Colonial Range v CES-Queen (Gantry)

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 2602

COLONIAL RANGE PTY LTD (ACN 070 855 220)	Plaintiff
v
CES-QUEEN (VIC) PTY LTD (ACN 153 232 663)	First Defendant
CITY OF MELBOURNE	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:	15 September 2016
DATE OF JUDGMENT:	5 June 2017
CASE MAY BE CITED AS:	Colonial Range v CES-Queen (Gantry)
MEDIUM NEUTRAL CITATION:	[2017] VSC 256

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JUDICIAL REVIEW – Failure to consider a relevant matter in making an administrative decision – Whether council failed to have regard to significant evidence relevant to its statutory function to make an administrative decision – Failure to give adequate reasons for an administrative decision – Whether council met the requisite standard of written reasons.

STATUTORY DUTIES OF LOCAL GOVERNMENT BODIES – Building work precautions – Protection of the public – Respective roles of building surveyor and council under Building Regulations 2006 including Building Regulation 604 – Whether councils must have regard to public safety under Building Regulations 2006, Building Regulation 604(4) – Whether councils must have regard to the objects and purposes of Local Government Act 1989 s 3C – Interaction of Building Act 1993 and Local Government Act 1989.

JUDICIAL REVIEW – Order in the nature of certiorari quashing a tribunal’s decision – Whether the tribunal must be differently constituted after its initial decision is quashed –Practicality and expense of reconstituting tribunal – Perception of a fair hearing.

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Parties’ submissions:

Opening Submissions:

Plaintiff’s Submissions dated 16 August 2016
First defendant’s Submissions dated 23 August 2016

Closing Submissions:

Plaintiff’s Submissions dated 23 September 2016
First defendant’s Submissions dated 3 October 2016
Plaintiff’s Reply Submissions dated 10 October 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 13 July 2016 the second defendant advised that it submits to the jurisdiction and determination of the court, save and except that the second defendant reserves its rights to be heard on the question of costs.	Chief Legal Counsel, City of Melbourne
For the Third and Fourth Defendants	The third and fourth defendants advised that they submit to the jurisdiction and determination of the Court, save and except that they reserve their rights to be heard on the question of costs.	Robert Dalton, Victorian Building Authority

HIS HONOUR:

Background

The first defendant (CES-Queen) owns 150 Queen Street, Melbourne. It wants to replace the existing building on that site with a large, multi-storey tower to be known as “Tower Melbourne”.

The plaintiff (Colonial) owns an adjoining property at 140 Queen Street, Melbourne. Colonial leases various premises in 140 Queen Street to commercial tenants, who conduct their businesses or operations from those premises.

Tower Melbourne cannot be constructed until the existing building at 150 Queen Street has been demolished. CES-Queen proposes to demolish that building.

The Building Act 1993 (Building Act), together with the Building Regulations 2006 (Building Regulations) regulate building work and building standards and prescribe requirements for the demolition and construction of buildings including requirements and standards of safety for places of public entertainment.[1] The Building Act together with the Building Regulations also provide for efficient and effective systems for the resolution of building disputes, including in relation to appropriate protection works to protect adjoining properties in relation to proposed building work and to protect the safety of the public.[2]
[1]Building Act 1993.
[2]Ibid, s 1 (Purposes) and Part 7 Protection of Adjoining Property; Building Regulations Part 6 and Regulation 101 [Objectives] and including Regulations [602]-[607].

CES-Queen proposes to take certain protection work precautions before and during the demolition work to:

(a) protect the safety of members of the public located on the pedestrian footpath which abuts the western side of 140 Queen Street (footpath). CES-Queen proposes to erect a gantry over the footpath (proposed Gantry); and

(b) protect the safety of members of the public located in Penfold Place which abuts the eastern side of 140 Queen Street. CES-Queen proposes only to use spotters.

Building Regulation 604 deals with the subject of precautions to protect the safety of the public in relation to building work (including demolition work). It provides as follows:

Protection of the public
(1)Precautions must be taken before and during building work to protect the safety of the public if required by the relevant building surveyor.
(2)The precautions must be approved by the relevant building surveyor before building work is commenced.
(3)Before and during the carrying out of building work all excavations must be fenced or otherwise guarded against being a danger to life or property.
(4)The report and consent of the relevant council must be obtained to an application for a building permit relating to the erection of precautions over the street alignment unless a local law requires the taking of precautions and the precautions comply with the local law.

It is common ground that the proposed Gantry would, if erected, cross over the “street alignment” within the meaning of Building Regulation 604(4). That is because it would cross over the line that separates CES-Queen’s property at 150 Queen Street and the footpath.[3]
[3]Colonial’s Submissions, 16 August 2016, [6]; CES-Queen’s Submissions, 23 August 2016, [6]. The expression “street alignment” is defined in Building Regulation 105 of the Building Regulations as meaning “the line between a street and an allotment”. The expression “street” is defined as including “road, highway, carriageway, lane, footway, square, court, alley and right of way”. The expression “allotment” is defined as meaning “land that can be disposed of separately under s 8A of the Sale of Land Act 1962 without being subdivided”.

The affidavit of Miranda Ellen Bordignon filed by Colonial states that the proposed Gantry would also restrict part of the footpath and thereby disrupt traffic, obscure the premises at 140 Queen Street, and degrade the amenity, appeal and value of those premises.[4]
[4]Affidavit of Miranda Ellen Bordignon, 4 July 2016, including at [7].

No local law requires CES-Queen to erect the proposed Gantry. Accordingly, by reason of Building Regulation 604(4), CES-Queen was required to obtain the “report and consent” of the relevant Council, the second defendant to these proceedings (Council).[5]
[5]The expression “relevant council” is defined in s 3(1) of the Building Act as meaning, in relation to a building or land, the council of the municipal district in which the building or land is situated.

On 24 February 2015, CES-Queen applied to the Council for its report and consent in respect of the proposed Gantry.[6]
[6]Affidavit of Miranda Ellen Bordignon, 4 July 2016, “MEB-2”, Attachment C.

As at 9 April 2015, the Council had not yet made a decision in relation to CES-Queen’s application.

On 9 April 2015, CES-Queen appealed to the Building Appeals Board (Board) pursuant to s 144(b) of the Building Act, in respect of the alleged failure by the Council to make a decision on its application within a “reasonable time” (Gantry appeal).[7] CES-Queen served a copy of its Notice of Appeal on Colonial, though for unexplained reasons it did not name Colonial as a party to the appeal.[8]
[7]Ibid “MEB-2”.
[8]Ibid “MEB-3”.

On 5 May 2015, Colonial’s then solicitors, Hoeys Lawyers, wrote to the Board and contended that Colonial was a “party concerned” in relation to the appeal within the meaning of clause 13(d) of Schedule 3 to the Building Act, and that therefore Colonial should be joined to the appeal in accordance with clause 14 of that Schedule.[9] Hoeys Lawyers explained that:

Our client [Colonial] has commercial and retail tenants that that [sic] would be significantly affected by the erection of any such Gantry as that proposed by the Appellant [CES-Queen]. This in turn would directly affect our client.

[9]Ibid “MEB-4”.

Attached to the letter from Hoeys Lawyers to the Board was an affidavit of one of Colonial’s Directors, Jason Hopp (Hopp).[10] In that affidavit, Hopp explains that, after he became aware that CES-Queen proposed to erect a Gantry in front of 140 Queen Street, he consulted tenants of Colonial at 140 Queen Street in relation to the proposed Gantry. Hopp exhibits to his affidavit correspondence which he received from those tenants, including as follows:

(a) Rishi R Hathiramani, the owner of the business “Party and You”, advising Colonial that “should a Gantry be installed to the front of 140 Queen Street that obscures my shop and results in unsightly graffiti and posters and general filth, I will be unable to trade and meet the monthly rental obligations”, and that “[a]s a result I will be taking action against you for failing to meet your obligations as a land lord under the terms and conditions of the lease”.

(b) Megan Black, the Administrative Director of the non-profit organisation and registered charity “Kadampa Meditation Centre”, advising Colonial that “[t]his proposed Gantry installation will have a huge negative impact on our shop on the ground floor, and our meditation centre on level 1”, and further advised that “[t]he Gantry installation at 140 Queen St will make the building look dreadful and like a building site, which will affect our business”, and “[i]f such an installation goes ahead at 140 Queen St, we intend to take action against you for failing to provide the leased space as it was offered under the terms and conditions of the lease”.

