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.................................................................. 4

Extent of hearing before the Board................................................................................................. 6

Relief sought by Colonial................................................................................................................. 6

Colonial’s grounds of appeal........................................................................................................... 8

Ground 1 (No power to affirm the Akritidis determination)................................................. 8
Ground 2 (Misconception of statutory function).................................................................... 10
Ground 3 (Errors relating to Building Regulation 607)........................................................ 10

Relief sought by Colonial............................................................................................................... 13

Reconstitution of the Board....................................................................................................... 13

Ground 1 (No power to affirm the Akritidis determination)................................................... 13

Colonial’s Submissions - Ground 1 (No power to affirm the Akritidis determination).. 13
CES-Queen’s Submissions - Ground 1 (No power to affirm the Akritidis determination) 16

Analysis and conclusions - Ground 1 (No power to affirm the Akritidis determination).. 19

Ground 2 (Misconception of statutory function)....................................................................... 25

Colonial’s Submissions - Ground 2 (Misconception of statutory function)....................... 25
CES-Queen’s Submissions - Ground 2 (Misconception of statutory function).................. 32

Third and Fourth Defendants’ submissions – Ground 2 (Misconception of statutory function) 34

Analysis and conclusions - Ground 2 (Misconception of statutory function)...................... 40

Legislative history............................................................................................................................ 41

The purpose of the Building Act................................................................................................... 44

Legislative scheme........................................................................................................................... 44

The function of the Surveyor under s 87 of the Act............................................................... 44

Principles of statutory construction.............................................................................................. 46

Proper construction of s 87 of the Building Act.......................................................................... 47

Decision in CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd (Orders)............................. 57

The Board’s operation and powers on appeal in relation to s 87(1) of the Building Act – ss 141, 148 and 149 of the Building Act............................................................................................................... 58

CES-Queen submissions (Board’s operation and powers on appeal in relation to s 87(1) of the Building Act – ss 141, 148 and 149 of the Building Act)................................................................. 59

Third and fourth defendants’ submissions (Board’s operation and powers on appeal in relation to s 87(1) of the Building Act – ss 141, 148 and 149 of the Building Act)................................ 62

Colonial’s submissions (Board’s operation and powers on appeal in relation to s 87(1) of the Building Act – ss 141, 148 and 149 of the Building Act)........................................................................ 63

Conclusion (Board’s operation and powers on appeal in relation to s 87(1) of the Building Act – ss 141, 148 and 149 of the Building Act )............................................................................................. 65

Ground 3 (Errors relating to Building Regulation 607)............................................................. 65

Colonial’s submissions - Ground 3 (Errors relating to Building Regulation 607)............ 65
CES-Queen’s Submissions – Ground 3 (Errors relating to Building Regulation 607)...... 73

Procedural issues in relation to Building Regulation 607........................................................ 79

Conclusion – Ground 3 (Errors relating to Building Regulation 607)................................... 81

The Board’s power to deal with Building Regulation 607....................................................... 86

Board’s failure to provide adequate reasons............................................................................... 88

The Building Surveyor’s obligation to give reasons................................................................. 89

Colonial’s submissions (Surveyor’s Reasons)........................................................................ 90
CES-Queen’s submissions (Natural justice)........................................................................... 93

Submissions of the Building Surveyor (the Second Defendant) – Surveyor’s obligation to give reasons........................................................................................................................................................ 97

Third and fourth defendants’ submissions................................................................................ 99

Conclusion – natural justice – Surveyor’s obligation to provide reasons........................... 100

Surveyor’s obligation to give reasons.................................................................................... 100

Relief sought................................................................................................................................... 103

Certiorari.................................................................................................................................... 103

Reconstitution of the Board......................................................................................................... 103

Colonial’s Submission.............................................................................................................. 103
CES-Queen’s Submission......................................................................................................... 104

Conclusion....................................................................................................................................... 104

Relief an remitter....................................................................................................................... 104

Decision............................................................................................................................................ 105

Grounds 1, 2 and 3.................................................................................................................... 105

Orders and costs............................................................................................................................. 105

HIS HONOUR:

General background

The first defendant (CES-Queen) is the registered proprietor of the property situated at 150 Queen Street, Melbourne (the Site). CES-Queen plans to demolish the existing building on the Site and construct a seventy-one storey residential tower known as “Tower Melbourne”.

Under the Building Act 1993 (Building Act), CES-Queen is an “owner” and has certain obligations, including under Part 7 of the Building Act, which prescribes a regime that is to apply in circumstances where “protection work” is required to be carried out in relation to an “adjoining property”. Such “protection work” is directed to the implementation of precautions in respect of an adjoining property before or during the carrying out of building work.

The plaintiff (Colonial) is the registered proprietor of two properties adjoining the Site, being the property at 140 Queen Street, Melbourne and the property at 21-27 McKillop Street (McKillop Street), Melbourne. These properties (Colonial’s properties) are, for the purposes of the Building Act and in particular, Part 7 thereof, “adjoining properties” and Colonial is an “adjoining owner”.

There is another property which constitutes an adjoining property for the purposes of Part 7 of the Building Act situated at 423 Bourke Street Melbourne, however the owner of that property has not taken issue with any of the protection works determinations made by the relevant Building Surveyors.

Tower Melbourne cannot be constructed until the existing building at 150 Queen Street has been demolished. Demolishing that building may cause significant physical damage to Colonial’s properties at Queen Street and McKillop Street, if those properties are not adequately protected.

Pursuant to the protection works regime under the Building Act, a Building Surveyor, Mr Ari Akritidis (Akritidis), who is the second defendant, determined that “protection work” must be provided in respect of Colonial’s properties before and during the planned demolition work. This meant that the “protection work” regime referred to in Part 7 of the Building Act, and the relevant provisions of Part 6 of the Building Regulations 2006 (Building Regulations), were engaged.

The existing building at the Site comprises one basement level, a lower ground floor, a ground floor, 11 upper floors and a two level plant and lift motor room on the roof (the Existing Building).

CES-Queen has completed an internal strip out of the Existing Building. The structural demolition of the Existing Building is yet to be undertaken.

This proceeding concerns determinations made by the Building Surveyor, and more particularly on appeal from the Building Surveyor, by the Building Appeals Board.

History of the owner’s protection works application

Pursuant to s 84 of the Building Act and Building Regulations 602(2) and (3) on 30 December 2014, CES-Queen purported to serve two notices, known as “Form 3” Notices dated 24 December 2014, on Colonial and Akritidis. Those Form 3 Notices set out CES-Queen’s “proposed protection work” for Colonial’s properties, and included the prescribed details of the proposed demolition work, and prescribed details of the nature, location, time and duration of the proposed protection work.[1]
[1] See Building Act 1993, s 84; Building Regulations, reg 602(2).

The pro-forma “Form 3” document (specified in Schedule 2 of the Building Regulations) required to be served by the owner which proposes to build pursuant to s 84 of the Building Act, indicates that, amongst other details, what the owner applicant should specify.

On 5 January 2015, pursuant to s 85 of the Building Act , Colonial served on CES-Queen and Akritidis notices, known as “Form 4” Notices, disagreeing with CES-Queen’s “proposed protection work”.[2]
[2] Ibid s 85; Building Regulations, reg 602(4).

The pro-forma “Form 4” (specified in Schedule 2 of the Building Regulations), indicates that the adjoining owner should, amongst other details, if it disagrees with the proposed protection work, specify its reasons for disagreement. The pro-forma Form 4 document also provides for the adjoining owner to request further information in relation to proposed protection works.

On 4 May 2015 Building Surveyor Akritidis examined the “proposal[s] for protection work” so as to determine, under s 87(1) of the Building Act, the “appropriateness or otherwise” of the proposed protection work (the Akritidis determinations).

Pursuant to s 87 of the Building Act, on 4 May 2015 Akritidis determined what he considered to be the “appropriate” protection work for Colonial’s properties. The protection work so determined was in respects different to the works defined in CES-Queen’s proposal.

Colonial centrally argues that Akritidis, by determining appropriate protection works which were different to the protection works proposed by CES-Queen, thereby, in effect “devise[d] his own” “measures which [he] determine[d] [were] appropriate”.[3]
[3] Cf CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd [2015] VSC 564, [72].

On 18 May 2015, pursuant to s 141(a) of the Building Act (BAB4 appeal) Colonial appealed to the Building Appeals Board (the Board) against the Akritidis determinations of 4 May 2015.

Subsequently, the Chairperson of the Board, the fourth defendant, exercised his power, under clause 8 of Schedule 3 to the Building Act, and determined that the appeal was to be allocated to a specific Panel of the Board constituted by Members Stephen Lodge, Rebecca Cameron and Joe Zita.

On 28 April 2016, the Board (the third defendant) determined the BAB4 appeal by affirming the Akritidis determinations under s 149(1)(a) of the Building Act (BAB4 determinations). In the document containing the BAB4 determinations, the Board also provided the Board’s Reasons for those determinations.

On 24 May 2016 Colonial, pursuant to clause 16(5) of Schedule 3 to the Building Act, requested that the Board give written reasons for the BAB4 determinations.

On 6 June 2016, in compliance with clause 16(6) of Schedule 3 to the Building Act, the Board confirmed that “the Board’s reasons for its determination were provided to all of the parties as part of the determination”.[4] Colonial also argues that by reason of the operation of s 10 of the Administrative Law Act 1978 (Administrative Law Act), the Board’s reasons (as set out in the same document as the BAB4 determinations) are incorporated in the record of its determinations.[5]
[4]Colonial requested and received written reasons from the Board; see Affidavit of Andrew John Green, 27 June 2016, [17]–[19]; BAB4 Letter and Response. Exhibits “AJG-10”, “AJG-11”, “AJG-12” to that affidavit have however not been included in the filleted Court Book in this Appeal.
[5]Amended Originating Motion, 15 August 2016, [9]; Cf Supple v Building Appeals Board [2015] VSC 83, [68]–[72].

Extent of hearing before the Board

Before the Board the protection works issues relating to Tower Melbourne were addressed by the parties over five hearing days. Further, in its Determination of 28 April 2016, the Board makes reference to the “extensive written and oral material regarding the proposed demolition plan” received by the Board, including expert evidence of Mr Slade, Mr Shields, Mr Nisbet and Mr Luzinat, and the evidence of Mr Landewee, in addition to additional evidence by way of witness statements including the statements of Mr Reutersward, Mr Paras, and Mr Hatzimouratis. It is noteworthy that the witness statements and annexed material placed before the Board alone run to about 1683 pages and the record of the hearing before the Board generated 503 pages of transcript.

Relief sought by Colonial

Colonial’s Amended Originating Motion between the parties dated 15 August 2016[6] seeks the following orders:
[6]Ibid.

