Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd
[2015] VSCA 356
•14 December 2015, delivered ex tempore
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 notice of contention, the first respondent (‘CES’) contends:
1. the judge incorrectly held that, on an appeal under s 141(a) of the Act the Board has no greater power than the power conferred on the relevant building surveyor by s 87 of the Act;
2. the judge ought to have held that the Board may exercise powers that are not conferred on the relevant building surveyor by s 87 of the Act;[2] and
3. in particular, the Board has power to approve protection works in a form modified from the owner’s original proposal.
[2]CES relies on ss 145, 148(2), 149(1)(c), 149(1)(d), 149(2), 149(4), 155, 161, and cl 12 and 16(3) of Sch 3 of the Act
The facts are well known to the parties and it is not necessary for present purposes to recite them in detail. Suffice to say that CES owns a property in Queen Street that it proposes to re-develop. As part of the redevelopment, the existing building on the property must be demolished. Under the Building Regulations 2006 (‘the Regulations’) works to protect the adjacent building (which is owned by Colonial) must be undertaken before some of the demolition works are carried out. As required by s 84(1) of the Act, a protection work notice was served by CES on the relevant building surveyor and Colonial. The building surveyor’s appointment was terminated and a replacement building surveyor, Mr Leonard, was purportedly appointed. He determined that the proposed protection work was appropriate (‘Leonard Determination’). Colonial appealed to the Building Appeals Board, which is the second respondent. On 30 June 2014, the Board made its determination (‘Board’s Determination’) and gave reasons for it.[3] The document which it produced was headed ‘DETERMINATION OF THE BUILDING APPEALS BOARD’. The document was then broken up into sections. The first set out identifying information (municipality, address of the property, the names of the parties). There were then sections headed ‘Nature of Appeal’, ‘Determination of the Panel’ and ‘REASONS OF THE PANEL’. Under the heading ‘Determination of the Panel’ the Board wrote:
[3]Colonial Range Pty Ltd v Leonard, Determination of the Building Appeals Board, 18 July 2014.
Determination of the Panel
1.…
2.The Board was not satisfied that the appointment of Mr Leonard as the [relevant building surveyor] for the project was valid.
3. Accordingly the Leonard Determination is quashed.
4.However, the Panel considers that the Board has the jurisdiction to determine the matters regarding —
a.The appropriateness of the protection work determined by the [relevant building surveyor]
b. …
5. The Board therefore finds as follows —
a. The protection work proposed by the owner was not appropriate….
Under the heading ‘REASONS OF THE PANEL’ the Board gave reasons in turn for each of the determinations that it had made. So far as relevant to this application, that part of the document read:
REASONS OF THE PANEL
DETERMINATION 1
…
DETERMINATION 4(a)[4]
25.The Board accepts the views of Mr Landawee that the demolition work was not ‘minor’ and therefore r 607 applies.
26.Whilst these provisions relate to ‘precautionary measures’ rather than protection of adjoining property, there is clear overlap between these requirements and it is considered inappropriate to determine the appropriateness of protection work measures when compliance with precautionary measures (specifically Australian Standards 2601-2001: The demolition of structures) had not been established.
27.The owner submitted that vibration during the demolition process could be monitored to limit the impact of cracking causing debris to fall into the street. The approach was to monitor the vibration and when it exceeded certain criteria create an alarm to workers to cease work.
28.Whilst this process does provide a means of limiting most damage, it does not deal with the possibility of a large piece of material or equipment being accidentally dropped on the structure, causing an extraordinary and unexpected vibration. In such a case, due to the fragile nature of the adjoining property, damage is certainly possible, if not likely.
29.The Board therefore considers monitoring of vibration on the adjoining property is not sufficient to protect the adjoining building from damage, or the public.
30.Therefore the façade of 140 Queen Street should be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the façade from impacting onto the street below.
[4]It appears these reasons in part relate to determination 5(a).
CES sought judicial review of the Board’s Determination so far as it concerned the validity of Mr Leonard’s appointment as building surveyor and the quashing of his determination. The judge ordered that a number of preliminary questions (the ‘Initial Questions’) be determined as a separate trial under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005. In answering the Initial Questions, his Honour observed that in the Board’s Determination, the matters addressed under the heading ‘Determination of the Panel’, and the matters addressed under the heading ‘REASONS OF THE PANEL’, were ‘to some extent rolled together to comprise a determination made under section [149(1)] of the Act.’[5] His Honour concluded that the Board’s Determination ‘substituted the determination of Mr Leonard that was the subject of that appeal with its own determination.’[6]
[5]CES-Queen (Vic) Pty Ltd v Thomas [2014] VSC 602 [117].