[10]Ibid “MEB-5”.

Also on 5 May 2015, despite CES-Queen having lodged its appeal under s 144(b) of the Building Act, the Council purported to give its report and consent under Building Regulation 604(4) to an application by CES-Queen for a building permit relating to the erection of the proposed Gantry, subject to certain conditions. The conditions imposed by the Council included that:

the written consent from the owner of 140 Queen Street Melbourne [Colonial] must be obtained prior to the erection of the proposed Gantry located in front of 140 Queen Street (condition 1).

On 7 May 2015, the Board (comprising a Panel differently constituted to the Panel that determined CES-Queen’s appeal) conducted a directions hearing in relation to the CES-Queen appeal instigated on 9 April 2015. At that directions hearing, an officer of the Council, Mr Giuseppe Genco, explained the Council’s reasons for imposing the abovementioned condition 1 to its report and consent on 5 May 2015:[11]

Basically the reasons for gaining the adjoining property owners consent is that the commercial effect on that adjoining property is it can be crippling to the adjoining owners and the tenants and occupiers within the building. So it’s the whole economics of having a city building and being in the city, especially with a street frontage, is all about the numbers of people going past, your exposure and that attributes equivalent rents for that aspect.
…
… So basically the reason being is that, you know, that the aspect of going into the commercial decisions and the impact on the adjoining owner and the impact on the commercial entities within that building needs to be managed and that would also have been reflected in our local permit which condition—where we ask for condition 2 which is a space occupation permit. That is a consideration even under that permit.
So that is a consideration even under that permit so there was no reason in looking only at the technical aspects of the Gantry, knowing all too well that our local law permit did require exactly the same sort of form and we didn’t want to get into the commercial, nor should we get into being the commercial arbitrator of commercial decisions.

[11]Ibid “MEB-8”, [8]–[9].

Consistent with that explanation, in its submissions to the Board filed on 21 October 2015, the Council stated:

Condition 1 was considered necessary because, in our experience gained from discussions with business owners/operators in the City of Melbourne, the installation of a Gantry or scaffolding in front of a business causes a loss of exposure/revenue and a loss of amenity to the business owners/operators.[12]

In those submissions the Council also noted that when Stephen Braybrook of the Council consulted with Hopp of Colonial on 14 March 2015 about CES-Queen’s proposal to erect a Gantry in front of 140 Queen Street, “Jason Hopp advised Stephen Braybrook that he vigorously opposed the Gantry due to loss of exposure to long term tenants at ground level”.

[12]Ibid “MEB-16”.

Further, at the 7 May 2015 directions hearing, the Board determined that Colonial was a “party concerned” by the appeal.[13] On 29 July 2015, the Board gave reasons for that determination. Those reasons included that the proposed Gantry would “potentially directly affect [Colonial Range’s] enjoyment of [its] property rights” and that Colonial therefore has “a direct interest in the determination by the Board in this matter”. In particular, the Board found that “[t]he construction of a Gantry and scaffolding over the footpath, for almost the entire street frontage of 140 Queen Street, will potentially impact on people’s visual and physical access to 140 Queen Street …”.[14]
[13]Ibid “MEB-8”, [44].
[14]Ibid “MEB-9”, [10]–[11].

On 29 July 2015, the Board made further formal directions in relation to the appeal, relevantly:[15]

(a) the Board ordered that the CES-Queen Notice of Appeal be amended to include an alternative appeal under s 144(a) of the Building Act against the Council’s purported decision under Building Regulation 604(4) to give its report and consent subject to certain conditions;[16] and

(b) the Board ordered that Colonial be joined as a party to the appeal.

[15]Ibid “MEB-9”.

[16]On 9 October 2015, the Board made a minor amendment to the “alternative ground for the appeal” under s 144(a) of the Building Act: Ibid, “MEB-12”.

Subsequently, the fourth defendant (Chairperson) exercised his power, under clause 8 of Schedule 3 to the Building Act, to determine that the appeal was to be allocated to a Panel of the Board constituted by members Stephen Lodge, Rebecca Cameron and Joe Zita.[17]
[17]Being a different Panel to that which had previously constituted the Board for the purpose of conducting the directions hearing referred to on 7 May 2015 and making the directions referred on 29 July 2015.

That Panel dealt with the appeal on the papers.

In the course of its appeal to the Board Colonial contended that the Board should only give its consent to the erection of the proposed Gantry if it imposed a condition that would allow the commercial impact of the erection of the Gantry to be appropriately managed, either by imposing a condition that Colonial itself must consent to the erection of the Gantry (ie, condition 1 that the Council had imposed), or by imposing a condition requiring CES-Queen to indemnify Colonial and its tenants in relation to any damage caused to those businesses by the erection of the Gantry.[18] With respect to the latter proposed condition, Colonial argued:

One might ask rhetorically: why should CES-Queen—being the developer whose proposed building works has created the need for a Gantry—not be required to indemnify innocent tenants whose businesses are likely to suffer if the Gantry were erected?

[18]Affidavit of Miranda Ellen Bordignon, 4 July 2016; see especially “MEB-17”, [20]–[32].

On 5 May 2016, the Board (constituted by the three members referred to above) determined the appeal by exercising its power under s 149(1)(c) of the Building Act to vary the Council’s decision, including by deleting condition 1 (Gantry determination).[19]
[19]Ibid “MEB-21”. By its Determination of 5 May 2015 the Board, inter alia, amended condition 6 to provide that the report and consent expires on 1 June 2017 unless a building permit is issued for the matters contained in this report and consent by orders made 31 May 2017.

The Board did not impose the conditions which Colonial had sought for the purpose of protecting it and its tenants in relation to the erection of a Gantry. In its Gantry determination the Board included reasons for that determination.

On 24 May 2016, Colonial exercised its right, under clause 16(5) of Schedule 3 to the Building Act, and requested that the Board give written reasons for the Gantry determination.[20]
[20]Ibid “MEB-22”.

On 6 June 2016, pursuant to 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”.[21]
[21]Ibid “MEB-24”.

Colonial submits that by reason of the operation of s 10 of the Administrative Law Act 1978, the Board’s reasons (as set out in the same document as its determination) are incorporated in the record of its determination.[22]
[22]Cf Supple v Building Appeals Board [2015] VSC 83 at [68]–[72].

Colonial’s Amended Originating Motion for Judicial Review
The Relief sought by Colonial

Colonial’s Amended Originating Motion for Judicial Review:[23]

(a) seeks an order in the nature of certiorari quashing the purported determination of the Building Appeals Board dated 5 May 2016 in relation to the Council’s decision consenting to a building permit for the erection of certain precautions over the street alignment at 140 Queen Street, Melbourne; and

(b) an order remitting the appeal by CES-Queen to the Board under s 144(a) and (b) of the Building Act and requiring the Chairperson of the Building Appeals Board to constitute a different Panel of the Board for the appeal.

[23]Colonial further amended its Amended Originating Motion for Judicial Review during the course of the Trial by withdrawing paragraphs [42], [44], [45(c)(ii)], [46(a)(ii)] of its Amended Originating Motion and Colonial’s Submissions dated 16 August 2016 by withdrawing paragraphs [58.2], [60]-[66] and [67.2]; T282-283.

Colonial’s Grounds of Appeal

Colonial’s grounds of appeal are in summary as follows.

Ground 1 (Misconception of statutory function)

Colonial contends that the functions of the Surveyor under Building Regulation 604(1) and (2) differ from the functions of the Council under Building Regulation 604(4), in that:

(a) the Surveyor under Building Regulation 604(1) is to consider whether precautions must be taken before and during building work to protect the safety of the public, and if so, require precautions to be undertaken; and

(b) the Surveyor under Building Regulation 604(2) is to consider whether particular precautions proposed to be taken by the owner are adequate to protect the safety of the public, and if so, approve those precautions.

Colonial contends that it is not the Council’s function under Building Regulation 604(4) to undertake the same consideration, and if the Council thought it appropriate, require the same precautions as those to be considered and required by the Surveyor pursuant to Building Regulations 604(1) and 604(2).

Colonial contends in Ground 1 that pursuant to Building Regulation 604(4) the Council’s jurisdiction is limited to situations where proposed precautions cross ”over the street alignment” and would thereby intrude on space used by the ”local community” within the meaning of the Local Government Act 1989 (Local Government Act) (including any adjoining owners or occupiers).