1.An order in the nature of certiorari quashing the purported determinations of the Building Appeals Board (the Board) of 28 April 2016 under section 149(1)(a) of the Building Act 1993 (Vic) (the Building Act) to:
(a)affirm the purported determination of the second defendant (Mr Akritidis) made on 4 May 2015 under section 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff’s building at 140 Queen Street, Melbourne (140 Queen Street); and
(b)affirm the purported determination of Mr Akritidis made on 4 May 2015 under section 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff’s building at 21-27 McKillop Street, Melbourne (21-27 McKillop Street),

on the ground of jurisdictional error and/or error of law on the face of the record.
2.An order remitting the plaintiff’s appeals to the Board under section 141(a) of the Building Act against Mr Akritidis’ purported determinations under section 87 as to the appropriateness of protection work for 140 Queen Street and 21-27 McKillop Street, respectively, and requiring the fourth defendant to constitute a different panel of the Board for the appeals to be heard and determined in accordance with law.
3.Costs.
4.Such further or other orders as the court thinks fit.

Colonial’s overall position is that the BAB4 determinations are affected by one or more of the three grounds of jurisdictional error or error of law on the face of the record, referred to in its Amended Originating Motion, and that the Court should therefore quash the BAB4 determinations, and then also make orders that require Colonial’s appeals against the Akritidis determinations to be remitted to a differently constituted Board.[7]
[7]By letter to the Court dated 12 September 2016 the second defendant, Akritidis, advised that he submits to the jurisdiction and determination of the Court on this issue, save that he reserves his rights to be heard on the question of costs. This position is recorded in the Orders of Daly AsJ made 3 August 2016, “Other Matters”.

Colonial’s grounds of appeal

In summary Colonial seeks the relief referred to on the following grounds.

Ground 1 (No power to affirm the Akritidis determination)

Colonial contends that as a result of the following circumstances:

(a) CES-Queen in May 2013 serving an earlier Form 3 Notice under s 84 of the Building Act and Building Regulations 602(2) and 602(3) putting forward its protection works proposals, and

(b) Colonial disagreeing with CES-Queen’s proposals and responding to CES-Queen’s protection works notices pursuant to s 85 of the Building Act and the relevant Building Regulations thereunder, and

(c) a determination in relation to the above protection works proposal being made on 2 July 2013 by Building Surveyor Galanos, and

(d) Colonial appealing the Galanos’ determination in July 2013, pursuant to s 141(a) of the Building Act (BAB1 appeal), and

(e) on 12 November 2013 CEQ-Queen purporting to withdraw the May 2013, Form 3 Protection works notice,

CES-Queen was not able to “withdraw” or revoke its May 2013 notices when it purported to do so on 12 November 2013, and therefore the Galanos determination remained in force until 22 May 2015 when the Board quashed the BAB1 appeal under s 149(1)(b) of the Building Act.

Colonial contends in its grounds of appeal that in the above circumstances it was not permissible or valid for CES-Queen to issue a fresh Form 3 Notice on 24 December 2014 (received by Colonial on 30 December 2014) in respect of proposed building work and proposed protection works. It is to be noted that CES-Queen’s protection works proposal dated 24 December 2014 which was determined by Building Surveyor Akritidis, is referred to as the “BAB4” appeal before the Board. This appeal is principally concerned to challenge and overturn the Board’s determination of the “BAB4” appeal on 28 April 2016.

Colonial also contends in its grounds of appeal that because of the subsisting Building Act determination by Surveyor Galanos and appeal process before the Board in relation to that Surveyor’s determination, and because the 24 December 2014 Form 3 Notices and building work and protection work proposals in those later notices overlap with the same work which was the subject of the May 2013 notices and the subject of the Galanos determination and the BAB1 appeal in relation to the Galanos determination, CES-Queen was not entitled to serve its Form 3 Notices dated 24 December 2014 (and received by Colonial on 30 December 2014).

Further, Colonial contends that in the circumstances, the subsequent surveyor, Akritidis has no power under s 87 of the Building Act to make a determination in respect of the invalid Form 3 Notices of 24 December 2014, accordingly the Akritidis determinations of 4 May 2015 are invalid.

Colonial also contends that although the Board is empowered to determine an appeal under s 141(a) of the Building Act in respect of an invalid determination, the Board does not have power under s 149(1)(a) of the Building Act to:

(i) affirm an invalid determination;

(ii) set aside or quash the purported determination of a surveyor as to the appropriateness of protection work, and to substitute its own determination.

Accordingly, Colonial contends the Board has no power to affirm the Akritidis purported determination of 4 May 2015, as the Board purported to do on 28 April 2016, and the Board has no power under s 149(1)(d) of the Building Act to quash or set aside the Akritidis purported determination and then substitute its own determination in the same terms as those determinations. Colonial contends therefore the Board’s purported determinations of 28 April 2016 are invalid.

Finally, Colonial contends that the Board has made an error of law on the face of the record because the reasons for its determinations of 28 April 2016 state that CES-Queen has “effectively [ie lawfully] withdrawn” the Form 3 Notices of May 2013.

Ground 2 (Misconception of statutory function)

Colonial contends in its grounds of appeal that the function of the Building Surveyor under s 87 of the Building Act is to determine the “appropriateness” or otherwise of the particular “proposal for protection work” that is made by the owner.

Colonial also contends that the Board’s function under s 141(a) of the Building Act (in an appeal from a Building Surveyor’s determination) is the same as that of the subject Building Surveyor.

Colonial contends that Building Surveyor Akritidis fell into jurisdictional error in purporting to exercise his powers under s 87 of the Building Act by determining the appropriate protection for Colonial’s properties was protection work which differed to the protection work proposed by CES-Queen.

Colonial centrally contends that the Building Surveyor, and in turn on appeal the Board, are constrained to determine either that the owners protection works proposals are appropriate or reject those proposals as not appropriate. Therefore by affirming the Akritidis determinations in BAB4, Colonial asserts that the Board proceeded on the basis that the appropriate protection work for Colonial properties was a form of protection works which differed from the protection works proposed by CES-Queen, and the Board thereby also fell into jurisdictional error.

Colonial also asserts that the Board’s determination and reasons of 28 April 2016 reveals that the Board fell into error because it stated that the Building Surveyor may determine that the protection works proposals are not appropriate “and then devise his or her own measures …” as appropriate protection works.

Ground 3 (Errors relating to Building Regulation 607)

Building Regulation 607 imposes certain requirements in relation to the carrying out of demolition work.

Building Regulation 607 provides that:

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.

Colonial asserts that in relation to the appeal of the purported determination of Building Surveyor Akritidis under s 141(a) of the Building Act, the Board lacked jurisdiction and power to review any decision by the Building Surveyor, or itself exercise the Building Surveyor’s powers under Building Regulations 607(1) and 607(2) because the Building Surveyor had not:

(a) inspected and approved precautionary measures under Building Regulation 607(1)(a); or

(b) exempted any of the proposed demolition work for 150 Queen Street from the requirement of Building Regulation 607(1).

Colonial asserts that it would be relevantly inconsistent with an earlier express view in the BAB2 appeal, concerning 140 Queen Street, Melbourne and a different part of 150 Queen Street, that compliance with the precautionary measures in Building Regulation 607, in particular those importing relevant parts of AS 2601-2001 concerning the demolition of structures, had not been established.

Colonial asserts that the Board did not consider Colonial's submissions that:

(a) compliance with Building Regulation 607 had not been established,

(b) the Board should act consistently with its early position in BAB2,

(c) on the two above bases the Board should have concluded that it was premature to determine the appropriateness of protection work for Colonial’s properties.

Colonial asserts that by not considering Colonial’s above submissions the Board fell into jurisdictional error, by:

(a) constructively failing to exercise its jurisdiction, or

(b) denying Colonial procedural fairness.

Alternatively, Colonial contends that if the Board did consider its above submissions, then the Board’s reasons for its determination of 28 April 2016 are inadequate and not in accordance with the requirements of clause 16(6) of Schedule 3 of the Building Act, because they do not set out the Board’s actual path of reasoning resulting in the Board’s rejection of Colonial’s submissions in relation to Building Regulation 607, and because those reasons are not explained in sufficient detail to enable a court to ascertain whether the relevant determinations of the Board involved an error of law.

These matters, Colonial contends, give rise to an error of law on the fact of the record of the Board’s determination of 28 April 2016.

Further or alternatively to the above, Colonial asserts if the Board considered that Colonial’s submissions establish compliance with Building Regulation 607, it was not open to the Board to find as it did, and therefore the Board fell into jurisdictional error.

Further, or alternatively, because the Board concluded that there had been compliance with Building Regulation 607 when no such compliance had been established and the Board had no jurisdiction or power, it made a jurisdictional error, or an error of law on the face of the record.

Relief sought by Colonial
Reconstitution of the Board

Colonial submits that if the Court makes an order in the nature of certiorari quashing the “determinations” of 28 April 2016 which Colonial criticise, it would be unfair to Colonial if the Board members charged to hear and determine the appeal included any of the members of the Panel comprising the third defendant. Therefore the fourth defendant should, pursuant to clause 8 of Schedule 3 of the Building Act, ensure that any review Panel charged with hearing the appeal under s 141(a) of the Building Act, is constituted by members other than the third defendant.

Ground 1 (No power to affirm the Akritidis determination)
Colonial’s Submissions – Ground 1 (No power to affirm the Akritidis determination)

In relation to the determinations immediately preceding those of Akritidis namely the Galanos determinations, Colonial emphasises that in about May 2013, CES-Queen served on Colonial and Galanos, the then Building Surveyor, Form 3 Notices under s 84 of the Building Act and Building Regulations 602(2)–(3), which contained details of the proposed demolition and protection work.

Colonial then served Form 4 Notices on CES-Queen and Galanos under s 84 of the Building Act and Building Regulation 602(4), challenging the proposed protection work. Building Surveyor Galanos determined the dispute in relation to CES-Queen’s May 2013 Form 3 Notices on 2 July 2013.

Following the making of the Galanos determinations on about 2 July 2013, Colonial appealed this Building Surveyor’s decision under s 141(a) of the Building Act (the BAB1 appeal). Four months later, on about 12 November 2013, CES-Queen purported to “withdraw” the Form 3 Notices which had led to the Galanos determinations.[8]
[8]Amended Originating Motion, 15 August 2016, [18]–[21]; Affidavit of Andrew John Green, 27 June 2016, “AJG-22”; Affidavit of Andreanna Constantine Moschoyiannis, 3 August 2016, “ACM-16–34” and “ACM-72”; see CB128-149.

It is Colonial’s contention that CES-Queen had no power to withdraw or revoke its Form 3 Notices, for which reason the Galanos determinations continued in force until 22 May 2015, when the Board quashed those determinations.[9]
[9]Ibid [22]–[23].

Colonial submits that the Board “appeared to conclude”, but did not itself “determine” (nor, according to Colonial, would it have had the power to determine), that CES-Queen had validly withdrawn its Form 3 Notices by its purported formal withdrawal on 12 November 2013.[10]
[10]Colonial’s Submissions, 16 August 2016, [48]–[49].

