluded that the land was located in a residential zone as defined and provided for in the VPPs and therefore land ‘zoned for residential purposes under a planning scheme’ for the purpose of s 5(1)(e).[10]

Was the building excluded from the Act by reg 8?

[9]Fletcher Construction Australia Ltd v Southside Tower Developments Pty Ltd (1996) 11 VAR 1 (‘Fletcher’); Piastrino v Seascape Constructions Pty Ltd (2022) 67 VR 70; [2022] VSC 202 (‘Piastrino’).

[10]Reasons, [99].

The judge held that the building dispute concerned premises that were intended to be used at a school, university or other educational or training institution as accommodation for students or staff and therefore came within the exception in reg 8(b).
A critical issue before the judge was the meaning to be given to the preposition ‘at’ within reg 8. Centurion had contended that in its ordinary usage ‘at’ meant location, whereas APM contended that it was capable of conveying a broader connection than location.
The judge referred to various dictionary definitions of ‘at’ and attempted to distil the purpose of the regulation in the context of the Act. Ultimately the judge concluded that having regard to text and purpose, a more harmonious construction is achieved by a ‘broader definition requiring a close association or connection between the accommodation in question and the educational institution’.[11] In assessing the degree of connection, physical proximity was relevant, but there was no requirement that the accommodation be located within the educational institution. In reaching that conclusion the judge was influenced by the fact that ss 5 and 6 of the Act were directed to the character of the building and its intended use rather than its location.[12]
[11]Ibid [129].
[12]Ibid [124]–[125].
The judge referred to, and said she was assisted by, the decision of the Full Court of the Federal Court in Collector of Customs (Tas) v Flinders Island Community Association.[13] As described by the judge, in that case, APM operated a generator which supplied electricity to nearby houses located on a housing estate for the occupation of members of an Aboriginal community. The Court was required to determine if APM was entitled to a rebate on fuel under s 164(1)(b) of the Customs Act 1901 (Cth). The rebate was payable on fuel purchased for use ‘at residential premises’ to meet the domestic requirements of residents of the premises. The generator was located outside the curtilage of the houses supplied by the generator. It was argued that it was critical to a claim for a rebate that the actual consumption of the fuel, its ‘use’, had to be upon land which could properly be described as residential premises; that is, within the curtilage of one of the houses.
[13](1985) 7 FCR 205 (‘Collector of Customs’).
After noting that the word ‘at’ was a word of flexible meaning dependent on context and subject matter, the Court held that the word ‘at’ as it appeared in s 164(1)(b) should be taken to require a close connection between the use and the residential premises, but not use within the residential premises. It held that what constitutes a sufficiently close connection must depend on the circumstances of the particular case. The Court noted that the policy evinced by the legislation was for a rebate to be given in respect of using fuel for the generation of electricity for domestic purposes, as contrasted with the generation of electricity by a commercial or local government supplier, for example. The Court concluded that it is consistent with that policy, and the use of the word ‘at’, that the generation takes place in physical proximity to the supplied houses and that the resultant electricity be used only at premises falling within the definition of ‘residential premises’.
The judge regarded the broader construction as being consistent with ordinary usage, and reflected the clear intention of reg 8(b) to exclude building works in relation to student accommodation from the operation of the Act. The judge noted that reg 8(b) ‘properly directs attention to the character of the building work and the intended purpose of the premises (i.e., whether it is intended to be used as accommodation for students or staff), rather than its relative location’.[14]
[14]Reasons, [129(c)].
Adopting an evaluative approach, the judge contended that the premises fell within the regulation. She said:
(a) There was a student accommodation agreement made between the previous developer and RMIT (‘RMIT Agreement’). The recitals to the RMIT Agreement record, amongst other things, that:
(i) the previous developer and RMIT had agreed to enter into this agreement ‘pursuant to which the [RMIT] Village will be affiliated with the University to provide accommodation for [students, academics or employees of RMIT] and the parties will co-operate in relation to the operation and marketing of the Village’; and
(ii) RMIT would be given priority rights for its students, academics or employees to occupy the Village although RMIT had no obligation to guarantee any level of usage of the Village;
(b) The parties to the RMIT Agreement agreed, amongst other things, that:
(i) the objectives of the RMIT Agreement were to make reasonably priced, clean and safe accommodation available for students, academics or employees of RMIT on a priority basis; to promote the efficient and effective management of the Village; and to maintain a strong affiliation between RMIT and the Village to enable the objectives to be achieved;
(ii) RMIT would assist in the marketing of the Village to its students, academics or employees; and
(iii)the previous developer would offer a number of scholarships to students of RMIT with whom it entered into a residential agreement;
(c) The RMIT Agreement was varied and then novated from the previous developer to Centurion prior to its entry into the [Building Contract]. Therefore, at the time of the [Building Contract’s] execution, RMIT University was affiliated with the proposed student accommodation;
(d) Under the RMIT Agreement, the previous developer obtained a licence from RMIT to use the intended business name of ‘RMIT Village on Flemington’. By the time that Centurion purchased the land, the business name being used for the Premises was ‘RMIT Village’;
(e) There is physical proximity between the student accommodation and RMIT University (it is approximately a 15 minute walk to RMIT’s main campus).[15]
[15]Ibid [130] (citations omitted).