[6]Ibid [125].
The judge ordered that there be another preliminary question as to the effect of the Board’s Determination. At the same time, CES filed a further amended originating motion seeking a declaration that the Board’s Determination ‘substituted the [Leonard Determination] with its own determination, requiring all the ‘proposed protection works’ defined in the Leonard Determination and in addition requiring that the facade of 140 Queen Street be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the facade from impacting onto the street below.’ The judge heard the application for a declaration and the preliminary question together. He declined to make the declaration.[7] He said:
[7]CES-Queen (Vic) Pty Ltd v Thomas (No 2) [2015] VSC 120.
In my opinion, it is likely that the Board by its determination intended to not only quash Mr Leonard’s determination, but it also intended to substitute its own determination for that of Mr Leonard.
It was also likely that the Board intended that its substituted determination consisted of the whole of Mr Leonard’s determination but with the addition of the Board’s own formulation found in paragraph 30 of its determination, namely:
30.Therefore the facade of 140 Queen Street should be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the facade from impacting onto the street below.
This was the likely intention of the Board, inferred from parts of the text of its determination which tend to point in this direction.
As earlier observed, the Board said this in its determination:
4.However, the Panel considers that the Board has the jurisdiction to determine the matters regarding:
(a)the appropriateness of the protection work determined by the [relevant building surveyor]
It then proceeded to provide reasons for the above paragraph 4(a) of its determination, which have been earlier noted.
The Board specifically noted in its reasons at paragraph 30:
30.Therefore the facade of 140 Queen Street should be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the facade from impacting onto the street below.
However, in its determination the Board also said things which cast some doubt as to what its intention actually was, particularly where it said, without qualification or addition:
5. The Board therefore finds as follows:
a.the protection work proposed by the owner was not appropriate,
There is a level of uncertainty in the expression of its determination as to what the Board actually intended to do. The following alternatives are open:
(a)Either the Board merely intended to quash the Leonard determination without more; or
(b)the Board intended to quash the Leonard determination and substitute its own decision which consisted of the Leonard determination, but with the addition of a requirement that the facade of 140 Queen Street should be provided with a hoarding or fan guard, or the like, to prevent any demolition debris or loose parts of the facade from impacting onto the street below.
By reason of the uncertainty as to the meaning and effect of the Board’s Determination, and the gravity of the consequences which may flow from it, at least for the present, I decline to grant the declaration sought by the Plaintiff, CES-Queen. [8]
[8]Ibid [47]–[55] (emphasis in original).
The judge referred to powers of the Board which he was of the view might be used to clarify what he saw as the uncertainty in the Board’s Determination and made orders facilitating a further application to the Board.
The Board refused an application to exercise those powers.[9] The parties then returned to the Court seeking final orders in the judicial review proceedings, which it will be remembered had been brought by CES. Relevantly, CES sought orders quashing the Board’s Determination and remitting the matter to the Board for it to be reheard in accordance with law. Colonial contended that the judicial review proceedings should simply be dismissed.
[9]Colonial Range Pty Ltd v Leonard, Preliminary Decision of the Building Appeals Board 11 August 2015.
So far as is relevant to ground 2 of the appeal to this Court, the judge held that the Board’s Determination was uncertain.[10] He said:
[10]CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd [2015] VSC 564 (‘Reasons’).
The power which the Board purported to exercise in this case in determining the Protection Work Appeal was that provided by s 149(1) of the Act, namely once it is seized of such an appeal:
(1)The Building Appeals Board must consider and determine an appeal and by its determination may —
(a) affirm the decision under appeal; or
(b) quash the decision under appeal; or
(c) vary the decision under appeal; or
(d) set the decision under appeal aside and —
(i) substitute its own decision; or
(ii)remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.
The particular uncertainty arising from the Board’s approach to determining the Protection Work Appeal in this case was the uncertainty as to what head of power, if any, the board was purporting to act under in making the statement in paragraph 30 of its determination. Either the Board, as Colonial Range contended, merely quashed the decision of the relevant building surveyor which was under appeal pursuant to s 149(1)(b), or it set the decision under appeal aside and substituted its own decision, which included the Additional Leonard Plus Protection Work Determination, pursuant to s 149(1)(d)(i).
In my opinion, the making of a valid determination by the Board under s 149 carries with it the obligation to specify with reasonable precision what it is that the Board has actually determined in relation to appropriate protection works.[11]
[11]Ibid [91]–[93].