Colonial therefore submits that CES-Queen could not have validly served the subsequent Form 3 Notices dated 24 December 2014 (which reached Colonial on 30 December 2014), pursuant to which the Akritidis determinations were made.[11] Colonial contends that this in turn resulted in the Akritidis determinations being invalid.
[11]Amended Originating Motion, 15 August 2016, [24]–[25].

Having regard to its legislative intent, Colonial maintains that “it would be incoherent for the Building Act to require the owner to carry out two different kinds of, potentially inconsistent, protection work for the same (or overlapping) building work”.[12] As part of this argument Colonial points out that the building work which was the subject of the Form 3 Notices pursuant to which the Akritidis determinations were made, “overlapped” with the building work which was the subject of the Galanos determinations.[13]
[12]Colonial’s Submissions, 16 August 2016, [37].
[13]Amended Originating Motion, 15 August 2016, [25]; Colonial’s Submissions, 16 August 2016, [43].

Colonial contends that it could have led evidence that CES-Queen had acted upon the prior permit application, such that it could not then have withdrawn or abandoned that application in the manner proposed.[14] Its submission that the point was not made earlier, as it ought to have been, is based on what it calls “a fair reading of CES-Queen’s written submissions” in the BAB4 appeal, referring in particular to its closing reply submissions of 19 October 2015.[15] However, CES-Queen states in that submission that “the protection work notices previously served by CES-Queen (that were determined by Mr Galanos) were formally withdrawn”.[16]
[14]Colonial’s Submissions to CES-Queen, 10 October 2016, [7].
[15]Ibid [7]. See CB3173–83.
[16]CB3174–5.

Colonial asserts that CES-Queen’s purported attempt to withdraw the Form 3 Notices “is of no consequence” because, as a matter of law, it was not within CES-Queen’s power to withdraw its notices in the circumstances.[17] Colonial rejects CES-Queen’s contention that Colonial did not actively seek to challenge the legal force of the Galanos determination,[18] and points to CES-Queen’s potential opportunity, which it did not take, to seek orders from the Board disposing of the BAB1 appeal before issuing new Form 3 Notices.[19]
[17]Colonial’s Submissions, 8 September 2016, [18]; Colonial’s Submissions, 23 September 2016, [1]–[10].
[18]Ibid [19].
[19]Ibid [20].

Colonial argues that the irregularity which taints CES-Queen’s 24 December 2014 Form 3 Notices was not cured because that process was invalid from the outset and hence incurably so.[20]
[20]Ibid [21]; Colonial’s Submissions to CES-Queen, 10 October 2016, [9].

Colonial also argues that therefore the Board had no power either to affirm the Akritidis determinations or to quash, or set those determinations aside and substitute its own determinations in the same terms.[21] Additionally, Colonial submits that by the Board stating that CES-Queen had “effectively [ie, lawfully] withdrawn” the Form 3 Notices, the Board also made a manifest error of law on the face of the record in that respect.[22]
[21]Amended Originating Motion, 15 August 2016, [28]–[29]; Colonial’s Outline of Submissions, 16 August 2016, [55]–[56].
[22]Ibid [31].

In support of its submission that the Board was relevantly devoid of power, as outlined in the preceding paragraph, Colonial relied on the reasons in SZGME v Minister for Immigration and Citizenship.[23] In that case, the Federal Court of Australia held that the Minister had no power or jurisdiction to determine an invalid visa application under the Migration Act1958 (Cth) (Migration Act); the Minister could neither grant nor refuse the visa application. The Refugee Review Tribunal did have jurisdiction to review, but it did not have the power on the review to either grant or refuse an invalid visa application and could only set aside the decision.[24]
[23](2008) 168 FCR 487.
[24]Colonial’s Submissions, 16 August 2016, [59]–[63]. See SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 492–8 [22]–[36].

Colonial contends that the logic in SZGME “translates readily in the present context”. Colonial submits that here, as in SZGME, there are three stages which aggregate to stand in the way of the Board being able to affirm the Akritidis determinations, namely the performance of a legal act as a precondition to the making of an administrative decision (the Form 3 Notices), a purported decision (the Akritidis determinations), and “a decision on merits review” (the BAB4 appeal).[25] Given the existence of similar limitations akin to those which circumscribed the Refugee Review Tribunal’s powers in SZGME, Colonial submits, “[t]he only available power that the Board could lawfully exercise in order to determine the appeal was to quash the Akritidis determinations”.[26]
[25]Ibid [62].
[26]Ibid [63].

CES-Queen’s Submissions – Ground 1 (No power to affirm the Akritidis determination)

CES-Queen argues that it has effectively dealt with Colonial’s assertion that the proposed works in respect of the Galanos and the Akritidis protection works applications “overlapped” and that there was therefore “potential for inconsistency” in relation to approved protection works, by CES-Queen’s 12 November 2013 letters to Galanos, the Board and to Colonial, whereby CES-Queen unambiguously and formally withdrew its May 2013 protection work notices that were the subject of the Galanos determinations on 2 July 2013.

In its 12 November 2013 letters, CES-Queen also stated that it intended to withdraw its application for a Building Permit for the proposed demolition and recommence the s 84 Building Act proposed protection work process afresh.[27] This being so CES-Queen contends that problems of overlap, relied on by Colonial, as between the BAB1 appeal and BAB4 appeal, do not arise.
[27]CES-Queen’s Submissions, 3 October 2016, [2].

It is to be noted however that Colonial challenges CES-Queen’s factual narrative of events said to have resulted in CES-Queen’s withdrawal of the Form 3 Notices. Colonial notes that, among other things, Galanos’ solicitor wrote to CES-Queen’s solicitors on 5 December 2013, stating that “while the matter is currently before the Building Appeals Board, it would be inappropriate to either confirm or revoke the determinations”.[28] Hence Colonial contends that it is contentious on this additional basis whether the Form 3 Notices were validly withdrawn by CES-Queen.
[28]Colonial’s Submissions, 8 September 2016, [5].

CES-Queen emphasises the practical consideration that no potential for inconsistency has in fact troubled the parties, and that the communication of CES-Queen’s “clear intent to abandon the building permit application from which the Galanos determinations emanated” meant that it could validly serve new Form 3 Notices.[29]
[29]CES-Queen’s Submissions, 3 October 2016, [4].

CES-Queen also stresses the effectiveness of its unambiguous indications to Colonial and to the Building Surveyor as establishing that the Form 3 Notices were withdrawn, thereby enabling a fresh Form 3 process to be validly commenced in December 2014.[30]
[30]Ibid [2]–[4].

In its closing submissions of 3 October 2016, CES-Queen refers to its “clear intent to abandon the building permit application from which the Galanos determinations emanated”, which meant that it was free to issue the fresh Form 3 Notices of 24 December 2014.[31]
[31]Ibid [4].

CES-Queen argues in the alternative that even if the December 2014 Form 3 Notices were invalid because of the subsisting earlier unfinalised Galanos determination appealed to the Board on 16 July 2013 and not determined until 22 May 2015, the Board on that date quashed the Galanos determinations. CES-Queen submits that the effect was that at 22 May 2015 the Board’s determination in relation to the Galanos determinations appeal in BAB1 was to “eliminate” any possibility of inconsistent protection work determinations or outcomes. CES-Queen points to the powers under s 149(1) of the Building Act to make such orders.

Further, CES-Queen distinguishes SZGME on two bases. First, that in SZGME, the invalidity of the visa application was never cured, which is not analogous here.[32] In SZGME, the applicant did not provide a complete visa application. Because of the resulting invalidity, the Tribunal had on review only those powers which the delegate had with respect to an invalid visa application.[33]
[32]Ibid [8]-[13].
[33]Ibid [8]; SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 497 [30] and 498 [36].

CES-Queen argues that in SZGME the materially different detailed statutory scheme in the Migration Act applied to greatly circumscribe the Tribunal’s powers. For example, under s 47, the Minister could only consider a valid application for a visa; and similar caveats were provided for in ss 65 and 415(4).[34] CES-Queen submits that in the absence of any equivalent provisions in the Building Act, SZGME loses its analogical force.[35]
[34]Ibid [9]; SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 497 [30] and 498 [36].
[35]Ibid [10].

CES-Queen argues that the Board is empowered to act autonomously. In this regard CES-Queen relies on Clause 15(3)(f) of Schedule 3 to the Building Act and s 149(2), which acknowledges the existence of the Board’s powers in addition to the powers of the decision maker.

Analysis and conclusions – Ground 1 (No power to affirm the Akritidis determination)

I reject Colonial’s argument that CES-Queen did not serve a valid and effective Form 3 Notice in December 2014.

For the following reasons I also reject Colonial’s argument that as a consequence of what it contends is the invalidity of CES-Queen’s Form 3 Notices of December 2014, the Board addressing appeals from the Building Surveyor’s determinations in respect of those notices, was only empowered to quash the Akritidis determinations and could not affirm what in Colonial’s assertion amounted to an invalid process.

In my view, neither the Building Act or the Building Regulations expressly or impliedly invalidates or renders ineffective a notice issued pursuant to s 84 of the Building Act in circumstances where an earlier Form 3 Notice proposing appropriate protection and other works in respect of the same building, general building works and earlier proposed protection and other works under s 84 of the Building Act remain on foot.

Similarly, there is in my view no stipulation or requirement in the Building Act or the Building Regulations that, expressly or impliedly, renders a Form 3 Notice issued pursuant to s 84 of the Building Act invalid or ineffective in circumstances where an earlier Form 3 Notice in respect of the same building, general building works and proposed protection works have progressed to the stage of being the subject of a Building Surveyor’s determination or both a determination and the issue of an appeal under s 141 of the Building Act in relation to that determination.

The scheme of Part 7 of the Building Act, and in particular ss 84, 87 and 88 of the Building Act is that it is for the owner seeking to build the subject building, to propose the protection works by which the requirements of the Building Act and the Building Regulations will be met.

Further, under Part 7 of the Building Act, the owner may withdraw its Form 3 protection works proposals notice at any time including after its protection works proposals have been the subject of a Building Surveyor’s determination and also after that determination has been appealed to the Board. Such withdrawal may however subject the owner to ancillary consequences such as resultant delay to its proposed building works as a result of having to restart the protection works, wasted costs and Building Surveyor and possible Board and inter partes costs associated with the abandoned protection works application process.

The Act contemplates that the applicant owner, like a litigant in a court system can bring its own process to an end when it chooses, subject to possible cost consequences and any order or direction which the Board is empowered to make.

Concomitantly, an applicant owner may initiate a fresh process seeking approval for a different proposed protection works solution even though an earlier proposal has been the subject of a Building Surveyor’s determination, or on appeal to the Board. As a matter of practicality and efficacy, it would be unlikely that the Building Act or the Building Regulations would operate otherwise for the following reasons.

Sections 84 to 88 of the Building Act do not prohibit or prevent the owner from withdrawing his proposal for building work at any time. Indeed it would be problematic and anomalous if the Building Act was to have a different operation in this regard. That is because it may be that the owner, at some point in the protection works approval process decides against proceeding with its originally planned building work or the proposed form of protection work earlier put forward if it is perceived, for example to be unnecessary, inefficient or costly.

