Colonial Range v CES-Queen (BAB4 - Protection Works) - [2017] VSC 317

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 2491

COLONIAL RANGE PTY LTD (ACN 070 855 220)	Plaintiff
v
CES-QUEEN (VIC) PTY LTD (ACN 153 232 663)	First Defendant
ARI AKRITIDIS (in his capacity as relevant building surveyor)	Second Defendant
THE BUILDING APPEALS BOARD (constituted by a Panel comprising Stephen Lodge, Rebecca Cameron and Joe Zita)	Third Defendant
GERARD COUTTS (in his capacity as Chairperson of the Building Appeals Board)	Fourth Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	13-15 September 2016
DATE OF JUDGMENT:	5 June 2017
CASE MAY BE CITED AS:	Colonial Range v CES-Queen (BAB4 – Protection Works)
MEDIUM NEUTRAL CITATION:	[2017] VSC 317

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JUDICIAL REVIEW – Appeal from the Building Appeals Board – Certiorari sought to quash Building Appeals Board determinations upholding a Building Surveyor’s determinations under s 87 of the Building Act 1993 in relation to protection works proposals – Jurisdictional error – Remitter sought under s 149(1) of Building Act 1993 – Protection works notices under s 84 of the Building Act 1993, invalidated by reason of an earlier notice under s 84 being in train – Error as a consequence of a misconception by the Building Surveyor of his statutory function – Building Regulations 2006 – Building Regulation 607 – Failure by the Building Appeals Board to seriously consider submissions – Alternatively failure to give adequate reasons for rejection of submissions.

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Parties’ submissions:

Opening Submissions:

Plaintiff’s Outline Submissions dated 16 August 2016
First defendant’s Submissions dated 23 August 2016
Third and fourth defendants’ Submissions dated 25 August 2016
Plaintiff’s Reply Submissions dated 8 September 2016

Closing Submissions:

Plaintiff’s Submissions dated 23 September 2016
First defendants’ Submissions dated 3 October 2016
Third & fourth defendants’ Submissions dated 3 October 2016
Plaintiff’s Reply Submission to first defendant dated 10 October 2016
Plaintiff’s Reply Submission to third & fourth defendants dated 10 October 2016

Submissions on Obligation of the Surveyor to give reasons:

Plaintiff’s Submissions dated 2 November 2016
First defendant’s Submissions dated 11 November 2016
Second defendant’s Submissions dated 16 November 2016
Third and fourth defendants’ Submissions dated 11 November 2016
Plaintiff’s Reply to first defendant’s Submission dated 16 November 2016
Plaintiff’s Reply to third and fourth defendants’ Submissions dated 16 November 2016
Plaintiff’s Reply to second defendant’s Submission dated 22 November 2016

Appearances	Counsel	Solicitors
For the Plaintiff	Mr J Pizer QC with Mr N Wood	Norton Gledhill
For the First Defendant	Mr M Roberts QC with Ms C Symons	Moray & Agnew
For the Second Defendant	By letter to the Court dated 12 September 2016 the second defendant advised he submits to the jurisdiction and determination of the Court, save and except he reserves his rights to be heard on the question of costs.	Dandanis & Associates
For the Third and Fourth Defendants	Ms C Harris	Robert Dalton, Victorian Building Authority

TABLE OF CONTENTS

General background.......................................................................................................................... 3

History of the owner’s protection works application..................................................................…

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: [2017] VSC 317
Decision Date: 5 June 2017

CaseChat Overview and Summary

The applicant, Colonial Range, sought to challenge the decisions of the Building Appeals Board (BA Board) which upheld a Building Surveyor's determinations under section 87 of the Building Act 1993 concerning protection works proposals. The BA Board's decisions were based on the Building Surveyor's assessment that certain protection works notices under section 84 of the Act were invalidated by a prior notice. The applicant contended that the BA Board's decisions were flawed due to the Building Surveyor's misunderstanding of his statutory role, and that the BA Board failed to adequately consider the applicant's submissions or provide sufficient reasons for rejecting them. The court was required to determine whether the BA Board had made a jurisdictional error and if the applicant's appeal against the BA Board's decisions should be allowed.

The court considered whether the BA Board had made a jurisdictional error by failing to seriously consider the applicant's submissions or by not providing adequate reasons for rejecting them. It was also necessary to assess whether the BA Board's decisions were influenced by the Building Surveyor's misconception of his statutory function. The court noted that the BA Board's role was to independently review the Building Surveyor's decisions and ensure that they were based on a proper application of the law. The court found that the BA Board had indeed failed to adequately consider the applicant's submissions and had not provided sufficient reasons for rejecting them. Additionally, the court held that the BA Board's decisions were influenced by the Building Surveyor's misunderstanding of his statutory function.

As a result, the court quashed the BA Board's determinations and remitted the matter back to the BA Board for reconsideration. The court emphasised that the BA Board must seriously consider all relevant submissions and provide adequate reasons for its decisions. The court also highlighted the importance of the BA Board ensuring that the Building Surveyor correctly understands his statutory function and applies the law appropriately. The final orders of the court included the quashing of the BA Board's determinations and the remittal of the matter back to the BA Board for reconsideration in accordance with the court's reasons.

Orders