The grounds of appeal

It is convenient to deal first with Centurion’s proposed grounds of appeal before addressing the notice of contention.
Centurion’s grounds of appeal are in the following terms:
The judge erred in finding that the construction of reg 8(b) includes a close association or connection between the accommodation in question and the education institution.
The judge should have found that the exemption only applies to premises at a university or other educational institution.
For convenience the text of reg 8(b) is reproduced again:
(b) premises that are used or intended to be used at a school, university or other educational or training institution as accommodation for students or staff;
Centurion submits that construction begins with the text and, for that reason, it is necessary to first arrive at the grammatical meaning before turning to matters of context and purpose. Grammatically, it is submitted, the subject of the clause is ‘the premises’, which is limited by two defining or qualifying clauses; the first of which is introduced by the preposition ‘at’ and the second by ‘as’.
Centurion accepts that ‘at’ describes a relationship between two things and can have different meanings depending on which best fits the grammatical meaning. Matters of context become relevant if they show that the ordinary or grammatical meaning, which will also be the usual meaning, is to be displaced. Centurion submits that because the subject of the clause is ‘the premises’, which are fixed and immovable, the preposition ‘at’ is used to describe a location or place, rather than some other type of association.

Consideration

There are many cases in the High Court and in intermediate appellate Courts that analyse the process by which courts interpret statutory language.[16] A central precept is that the exercise — which seeks to give meaning to legal text — remains text based, with it often being said that the task must start and finish with the text.[17] That does not mean that a meaning must be attributed to the words before one turns to context. Rather, it serves to emphasise that, with arguably very small exceptions,[18] the construction adopted by a court must be one that the words are capable of bearing. It is not legitimate to discern a purpose or object and attribute a meaning that the words simply cannot convey.
[16]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ), see also 157 [41] (Gageler J), 162–3 [64] (Edelman J); [2018] HCA 55 (‘Miles’). See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases cited at n 105; [2009] HCA 41 (‘Alcan’).
[17]Alcan (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55.
[18]For example, where a Court corrects an obvious drafting mistake (Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182) or implies words into a provision (Taylor v The Owners — Strata Plan No 11564 (2014) 253 CLR 531, 547–9 [35]–[40] (French CJ, Crennan and Bell JJ); [2014] HCA 9 (‘Taylor’)).
Of course, as a matter of human experience which understands the richness of language, words can convey a variety of meanings, some rare or archaic, others commonplace, and yet others technical and understood by a specialist audience. Given that dexterity, context is relevant at every stage of the exercise. Context, broadly understood, is not some fail safe to be deployed to displace the ‘ordinary’ or ‘grammatical’ meaning already arrived at. For that reason, the process of construction is not linear. Rather, it is an iterative process by which the many parts come together to arrive at the legal meaning to be attributed to the text. Those parts are first text but include context: the context provided by the instrument as a whole, its purpose or object, and sometimes extrinsic materials. They also include statutory aids to interpretation, including most importantly the Interpretation of Legislation Act 1984, and the often overlooked but important s 32 of the Charter of Human Rights and Responsibilities Act 2006. They also include conventions or understandings that have evolved over time between the legislature and the courts, one of which is the principle of legality.
Less so now than was once the case, courts have adopted relatively strict approaches that may inform construction of certain kinds of provisions so that, for example, penal provisions or exceptions are construed narrowly. In some cases, it may be appropriate to have regard to the principle of construction that beneficial legislation should be accorded a ‘fair, large and liberal interpretation’, rather than one which is literal or technical.[19]
[19]New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, 255 [32] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 50, quoting IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J), 39 (Gummow J); [1997] HCA 30. See also ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1, 16 [29] (French CJ, Crennan, Kiefel and Keane JJ); [2014] HCA 18.
Very often, it is apparent that a provision or clause can bear more than one meaning. Often one of the potential meanings is broad or expansive, and the other narrow or confined. And the existence of a potential alternative meaning may only be revealed when regard is had to broader issues of construction. What on first blush seems plain may reveal different shades of meaning once context is taken into account. In such cases the controversy concerns which of two or more meanings Parliament intended should apply; a process occasionally described as giving rise to a constructional choice.[20] Of course the use of the word ‘choice’ does not imply some decision to be taken after the process of construction has been undertaken.
[20]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 375 [38] (Gageler J); [2017] HCA 34; Miles (2018) 265 CLR 137; [2018] HCA 55.
Sometimes this process involves reading down so that very general words are confined in their meaning, and in others a very broad or generous reading is adopted.[21] Very often the conclusion, arrived at through a process of construction, is informed by an assessment of the extent to which one or either best gives effect to legislative intent or purpose or which produces the most harmonious result. Self-evidently, if the language is so intractable as to give rise to a single meaning, a departure from that meaning in aid of purpose would involve passing from enlightened construction to reconstruction.[22]
[21]Taylor (2014) 253 CLR 531, 547 [35] (French CJ, Crennan and Bell JJ); [2014] HCA 9.