The practical reason for the owner’s change in protection works proposals may, as a further example, include a related change to the design of the overall building works or a perceived improvement to the protection works proposals identified by the owners consultants or the adjoining owners. This may occur after initial approval by the Building Surveyor or a relevant determination by the Building Surveyor or by the Board, but before commencement of the protection works or the construction of the project.

It would be nonsensical and unreasonable in such circumstances for the owner to be forced to proceed with its s 84 Form 3 Notice, or forced to undertake the protection works determined by the Building Surveyor pursuant to s 87 of the Building Act, or on appeal by the Board, in the event that the owner’s protection work solution for the building work has changed.

Any such abandonment or change to proposed protection works would however be likely to have negative timing and cost consequences for the applicant owner and may result in substantial costs and expenses being thrown away by the owner, including in relation to its consultant’s fees, the Building Surveyor’s fees, and the like, including pursuant to s 97 and Clause 17 of Schedule 3 of the Building Act.

The critical restraint however is that pursuant to s 88 of the Building Act the owner cannot commence the construction it desires to progress until it has obtained the adjoining owner’s approval for its proposed protection works or protection works approval as determined by the relevant Building Surveyor or the Board, and then only in accordance with such agreement or determination.

In the particular circumstances of this protection works approval process, because CES-Queen has communicated clearly and unequivocally from 12 November 2013 to the Building Surveyor (Mr Galanos) in relation to BAB1 (in respect of CES-Queen’s earlier May 2013 proposal in relation to the Tower Melbourne project) and to Colonial and to the Board, that CES-Queen had made a decision to withdraw all of its earlier Form 3 protection works notices and that CES-Queen also intended to withdraw its existing applications in relation to a Building Permit for proposed demolition works at 150 Queen Street, the application process commenced by CES-Queen under s 84 of the Building Act in May 2013 in relation to those earlier notices, in my view was unequivocally, brought to an end, and effectively abandoned. The s 87 Galanos determination and subsequent Colonial appeal process was thereby rendered irrelevant and of no utility respectively, save for the potential ancillary consequences referred to above.[36]
[36]Affidavit of Andrew John Green, 27 June 2016, “AJG-22”; Affidavit of Andreanna Constantine Moschoyiannis, 3 August 2016, “ACM-16–34” and “ACM-72”.

Furthermore, on 12 November 2013, CES-Queen unequivocally advised the Board that it was not planning to do any more building work (including protection work) under the Building Permit that it had sought on or around 12 April 2013 from Mr Galanos.

Accordingly, after November 2013, contrary to Colonial’s arguments, there was no risk that either a Building Surveyor or the Board would proceed to determine protection works requirements for the relevant building, or rule on contested issues in relation to protection works in relation to two different sets of proposals for protection works put forward by CES-Queen.

Further, in the events which occurred, on 22 May 2015 that the Board determined that the Galanos appeal (BAB1) instigated by CES-Queen’s May 2013 Form 3 Notices be quashed. [Galanos determination in BAB1 (CB737-738)]

The quashing of the BAB1 appeal on 22 May 2015 independently obviated the possibility that there could be inconsistency between two separate protection works processes.

After 22 May 2015 (BAB1) relevant BAB1 notices and any Building Surveyor or Board determinations in relation to them could not give rise to any inconsistency with the BAB4 notices issued on 24 December 2014. This is so whether or not the effect of the Board’s decision on 22 May 2015 (BAB1) was a decision which operated only prospectively, as Colonial argues, or whether it was a decision which operated retrospectively. Before 22 May 2015 and since 12 November 2013 all relevant parties were formally notified that CES-Queen was not proceeding with its May 2013 protection works proposals.

The Board stated in its 22 May 2015 BAB1 decision that in quashing the Galanos determination in BAB1:

(iii) “The Board formed the view that the determination made by Mr. Galanos on 2 July 2013 was no longer of any force or effect and the issues that were the subject of the determination and the appeals have been overtaken by subsequent events.”[37] (emphasis added)

(iv)In considering whether the BAB1 Form 3 notices of 2013 remain ‘undisturbed’, the Board was of the opinion that “in practical terms the Form 3 notices may be treated as being withdrawn.”[38]

[37]CB737.

[38]Ibid.

The Board also identified these reasons, and the facts and circumstances of the matter, as justifying its view that there “is no practical necessity to remit the Form 3 notices to” Mr Ari Akritidis.[39]
[39]Ibid.

Further, at the time the Board heard and considered the Akritidis appeal in September and October 2015 and also at the time the Board determined the Akritidis appeal in April 2016 the CES-Queen protection work process which Colonial contends was disentitling, namely the CES-Queen May 2013 Form 3 Notices and the Galanos determinations, had been quashed on 22 May 2015.

For the above reasons in my view, no inconsistent or invalidating alternative process overlapped at any material time with the Building Act protection works application the subject of the April 2016 Akritidis (BAB4) determination. It follows therefore that there was in reality no possibility that there could be a conflict of inconsistent protection works requirements or that there could be any real potential for difficulties, confusion and additional expense as between CES-Queen’s BAB1 protection works proposals put forward initially in May 2013 and the subject BAB4 protection works proposals put forward by CES-Queen in December 2014.

Further, s 146(1) of the Building Act operates to suspend the effect of a decision of the Building Surveyor for the period of time within which that decision may be appealed, or if appealed the decision is affirmed on appeal. Accordingly, from 13 July 2013[40] when the BAB1 determinations were appealed, those appeals had the effect of bringing about the position pursuant to which no protection work determination was effective or could give rise to any inconsistency with any other protection work determinations which came into existence after the date of the protection works notices issued on 24 December 2014.
[40]CES-Queen Submissions, 23 August 2016, [11].

There was also no realistic danger of duplicated or inconsistent protection works for the same above reasons.

Furthermore, I do not accept Colonial’s argument in relation to this ground that the statements in SZGME v Minister for Immigration and Citizenship[41] assists Colonial. That is because on this issue in my view that case is distinguishable and is confined to the particular legislation which the court was there considering, in particular, the statutory scheme established by the Migration Act. SZGME was decided by very specific reference to that scheme and specific provisions, in particular of ss 47 and 65, of the Migration Act. These sections refer to the necessity for the application being considered by the Minister under that Act to be a ‘valid application for a visa’.
[41](2008) 168 FCR 487.

There was no equivalent language in the Building Act requiring a ‘valid’ application as mandated by ss 47 and 65 of the Migration Act. Indeed as emphasised by CES-Queen in its submissions, the Building Act was intended, amongst other things, to provide a protection works and building works approval regime under which Building Surveyors independently evaluate the appropriateness of protection and building works, and to establish a regime under which the Board undertakes its tasks with as little formality and technicality as is practical and in a way which is expeditious and cost effective while complying with the particular requirements of that legislation.

Accordingly, for the above reasons I reject Ground 1 of Colonial’s appeal in this matter and hold that CES-Queen’s Form 3 Notices of 24 December 2014 are valid and effective and unaffected by the earlier commencement of a protection work approval process by CES-Queen in relation to the same building work.

Given my findings and conclusions in relation to Ground 1 of Colonial’s appeal, it is unnecessary for me to make any finding in relation to CES-Queen’s contention that s 149(1) and s 149(2) would, in any event, empower the Board, in the above circumstances to make a protection works decision in relation to CES-Queen’s December 2014 Notices.[42]
[42]CES-Queen’s Closing Submissions, 3 October 2016, [11]-[13].

Ground 2 (Misconception of statutory function)
Colonial’s Submissions - Ground 2 (Misconception of statutory function)

Colonial argues that the provisions of s 87 of the Building Act establishing the function and power of the Surveyor, are expressly directed to an examination of the ‘appropriateness’ of the ‘proposal for protection work’ made by the owner.

Colonial claims that Building Surveyor Akritidis made a jurisdictional error by purporting to determine, under s 87 of the Building Act, that the “appropriate” protection work for Colonial’s two adjoining properties differed, in certain respects, from the protection works proposed by CES-Queen.[43] Colonial contends that this was contrary to the Building Surveyor’s statutory function as circumscribed by s 87(1) of the Building Act, namely to “examine the proposal for protection work and determine the appropriateness or otherwise of the work”.[44]
[43]Amended Originating Motion, 15 August 2016, [35].
[44]Ibid [33].

Colonial also argues that there are powerful indicators which support the proposition that the Surveyor’s function is simply to determine the ‘appropriateness’ of the ‘proposal for protection work’ put forward by the owner. Those indicators principally include the circumstance that the Surveyor is not required to hear from either the owner or the adjoining owner before making his or her determination.

Colonial argues that if the Surveyor was empowered to determine what would be appropriate protection work it could arise that the owner could be required to perform work which it had not proposed and which the adjoining owner had not considered and which the Surveyor had not identified to either the owner or the adjoining owner prior to making his or her determination under the Building Act.

Colonial submits that where, as it appears to concede is the case in relation to s 87(1), there is a ‘constructional choice open’ the Court should if possible avoid the prospect of an unfair process. Furthermore, Colonial observes that although the Court should adopt the construction that would promote the purpose or object of the Building Act the highly general statement of the Act’s purposes, including in s 1(c) of the Act is not useful in construing particular parts of the same legislation.[45]
[45]Colonial’s submissions, 16 August 2016, [22]-[23].

Colonial adds that insofar as s 1(c) of the Building Act refers to resolving building disputes, the relevant dispute is that which crystallises as a result of the adjoining owner’s Form 4 response pursuant to s 85(1)(b) of the Building Act. Colonial argues that for the Surveyor to determine what would be the appropriate protection works such a determination would not involve, or necessarily involve, the resolution of the relevant dispute.

On the above premises Colonial then argues that on an appeal in respect of a Surveyor’s decision under s 87, the Board’s role is circumscribed to being one in which the Board ‘stands in the shoes’ of the Surveyor and ‘re-exercises the function of the Surveyor.[46]
[46]Ibid [27].

Colonial also contends that the Board’s powers, pursuant to s 149 of the Building Act, are limited by reason of Colonial’s submissions referred to above concerning the proper construction of s 87 of the Building Act.

Colonial also submits that although the Board correctly accepted that the reasoning of Vickery J in CES-Queen (Vic) Pty Ltd v Colonial Range Pty Ltd (Orders)[47] (CES-Queen) was not binding on the Board, the Board nevertheless made extensive reference to the reasoning in that decision and appears to have accepted that reasoning as correct.[48]
[47](2015) VSC 564.
[48]Ibid [72]-[80].

Colonial’s submission emphasised that as a result of the outcome on appeal the decision in CES-Queen is not binding or persuasive.[49] Colonial submits that reasons referred to in a judgment which has been overturned are also set aside together with the final orders founded upon such reasons, even if particular reasons, or parts of them, have not been challenged on appeal.[50]
[49]Osland v Secretary to the Department of Justice (No 2) [2010] 241 CLR 320, [32]; see also Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2015] VSCA 356, [27].
[50]Colonial’s Submissions, 16 August 2016, [69], citing Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 at 337–8 [32].