Colonial contends that where the Council does have jurisdiction, its function is to consider, or alternatively, includes considering, whether it is appropriate to consent to the erection of proposed precautions, or to consent to the erection of such proposed precautions subject to conditions, having regard to any impact (including economic impacts) that may be caused to the local community by the erection of the precautions.

Colonial also contends that the function of the Board on appeal from a decision of the Council under Building Regulation 604(4) is the same function as that undertaken by the Council at first instance.

Colonial contends that in this matter the Board has misconceived the nature of its function, and thereby constructively failed to exercise its jurisdiction, or the Board took into account an irrelevant consideration, or the Board failed to take into account a relevant consideration, by the Board purporting to determine the appeal:

(a) by considering whether it was ”appropriate” to erect the proposed Gantry in order to protect the safety of the public;

(b) further or alternatively, by the Board taking into account that the protection of the public was the ”overriding” interest, or the interest that had to be ”prioritised”, when determining whether to give consent to the erection of the proposed Gantry;

(c) further or alternatively, by the Board failing to consider whether it was appropriate to consent to the erection of the proposed Gantry, or to do so subject to certain conditions, having regard to any impacts (including economic impacts) that may be caused to the owner and occupiers of 140 Queen Street by the erection of such a Gantry.

Ground 2 (Failure to consider a relevant matter and to give adequate reasons)

In Ground 2 of its Amended Originating Motion for Judicial Review, Colonial identifies certain of its submissions to the Board.[24]
[24]Colonial’s Amended Originating Motion, [34], lists by reference to five summary points the submissions which it made to the Board.

The submissions outlined by Colonial as part of its second ground, to a degree overlap Colonial’s contentions raised in Ground 1, and include that:

(a) the Council’s function under Building Regulation 604(4) was different from the Surveyor’s functions under Building Regulations 604(1) and 604(2);

(b) the Council’s function, unlike the Surveyor, was to assess (or included assessing) the impact (including the economic impact) of proposed precautions that crossed “over the street alignment”, from the perspective of the local community (including adjoining owner’s and occupiers);

(c) the Council had identified adverse impacts which may be caused to Colonial and adjoining owners by the erection of the proposed Gantry and dealt with those adverse impacts by imposing condition 1.

Condition 1 of the Conditions in the Council’s report and consent of 5 May 2015 which permitted the erection of the proposed Gantry, was in the following terms:

The written consent of the owner of 140 Queen Street, Melbourne [Colonial] must be obtained prior to the erection of the proposed Gantry located in front of 140 Queen Street, Melbourne.

(d) it was open to the Council to impose the above condition, and therefore it was also open to the Board to affirm the Council’s decision;

(e) alternatively, if the imposition of condition 1 amounted to an unlawful delegation of the Board’s power then the Board should address the possible adverse impacts which it had identified by refusing to grant its consent unless CES-Queen provided an appropriate and adequate indemnity for any inconvenience, loss or damage suffered by Colonial in connection with the erection of the proposed Gantry.

Further, Colonial highlights in its grounds of appeal that it submitted to the Board that an indemnity from CES-Queen was clearly appropriate and the Board should exercise its power under s 149(1)(a) of the Building Act to affirm the decision under appeal in that regard, or alternatively if CES-Queen did not put forward evidence that it had provided an appropriate and adequate indemnity to Colonial, the Board should set aside the Council’s decision and substitute its own to refuse to grant consent to the erection of the proposed Gantry.

Colonial also refers in its grounds of appeal to CES-Queen’s submission that it was inappropriate for the Board to consider adverse impacts that the proposed Gantry erection might cause to Colonial and the adjoining owners because s 98 of the Building Act provides for an entitlement of adjoining owners to compensation for any inconvenience, loss or damage. In its Amended Notice of Motion in relation to Ground 2, Colonial contends that s 98 of the Building Act provides only a limited mechanism for compensation in connection with work to protect adjoining property and not the public, which circumstance Colonial submits points up the need for the Council (and the Board standing in the Council’s place) to consider the adverse impacts of precautions that cross over the street alignment of relevant ratepayers in deciding whether to grant consent under Building Regulation 604.

In Ground 2 of its Amended Originating Motion Colonial also contends that the Board’s statement in respect of the possible imposition of a condition requiring CES-Queen to indemnify Colonial and the tenants of 140 Queen Street against any loss caused by the erection of the proposed Gantry, namely that “it is unnecessary to require CES-Queen to provide indemnity to either Colonial or the adjoining occupiers”, was not supported by adequate reasoning. Colonial contends that the Board’s reasons are inadequate in this regard because they did not explain why it was “unnecessary” to require such an indemnity from CES-Queen or to otherwise deal with the adverse impacts that may be caused by the erection of the proposed Gantry.

Further, Colonial contends that the Board’s reasons fail to refer to any relevant evidence relating to the adverse impact of the Gantry on Colonial or adjoining owners and/or state whether the Board accepted such evidence and/or state if the Board did not accept such evidence, why that evidence was not accepted or in any way to record the Board’s findings to the effect that Colonial and adjoining occupiers would not suffer loss if CES-Queen erected the proposed Gantry, nor provide the Board’s reasons dealing with a number of other permutations of findings or explanations asserted by Colonial to be lacking, as set out in paragraph [41(e)–(i)] of Colonial’s Amended Originating Motion.

For the above reasons, Colonial contends that the Board made a jurisdictional error by:

(a) constructively failing to exercise its jurisdiction; or

(b) failing to give proper genuine and realistic consideration to what Colonial says was the mandatory relevant consideration, namely any impacts that may be caused to Colonial and adjoining owners and occupiers by the erection of the proposed Gantry;

(c) failing to give proper genuine and realistic consideration to relevant evidence that Colonial and adjoining owners may suffer loss as a result of the proposed Gantry.

Alternatively, Colonial contends that if the Board did consider the matters and the evidence identified above, then the Board’s reasons for its determination do not meet the standard required of a written statement of reasons under clause 16(6) of Schedule 3 of the Building Act, including because the Board’s reasons do not set out the path of reasoning and do not explain the Board’s reasons in sufficient detail to enable a court to see whether its determination involved any error of law. Colonial contends that the Board failed to set out the actual path of its reasoning related to it deciding that it was “unnecessary” or inappropriate to impose a condition upon its consent requiring CES-Queen to indemnify Colonial and adjoining occupiers.

For these reasons, Colonial contends that the Board’s determination reflects an error of law on the face of the record.

Reconstitution of the Board

Colonial also contends that if the court makes an order in the nature of certiorari quashing the purported determination of the Board made on 5 May 2016 and CES-Queen’s appeal to the Board under s 144 of the Building Act therefore remains undetermined, it would be unfair or would give the appearance of unfairness to Colonial if the Panel of the Board which heard and determined the appeal included any of the members of the original Panel of the Board.

Ground 1 (Misconception of statutory function)
Colonial’s submissions (Misconception of statutory function)

Colonial submits in essence that it was Council’s function under Building Regulation 604(4) to assess whether to consent to the erection of the proposed Gantry along the frontage of 140 Queen Street Melbourne, having regard to the impact of the intrusion of that gantry on the “local community” of which Colonial formed part. Colonial submits that the Board misconceived its function:

(a) by considering it was “appropriate” to erect the proposed Gantry in order to protect the safety of the public.

Colonial submits that by entertaining this “public safety” consideration the Council “conflated” its function under Building Regulation 604(4) with the Surveyor’s function under Building Regulation 604(2);

Colonial submits that the Council’s role under Regulation 604(4) was to consider the impact of precautions on the local community;

(b) further, or alternatively, by taking into account that the protection of the public was the “overriding” or “priority”[25] consideration affecting its decision as to whether it should consent to the erection of the precautions proposed by CES-Queen that would intrude upon the relevant public space;

(c) further, or alternatively, by failing to consider whether it was appropriate to consent to the erection of the proposed Gantry subject to certain conditions, having regard to the impacts, including the economic impacts, that erection of the Gantry proposed by CES-Queen would cause to Colonial and to certain tenants of 140 Queen Street.

[25]Board’s Reasons for Determination, [42], [54].

