Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd - [2015] VSCA 356

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 00116

COLONIAL RANGE PTY LTD	Applicant
v
CES-QUEEN (VIC) PTY LTD & ANOR	Respondents

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JUDGES:	WARREN CJ, OSBORN and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2015
DATE OF JUDGMENT:	14 December 2015, delivered ex tempore
MEDIUM NEUTRAL CITATION:	[2015] VSCA 356
JUDGMENT APPEALED FROM:	CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd [2015] VSC 564 (Vickery J)

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APPEAL – Judicial review – First respondent proposes to demolish its building – Relevant building surveyor determined first respondent’s proposed protection works to protect appellant’s adjoining building appropriate – Appellant appealed building surveyor’s determination to second respondent – Second respondent made determination in document with various headings including ‘determination of the panel’ and ‘reasons of the panel’ – First respondent sought judicial review of second respondent’s determination – Trial judge concluded matters addressed under headings ‘determination of the panel’ and ‘reasons of the panel’ together comprised a determination under s 149(1) of the Building Act 1993 (Vic) – Trial judge declared second respondent’s determination uncertain and void – No uncertainty in second respondent’s determination – Determination contained under heading ‘determination of the panel’ – Reasons of the panel not part of the determination – Second respondent validly set aside building surveyor’s determination and substituted its own decision that proposed protection works were not appropriate – Building Act 1993 (Vic) ss 84 and 149(1) – Building Regulations 2006 (Vic) regs 602, 604 and 607.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Pizer QC with Mr N Wood	Norton Gledhill
For the First Respondent	Mr P Hanks QC with Mr M Roberts QC and Mr T Clarke	Moray & Agnew
For the Second Respondent	Ms C M Harris	Victorian Building Authority

WARREN CJ
OSBORN JA
FERGUSON JA:

The applicant (‘Colonial’) seeks leave to appeal from orders made by a judge of the Commercial Court on 14 October 2015. There is some urgency in relation to the application as a hearing is scheduled before the Building Appeals Board in two days’ time which may be affected by the outcome of the leave application. Consequently, our reasons for our decision will be brief and we will deal only with the application for leave so far as proposed ground 2 is concerned.[1]
[1]The parties agreed with the Court’s proposition that if the applicant succeeded on ground 2, ground 1 did not require disposition.

For completeness, the grounds of appeal are that the trial judge erred:

1.in construing s 87 of the Building Act 1993 (‘the Act’) as empowering a relevant building surveyor and the Board to ‘determine what would be the appropriate protection works … whether or not the substance of [the] determination was included in the works proposal advanced by an owner;’ and
2.in declaring the Board’s determination to be ‘void’ on the basis that ‘there is a level of uncertainty in the expression of its determination as to what the Board actually intended to do.’

By a…

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.

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Details

Case: [2015] VSCA 356
Decision Date: 14 December 2015, delivered ex tempore

CaseChat Overview and Summary

In the case of Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd, the appellant, Colonial Range, challenged a determination made by the second respondent regarding the demolition of a building proposed by the first respondent. The appellant argued that the second respondent's determination was void for uncertainty and that the first respondent's proposed protection works to safeguard the appellant's adjoining building were appropriate. The dispute was brought before the court to review the decision-making process and the validity of the second respondent's determination.

The primary legal issues before the court involved the interpretation of the Building Act 1993 (Vic) and the Building Regulations 2006 (Vic), particularly sections 84 and 149(1) of the Act, and regulations 602, 604, and 607 of the Regulations. The court needed to ascertain whether the second respondent's determination was uncertain and, if so, whether it was void. Additionally, the court had to determine whether the second respondent correctly substituted its own decision for that of the building surveyor.

The court held that the second respondent's determination was not uncertain, as it was clearly articulated under the heading 'determination of the panel'. The reasons provided by the panel were separate and did not form part of the determination. The court further found that the second respondent had validly exercised its discretion under the Building Act 1993 (Vic) to set aside the building surveyor's determination and substitute its own decision that the proposed protection works were not appropriate. Consequently, the trial judge's conclusion that the second respondent's determination was uncertain and void was incorrect.

The court quashed the decision of the trial judge and dismissed the appellant's application for judicial review. The second respondent's determination was upheld, and the first respondent's proposal to demolish the building proceeded as determined by the second respondent.

Orders