Colonial also submits that the reasoning in support of the construction of s 87 of the Building Act in CES-Queen, should be rejected because the power to make “enquiries” under s 87(3) of the Building Act is of neutral impact in relation to the proper construction of s 87. Further, Colonial submits the fact that s 88(2)(b) of the Building Act does not expressly refer to the owner’s proposals is of no significance. What is of significance in this regard, Colonial submits, is that it would be unfair if the owner was required to carry out protection work determined by the Surveyor under s 88(2)(b) where that work had not been proposed and where it had not been considered by the adjoining owner, particularly where the Surveyor is not required to give either party a hearing.

Colonial also submits that it is not appropriate or justifiable to construe s 87 of the Building Act so as to be “conducive to efficiency” as Colonial submits erroneously occurred in CES-Queen at first instance.

Colonial also argue that to adopt the construction of s 87 of the Building Act which was proffered in the first instance decision in CES-Queen referred to above would in fact not be conducive to the efficient operation of that section.[51]
[51]Ibid [79], and fn [33].

Colonial also argues that the task of looking at the balance to be struck between competing legal values, including between efficiency and fairness, is a matter for Parliament and not for the Court.

Colonial argue that there is an error of law on the face of the BAB4 determinations, which state that “the relevant building surveyor (and the Board, which stands in the shoes of the relevant building surveyor) may determine that the proposal for protection work is not appropriate, and then devise his or her own measures which the relevant building surveyor (or the Board, on appeal) determines are appropriate”.[52]
[52]Ibid [84.2].

Colonial observes that the Board’s function on appeal under s 141(a) of the Building Act is the same as that of the Building Surveyor whose decision is appealed.[53] Colonial submits that it therefore follows that the Board also fell into jurisdictional error by affirming the Akritidis determinations, having either misconceived the nature and limits of its jurisdiction, made a decision in excess of its jurisdiction, or constructively failed to exercise its jurisdiction.[54]
[53]Amended Originating Motion, 15 August 2016, [34].
[54]Ibid [36].

Colonial also submits that if the Building Surveyor lacked jurisdiction to determine as he did, it would follow that the Board also made an error of law on the face of the record by affirming the Building Surveyor’s jurisdictional error in purporting to “devise his … own measures” in determining what would be the appropriate protection work under s 87 of the Building Act.[55]
[55]Ibid [37]–[38].

Colonial submits that the legislative intention underlying the provisions in question would “be rendered otiose if … the task of the Surveyor was a free-ranging one to determine what ‘would be’ the appropriate protection work regardless of the proposal made by the owner” and if subsequently the Board were “at large to determine what it thinks would constitute appropriate protection work, and thereby impose some ‘solution’ on the parties”,[56] which would “not reflect” the party’s “own proposal”.[57] That, in Colonial’s submission, would be inconsistent with the legislative purpose outlined in s 1(c) namely, “to provide for an efficient and effective system for … resolving building disputes”.
[56]Colonial’s Submissions, 16 August 2016, [18], [26]; see also [72].
[57]Ibid [75].

Colonial submits that on CES-Queen’s case in relation to s 87 of the Building Act “there is no logical reason why the Surveyor would ever properly stop (or even start) with the owner’s proposal in seeking to devise the ‘ideal’ protection work for the adjoining owner’s property”.[58]
[58]Colonial’s Submissions, 23 September 2016, [21].

Furthermore, Colonial claims that CES-Queen’s construction of the Building Surveyor’s function in s 87 of the Building Act would impose “an extraordinary obligation on the Surveyor, who may not have the expertise or resources to perform this task properly”.[59]
[59]Ibid.

Colonial submits that s 88(1) of the Building Act is concerned with timing. It prevents an owner from carrying out building work “until” the protection work is determined. It is therefore not surprising, Colonial submits, that s 88(1)(b) of the Building Act refers only to the relevant event.[60]
[60]Colonial’s Submissions, 10 October 2016, [2].

Colonial acknowledges that s 88(2)(b) of the Building Act “does not expressly refer to the owner’s proposal”. However, Colonial contends that to require an owner to carry out protection work which it had not proposed in its notices, and which the adjoining owner was not anticipating, “would be extraordinarily unfair”.[61]
[61]Colonial’s Submissions, 16 August 2016, [73].

Colonial also submits that “[w]here a constructional choice is open, the Court should seek to avoid such an unfair process”,[62] and that the Court should bear fairness in mind as well as efficiency in the construction of statute and the ascertainment of legislative intention.[63]
[62]Ibid [21]. See Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 [14]–[15].
[63]Ibid [74].

Colonial further contends that its “construction is, in fact, likely to lead to more protection work disputes being resolved before they are referred to the Surveyor or after they are so referred”,[64] but hastens to add that a consequentialist analysis of statutory interpretation is not a matter for the Court, which should be concerned only with the construction of the words of s 87 of the Building Act, in their statutory context, rather than whether a particular interpretation leads to the right balance between fairness and efficiency.[65]
[64]Ibid [79].
[65]Ibid [82].

Colonial points to Divisions 1 and 2 of Part 10 of the Building Act which deal with the Board’s jurisdiction to determine appeals. Colonial contrasts those earlier parts with Divisions 3, 4 and 5 which deal with the Board’s jurisdiction to determine “disputes” and “other proceedings”.[66] Colonial submits that by locating ss 141 and 149 within those parts of the Act providing for the Board’s appellate jurisdiction, and in locating ss 155 and 161 outside Division 1 of Part 10, the legislature has reflected its intention that the latter provisions do not apply here and therefore cannot be invoked to uphold the Akritidis determinations, that is if Mr Akritidis had only the limited power Colonial argue for under s 87 of the Act.[67]
[66]Colonial’s Submissions, 8 September 2016, [27].
[67]Ibid [27]–[34].

Colonial also submits that s 149(4), and clause 16(3) of Schedule 3 of the Building Act, do not empower the Board to uphold a Building Surveyor’s determination that it is appropriate to approve protection works which differ from those proposed by the owner. These provisions refer to “ancillary” and “incidental” orders which the Board may make. Colonial’s point is that such “incidental powers cannot transform” the Board’s “function” of simply determining on appeal whether the owner’s proposed protection work is appropriate or not.[68] Colonial contends that modifying the owner’s proposal could not be “giving effect to the Board’s determination” under s 149(4) of the Building Act.[69]
[68]Ibid [36]–[37].
[69]Ibid [37].

Further, in its reply submissions, Colonial asserts that if the Surveyor had to devise what would be the most appropriate protection works, the Surveyor would be engaged in the task of ‘the design of … building works’ in breach of s 79 of the Building Act.

In response to the Board’s submissions, Colonial also submits that:

The power to require more information pursuant to s 85(1)(b)(ii) of the Building Act is a power to obtain additional information to consider whether ‘the proposal’ is appropriate or not. Such a power does not imply that the surveyor can determine that non-proposed works are appropriate.

Colonial, as mentioned above, submits that s 88 of the Building Act is in the nature of a timing provision and that it is unsurprising that the provision refers only to the event of the relevant determination by the Surveyor. Colonial submits that this does not in any way suggest any focus on a distinction between the original protection works proposal and the Surveyor’s determination. Colonial also submits that s 88(2) of the Building Act would do violence to the language of ss 84, 85, 87(1) and 88(1) if it somehow permitted the Surveyor to ignore the onus proposal in relation to protection works and impose the Surveyor’s own solution.

Colonial also submits that the third and fourth defendants’ submissions as to the way in which s 87(1) is intended to operate would be more productive of appeals to the Board because an imposition by the Surveyor of his or her ‘solution’ would more frequently provoke appeals.

CES-Queen’s Submissions – Ground 2 (Misconception of statutory function)

CES-Queen contend that if Colonial’s “binary construction”[70] of s 87 of the Building Act were the correct one, then the language of the provision would reflect this intent.[71]
[70]CES-Queen’s Submissions, 3 October 2016, [18].
[71]Ibid [14].

I understand CES-Queen’s description of a binary construction to mean that Colonial contend that the Building Surveyor, acting within power, is obliged to regard the owner’s proposed protection works as a separate element from any other proposed protection works and restrict himself or herself to approve or reject the owner’s proposed protection works.

CES-Queen submit that if the Building Surveyor’s role was simply to determine pursuant to s 87(1) of the Building Act, if the protection works proposal presented by the owner was appropriate or not, then the language of s 87(1) would reflect that intent. CES-Queen contend that instead the Building Surveyor has been invested with the different task of determining whether the protection works proposed is “appropriate or otherwise”.

CES-Queen argues that where in particular the purpose of the Building Act is to provide an efficient and effective system of administering and enforcing related building and safety matters and resolving building disputes, clear language limiting the Surveyor’s powers would have been enacted and it has not been.

CES-Queen also submit that it is a distortion of its position to characterise its interpretation of s 87 of the Building Act as giving rise to a solution being imposed on the parties. Rather, CES-Queen submits the Building Surveyor’s determination is “responsive to a proposal submitted by an owner”.[72]
[72]CES-Queen’s Submissions, 23 August 2016, [67].

CES-Queen responds to Colonial’s submissions that in this matter the Building Surveyor “devised his own protection works measures” by submitting that “close scrutiny of the material that was before Akritidis reveals instead that the Akritidis determinations was [sic] best understood as involving a process of clarification of the original proposal”.[73] The specific ways in which CES-Queen argues that the Building Surveyor’s determination clarified the owner’s original proposal are described at [20(a) and (b)] of CES-Queen’s submissions of 3 October 2016.
[73]CES-Queen’s Submissions, 3 October 2016, [19] and [20].

CES-Queen also relies in particular on ss 149(4), 155 and 161 of the Building Act. Section 149(4) provides that the Board “may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal”. Section 161 of the Building Act provides that the Board “must consider and determine a matter referred, or application made, to it under this Act or any other Act and may make any order that it considers appropriate in the circumstances”. Such powers, it is argued by CES-Queen, ensure that the Board is also able to approve a modified protection work proposal made by the Surveyor.[74]
[74]CES-Queen’s Submissions, 23 August 2016, [71]–[82].

CES-Queen also relies on what it calls the Board’s “catch-all”, or “residual jurisdiction”.[75] CES-Queen points to the language of s 155 of the Building Act which provides: ”If an owner and adjoining owner cannot agree in relation to a matter arising under Part 7, and the Building Appeals Board does not have jurisdiction to deal with that matter under any other provision of this Part, either of them may refer the matter to the Building Appeals Board.” CES-Queen submits that s 155 of the Building Act provides the “basis” for this residual jurisdiction which allows the Board to “resolve any disagreement relating to protection work.”[76]
[75]Ibid [80].
[76]Ibid [83].