Colonial’s principal contention is that on the proper construction of Building Regulation 604, that Regulation is only concerned with whether it would be appropriate to grant consent to the erection of precautions that would intrude into a public space, having regard to any adverse impacts that those precautions would have on the assets, infrastructure and amenity of the local community.[26]
[26]Colonial adduced evidence before the Board that the erection of the proposed Gantry would have a substantial adverse impact on the amenity and appeal of relevant businesses and consequentially would have a substantial adverse impact on the custom and viability of those businesses, Colonial’s Submissions, 16 August 2016 [51].

Colonial asserts that where Building Regulation 604(4) is of application, namely where proposed precautions cross a street alignment, the requirement for a report and consent of the relevant Council is additional to, and independent from, the decision by the Surveyor under Building Regulation 604(2).

Colonial submits that Building Regulation 604(2) requires the Surveyor’s consideration and determination as to whether particular precautions are appropriate to protect the safety of the public, and Colonial submits that it is not for the Council to duplicate an assessment as to whether such precautions are appropriate to protect the safety of the public.

Central to this ground of appeal is the contention that the Board has conflated the Council’s function under Building Regulation 604(4) with that of the Surveyor under Building Regulations 604(1) and 604(2).

Colonial points out that the Building Act provides that a Surveyor must not issue a building permit (Building Act, s 24(1)(b)) or decide an application for a building permit (clause 4 of Schedule 2 of the Building Act) until any report and consent of a “reporting authority”, as required by the Building Regulations, is obtained. The relevant report and consent in this instance was to be provided by the relevant Council pursuant to Building Regulation 604(4).

Colonial also contends that the Building Regulations must be read in the context of the Building Act and of the broader relevant statutory regime.[27]
[27]T267.13–29; T269.29–270.6.

In this regard, Colonial stressed that a reporting authority, in considering whether to give its report and consent to a building permit under the Building Act, must have regard to its own governing legislation in the Local Government Act, particularly the objects and purposes of such legislation.[28] For this reason the Council’s only role is to consent to the erection of a precaution, not to take upon itself the Surveyor’s role under Building Regulations 604(1)–(2) to approve particular precautions having regard to the criteria for approval which properly belong to the Surveyor alone.[29] Colonial submits that it would make no sense that the Council should “duplicate” the Surveyor’s function simply because the precautions cross over the street alignment and thus fall under its purview.[30]
[28]Colonial’s Submissions, 23 September 2016, [4].
[29]Ibid [7]–[8].
[30]Ibid [8]; T276.9–13.

Colonial submits that clear words would be needed to conclude that the Council could disregard the objects and purposes of its governing legislation and thereby focus on a consideration of whether a precaution is necessary and appropriate to protect the public from building work, rather than to focus on the erection of precautions which achieve the best outcomes for the local community, including whether the intrusion of the proposed precautions would adversely affect local businesses.[31]
[31]T275.16–20.

Section 3C(1) of the Local Government Act provides that a “primary objective” of a Council, which on Colonial’s submission includes the Council which made its decision under Building Regulation 604(4) regarding the proposed Gantry, is “to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions.” Colonial also submits that a Council, when performing its function under Regulation 604(4), is also obliged to take into account the promotion of the economic viability and sustainability of the municipal district and the diverse needs of the local community.[32]
[32]Local Government Act, s 3C(2)(a) and 3D(2)(a).

Colonial’s submission, in terms, is as follows in relation to the Local Government Act:

The Local Government Act relevantly provides that the “primary objective” of a council is “to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions” (s 3C(1)). The “local community” includes “people and bodies who are ratepayers” and “people and bodies who conduct activities in the municipal district” (s 1A). In particular, in seeking to achieve its primary objective, the Council must have regard to certain “facilitating objectives”, including the promotion of the economic viability and sustainability of the municipal district (s 3C(2)(a)). And the “role” of the Council includes to “tak[e] into account the diverse needs of the local community in decision-making” (s 3D(2)(a)).

Colonial submit that the task of the Council to ‘report’ and ‘consent’ pursuant to Building Regulation 604(4) is informed by other provisions of the Building Act and Building Regulations which require a reporting authority to give its ‘report and consent.’[33] Colonial submits that the nature of the “report and consent” requirements imposed on the Council are described in statements issued by the Victorian Building Authority (VBA) in the VBA Practice Note 2014-57 (issued in June 2014) which seeks to explain the purpose of such responsible authority report and consent process in relation to certain subject matter including “precautions over street alignment”. The thrust of Colonial’s submission is again that pursuant to the task of “reporting and consenting under Building Regulation 604(4)” the Council must consider the potential impact of proposed precautions on Colonial and the assets, infrastructure and the amenity of the community.
[33]Colonial’s Submissions, 16 August 2016, [26]-[27].

Colonial however recognises that the above Victorian Building Authority Practice Note is not a legislative instrument. Colonial submits that nevertheless the Practice Note is useful in understanding the operation of Regulation 604(4) and in Colonial’s contention the Practice Note accurately summarises the purpose of “report and consent” provisions in the Building Act and the Building Regulations. Colonial submits that drawing upon the summary of the relevant process and matters referred to in Practice Note 2014-57, it is clear that the purpose of this aspect of the “report and consent” scheme is to ensure that where building work (in this case, the erection of a gantry) may impact upon assets, infrastructure and amenity of the local community, the reporting authorities exercise what Colonial asserts is their statutory responsibility to take such impacts into account when determining whether or not to permit the erection of the proposed precautions.

Colonial submit that CES-Queen’s reliance on Practice Note 2014-58 is misplaced. Colonial submit that Practice Note 2014-58 does not convey that the Council must “approve” the precaution. Colonial submit that Practice Note 2014-58 does not say that in determining whether to consent, the Council must decide if the proposed precautions are appropriate to protect the public from the building work.[34]
[34]Colonial’s Reply Submission, 10 October 2016, [5]; see CES-Queen’s Submission referred to at Reasons [66].

Colonial submits that concern about public safety should not have been the “overriding” or “priority” consideration[35] in the Board’s decision to delete Condition 1 or in the Board’s determination that Colonial and its tenants in 140 Queen Street did not require compensation for any adverse effects of erecting the proposed Gantry.
[35]Ibid [48].

Accordingly, Colonial submits that it is the owner of the neighbouring building and its commercial tenants, who are all members of the relevant local community and the ones most directly and most adversely affected by the proposed Gantry, who should therefore be the proper focus of attention in the decision-making process undertaken by the Council under Building Regulation 604(4), and then in turn undertaken by the Board on appeal. They are the most directly affected of the local community.[36]
[36]Ibid [50].

Colonial contends that it would be an unlikely duplication of the functions of the Surveyor and the Council if both were charged with the task of considering and bringing their own exercise of power and discretion to the task of determining what precautions would be appropriate to protect the safety of the public.

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

CES-Queen’s response to Colonial’s primary argument that the Board misconceived its statutory function is, in summary, that there has been no misconception of statutory function because there were no mutually exclusive functions to conflate. CES-Queen submits that the role and statutory function of the Council must be construed within the particular context of Building Regulation 604 which is a self-contained Regulation directed to ensuring that appropriate measures are taken to protect the safety of the public.

CES-Queen also submits that there is limited utility in drawing analogies between a Council’s role as a “reporting authority” under other legislation, as exemplified by Colonial, and the particular role of a Council under Building Regulation 604(4). Further, CES-Queen also submits that s 3A of the Local Government Act contemplates that a Council will perform functions independently of the Local Government Act where another Act, here the Building Act, confers functions on the Council.[37]
[37]CES-Queen’s Submissions, 23 August 2016, [20].

CES-Queen submits that it is erroneous to interpret the statutory functions of Surveyor and Council as “mutually exclusive”. On the contrary, CES-Queen submits that these statutory “functions have at their core a concern that the proposed precautionary measures are appropriately adapted to achieve the objective of protecting the safety of the public”[38] and that the functions of Surveyor and Council are “both predicated on considerations of public safety”.[39]
[38]Ibid [19].
[39]Ibid [2].

CES-Queen also queries the utility of reference to Victorian Building Authority Practice Notes however CES-Queen submits the Practice Note 2014-58 (issued in April 2014),[40] to “the extent that support can be derived from a practice note”, is relevant because that Practice Note was specifically issued to clarify Building Regulation 604. CES-Queen seeks to derive some support from the 2014-58 Practice Note, highlighting that the Practice Note speaks of the statutory functions of Surveyor and Council as overlapping and complimentary, and not mutually exclusive. In particular in Item 8, Practice Note 2014-58 states that “… the precautions are approved not only by the RBS, but also by the Council for the selection of precautions over a street alignment”.[41]
[40]This is a different Practice Note to that principally relied on by Colonial. Colonial relied on Practice Note 2014-57 (June 2014).
[41]Ibid [18]–[19].