[22]Zeta Force Pty Ltd v Federal Commissioner of Taxation [1998] FCA 728.
It was common ground that ‘at’ is not necessarily confined to a description of a physical location. In this case, the judge adopted a broader meaning of ‘at’, in the sense that her Honour did not confine it to a physical or geographical location but held that the phrase, as a whole, connoted a broader connection or association between the premises (and its use) and the educational institution.
Centurion does not submit that the judge’s construction was not open as a matter of language, rather it submits that the judge adopted the wrong approach and came to the wrong conclusion. The error in approach was said to involve turning to purpose and other decided cases before arriving at the grammatical meaning of reg 8(b). Centurion was particularly critical of the judge’s treatment of the decision of the Full Court of the Federal Court in Collector of Customs. It submits that the judge commenced her analysis with that decision and treated it as controlling. We disagree. The utility of Collector of Customs for present purposes went no further than providing an example of ‘at’ being used in a broader sense. We do not think the judge treated the decision as having any different role to play.
Turning to the text of reg 8(b), much of the focus was on the meaning to be attributed to the preposition ‘at’. That is understandable given the text of reg 8(b), but the task of construction is not to be undertaken by dividing up a provision or clause into words, giving meaning to those words and reassembling the clause. Moreover, as was recognised by the judge and both parties, ‘at’ can have a variety of meanings and a preposition is particularly susceptible to context. Of course, the choice of a different preposition may fundamentally alter the meaning of a provision; the use of the definite rather than the indefinite article is a common enough example. At its base, ‘at’ is a relational preposition that connects two things. The point of connection is not necessarily one of physical location: ‘I will meet you at the Court; Court starts at 10:30 am’; To give another example, the phrase, ‘The student completed her degree at Monash University’ is readily understood and conveys more than a physical connection between the student and the geographical location of the university.
Centurion was correct to point out that reg 8(b) uses two prepositions: ‘at’ and ‘as’, each of which introduces a limiting clause, and it is the latter that provides a purposive connection and the former must be given some work to do. The requirement in reg 8(b) that the use be ‘at’ a university or school is an important limitation on the regulation. It is not sufficient that the premises be used for student accommodation. The additional requirement supplied by the preposition ‘at’ must be satisfied.
Centurion was also correct to say that a subject of the regulation is ‘the premises’. Centurion makes the good point that where the preposition ‘at’ is used in conjunction with a building or place, it tends to be used to describe a geographic location rather than some other form of association that may be apt where, for example, a relationship with a person and another thing is being described.
That said, first, the preposition must also be considered in this particular context by reference to a ‘university,’ a concept which has a function and identity that extends beyond a geographical location. Second, Centurion’s focus on the premises as the subject of the regulation understates the importance of the use of the premises to the operation of reg 8 as a whole. Syntactically, the clause does not say ‘premises at a university’, rather the clause refers to ‘premises that are used at…’ It is the use of the premises that is an important feature of the text in reg 8(b), and which provides the criterion for its operation. Further, the relevant use in reg 8(b) is ‘as accommodation’ for staff or students. It may be noted that, in the context of an educational or training institution, accommodation is very likely to be an ancillary use rather than a core function. That is relevant because it can, and as a matter of common experience often will, be provided in premises that are not co-located with the institution’s campus. There is obviously less need for accommodation rather than say classrooms or lecture theatres to be on campus.
In seeking to identify or define the premises that are used at a university or school it is useful to consider the perspectives from which the question of use may be considered. Accommodation at a university or school may be used both by the institution itself and by the students or staff. Accommodation is used by students in the sense that they will be the ones who occupy the rooms and use the building for the purpose of accommodation. On the other hand, it may also be said that the premises are used by the university or school in the sense that it makes available or facilitates the provision of housing to its students or staff and does so for its own purposes.
Three related points may be made.
First, Centurion accepted that the regulation may cover premises that are owned, leased or occupied by a university even if the premises are not within the campus. This approach appears to place too much emphasis on legal relationships and treat the Act as if it was intended to cover certain kinds of owners, rather than certain kinds of premises. Nevertheless, the approach clearly acknowledges that a connection beyond geographical location can suffice.
Second, the demarcation of a university campus may not always be clear cut. As we have already highlighted, the identification of a university may be functional rather than legal or geographic. That echoes a point just made that where the institution makes available or facilitates the availability of accommodation to its students or staff, such accommodation may became functionally connected to and identified with the university or school. So for example, it is entirely apt to say that there are a number of residential colleges at Melbourne University including those that are operated on land that is not owned or occupied by that university and which are operated independently of the university administration. This is part of the broader point that identifying the premises at a university that are used by the staff, students and university itself may involve a functional inquiry.