CES-Queen submit that the above provisions of the Building Act and in particular s 149(1) and s 149(4) together with Clause 16(3) of Schedule 3 of the Building Act, bestow on the Board undoubted power to approve a modified version of the owner’s Form 3 proposals.[77] CES-Queen also submits that the decision in Moreland CC v Building Appeals Board[78] in which CES-Queen submits the court interpreted s 149 of the Building Act as bestowing broad powers on the Board.
[77]CES-Queen’s Closing Submissions, 3 October 2016, [21]-[25].
[78][2000] VSC 84.

CES-Queen also argues that Colonial’s construction of s 87(1) of the Building Act is difficult to reconcile with s 87(2)(a) and s 87(3) of that Act. CES-Queen’s submission is that it is unlikely those provisions would authorise the Building Surveyor to seek information about proposed protection works, when on Colonial’s “binary construction” of s 87(1) the Building Surveyor would be unable to utilise such information.[79]
[79]Ibid [18].

Third and Fourth Defendants’ submissions – Ground 2 (Misconception of statutory function)

The third and fourth defendants emphasise that here the Board was dealing with an appeal from the Building Surveyor under s 141(a) of the Building Act, in respect of which the Board has pursuant to s 149(1) and a 149(2) of the Act powers including all the powers of the decision maker in relation to the decision under appeal. The powers of the decision maker here, and as explained, the Board, included the Building Surveyor’s power to “determine the appropriateness or otherwise” of the proposed protection works under s 87 of the Act.

The third and fourth defendants submit that rather than a restrictive construction of s 87 of the Building Act that section, properly construed does not restrict the Building Surveyor to simply “determining whether [the] proposal is appropriate or not appropriate”. They submit that s 87(1) when considered in its context including by reference to its statutory purpose and its legislative history should be understood to mean that the power of the Building Surveyor to determine the appropriateness or otherwise of proposed protection work includes a power to determine that the work would be appropriate with some modification.

In that regard the third and fourth defendants particularly rely on s 87(1) and the words of that subsection “… determine the appropriateness or otherwise of the work.”

The third and fourth defendants also submit that had the legislature intended that the Building Surveyor would only have a binary power to determine that the work was “appropriate or not”, it would have been a straightforward matter to use language which expressed that meaning.

The third and fourth defendants submit that the phrase “determine the appropriateness or otherwise of the work” comfortably embraces a task of examining the proposal and determining that it is appropriate. The third and fourth defendants submit that the permissible considerations by the Building Surveyor include as to whether a protection works proposal is appropriate in part and whether the proposal would be appropriate with modification or whether it would not be appropriate.

The third and fourth defendants submit that given in statutory context and the purpose and the nature of protection works, these factors strongly suggest that s 87(1) was not intended to confer only a binary power on the Building Surveyor. In support of that argument, the third and fourth defendants make the point that the functions of the Building Surveyor under s 87 of the Building Act require the Building Surveyor to consider not only the owner’s original Form 3 Notice but also any further information required from the owner at the request of the adjoining owner and any information arising out of the broad power of the Building Surveyor to make enquiries pursuant to s 87(3) of the Act. The third and fourth defendants observe that this process involves an examination and consideration, with potential to obtain and further consider information and that in those circumstances it would be surprising if the Building Surveyor was not permitted to use the information received to address any inadequacy in a proposed protection work solution and to determine that the proposal was appropriate with some modification.

The third and fourth defendants also submit that once it is acknowledged, as the plaintiff does in its submissions, that the Building Surveyor’s determination may differ from the owner’s protection works proposal, by reference to further information provided, including pursuant to s 85(b)(ii) of the Building Act, it cannot be the case that the Building Surveyor’s powers under s 87(1) are binary.

The third and fourth defendants submit that the purpose of the Act as a whole, and its objectives, include the provision of “an efficient and effective system” for enforcing building and safety matters and resolving building disputes as reflected in s 1(c) and s 4(1)(e) of the Building Act which respectively refer to “an efficient and effective system” for enforcing building and safety matters and resolving building disputes and the facilitation of “cost effective construction and maintenance of buildings”. Furthermore, the third and fourth defendants point out that in the Second Reading Speech of the Building Control (Amendment) Bill the requirement for the Building Surveyor to determine the “appropriateness or otherwise” of the proposed works clarify that the subject amendment was intended to introduce a procedure which would minimise delays to building works.

The third and fourth defendants submit that the plaintiff’s contention as to a “binary” interpretation of the Building Surveyor’s powers under s 87(1) of the Act would not facilitate the efficient or cost effective resolution of the protection works issue but would mean on the contrary that where the Building Surveyor identified an inadequacy in the owner’s proposed protection work solution and the Building Surveyor could identify a suitable and effective modification which would make the proposed works appropriate, the Building Surveyor would nevertheless be constrained to determine simply that the proposed works were “not appropriate”. The result would be that the owner would need to recommence the process under s 84 of the Building Act.

Furthermore, the third and fourth defendants contend that a resubmission by the owner of the owner’s modified protection works proposal would not necessarily be met by agreement from the adjoining owner which could well lead to a subsequent Building Surveyor’s determination followed by an appeal to the Board. The third and fourth defendants submit that if the plaintiff’s construction of s 87(1) was to prevail this process could occur over and over again because neither the Building Surveyor nor the Board, on Colonial’s arguments, would be empowered to resolve the protection works issue by deciding what protection works would be appropriate, but would rather be required to simply approve or not approve the protection work proposal.

The third and fourth defendants submit that it would not promote and give effect to the statutory purpose in s 1(c) of the Building Act if the Building Surveyor cannot “determine what will make proposed protection works appropriate” but must instead patiently wait for the proposing party to submit and re-submit until it gets it right.[80]
[80]The Board’s Submissions, 25 August 2016, [13]-[14], [19]-[21].

The third and fourth defendants point out that the appropriate protection works solution would never be imposed without the Surveyor having heard from both parties. This, the third and fourth defendants explain, is because as Part 7 of the Building Act operates, the Surveyor will have been served with the Form 3 and Form 4 Notices, and may seek further information from an owner under s 87(2), and make inquiries of either party under s 87(3) of the Building Act.

The third and fourth defendants submit that the impartiality of a duly certified Building Surveyor, and the right of appeal afforded under s 141 of the Building Act, ensure that no unfairness will result from a Building Surveyor having the power to determine the appropriate protection works.[81]
[81]Ibid [22].

The third and fourth defendants also support CES-Queen’s submission that to delimit the Building Surveyor’s power to approve or reject the owner’s protection works proposal would probably give rise to repetitive applications, which would be inefficient, dilatory, costly and contrary to the purpose and intent of the Building Act.

(c) that the Board noted the requirements of part of AS 2601-2001 [59]. The expert evidence before the Board and the evidence of Mr Hatzimouratis dated 3 September 2015 [CB1713 and following], and the statement of Mr Andrew Slade dated 2 September 2016, CB1316 and following, including [17], [18]-[31]] addressed compliance with AS 2601-2001 as referred in detail above;

(d) that the Board addressed evidence dealing with specific demolition plans, [55], [62] to [65];

(e) that the Board had before it evidence which addressed compliance with the requirements of Building Regulation 607.[173]

[173]Reasons for Judgment [340] and [360(b) and (c)].

Colonial, by a reasonable reading of the above determination, in my view, knew why it had failed before the Board.

For the above reasons I reject Ground 3 of Colonial’s Amended Originating Motion.

The Building Surveyor’s obligation to give reasons

On an issue not raised in Colonial’s Amended Notice of Appeal, and not argued during the hearing of this appeal, however subsequent to the hearing of the appeal, by exchange of written submissions the parties argued the issue of whether the Building Surveyor is required to give reasons for a determination made under s 87(1) of the Building Act.

The origin of the issue was that by its post hearing submissions dated 2 November 2016 at [1] Colonial argued that the parties contention at trial that the Building Surveyor is not required to give reasons for his or her determination was incorrect. In Colonial’s 2 November 2016 submissions, Colonial submitted that the Building Surveyor is required to give reasons for his or her determination.

The background to Colonial’s above position was that CES-Queen had somewhat obliquely raised the issue of the arguable contradiction to Colonial’s observations about the process by which the Building Surveyor might acquaint the owner with what changes it might make to an unsuccessful protection works application under ss 84-87 of the Act. The contradiction identified by CES-Queen was that Colonial’s observations assumed that in relation to his or her functions under s 87 the Building Surveyor would furnish reasons, whereas the Building Act made no provision for reasons to be given by the Building Surveyor.[174]
[174]CES-Queen’s Submissions, 3 October 2016, [16], [17(b)] and Colonial’s Submissions, 16 August 2016, [75].

Colonial in its submissions responds to CES-Queen’s criticisms of Colonial for not explaining how the evidence or any obligation to give reasons supports a binary construction of s 87 of the Building Act by submitting that this argument is unjustified because “Colonial confined its submissions to the grant of leave, which was limited to whether the Surveyor is or can be obliged to give reasons”.[175] Colonial also contends that here no reasons were sought from the Building Surveyor in response to the third and fourth defendants submissions, that the real question is the ability to request reasons, rather than an actual request for reasons, which assists in the proper construction of s 87 of the Building Act.[176]
[175]Colonial’s Reply to CES-Queen, 16 November 2016, [4].
[176]Colonial’s Reply to the Board, 16 November 2016, [3].

Colonial’s submissions (Surveyor’s Reasons)

Colonial submits that, if an owner, or adjoining owner, request reasons for determination from the Building Surveyor, then the Building Surveyor must give reasons.[177] In support of this proposition Colonial first cites s 8(1) of the Administrative Law Act, which provides: “A tribunal shall, if requested to do so by any person affected by a decision made, or to be made by it, furnish him with a statement of its reasons for the decision.”
[177]Colonial’s Submissions, 2 November 2016, [1].

Colonial argues that because a determination made under s 87(1) is a “decision” within the meaning of s 2 of the Administrative Law Act, and because both the owner and adjoining owner are “persons affected” within the meaning of the same provision, the real question becomes whether the Surveyor is a “tribunal”.[178]
[178]Ibid [5].

Colonial’s submissions point out that s 2 of the Administrative Law Act defines a tribunal (with exceptions, including courts and Royal Commissions) as “a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice”.

Colonial submits that the two rules of natural justice which a tribunal is required to observe are the hearing rule and the bias rule.[179] Colonial submits that only “plain words of necessary intendment” could exclude the operation of a rule of natural justice.[180] Since no rules of natural justice have been excluded, there being no relevant words of necessary intendment to show otherwise, Colonial asserts that the Building Surveyor must observe those rules and, as a result, by operation of the Administrative Law Act as outlined above, the Building Surveyor is a “tribunal” within the statutory meaning, and thereby a determination maker who must therefore give written reasons for his or her determinations, at least when so requested.
[179]Ibid [6].
[180]Ibid [7], quoting Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 [14], in turn quoting Annetts v McCann (1990) 170 CLR 596 at 598.

Colonial relies upon the reasons of Kyrou J (as he then was), in CECA Institute Pty Ltd v Australian Council for Private Education and Training[181] to the effect that as long as the power exercised is governmental in nature, then a public power is being exercised which is subject to the rules of natural justice.[182]
[181](2010) 245 FLR 86.
[182]Colonial’s Reply to the Building Surveyor’s Submissions, 22 November 2016, [2]–[5].