CES-Queen submits that the Council must have regard to public safety when a precaution, such as the proposed Gantry, crosses the street alignment, including because if a member of the public is injured as a result of inadequate safety precautions the Council’s legal liability may be in issue.[42]
[42]CES-Queen’s Submissions, 3 October 2016, [2].

CES-Queen emphasises in its submissions that the reality of the case as it was run before the Board, where a key issue was whether a gantry was required at all, brought into sharp relief considerations of public safety. In particular CES-Queen submits:

(a) Colonial had framed its preliminary question in the appeal before the Board as being ‘is there, presently, any need for erecting a gantry in front of 140 Queen Street?’;[43]

(b) The Board had before it evidence which had been provided in the BAB4 appeal, including the witness statements of Mr Andrew Slade, Mr Russell Nisbet, Mr Michael Cope and Mr Peter Paras.[44] The burden of that evidence was that a gantry was required to safeguard against the risk of materials falling from the demolition, and in due course building works, onto the street alignment at 140 Queen Street;[45] and

(c) Colonial had been granted permission by the Board to participate in the gantry appeal on the expressly limited basis that its submissions would be confined to addressing “the nature of the proposed precautions over the street alignment for the protection of the public (excluding any matter relating to the engineering design or structural integrity) and any alternative approaches to precautions for the protection of the public”.[46]

[43]Colonial’s Submissions, 21 October 2015, [6]; CB3186-3196.

[44]See Directions of the Board dated 9 October 2015; CB3149-3151.

[45]See statement of Peter Paras at [CB980]; statement of Michael Cope at [CB1597]; statement of Peter Luzinat at [CB1694]; evidence of Russell Nisbet on Day 4 (CB2973, Lines 5-27).

[46]See statement of Peter Paras at [CB980]; statement of Michael Cope at [CB1597]; statement of Peter Luzinat at [CB1694]; evidence of Russell Nisbet on Day 4 (CB2973, Lines 5-27).

CES-Queen also, in essence submits that ultimately the Board in the exercise of its discretions balanced the considerations relating to commercial interests which might be engaged by the “report and consent” requirement,[47] however the Board was not convinced, on the preponderance of evidence that established the need for a gantry,[48] that the commercial and amenity related interests of Colonial and its tenants should prevail. In this regard it is to be noted that one of the conditions of the report and consent which the Board continued to require, imposed the obligation on the contractor (Delta) to ensure that all appropriate insurances were in place at all times, thereby appreciating and seeking to address some of the commercial concern of business interests that might be adversely affected by the construction of the Gantry.[49]
[47]Board’s Reasons for Determination at [42]-[43], [50]; CB3284-3285, 3286.
[48]Ibid [22]-[25]; CB3280-3282.
[49]Colonial submits at paragraph [3] of its Closing Reply Submissions to CES-Queen dated 10 October 2016 in the BAB4 proceeding that the submissions at paragraph [10] of CES-Queen’s Closing Submissions dated 3 October 2016 in the Gantry proceeding advance new arguments and go beyond the case that CES-Queen put to the Court at the hearing. I have however taken the subject CES-Queen submissions into account, because Colonial has had ample time to address this narrow submission if it considered that it was important to do so.

Analysis and Conclusion - Ground 1 (Misconception of Statutory Function)

The parties do not dispute that CES-Queen’s proposed Gantry falls within the terms of Building Regulation 604(4), nor that there is no local law which requires CES-Queen to erect the proposed Gantry. Therefore Building Regulation 604(4) requires CES-Queen to obtain a report and consent of the relevant Council in relation to the precaution which the proposed Gantry constitutes.

Building Regulation 604(3) is also focused on ensuring that ‘precautions’ are taken to protect the safety of the public including in relation to all excavation work so as to ensure against any such excavation being a danger to life or property.

Building Regulation 604(4) is contained in Part 6 – Building Work of the Building Regulations 2006. The principal purpose of this Part of the Building Regulations is to ensure appropriate and effective protection work is undertaken in respect of properties adjoining the site of construction to which those Building Regulations apply and that Part of the Regulations provides a regulatory framework in relation thereto.

Building Regulations, which exemplify the purpose referred to in the last preceding paragraph, include Building Regulation 602 (Protection of adjoining property), Building Regulation 603 (Exceptions to carrying out protection work), Building Regulation 604 (Protection of the public), Building Regulation 605 (Excavations), Building Regulation 606, the Building Regulations relating to retaining walls and Building Regulation 607 (Demolition).

Considered in its context and having regard to the heading assigned to Building Regulation 604 and the specific precautionary intent expressly reflected in Building Regulation 604(1) and (2) (and in substance also in Regulation 604(3), which requires precautions against danger to life and property in respect of excavations), Building Regulation 604(4), in my view requires the report and consent of the relevant Council in respect of works relating to the construction of a precaution. It is clear from the language of Building Regulation 604(4), and its context which I have referred to, that the subject precautions over the street alignment are to protect those using the street below principally from materials or objects falling from the demolition and building works to be undertaken at 150 Queen Street.

Accordingly, the erection of proposed precautions over the street alignment, in this instance a Gantry structure, is for the purpose of protecting those users of the street who pass under the proposed Gantry from injury or damage caused by falling building materials, construction equipment or the like.

So understood, Building Regulation 604(4) in my view directly relates to precautions required to protect the safety of the public and to guard against dangers to life or property. Accordingly, in my view the relevant Council is required to direct its consideration to reporting on and consenting to the appropriateness of the proposed protection works over the street alignment; here the Gantry proposed by CES-Queen, principally taking into account the appropriateness of the proposed Gantry to protect the safety of the public.

I do not accept Colonial’s argument that properly understood, Building Regulation 604(4) has an objective and purpose which is quite different to Regulations 604(1)–(2), and is not concerned with public safety. In my view such a contention is at odds with the plain and natural meaning of Regulation 604(4), including as informed by the heading of Building Regulation 604, which states “Protection of the public”. This heading I consider summarises and informs the purpose of all sub-Building Regulations thereunder.

I consider that the natural and ordinary meaning of the language of Building Regulation 604(4) contemplates the relevant Council considering the appropriateness of the erection of proposed precautions over the street alignment. CES-Queen’s proposed Gantry is just such a precaution because of its intended purpose and because of its physical location over a street alignment.

Furthermore, the language of Regulation 604(4) neither expressly requires the Council to consider the impact of precautionary measures on the local community nor requires the Council to refrain from taking into account matters of public safety.[50] Indeed as earlier observed the protection of the public safety to be ensured by Regulations 604(1) to (4), is reflected in the heading to those regulations to which I have referred: “Protection of the public”.
[50]Interpretation of Legislation Act 1984, ss 35(a) and (b)(ii) and 36(1), (2A). See also Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014) 202–4 [4.56].

Building Regulation 604 empowers and requires the Council to consider and to report and consent in respect of proposed precautions. Building Regulation 604(4) does not, expressly or by implication either limit the factors which the Council is entitled to consider. Such consideration in relation to Regulation 604(4) includes the degree to which a precautionary measure such as the proposed Gantry will be appropriate and effective to ensure the safety of the public, including to guard against any danger to life or property under or in the vicinity of the relevant works.

Concomitantly, in my view Building Regulation 604(4) does not expressly or by implication confine the relevant Council to considering such factors and, in my view, it is therefore permissible for the Council when undertaking its functions under Regulation 604(4) of the Building Regulations to consider relevant factors related to community interest by reason of s 3C(1) of the Local Government Act, or otherwise.

Further, in my view the VBA Practice Note 2014-58, which is the subject of submissions by both parties, provides guidance from the VBA to Building Surveyors and to Councils in relation to the discharge of their obligations under Building Regulation 604 of the Building Regulations.[51] That guidance by the VBA relates to the assessment and determination as to whether precautions for the protection of the public are appropriate. Practice Note 2014-58 outlines the process whereby both the Surveyor and the Council consider the appropriateness of precautions proposed to be erected over a street alignment. In that way this Practice Note expressly contemplates that under Regulation 604 of the Building Regulations both the Surveyor and the Council have the responsibility to consider protection works proposals for precautions over a street alignment in relation to the appropriateness and effectiveness of such proposals to protect the safety of the public.
[51]Practice Note 2014-58 is headed ‘Protection of the Public’. In s 1 ‘Summary’ the Practice Note states:

The “primary objective” provision in section 3C(1) of the Local Government Act is called in aid by Colonial in support of its argument that the relevant Council is required to endeavour to achieve the best outcomes for the local community having regard to long term and cumulative effects of decisions when reporting and consenting to precautionary works pursuant to Building Regulation 604(4) of the Building Regulations.