Third, the statutory context is relevant. Section 33(1) of the Royal Melbourne Institute of Technology Act1992 established RMIT as a university with a Council as its governing body. The Council was given powers, amongst other things:
(a)to affiliate with other entities;
(b)for the provision by the Council of accommodation for students and the management and control of any such accommodation;
(c)the arrangement of accommodation for staff and students including the erection or financing of buildings owned by the University or any other person or body; and
(d)the exercising by agreement with the owner or governing body of any hostel, hall or other accommodation not established by the Council of powers of control and management of and in relation to that hostel, hall or other accommodation of powers of control and management of and in relation to that hostel, hall or other accommodation.[23]
[23]Royal Melbourne Institute of Technology Act 1992, ss 33(1)(m), (o), (p) and (q). Similar powers were conferred on other universities: University of Melbourne Act 2009, s 29; Monash University Act 2009, s 29; La Trobe University Act 2009, s 29.
What those provisions, and cognate provisions applying to other universities, show is that it was contemplated by the Parliament that RMIT would have an interest in, including management and control of, accommodation that is not owned or established by the university itself. The Student Accommodation Agreement appears to be an agreement of that kind.
As already observed, the purpose of an Act or provision may assist in resolving questions of constructional choice. Some caution must be exercised, however, in attempting to divine a purpose of the exemption and then use that to control the meaning of the regulation. In that context, Centurion was critical of the judge’s observation that ‘Regulation 8(b) expresses a clear intention that the Act does not apply to building work carried out in relation to student accommodation’.[24] Centurion says that this is not the clear intention and, where the issue is the scope of the regulation to start with, that purpose begs the question.
[24]Reasons, [125].
Plainly the regulation does not capture every premises that are used as student accommodation. Such a broad meaning would apply to many houses located near universities which are regularly leased to students and would give no weight to the requirement that premises be used at a university or other institution. Some relationship between the premises and the university is obviously required by the text of the regulation.
Notably, the Act excludes from the definition of a ‘home’ a rooming house, motel, residential club, residential hotel, nursing home, hospital or accommodation associated with a hospital. Each of those comfortably fits within the definition of residential premises but are excluded by s 5(2). As a class or category, they will often be operated by an organisation or institution, involve some degree of shared facilities and a larger scale than that usually associated with the notion of a ‘home’. Student accommodation, be it a boarding house at a school or college, halls of residence or similar premises associated with a university, will generally have some similar attributes to those premises excluded by s 5(2).
The construction adopted by the judge is therefore consistent with these statutory exclusions from the definition of ‘home’.
The judge was also correct to say that on its face, the engagement of that exclusion does not depend on who owns the land. The location of the premises also does not change the character of the building work or the intended purpose of the premises.
In our respectful opinion, the judge was correct to construe the regulations applying to premises that are used at a university in the sense that the premises have a sufficient connection to the university. We also agree that the point of connection is not limited or confined to the physical location; the regulation does not expressly require that the premises be within the university or school.
Having arrived at her preferred construction, the judge identified the factors that showed that the regulation was satisfied, and the building works thereby excluded from the Act. It was not suggested that there was any error in the judge’s application of her construction, nor could it be.
Thus, in brief, the objectives of the RMIT Agreement were to make reasonably priced, clean and safe accommodation available for students, academics or employees of RMIT on a priority basis; to promote the efficient and effective management of the Village; and to maintain a strong affiliation between RMIT and the Village to enable the objectives to be achieved. The building works were affiliated with RMIT, which conferred a licence to enable it to be called ‘RMIT Village’. RMIT assumed obligations in relation to the marketing of the premises to its students and maintained a degree of control over the occupation of the premises by its students. There was a relatively close physical proximity.
It follows that we would not uphold the appeal.