Colonial submits that the provisions of the ss 76, 77, 78, 79, 81 and 179 of the Building Act “do not exhaustively codify the requirements of the natural justice bias rule”, and hence are insufficient to exclude the bias rule.[183] Moreover, Colonial submits the bias rule does not have a fixed content at common law, for which reason it would not, in any event, be possible to codify the bias rule.[184]
[183]Ibid [8].
[184]Ibid [9].

In Colonial’s closing submissions in reply dated 10 October 2016 it contends that it is not Colonial’s case that the Surveyor could engage with an owner informally to discuss recommended changes to the proposed protection works. Colonial submits that the Surveyor would provide reasons (particularly if requested) to explain why proposed protection works were not appropriate. This would not undermine the Surveyor’s independence or involve a breach of s 79 of the Building Act.

As referred to above, by its submissions dated 2 November 2016 Colonial submitted that at trial the parties contended that the Surveyor is not required to give reasons for a determination made under s 87(1) of the Building Act.

In Colonial’s submissions of 2 November 2016, at [1] the plaintiff now submits that it is wrong to contend that the Surveyor is not required to give reasons for a determination under s 87(1) of the Building Act, and that to the contrary the Surveyor is required to give reasons for his determination, if requested to do so by an owner or an adjoining owner.

Colonial submits that s 8(1) of the Administrative Law Act imposes an obligation on a ”tribunal” to provide a statement of its reasons for a decision if requested to do so by a person affected by that decision. Colonial also submits that a determination under s 87(1) of the Building Act is a ”decision” under the Administrative Law Act because such a determination operates in law to determine a question affecting the rights of the owner and of the adjoining owner. It submits that both of those persons are a relevant “person affected” in respect of such a decision pursuant to s 2 of the Administrative Law Act.

Colonial submits that Parliament has not manifested any intention to exclude the bias rule in relation to the Building Surveyor’s function under s 87(1) of the Building Act. Colonial also submits that indeed s 79 of the Building Act contains indicators that it is intended that the Building Surveyor be “independent” and undertake his or her functions “impartially” and in good faith.

Further, Colonial submits that the Surveyor is a tribunal pursuant to s 2 of the Administrative Law Act because he or she is required to observe one (or more than one) of the rules of natural justice which in Colonial’s submission are constituted by the “hearing rule” and the “bias rule” requiring the decision maker to be impartial and disinterested.

Colonial also submits that CES-Queen’s contention that were the Building Surveyor’s determination to be subject to judicial review that would be antithetical to the intention of the legislature that the Board should operate as a “one stop shop”, ignores the fact that such determinations are subject to review anyway, irrespective of whether the Surveyor is a “tribunal” within the statutory meaning and that the Building Surveyor’s determination are also reviewable by the Board.[185]
[185]Colonial’ Submissions, 16 November 2016, [3].

CES-Queen’s submissions (Natural justice)

CES-Queen submits that the relevant Building Surveyor is “not by law required to observe one or more of the rules of natural justice”.[186]
[186]CES-Queen’s Submissions, 11 November 2016, [7].

CES-Queen submits this on the basis that when the two tier statutory framework under the Building Act for reaching a final determination with respect to a proposal for protection work is considered, the exhaustive provision for the requirements of natural justice at the second stage, that is at the Building Appeal Board stage, evince a clear intention that the relevant building surveyor be relieved from any obligation to afford natural justice when making a determination under s 87(3) of the Building Act. CES-Queen submits that in such circumstances, the requirements of natural justice may be fulfilled if the decision-making process, when viewed in its entirety, makes appropriate provision for the observance of the rules of natural justice, notwithstanding that a decision-maker at a particular stage may not be required to observe any of the rules of natural justice.[187]
[187]Ibid [4]–[7]; Nicholson v Mornington Shire Council [2007] VSC 519 at [77]; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578].

As to the first stage, namely in relation to the Surveyor’s determination, CES-Queen point to the words of s 87(3) of the Building Act, which provides: “In determining a matter under this section, the relevant building surveyor may make any inquiries he or she thinks fit but is not required to give any person a hearing.”[188] CES-Queen contend that this part of s 87(3) makes it clear that Parliament intended that the Building Surveyor was not required to afford a hearing to the parties affected by his or her determination and by implication not required to afford natural justice.
[188]Ibid [6].

CES-Queen agrees that at the second stage, namely in relation to an appeal to the Board, the rules of natural justice do apply. Schedule 3 to the Building Act provides in clause 15(1) that the Board must give the parties reasonable opportunity to make oral submissions at a hearing, or written submissions in the case of a proceeding that is not a hearing; and in clause 15(3)(c) that the Board is bound by the rules of natural justice.[189] Moreover, CES-Queen notes that Board determinations under s 149 of the Building Act are amenable to judicial review under the Administrative Law Act. CES-Queen also cites the provision in clause 16 of Schedule 3 of the Building Act which provides for reasons to be provided by the Board on request by a party.[190]
[189]Ibid [6].
[190]Ibid [6].

CES-Queen also draws attention to what it suggests would be a problematic practical result which would arise from classifying the Surveyor as a tribunal: namely, that the Building Surveyor’s determinations would be amenable to review under the Administrative Law Act, in addition to being appealable to the Board under s 141 of the Building Act.[191]
[191]Ibid [8].

Finally, CES-Queen draws attention to Colonial’s failure to explain how an obligation to provide reasons under the Administrative Law Act would support its binary construction of s 87 of the Building Act. CES-Queen contends that a requirement to provide reasons upon request under the Administrative Law Act “does not materially advance the submissions made by Colonial in circumstances where the statutory intent is clear”.[192]
[192]Ibid [14].

CES-Queen submits that the Surveyor is not a “tribunal” for the purpose of the Administrative Law Act and can therefore not be compelled to provide reasons under s 8(1) of the Administrative Law Act.

CES-Queen argue that pursuant to the Building Act there is a two tier scheme which must be considered in determining whether the Surveyor owes a duty to accord natural justice to a person affected by a decision. More particularly, CES-Queen submits that the Building Act establishes a two tier process for reaching a final determination in relation to protection works. The first stage relates to the exercise of the power conferred by s 87(1) of the Building Act to make a determination as to the appropriateness or otherwise of protection work.

The second stage, CES-Queen submits, relates to the Building Appeals Board which is invested with jurisdiction pursuant to s 141 of the Building Act to hear and determine appeals. Those appeals are in the nature of a hearing done over pursuant to s 148 of the Building Act.

CES-Queen, as earlier outlined, contend that in relation to the first stage of the above process the Building Act does not impose an obligation to afford a hearing to the parties affected by that determination pursuant to s 87(1) of the Building Act.

On the other hand, CES-Queen submits that in the second stage of the process under the Building Act the Board is bound, without limitation, by the rules of natural justice as specifically provided in Clause 15(3)(c) of Schedule 3 of the Building Act. CES-Queen also submits that it is clear that determinations made by the Building Appeals Board pursuant to s 149 of the Building Act are amenable to judicial review under the Administrative Law Act.

CES-Queen submit that it is clear that the scheme of the Building Act which clearly provides that the second tier stage undertaken by the Building Appeals Board is required to afford natural justice to the parties provides by implication including a lack of provision to the contrary that the Surveyor determination process established by the Building Act does not require conformity with the rules of justice including compliance with “bias rule”. Accordingly, CES-Queen submits the Surveyor is not a tribunal for the purposes of s 2 of the Administrative Law Act, nor amenable to a request made pursuant to s 8(1) of the Administrative Law Act. CES-Queen also submits that were the Surveyor to be a “tribunal” for the purposes of the Administrative Law Act, the Surveyor would be subject to judicial review pursuant to s 3 of the Administrative Law Act which CES-Queen submits would be antithetical to the Building Act legislation which intended the Building Appeals Board to be a “one stop shop”.

CES-Queen also submits that Colonial is silent as to how an alleged obligation on the part of the Surveyor to provide reasons under the Administrative Law Act supports a binary construction of s 87 of the Building Act. Accordingly, CES-Queen submits that the submissions about whether or not the Surveyor is obliged to give reasons are not submissions which assist the Court in relation to the questions which arise in relation to Ground 2 of Colonial’s appeal in this proceeding.

CES-Queen submits that there is no ambiguity in the words of s 87(1) and therefore it is not permissible to go outside the four corners of the Building Act and have resort to another Act to discern the statutory intent of s 87 of the Building Act.[193]
[193]CES-Queen’s Submissions, 11 November 2016, [12]; CES-Queen’s Submissions, 23 August 2016, [C.2.2].

In its related closing submissions at [17(b)] CES-Queen also submit that Colonial’s construction of s 87(1) of the Building Act is flawed, for amongst other reasons because the solutions proposed by Colonial include an assumption that the process to be adopted by the Surveyor is one in which he or she must give reasons. CES-Queen submits that there is no provision made for the provision of such reasons under the Building Act.

Submissions of the Building Surveyor (the Second Defendant) – Surveyor’s obligation to give reasons

The Surveyor (the second defendant Mr Akritidis) submits that the Surveyor is not obliged to afford natural justice. Further, the second defendant submits that (adopting the third and fourth defendants’ submissions) whether or not the Building Surveyor is a ‘tribunal’ is not relevant to the proper construction of s 87(1) of the Act and that this issue therefore need not be decided in this case.

Further, the second defendant submits that the Building Surveyor is a private professional to whom the Building Act gives certain powers, however the Building Surveyor is at all events not a person who can properly be described as an administrative or executive decision maker to whom the common law presumptions in relation to natural justice apply. The second defendant also submits that the common law bias rule is, in the context of the Surveyor, excluded by implication because it is accepted by the parties that the hearing rule is expressly excluded.[194]
[194]Building Surveyor’s Submissions, 16 November 2016, [7].

The second defendant submits that the Building Surveyor does not exercise “public powers” such as to make his or her determination the subject to the rules of natural justice or alternatively the second defendant submits that both rules of natural justice identified by Colonial have been excluded by plain words of necessary intendment.[195]
[195]Ibid [3].

The second defendant concedes that the Building Surveyor’s powers derive from the Building Act, but denies that this makes them “public powers”, since they are performed “within the framework of … their professional responsibilities and not as public officials or administrative decision makers”.[196] The second defendant observes that under s 78 of the Building Act, the Surveyor is appointed and remunerated not by a government agency, but by a person who is entitled to apply for a building permit, occupancy permit or temporary approval in respect of a building or building work. Hence, the second defendant asserts that the Building Surveyor is better characterised as “a private professional to whom the Building Act gives certain confined powers that are to be used in performing their professional functions as building surveyors”.[197]
[196]Ibid [5].
[197]Ibid [6].