I consider, in the circumstances of the matters evaluated by the Surveyor and the Board referred to above, that the objects of s 3C(1) of the Local Government Act are of marginal, if any significance when weighed against the safety and public protection considerations which Regulation 604 is intended to secure.

Section 3C(1) of the Local Government Act is, however, a general provision contained in separate legislation which is neither specific to, nor sufficiently connected with the duties of the relevant Council under Building Regulation 604(4).

For the reason referred to in paragraphs above, I consider that s 3C(1) of the Local Government Act does not displace the operation of Regulation 604(4) to which I have referred.

Accordingly, I consider that the very broad and aspirational objectives and role referred to in ss 3C(1), 3C(a)(a) and 3D(2)(a) of the Local Government Act render that Act of very little assistance in construing the meaning of the Building Regulations, and in particular Building Regulation 604(4). This is principally because the clearly discernible intent of Building Regulation 604(4), when considered in the context of Part 7 of the Building Act and Part 6 of the Building Regulations, is to ensure that precautionary measures deployed over street alignments are appropriate and effectively protect the safety of the public. This intent is in my view also clear from the natural and ordinary meaning of the words of Building Regulation 604(4), read in the context of section 604 as a whole in Part 6 of the Building Regulations, which is directed to the “Protection of the public”.

I recognise however that the relevant Council under Regulation 604(4) is to take into account matters including matters relevant to the impact of relevant proposed precautions on the local community, including Colonial and the tenants at 140 Queen Street, Melbourne to the extent appropriate in any particular application.[52] This is principally because the relevant Council is obliged to do so under ss 3C(1), 3C(2)(a) and 3D(2)(a) of the Local Government Act, to the extent that other relevant legislation, or subordinated regulations thereunder, do not expressly or by necessary intendent, require the Council to undertake its duties exclusively or predominantly by reference to a stipulation in such other legislation or subordinated instrument thereunder. This qualification is reflected in section 3F of the Local Government Act.
[52]CES-Queen Submissions, 23 August 2016, [31], conceded that it might be open to a decision maker to consider the adverse commercial impact of precautions; CES-Queen submissions, 3 October 2016, [9].

Here, I note, the Board recognised that the relevant Council, and itself on appeal, was entitled to take into account matters of community interest.[53]
[53]Board’s Reasons for Determination, [38], [40], [42], [43], [45], [50] and [55]; see also safety issues at [24] and [25].

Accordingly, I consider that the Council, pursuant to Building Regulation 604(4), and the Board on an appeal from a decision of the Council, pursuant to s 144(a), was principally obliged to consider whether the proposed erection of precautions over the street alignment was appropriate bearing in mind whether such protection works were sufficient to protect the safety of the public and guard against there being danger to life or to property as a result of the building works in respect of which those protection works were to provide an adequate protection under Building Regulation 604 of the Building Regulations.

The Council and the Board however, in the exercise of their discretion under Building Regulation 604(4), were not precluded from taking into account other potentially relevant matters such as the impact of the proposed Gantry on Colonial and its tenants.

Finally, the Board’s broad powers and the extent of the Board’s discretion on appeal is, in my view, informed by the purposes of the Building Act described in s 1(a) and (c) of that Act, and also by the objectives broadly defined in Building Regulations 101(b) and (c). These provisions of the Act and clauses of the Regulations reflect a clear intent that the Building Act, and its related regulations should regulate building work and building standards, and establish an efficient and effective system including for the enforcement of building and safety matters and the resolution of building disputes, and to prescribe standards of safety for places of public entertainment.

In my view, the construction proffered by Colonial in relation to Building Regulation 604(4) would not promote the abovementioned purposes and objects of the Building Act and the Building Regulations and indeed could well result in a Council charged with reporting and consenting to the erection of precautions over a street alignment, and subsequently on appeal the Board, dealing exclusively with the issues relating to the impact of precautions on the community. Such an approach by Council and the Board would not be in accord with the intent of Building Regulation 604, including 604(4) and the provision of the Building Act to which I have referred in relation to the proper construction of that Regulation.

Furthermore, the implementation of Colonial’s position in relation to the proper construction of Regulation 604(4) could well lead to a Council or the Board being overwhelmed with commercial, environmental and financial material said to be relevant to probable and possible impacts on the community caused by proposed precautions.

The Board’s Powers on Appeal

On this appeal, both CES-Queen and Colonial submit that the Board “stands in the shoes” of the relevant Council when considering an appeal of this type under Part 10 of the Building Act.

The Building Act bestows broad powers on the Board in relation to an appeal, including in respect of the report and consent of the relevant Council pursuant to Building Regulation 604(4) of the Building Act. In this regard the Building Act provides in s 144:

144Appeals—Building Regulations
If the building regulations leave a matter to be determined or approved by a person or body or confer a similar discretion on a person or body, the owner of the building or land who requests the determination to be made, approval to be given, or discretion to be exercised may appeal to the Building Appeals Board against—
(a)that determination or approval or the exercise of that discretion; or
(b)the failure within a reasonable time, or refusal to make that determination, give that approval or exercise that discretion.

…
148Nature of an appeal
(1) An appeal under this Part is in the nature of a re hearing.
(2)On an appeal the Building Appeals Board may consider matters not raised before the decision under appeal was made.

149What action can be taken on appeal?
(1)The Building Appeals Board must consider and determine an appeal and by its determination may—
(a) affirm the decision under appeal; or

(b)       quash the decision under appeal; or
(c)       vary the decision under appeal; or
(d)      set the decision under appeal aside and—
(i)        substitute its own decision; or
(ii)remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.

(2)In considering and determining an appeal, the Building Appeals Board has in addition to its other powers all the powers of the decision-maker in relation to the decision under appeal.
(3)Without limiting subs (2), on an appeal under s 140 the Building Appeals Board has the same powers as the Authority has under Part 6 to give directions concerning transitional and other arrangements following a consent given by the Authority.
(3A)For the purposes of this Part, if an appeal is made to the Building Appeals Board against the refusal of a building permit or the imposition of a condition on a building permit, the decision under appeal is to be taken to include the decision or report of the relevant reporting authority if—
(a)the building permit was refused because the reporting authority refused consent or the condition was imposed as a result of a recommendation in a report of the reporting authority; and
(b)the refusal of consent, or the making of the recommendation, was based on a decision made by the reporting authority in relation to the guidelines made under s 188A.

(4)The Building Appeals Board may make any ancillary or incidental orders that it considers necessary to give effect to its determination on an appeal.

It is, I consider, clear from the above provisions of the Building Act, in particular ss 148 and 149(2), that an appeal in relation to a relevant Council’s report and consent to a building permit for the erection of precautions over a street alignment is undertaken as a re-hearing and it is also clear that on such an appeal the Board is empowered to consider matters not earlier raised before that relevant Council.[54]
[54]Building Act 1993, s 148(1) and (2).

Further, it is also clear by reference to ss 148, 149(1) and 149(2) when considering and determining an appeal the Board has, in addition to its other powers, all the powers of the decision-maker in relation to the decision under appeal.

In the exercise of its powers on appeal the Board may affirm the decision under appeal or quash or vary or set aside that decision and substitute its own decision. The Board may also remit a decision to the decision maker for its reconsideration in accordance with directions from the Board.

I accept part of Colonial’s submission, namely that the Council’s role is to consent to the erection of a precaution proposed in relation to a street alignment, I do not, however, accept that it follows that in doing so a Council is precluded from reporting on and consenting to, particular proposed precautions under regulation 604(4) because the Building Surveyor, and in turn the Board, are exclusively empowered to consider and approve public safety related precautions pursuant to Building Regulation 604(1) and (2) of the Building Regulations.

Further, I am unpersuaded by Colonial’s submission that the Council, and on appeal the Board, would be “second guessing” the Building Surveyor by the Council undertaking the task of considering, reporting on and consenting to, an application for the erection of precautions over a street alignment, because both the Council and the Board on appeal were considering matters relating to the appropriateness of the proposed Gantry as a public safety measure. Building Regulation 604(4), as I have sought to explain, specifically provides for these tasks to be undertaken by the relevant Council, and the Building Surveyor is necessarily also involved because he or she must issue the necessary Building Permit.