Notice of contention grounds 1(a) and (b): whether premises not intended for permanent habitation

To reiterate, the judge said that, having regard to the design purpose of the premises, it is plain that it was suitable for permanent habitation and that it was intended to be a permanently inhabited residential premises.[25]

Submissions

[25]Ibid [69].

APM commences its submissions on this issue by pointing to three matters of context that it says are relevant to the construction:
(a)first, the focus of the exemptions is on properties which are ordinarily occupied on a transient basis — thus, by way of example, there is an explicit statutory focus on excluding rooming houses, motels, residential clubs, residential hotels, accommodation associated with hospitals, nursing homes etc.;
(b)second, para (b) is general in its language and must be given work to do in addition to, and in the context of, the more specific exemptions; and
(c)the words ‘is not intended’ in the statutory language in para (b) require the identification of a state of mind.
It notes that the planning permit required occupants to ‘[vacate the premises] within three months of completion of full-time studies’, meaning that any stay at the property necessarily had a temporal limit that was inconsistent with permanent habitation in the sense of use by occupants as an ‘enduring’ or ‘indefinite’ place of habitation — but instead to be occupied by a transient population of students.
Centurion submits that by focusing on the nature of the physical structure, the judge effectively substituted the statutory words ‘intended for’ with ‘suitable for’ and directed attention to the physical characteristics of the building (i.e. can it be occupied permanently) rather than an enquiry which required consideration of the objectively discerned intention (i.e. is it intended to be occupied by its occupants permanently).
APM submits that the carve-out excludes properties intended to be occupied by a transient set of persons, such as students occupying rooms or units for the purposes and duration of their studies.