The judge held that the Board had failed in its duty because, in his opinion, it had not specified what it had actually determined in relation to appropriate protection works.[12] His Honour held that the Board had failed to exercise the jurisdiction which the legislation conferred on it.[13] He declared the Board’s Determination void and remitted the matter to the Board for rehearing.[14]
[12]Ibid [97].
[13]Ibid [98].
[14]Orders 14 October 2015.
It is from these orders that Colonial seeks leave to appeal. There is no dispute his Honour identified the relevant head of statutory power. Colonial submitted however that the Board’s Determination was not uncertain. It contended that all that was required was that the Board’s Determination was intelligible (in the sense that it was capable of being ascribed a meaning). Alternatively, Colonial contended that provided the Board’s Determination was reasonably clear in its terms, that sufficed. On the other hand, CES submitted that the Board’s Determination must be as clear as a court order.
CES submitted that here, the Court must construe the document produced by the Board as a whole. It contended that it would be wrong to compartmentalise the various sections of the document with one part to be the determination and the other the reasons. It argued that [30] was capable of being read as a direction by the Board under cl 16(3) of sch 3 of the Act. That provides that a determination of the Board may include any other incidental order or direction that the Board considers is necessary. So, CES contended, paragraph 4(a) and [30] of the Board’s document were capable of being construed as its determination. CES submitted that the consequence of this was that uncertainty and confusion were created.
CES also submitted that the Board itself had found that its determination made in June 2014 was uncertain. It referred to passages[15] in the Board’s reasons given in August 2015 for determining that it would not exercise powers under the slip rule[16] or to make an ancillary or incidental order[17] to amend or correct its earlier determination by the addition of a paragraph as follows:
6.The appropriate protection works are determined to be those described in the Leonard Determination with the addition of a requirement that the façade of 140 Queen Street should be provided with a hoarding or fan guard or the like to prevent any demolition debris or loose parts of the façade from impacting on the street below.
[15]Colonial Range Pty Ltd v Leonard, Preliminary Decision of the Building Appeals Board 11 August 2015 [24], [25] [27], [33]ff.
[16]Clause 18 of sch 3 of the Act.
[17]Section 149(4) of the Act.
Save for the chairperson, we note that the Board was differently constituted on the second occasion in August 2015 from that which made the determination in June 2014.
In our opinion, the judge misconstrued the Board’s Determination. There was no uncertainty. We have come to this view no matter which of the tests propounded by the parties is applied.
So far as relevant to this appeal, the Board’s Determination was contained in paragraphs 4(a) and 5(a) under the heading ‘Determination of the Panel’ in the document that it produced and to which we have previously referred. That is, the Board’s Determination was that it had jurisdiction to determine matters regarding the appropriateness of the protection works determined by the relevant building surveyor and that in exercising this jurisdiction it found the protection works proposed by CES were not appropriate. It was exercising power under s 149(1) of the Act to set the decision of Mr Leonard aside and to substitute its own decision (that the protection works were not appropriate).
His Honour did not address this as a possibility when he considered what he saw as ‘the level of uncertainty in the expression of its determination as to what the Board actually intended to do.’[18] The alternatives that he saw were either that the decision was simply one quashing the Leonard Determination or that in addition, it substituted its own decision which consisted of the Leonard Determination with additional requirements. However, the judge’s second alternative moves beyond the actual determination made by the Board in 4(a) and 5(a) and draws on what appears in [30] of the document. The difficulty with this approach is that what appears in [25]–[30] is simply the reasons for the determination. They appear under the heading ‘REASONS OF THE PANEL.’ At this point of the document, the numbering of the paragraphs re-starts which also supports the view that the determination and the reasons are separate. In short, the ‘Reasons’ are simply that. They are not part of the determination.
[18]Reasons [92].
Even if (which in our opinion is most unlikely) [30] was capable of being read as a direction by the Board such that that paragraph together with 4(a) were capable of forming the relevant part of the Board’s determination, that is not the test. The test is whether the Board’s Determination was uncertain. Properly construed, no part of the Board’s Determination was contained in the section of the document headed as reasons and no uncertainty or confusion was created.