In my view, for the reasons I have expressed, the relevant Building Surveyor and the relevant Council are empowered with complimentary and somewhat overlapping responsibilities and power, in particular in relation to Building Regulation 604(4) so as to further the overall objective of ensuring appropriate precautions are implemented before and during building works. These related responsibilities under Building Regulation 604(1) and (2), and in particular under Building Regulation 604(4), are expressly referred to and acknowledged in the Victorian Building Authority Practice Note 2014–58.

The Hearing before the Board

I consider that the Board correctly identified the nature of the appeal before it when it stated that the appeal before it concerned:

… ‘an appeal pursuant to s 144(a) of the Act against the determination of Council under Building Regulation 604(4) of the Building Regulations regarding precautions over a street alignment for the protection of the public’.

It is also noteworthy that:

… the Board confirmed that it was ‘required to consider afresh whether to provide the consent and report under Building Regulation 604(4)’.[55]

[55]Board’s Reasons for Determination, [9]; CB3278.

Further, I conclude from the apparent conduct and content of the appeal proceeding before the Board that those proceedings were significantly informed by the issue of whether or not the proposed precaution of a gantry on 140 Queen Street was required at all.

As a result before the Board there was significant focus on the adequacy of proposed precautions to protect the safety of the public. More particularly in this regard:

(a) Colonial’s submissions of 21 October 2015, [6] (CB 3186-3196) questioned the need for the erection of a gantry in front of 140 Queen Street;

(b) pursuant to directions of the Board made on 9 October 2015 (CB 3149-3151) the Board in this matter received extensive evidence which had also been provided in the related appeal proceeding before the Board known as ‘BAB4’.

This material included a body of expert engineering evidence concerning whether or not a gantry in the vicinity of 140 Queen Street was required to safeguard against the risk to the public potentially posed by falling material from the building site and the façade of the existing building at 140 Queen Street;

(c) the Board’s directions of 29 July 2015, in Direction [3] reflect that the Board granted Colonial leave to participate in the appeal before the Board in this matter concerning the proposed Gantry, however only on a limited basis, namely that Colonial’s submissions were confined to:

the nature of the proposed precautions over the street alignment for the protection of the public (excluding any matter relating to the engineering design or structural integrity) and any alternative approaches to precautions for the protection of the public.

Given the case conducted before the Board I consider it to be perfectly understandable that the Board focussed on matters to do with the suitability and adequacy of the proposed Gantry in terms of protection of the public as both the Council and the Building Surveyor below were entitled to do under s 87 of the Building Act and Building Regulation 604(4).

Summary of conclusions in relation to Ground 1 (Misconception of statutory function)

For the above reasons, in summary I consider that:

(a) The intent of the protection works Building Regulations generally in Part 6 of those Building Regulations, including Building Regulation 604, and 604(4) is to ensure that precautions proposed are appropriate to ensure the safety of the public passing under or in the vicinity of, in this instance, the proposed Gantry over a street alignment.

(b) Building Regulation 604(4) is not prescriptive, or in any way exhaustive, in relation to matters which might appropriately be considered by a relevant Council in evaluating the appropriateness of proposed precautions to be erected over a street alignment.

(c) Building Regulation 604, and in particular Regulation 604(4), provide in respect of a Council, and the Board on appeal, a discretion in relation to the matters which they are entitled to consider in relation to proposed precautions.

(d) It is open to the Council when considering its report and providing its consent to proposed precautions under Building Regulation 604(4) to consider whether the erection of, in this instance, such a gantry would achieve an acceptable outcome for the community, and, as Colonial submits, whether “… the intrusion (of a gantry) would adversely affect local businesses”.[56]
[56]Colonial’s Reply Submission, 10 October 2016, [3].

(e) The Council and more particularly for the purposes of this appeal the Board, did not misconceive the nature of its function of Regulation 604(4) by considering the necessity and appropriateness of the proposed Gantry in order to protect the safety of the public.

(f) The Board did not misconceive its function, or in any way err in law, or otherwise, in the circumstances outlined above, by having primary regard to factors of public safety when reporting on and consenting to CES-Queen’s proposed Gantry protection works.

(g) By taking into account the protection of the public as its overriding consideration the Board did not err by failing to take into account a relevant consideration or taking into account an irrelevant consideration.

Furthermore, because this appeal is not in the nature of a merits review, the Board being seized of jurisdiction to take into account and evaluate the necessity for, and appropriateness of the proposed Gantry, in order to protect the safety of the public and exercise its discretion to consent in that regard, it was a matter for the Board on appeal to consider and evaluate the extensive evidence and submissions and make the determination it considered appropriate, including, if it saw fit in the circumstances, to give priority to ensuring the protection of the public in the vicinity of the proposed Gantry.

Decision – Ground 1 (Misconception of statutory function)

For the above reasons I shall dismiss Ground 1 of the Colonial appeal.

Ground 2 (Failure to consider a relevant matter and to give adequate reasons)
Colonial’s submissions

Colonial’s second ground of objection is that the Board erred by failing to consider the significant evidence adduced by Colonial in relation to the adverse impact that the erection of the proposed Gantry would have on Colonial, its tenants, and other potentially affected parties. Further or alternatively, that the Board erred by failing to give adequate reasons for how it dealt with this evidence and the related issues.

Colonial submits that the Board failed to refer to any of the critical evidence relating to the adverse impact of the proposed Gantry on the amenity, appeal, custom and viability of relevant identified businesses, and indeed ignored that evidence.

Colonial also contends that, in a way which gave rise to error, the Board did not give genuine consideration to such evidence.

Further, Colonial submits that this conduct on the part of the Board is itself indicative that the Board misconceived its statutory function and that the Board fell into jurisdictional error in both this respect and that referred to in the last preceding paragraph. In this respect Colonial’s submissions in relation to ground one of its appeal overlap somewhat with ground two.

Colonial also contends that even if it was open to the Board to have regard to whether the proposed Gantry was adequate to protect the safety of the public, it was “mandatory” for the Board to have regard to the interests of other members of the “local community”, including in this instance Colonial’s tenants at 140 Queen Street. Colonial submits that the Board’s “failure” to refer to any of the evidence as to the effect of the erection of the proposed Gantry on members of the relevant local community, is indicative of a misconception by the Board of its function, and Colonial submits amounts to a constructive failure to perform the Board’s proper function.

Colonial acknowledges that this part of its argument overlaps with its first ground (misconception of statutory function) inasmuch as the Board’s alleged failure to refer to any of the evidence as to the adverse impact of the proposed Gantry is asserted by Colonial to demonstrate a constructive failure to exercise jurisdiction, whether because the Board misconceived its statutory function, as contended by Colonial under Ground 1 of this appeal, or because the Board failed to have regard to significant evidence that was relevant to that function.[57]
[57]Colonial’s Submissions, 16 August 2016, [59].

Further, Colonial contends also that the Board hearing an appeal in respect of a Council’s decision pursuant to Building Regulation 604(4), under s 144(a) or (b) of the Building Act, is required to determine such an appeal ‘standing in the shoes’ of the Council and re-exercising the function of the Council.

Colonial submits that the Board, standing in the shoes of the Council on appeal, has made a jurisdictional error, or error of law on the face of the record, by not considering or properly considering evidence regarding the adverse impact of the proposed Gantry on the local community.

Colonial submits in relation to its second ground of appeal that even if the Board did consider the evidence of the adverse impact of the proposed Gantry, it did not give adequate reasons explaining how it dealt with that evidence in arriving at its decision, and that this deficiency amounts to an error of law on the face of the record.[58]
[58]Colonial’s Closing Submissions, 23 September 2016, [15].

Colonial relies upon Supple v Building Appeals Board, in which Kaye JA held that written reasons of the Board should “reveal the path of reasoning” which led to the Board’s decision.[59]
[59][2015] VSC 83, [47].