Consideration

In Maclaw, an early decision under the Act, Judge Davey, as Deputy President of VCAT, determined various questions of construction relating to the Act. Relevantly for present purposes, Maclaw concerned the question of whether a building intended to be used as serviced apartments was not ‘intended for permanent habitation’.
For reasons of commercial and regulatory certainty, Judge Davey considered that the relevant intent was to be discerned objectively at the time the building contract is entered into, based on the design purpose of the subjective building. Bearing in mind that the Act operates to impart contractual conditions, warranties and insurance in respect of building works to which it applies, Judge Davey considered that it would be unworkable if the operation of the Act depended on the changing subjective intent of the owner from time to time. In so concluding, Judge Davey was influenced by the approach taken by Byrne J in Fletcher as to the need for certainty, and in Port Phillip City Council v Domain Hill Properties Pty Ltd, where Byrne J had said:
In the Macquarie Dictionary, the meaning of ‘residential’ is given as ‘adapted or used for a residence’. In common usage the word in conjunction with ‘building’ refers to the physical characteristics and intended use of the building rather than its actual use.[26]
[26][1998] VSC 35, [12].
Judge Davey concluded that:
I am also of the view that the expression ‘residential premises’ where it appears in the definition of ‘home’ refers only to the design purpose. The question is whether the premises are being built to enable people to reside in it. It matters not whether the subjective intent is for short or long stays.
…
The reference to permanent habitation is not in my view a reference to current use but to future use. The intention is to be derived objectively from the nature of the structure. It is conceded that the premises were built so as to have the potential to be used for permanent habitation.[27]
[27]Maclaw (1999) 15 VAR 302, [23], [25]; [1999] VCAT 24.
This Court refused leave to appeal from the decision of Judge Davey on the basis that the decision was not attended by sufficient doubt to warrant the grant of leave.[28]
[28][1999] VSCA 217.
The approach taken by Byrne J and Judge Davey has been followed in a number of decisions. In H Buildings, Digby J said:
whether a structure falls within the definition of a ‘home’ in ss 3 and 5 of the [Act], also taking into account the exclusions referred to in s 6 of the [Act], necessarily requires the determination, inter alia, of whether, objectively determined, that structure is, by the time of contract for the performance of those works, intended to be used as residential premises. In my view, the intended use is likely to be most reliably ascertained by reference to the proposed buildings’ physical characteristics, in turn ascertained by reference to the design and specification of the relevant works.[29]
[29][2017] VSC 802, [105].
In our opinion that approach is correct.
It is also important to note that the word ‘habitation’ does not carry with it any description about the nature of the legal entitlement to use or occupy the building. It may be contrasted, for example, with the words ‘occupation’ and ‘occupier’, which carry various legal meanings. Rather, it imports a practical test, based on the provision of facilities that sustain ordinary living over time such as sleeping, cooking, dining and ablution facilities within the residential building itself.
The judge was correct to conclude that, by refence to the design feature of the building, it was intended for permanent habitation. All of the features for living within the building on a long-term basis were to be provided.

