CES-Queen (Vic) Pty Ltd v Thomas - [2015] VSC 120

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

No. S CI 2014 03891

CES-QUEEN (VIC) PTY LTD	Plaintiff
v
BRYAN THOMAS AND STEPHEN KIP (SITTING AS BUILDING APPEALS BOARD)	First Defendant
And
COLONIAL RANGE PTY LTD	Second Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 MARCH 2015
DATE OF JUDGMENT:	1 APRIL 2015
JUDGMENT MAY BE CITED AS:	CES-QUEEN (VIC) PTY LTD v THOMAS & ORS
MEDIUM NEUTRAL CITATION:	[2015] VSC 120

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BUILDING – Effect of determination of the Building Appeals Board – Demolition work proposed – Risk to adjoining owner and the public – Whether risk to public relevant in determining appropriate protection works - Appeal to Building Appeals Board from determination of relevant building surveyor - Building Act 1993 ss 84; 85; 87; 141(a); 149; 166; and Schedule 3 - Building Regulations 2006 regs 101; 602; 604 and 607 – Construction of determination of Building Appeals Board – Uncertainty – Ancillary or incidental orders possible under s 149(4) Building Act 1993 – Correction of errors possible under clause 18 of Schedule 3 Building Act 1993.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr PRD Gray QC
Ms E Bennett

Maddocks Solicitors

For the First Defendant

For the Second Defendant

Mr RM Niall SC
Ms C Harris

Mr PH Solomon QC
Mr JM Forrest

Victorian Building Authority

Hoeys Lawyers

HIS HONOUR:

Background

On 13 March 2015 I stated a further question for hearing on 16 March 2015 and determination pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules (2005) (the ‘Rules’). The question set down for determination by the Court on this occasion was:

What is the effect of the determination of the Building Appeals Board (the ‘Board’) dated 30 June 2014, as amended on 18 July 2014 (reference number 446544) (the ‘Board’s Determination’)?

The background facts giving rise to the statement of this question are set out in earlier decisions.[1] By way of summary:

(a) The Plaintiff, CES-Queen (Vic) Pty Ltd (‘CES-Queen’) is the owner of a property situated at 150 Queen Street, Melbourne (‘CES-Queen’s Land’); a planning permit has been issued to build a 71 storey residential tower on CES-Queen’s Land, to be known as ‘Tower Melbourne’; Tower Melbourne cannot be constructed until the existing building at 150 Queen Street has been demolished; building permits have been issued which permit the demolition; as part of a first phase of the demolition works CES-Queen proposes the demolition of the plant and lift motor room on the roof of 150 Queen Street (the ‘Initial Demolition Works’);

(b) The Second Defendant, Colonial Range Pty Ltd (‘Colonial’) is the owner of two adjoining properties known as 140 Queen Street and 21-27 McKillop Street, Melbourne (‘Colonial’s Land’); a planning permit has been issued to build an hotel and retail premises on Colonial’s Land.

[1]Colonial Range Pty Ltd v Victorian Building Authority and Ors [2014] VSC 272; and [2014] VSC 602.

Disputes have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CES-Queen (Vic) Pty Ltd v Thomas

Details

AGLC: CES-Queen (Vic) Pty Ltd v Thomas [2015] VSC 120
Case: [2015] VSC 120
Decision Date: 1 APRIL 2015

CaseChat Overview and Summary

CES-Queen (Vic) Pty Ltd sought to demolish a building and replace it with a new structure. The Building Appeals Board determined that the demolition works required additional protective measures to mitigate risks to an adjoining owner and the public. CES-Queen (Vic) Pty Ltd appealed to the court from the determination of the Building Appeals Board, arguing that the risk to the public was irrelevant in determining the appropriate protective measures required for the demolition. The court was required to determine the scope of the Building Appeals Board's determination, the relevance of risks to the public, and the potential for ancillary or incidental orders.

The court found that the Building Appeals Board's determination was uncertain in its scope and did not clearly specify the protective measures required. The court held that the risk to the public was relevant in determining the appropriate protective measures required for the demolition, as the Building Regulations 2006 require consideration of the risk to the public in approving demolition works. The court found that the Building Appeals Board had the authority to make ancillary or incidental orders under section 149(4) of the Building Act 1993 and to correct errors under clause 18 of Schedule 3 of the Building Act 1993. The court remitted the matter to the Building Appeals Board to clarify its determination and specify the protective measures required for the demolition.

The court ordered that the matter be remitted to the Building Appeals Board to determine the appropriate protective measures required for the demolition, having regard to the risk to the adjoining owner and the public. The court further ordered that the Building Appeals Board consider whether any ancillary or incidental orders are necessary to ensure compliance with the Building Regulations 2006 and to correct any errors in its determination.

Orders