The second defendant notes that it is accepted by the parties that the hearing rule is expressly excluded.[198] The second defendant further submits that the “detailed provision” for appointment (Building Act s 78); functions (Building Act ss 76 and 77); termination of appointment (Building Act s 81); circumstances in which the Surveyor may not act (Building Act s 79); and the requirement to avoid “unprofessional conduct” (Building Act s 179), expose the intention of the Building Act that the common law bias rule is excluded.[199]
[198]Ibid [7].
[199]Ibid [7].

The second defendant also notes at para [8] of its submission of 16 November 2016, referring to Vickery J’s decision in Colonial Range Pty Ltd v Victorian Building Authority [2014] VSC 272 at [26] – [28], that the prohibitions in ss 70(1)(a) and (b) and the requirements of regulation 1502(c) have the purpose of ‘ensuring that a private building surveyor is independent and is in a position to act impartially in undertaking the important functions assigned to this role by legislation’. The second defendant submits that these specific provisions are required to ensure impartiality because building surveyors are often retained and paid by building owners, and the common law bias does not apply to building surveyors.

Third and fourth defendants’ submissions

The third and fourth defendants submit that whether or not the Surveyor is a ‘tribunal’ and must give reasons for his or her determination, if requested to do so, by force of the Administrative Law Act, Colonial fails to identify how such issues are relevant to the proper construction of s 87 of the Building Act.

The third and fourth defendants submit that:

However it is understood, from the plaintiff’s original submissions, that the sole relevance is that if the RBS gives reasons “the owner and the adjoining owner might be well-advised to have regard to such reasons and observations in any future negotiations or dispute”,[200] which may “allow the owner to formulate a new proposal that takes that explanation into account”.[201]

[200]Colonial’s Submissions, 16 August 2016, [75].

[201]Third and Fourth Defendants’ Submissions, 11 November 2016, [2].

The third and fourth defendants submit that in any event, even if it were assumed that the Surveyor is a ‘tribunal’ the answer to whether the Surveyor may be required to provide reasons will be factually dependent and may vary from case to case. Therefore, any significance of a requirement on the part of the Building Surveyor to furnish reasons does not arise in the present context in which s 87 must be interpreted. This is because the Building Surveyor may not be requested to provide reasons and further because there may be circumstances, such as provided for in s 8(5) of the Administrative Law Act, in which a Tribunal is not bound to furnish reasons, even if requested to do so.

The third and fourth defendants also point out that in practical terms, even if the Surveyor did provide reasons, such reasons may or may not be taken into account by the owner and the adjoining owner in any further attempts to resolve a dispute about protection works.

The third and fourth defendants submit that, for the above reasons, even if the Building Surveyor was required to give reasons, this would not be a factor which weighs in favour of any particular construction of s 87(1) of the Building Act.[202]
[202]The third and fourth defendants submitted to the contrary at T199.30–200.12.

The third and fourth defendants also submit that the question of whether the Surveyor is a tribunal and is required to provide reasons is complex and not suited to determination as a hypothetical issue in a case where no question of reasons being required could arise, as no request was made.

Conclusion – natural justice – Surveyor’s obligation to provide reasons
Surveyor’s obligation to give reasons

In my view, for the reason explained below, it is ultimately unnecessary and undesirable for me to decide the issues addressed by the parties in relation to whether the Building Surveyor has an obligation to give reasons for his or her determination under s 87(1) of the Building Act.

The question of whether the nature of any obligation imposed on the Building Surveyor to give reasons reflects upon the Building Surveyor’s powers of determination under s 87(1) of the Building Act was at best an indirect and ancillary issue which was not argued by either Colonial[203] or CES-Queen[204] to be material to the central question of whether under s 87(1) of the Building Act, the Building Surveyor was constrained by only “binary” power to either approve the owner’s protection works proposal or reject that proposal.
[203]Colonial’s Submissions, 2 November 2016 do not expressly argue that the Surveyor’s obligation to provide reasons assists in the interpretation of s 87(1) of the Act; see also Colonial’s Submissions, 16 November 2016, [4] and fn [4].
[204]CES-Queen’s Submissions, 11 November 2016, [9], [11]-[15].

In the result, neither Colonial nor CES-Queen argue, in any direct way, that a decision in relation to the Building Surveyor’s obligation to give reasons in relation to his or her determination under s 87(1) of the Building Act, will assist me in the task of deciding the true nature and extent of the Building Surveyor’s powers under that section.

Furthermore, and in any event, I have in relation to Ground 2 of this appeal held that s 87(1) of the Building Act empowers the Building Surveyor to determine the appropriateness of proposed protection works which represent a modification of the owner’s s 84 protection works proposal.

In reaching the above finding I do not consider it to be material whether or not the Building Surveyor was obliged to give reasons to the owner and the adjoining owner for his or her determination. Put another way, I do not consider that the points argued by the parties in relation to the Building Surveyor’s obligation to give reasons advance either side of the argument put by the parties as to the nature and extent of the Building Surveyor’s powers under s 87(1) of the Building Act.

I also note that the Building Surveyor (the second defendant) and the third and fourth defendants all submitted that the question of whether a Building Surveyor is a tribunal and would thereby be obliged to give reasons for his or her determination, is not relevant to the proper construction of s 87(1) of the Building Act, and further each of those parties also argued that issue need not be decided in this appeal.[205]
[205]Building Surveyor’s Submissions, 16 November 2016, [2(b)]; Third and Fourth Defendants’ Submissions, 11 November 2016, [2], [3], [4], [7] and [8].

Further, the third and fourth defendants submit that even if the Building Surveyor is a tribunal, as asserted by Colonial, the answer to whether the Building Surveyor may be required to provide reasons will depend on facts which may vary from case to case, for example:

(xvii) The Building Surveyor would, in any event, only be required to provide reasons, if requested to do so by the person effected by the decision. That request may not be forthcoming, as in this case; and

(xviii) Section 8(5) of the Administrative Law Act omits of circumstances in which a tribunal is not bound to publish reasons, even if requested to do so.

Whether s 8(5) will be of application is in turn a complex and likely largely factual issue which would be undesirable to endeavour to address in the context of this appeal because it necessarily remains hypothetical because of unresolved facts as mentioned and further because, as I have explained above, I do not consider, on any outcome, the resolution of the statutory question concerning the Building Surveyor’s obligation to give reasons assists me in the primary construction task I have referred to.

I am also unpersuaded by Colonial’s submissions to the effect that in a setting such as this, s 8(5) of the Administrative Law Act will not be engaged, principally, on Colonial’s submission because there will never be a relevant contradiction with public policy. I am unpersuaded in this regard because I do not accept that given the uncertain factual setting, such an assertion can be unequivocal.

I am also unpersuaded by Colonial’s submission that the question of the obligation of the Building Surveyor to give reasons is not a “neutral factor” because the defendants argued the relevance of an obligation to give reasons at trial. I regard this submission as unconvincing because it fails to take account of the above mentioned positions of the defendants communicated in their submissions filed well after trial and up to late November 2016 in which they eschew the materiality of the issue of whether the Building Surveyor was obliged to give reasons.

For these reasons I decline to determine the matters argued in relation to the Building Surveyor’s obligation to give reasons. These questions are to the degree I have explained above hypothetical and at all events not instructive as to the proper interpretation of s 87(1) of the Building Act.

Relief sought
Certiorari

Colonial seeks an order in the nature of certiorari quashing the purported determinations of the Board made on 28 April 2016 to:

(a) affirm the purported determination of Akritidis made on 4 May 2015 under s 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff’s building at 140 Queen Street, Melbourne; and

(b) affirm the purported determination of Akritidis made on 4 May 2015 under s 87 of the Building Act in relation to the appropriateness of protection work for the plaintiff’s building at 21-27 McKillop Street, Melbourne

on the ground of either or both jurisdictional error and error of law on the face of the record.[206]

[206]Amended Originating Motion, 15 August 2016, [1].

Reconstitution of the Board
Colonial’s Submission

Colonial submits that if the primary orders sought by it are made, and its appeals against the Akritidis determinations remain undetermined, it would be unfair to Colonial or would give the appearance of unfairness to Colonial, if the panel of the Board that heard and determined the appeals included any of the members comprising the third defendant.[207] Colonial cited case law expounding the “guiding principle” that matters of this kind ought to be remitted to a differently constituted decision-maker,[208] in order to ensure fairness and the “perception of a fair hearing”.[209] It therefore seeks an order in effect requiring the fourth defendant to reconstitute a panel of the Board which does not include any of those same members to determine Colonial’s appeals under s 141(a) of the Building Act against the Akritidis determinations.[210]
[207]Ibid [49]–[50].
[208]Vegco Pty Ltd v Gibbons (2008) 30 VAR 1 at 10 [33].
[209]Barro Group Pty Ltd v Brimbank City Council (No 2) (2012) 36 VR 281 at 306 [9].
[210]Colonial’s Submissions, 16 August 2016, [119].

CES-Queen’s Submission

Resisting this submission, CES-Queen argues impracticality and expense against the necessity for making an order that the Board be differently constituted. CES-Queen contends that Colonial can only point to the possibility that the Board may take an adverse view were the matter to be remitted to the same Board members. CES-Queen submits that this mere possibility is insufficient to overcome the expense and difficulty involved in having the matter remitted to a newly-constituted panel.[211]
[211]CES-Queen’s Submissions, 23 August 2016, [107]–[108]; Comcare v Broadhurst (No 1) (2011) 192 FCR 497 at 504 [31]–[32].

CES-Queen submits that Colonial has not pointed to anything other than the possibility that somehow on remitter the Board might take an adverse view of Colonial and its case,[212] because ‘this court has impugned an aspect of its decision on judicial review’.
[212]Ibid [108].

CES-Queen submits indirectly by reference to authority, that to remit to a different tribunal is likely to be more expensive and less efficient and therefore, except in a clear case, the interests of justice will generally best be served by a hearing before the tribunal constituted as it was originally.

CES-Queen submits that in the absence of some aspect of the conduct or reasons of decision of the primary decision-maker, which would render it unfair to the successful party, or give the appearance of unfairness to that party, there is no justification for a remitter to a differently constituted tribunal.

Conclusion
Relief an remitter

For the reasons referred to above I dismiss Colonial’s appeal in toto. Accordingly, no question of remitter arises.

Decision
Grounds 1, 2 and 3

For the forgoing reasons I am not persuaded that the Board fell into relevant error in any respect in relation to any of the three subject grounds of appeal when pursuant to s 141 and s 149 of the Building Act the Board by its Determination dated 28 April 2016 affirmed the determination of relevant Building Surveyor Akritidis under s 87 of the Building Act. Accordingly I dismiss Colonial’s Amended Originating Motion between the parties dated 15 August 2016.

It is unnecessary, as stated in the above conclusion, to decide whether or not it would be appropriate to order the reconstruction of the Board on a remitter.

Orders and costs

I dismiss Colonial’s Amended Originating Motion between the parties, dated 15 August 2016.

I shall await on further submissions, if necessary, before the finalisation of orders in this appeal, including in relation to costs.

Colonial Range v CES-Queen (BAB4 - Protection Works)

[2017] VSC 317

5 June 2017