Notice of contention grounds 1(c) and (d): a building on land zoned residential

The second issue raised by the notice of contention concerns whether the premises fall within s 5(1)(e) of the Act, which provides that the Act applies to:
(e) any work associated with the construction or erection of a building—
(i) on land that is zoned for residential purposes under a planning scheme under the Planning and Environment Act 1987; and
(ii) in respect of which a building permit is required under the Building Act 1993;
APM submits that, in considering the application of s 5(1)(e) to land zoned for mixed use, the approach taken by Byrne J in Fletcher directs attention to the substantial character of the land in question as determined by its principal or predominant use. Conversely, the approach by Delany J in Piastrino disavowed the need for any substantive analysis of the use permitted by a particular zone. Rather the operation of s 5(1)(e) depended solely on the classification of a zone under the structure of a planning scheme. APM submits that these approaches conflict and in purporting to reconcile them, the judge fell into error. In particular, Delany J’s approach in Piastrino reversed the proper approach to statutory construction and erroneously interpreted s 5(1)(e).
APM submits that interpreting s 5(1)(e) broadly to include mixed use zones could significantly broaden the application of the Act to projects that are commercial or industrial in nature. This is anomalous given the Act is concerned with building work of a domestic or residential character. It could also have absurd consequences, leading the Act to apply by operation of s 5(1)(e) regardless of whether any of ss 5(1)(a)–(d) is also satisfied, meaning ss 5(1)(a)–(d) and the carve-outs in the definition of ‘home’ will have very little work to do.
Starting with the text, a number of obvious issues arise. One question is whether the paragraph is confined to work associated with the construction or erection of a building rather than the construction or erection itself. Another is whether a building in para (e) includes a home within paras (a) to (d). Yet another is the meaning of land that is zoned for residential purposes: does it include land that is zoned for multiple uses, one of which is residential? Only the last of these issues is raised by the notice of contention.
The potential operation of s 5(1)(e) has been productive of divergent views. In part it is informed by a bigger picture consideration as to the extent to which the Act covers large scale residential developments or mixed developments, or whether the Act is confined to smaller scale typical residential house construction. In part that debate has centred around the consumer protection purpose of the Act, which may be less suited to larger scale development with either experienced developers or those with a higher appetite for risk.
In his detailed reasons for judgment in H Buildings, Digby J surveyed a number of cases in order to discern the fault lines between the competing views.[30]
[30]Ibid [72]–[93].
Given that it is not strictly necessary to resolve the notice of contention, it is appropriate to confine attention to the issue raised and avoid the temptation to try and resolve the myriad issues that may arise from the very general language of s 5(1)(e). That issue concerns the meaning of the phrase ‘zoned for residential purposes under a planning scheme’.
The question can be reduced to the following: does land zoned for residential purposes include land zoned for purposes that include that purpose? And if so, is there any further qualification, such as that the purpose be the predominant purpose?
Although s 5(1)(e) refers to other legislation, it is important not to invert the process of construction. It would be wrong to see how the Planning and Environment Act 1987 zones land and then try and construe the Act so as to conform to that structure. When Byrne J decided Fletcher, he noted that at that time, there was in fact no zone under any scheme that was, in terms, a ‘zone for residential purposes’, and the planning regime regulated uses, not purposes. In Piastrino, Delany J regarded the form which the planning regime took as an important factor.
It is also relevant to note the different focuses of the two regimes. Regulating land use under planning regimes, generally speaking, regulates areas, not individual properties. On the other hand, the Act is concerned with building on land. It is the particular site, rather than its broader location within an urban regional or rural setting, that is significant.
In our opinion, the reference to zoning in s 5(1)(e) is concerned with what the zone is likely to say, if anything, about the type of building that is erected on it. In the context of a planning regime, the type and range of buildings that may be erected in a mixed use zone will be confined only by the scope of the mixed use. Whether a mixed use zone is, in fact, predominantly occupied by buildings of one or more types of use will often be a product of planning decisions over time and the geographic, topographic and other land use considerations.
It is plain that the overriding focus of the Act is on residential buildings. So much is made clear by the definition of ‘home’ and by the express exclusions in s 6, including buildings used for commercial purposes. In our opinion, s 5(1)(e) should be construed in light of that context, rather than as a means by which the operation of the Act is extended.
In our opinion, the better construction of s 5(1)(e) is to confine it to land that is exclusively zoned for residential purposes. That may include other uses that are incidental to or which are designed to support, a residential zone but would not include zones that allow for non-residential development as an end in itself. That construction gives certainty and avoids the difficult assessment of what is or is not a predominant purpose. Further it places s 5(1)(e) in its proper place as an ancillary or related extension, rather than conferring a wholesale extension that would obliterate the qualifications in the definition of ‘home’.
It may mean that s 5(1)(e) has little practical operation because there are few, if any, residential zones of that kind or because buildings erected in such places are very likely to be caught by the definition of ‘home’ in any event. That is no reason to reject the construction. To the contrary, it gives a more harmonious operation to the Act as a whole.
For that reason the judge erred in finding that land zoned for ‘mixed use’ was land zoned for ‘residential purposes’ for the purposes of s 5(1)(e). If it had been necessary to decide, we would therefore uphold grounds 1(c) and (d) of the notice of contention.

Conclusion

Although we would grant leave to appeal, the appeal should be dismissed.

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[2023] VSCA 324

18 December 2023