That the Board’s Determination was to set aside the Leonard Determination and to substitute its own decision (limited to a decision that the protection works were not appropriate) is borne out not only by the structure of the document, but by the reasons themselves. First, [26] of the reasons refers to reg 607 of the Regulations. It provides:
Demolition
(1)Precautions must be taken before and during demolition in accordance with AS 2601–2001 The demolition of structures, published 13 September 2001, as published from time to time and the following—
(a)the demolition must not be commenced until the precautionary measures have been inspected and approved by the relevant building surveyor; and
(b)no part of any external wall on or within 3m of a street alignment may be pulled down except during the hours that the relevant building surveyor directs; and
(c)protective outriggers must be installed where necessary to guard against danger to life or property or when required by the relevant building surveyor; and
(d)the site must be cleared of all debris.
(2)The relevant building surveyor may exempt minor demolition work from the requirements of sub-regulation (1) if the relevant building surveyor is of the opinion that the nature of the demolition work does not warrant those measures.
In its reasons at [26], the Board noted that when compliance with the requirements of this regulation had not been established, the protection works contained in the Leonard Determination could not be categorised as appropriate. In short, the Board took the view that it would be premature to determine whether the works were appropriate or not. In those circumstances, it would be inherently unlikely that some four paragraphs later in its reasons, it would substitute a decision that the Leonard Determination with additional requirements constituted appropriate protection work.
Secondly, from the language which it used, the Board could not be taken to have intended that [30] of its reasons formed part of its determination with the effect that appropriate protection works to be undertaken would be those specified in the Leonard Determination with additional requirements. The Board’s statement in [30] as to ‘a hoarding, or fan guard, or the like’ is no more than a statement of what should be done in principle. It does not specify precautions, it simply states the nature of appropriate works that might be undertaken.
In particular, this is borne out by the use of the words ‘or the like.’ They are words of a very general and broad character. The lack of specificity by a specialist board as to what works were required in a field that involves safety and protection of property and which has complex and detailed regulations is not what would be expected if the Board did intend to substitute a decision for that of Mr Leonard that the works were appropriate if additional measures were taken. The Board’s Determination does not specify the work in the way which would be required to comply with the Regulations which govern the content of building permit applications.[19] Paragraph [30] does not contain a direction which specifies requirements which provide for certainty of obligation or compliance.[20]
[19]Regulation 304(1)(d).
[20]Television Corporation Ltd v Commonwealth (1963) 109 CLR 59, 69–70 (Kitto J).
Paragraphs [27]–[30] of the Board’s reasons deal with regs 602 and 604. Those regulations respectively concern protection of the adjoining property and protection of the public. Regulation 604(4) provides:
The report and consent of the relevant council must be obtained to an application for a building permit relating to the erection of precautions over the street alignment unless a local law requires the taking of precautions and the precautions comply with the local law.
Consequently, so far as the works to be undertaken by CES involve work above the street, it will need to comply with this regulation including by obtaining the consent of the council.[21] This is consistent with our view that what appeared in [30] of the Board’s reasons was no more than a passing comment about what type of additional work would likely be necessary to make the protection works appropriate.
[21]See also the Act sch 2 cl 4 and the Regulations reg 308 and sch 4 pt 2 item 27.
There are two answers to the contention of CES that the Board itself subsequently found its determination to be uncertain. First, it is for the Court to determine the question having regard to the document itself. Secondly, whilst the Board accepted that it was possible to read the determination in different ways, the Board ultimately did not agree with the judge. It said:
The Board considered the opinion of Justice Vickery that ‘it is likely that the Board by its determination intended to not only quash Mr Leonard’s determination but it also intended to substitute its own determination for that of Mr Leonard.’ The Board respectfully comes to a different conclusion, based on its analysis of the … Determination.’[22]
[22]Colonial Range Pty Ltd v Leonard, Preliminary Decision of the Building Appeals Board 11 August 2015 [37].
For these reasons, the application for leave should be granted with respect to ground 2 and the appeal allowed. In those circumstances, it is unnecessary to determine ground 1 or the matters raised by the notice of contention.
Before concluding, the Court wishes to make some additional observations. The Court was requested to provide an urgent hearing largely because of the time the underlying dispute has taken and the ongoing holding costs of the applicant. Putting to one side those costs, we expedited the matter because of the time factor. Without being critical of the trial judge, we are puzzled as to why this matter has had multiple hearings to determine multiple or successive preliminary questions rather than proceed to trial. That said, we do not know the full procedural history and why the preliminary question approach was adopted. Nonetheless it seemed to us desirable for this Court to hear and determine the matter as rapidly as the Court’s workload would allow in order to progress the proceeding, at least to some extent (being mindful of all parties’ obligations under the Civil Procedure Act 2010).
Orders 2 and 3 made 14 October 2015 should be set aside. We will hear the parties as to the precise form of orders to be made as a consequence.
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