Colonial also relies upon Wingfoot Australia Partners Pty Ltd v Kocak,[60] in which the High Court held that, in the absence of express statutory prescription in determining the legislative intention of the requisite standard of written reasons, the objective of requiring, in that instance the Medical Panel to provide written reasons, impliedly necessitates a standard “adequate to enable a court to see whether the opinion does or does not involve any error of law”.[61] Here Colonial argue that the Board was obliged on request to provide, and did in fact provide reasons, and accordingly in this matter, as in Kocak, the Board was required to expose its reasoning to a degree sufficient to enable a court to see whether that consequent reasoning and conclusions involved an error of law.
[60](2013) 252 CLR 480.
[61]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 501 [54].

Colonial asserts that the Board’s reasons are inadequate because they do not state whether the Board accepted Colonial’s evidence, and if it did not accept the evidence, why it did not accept that evidence; whether, and if so how, it took into account any adverse impacts of the proposed Gantry; whether it considered s 98 of the Building Act to be an appropriate mechanism for dealing with any adverse impacts; whether, and if so how, any adverse impacts would be appropriately dealt with or managed; why CES-Queen’s commercial interests in demolishing 150 Queen Street and erecting Tower Melbourne should be preferred to Colonial and its tenants’ commercial interests in operating their existing businesses without intrusion that threatened their viability and why, as the Board concluded in paragraph 55 of its determination, it was “unnecessary” for CES-Queen to indemnify either Colonial or its tenants in respect of damage that might be caused by the proposed Gantry.[62]
[62]Colonial’s Submissions, 16 August 2016, [73].

Further, Colonial submits that if the Board in fact refused to impose a condition requiring indemnities so as to punish Colonial for not facilitating an inspection of the façade, that would involve error.[63]
[63]Colonial’s Closing Submissions, 23 September 2016, [17.2].

Colonial concedes that, unlike a Medical Panel, the Board’s obligation to give written reasons under clause 16 of Schedule 3 depends on a request by one of the parties.[64] However, because such a request had been made on 24 May 2016 under clause 16(5) of Schedule 3 to the Building Act,[65] Colonial submits that this is a distinction without significance.
[64]Colonial’s Submissions, 16 August 2016, [70].
[65]Ibid [22].

Colonial argues that jurisdictional error has arisen because it “simply does not understand how the decision went against it” and “how, if at all, the Board dealt” with the evidence it put on in relation to the impact of the proposed Gantry on Colonial and its tenants. In its submissions Colonial contrasts itself with the rhetorical person aggrieved in Dornan v Riordan, who is placed in a position where he or she can say, “[e]ven though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”[66]

CES-Queen Submissions - Ground 2 (Failure to consider a relevant matter and to give adequate reasons)

[66]Dornan v Riordan (1990) 24 FCR 564 at 568.

CES-Queen maintains that the Board did indeed consider Colonial’s case concerning the amenity of and potential detriment to adjoining owners and the general public and the need for and the appropriateness of an indemnity. CES-Queen submits however that the Board rejected that submission by Colonial.

CES-Queen submits that although it was incumbent upon the Board to reveal the path of reasoning of its decision, it was not obliged to explain why it did not accept certain evidence or certain contentions of Colonial’s which were contrary to the conclusion the Board ultimately reached. Nor was the Board, on CES-Queen’s submission, required in its reasons to refer to every contention or every part of the evidence.

CES-Queen’s submission is that, for these reasons it is unnecessary that the Board provide reasons dealing with the evidence about potential detriment to adjoining occupiers and to Colonial.[67]
[67]CES-Queen’s Submissions, 23 August 2016, [37].

CES-Queen also points to specific passages in the Board’s reasons[68] and to the Board’s findings that had Colonial adopted a proposed inspection and remediation proposal put forward by CES-Queen in relation to 140 Queen Street, the proposed Gantry would probably not have been necessary.[69]
[68]CES-Queen’s Closing Submissions, 3 October 2016, [17].
[69]CB3286, [50].

CES-Queen points out that the Board considered that Colonial’s approach in this regard contrasted with Colonial’s purported concern for public safety.

CES-Queen also points out that the Board appeared to consider that Colonial had been intransigent in relation to CES-Queen’s proposed inspection and remediation of its building.[70] For its part Colonial questions the relevance of the “genuineness” of CES-Queen’s concern for the commercial interests of the tenants, including the possible loss that they would suffer,[71] and challenges the Board’s conclusion that it was unnecessary to require indemnities of CES-Queen.[72]
[70]CB3286, [52]; CES-Queen’s Submissions, 3 October 2016, [16].
[71]Colonial’s Closing Reply Submissions, 10 October 2016, [8].
[72]CB3286, Board’s Reasons for Determination, [55]; Colonial’s Reply Submissions, 10 October 2016, [6]; CES-Queen’s Closing Submissions, 3 October 2016, [16] and [17].

CES-Queen submits that it can be seen from the Board’s reasons that the Board considered the issue of the commercial impact of the proposed Gantry on Colonial and its tenants, including the related issue of indemnity.[73]
[73]CES-Queen’s Submissions, 3 October 2016, [16]; Board’s Reasons for Determination, [42] and [55].

CES-Queen emphasises that Colonial has obstructed its efforts to inspect and potentially remediate the 140 Queen Street façade; and CES-Queen points out that in the event Colonial had cooperated, this might have meant that the proposed Gantry would be unnecessary. This was relevant, according to CES-Queen, to the Board concluding that it should prioritise the public’s safety, and to the Board’s conclusion that affording indemnities to Colonial would not be appropriate in the circumstances.[74]
[74]CES-Queen’s Submissions, 23 August 2016, [36]; Board’s Reasons for Determination, [54].

CES-Queen disputes Colonial’s assertion that the Board did not have regard to Colonial’s submissions and contends in relation to the relevance of the impact of the proposed Gantry on Colonial and adjoining occupiers that “[t]he Board accepted that in principle, such matters might legitimately inform its approach to the question of consent”.[75] CES-Queen relies in this regard on the following passage of the Board’s reasons:[76]

Building Regulation 604 reflects the overriding interest, which is the protection of the safety of the public. However, the Board disagrees with the implication in the submission of CES-Queen that the Council (and the Board standing in its shoes) is forbidden from considering the impact of the proposed Gantry on the owners and occupiers of the Adjoining Property, when it is considering whether to grant the consent under Building Regulation 604(4).

[75]CES-Queen’s Submissions, 23 August 2016, [35].

[76]Ibid [42]; CB3284–5; see also the Board’s Reasons for Determination, [52]; CB3286.

CES-Queen also submits that the Board’s reasons[77] establish that the Board had appreciated that Colonial was seeking to rely upon matters separate and distinct from those relating to public safety, namely broader issues effecting the local community such as whether the intrusion of the proposed Gantry would adversely affect the local businesses and Colonial’s submissions in relation to the indemnity issue. This in CES-Queen’s submission shows that the Board was cognisant of Colonial’s argument about the relevance of local community and local business interests, including Colonial’s.

Analysis and Conclusions Ground 2 (Failure to consider a relevant matter and to give adequate reasons)

[77]Board’s Reasons for Determination, [50], [52] and [55] C3284-5.

I am not persuaded that the Board relegated or ignored Colonial’s evidence and submissions in relation to the impact, including the commercial impact of the proposed Gantry on adjoining owners and adjoining occupiers. This is clear for the Board’s determination itself.[78]
[78]Board’s Reasons for Determination, [42]-[56] especially [45].

As it was entitled to do, it is clear that the Board did not accept Colonial’s submissions and assertions on this issue nor the significance of the evidence put forward by Colonial in relation to adverse impacts on Colonial and adjoining occupiers.

The Board did not in my view misconceive any of its functions in this instance, nor did it fail to perform those functions and thereby fall into jurisdictional error. The Board here rejected Colonial’s contention as to the primal significance of the asserted impacts of the proposed Gantry on Colonial, adjoining owners and adjoining occupiers. As Colonial puts it “rather than being a primary consideration or focus, the Board regarded the potential harm and inconvenience to adjoining occupiers as being engaged in only limited ways.”[79]
[79]Colonial’s Submission, 23 September 2016, [10.2].

The Board clearly recognised and considered the potential issue of the impact on Colonial and adjoining occupiers which was presented as part of Colonial’s case.

Insofar as the Board did not accept Colonial’s economic impact evidence, or the primary significance of that evidence as asserted by Colonial, the Board was not obliged to do so, nor was it obliged to explain why it did not accept Colonial’s evidence or its contentions on these aspects.[80]
[80]Supple v Building Appeals Board [2015] VSC 83 at [75].

I accept CES-Queen’s assertion that the Board was “plainly aware” of, and understood, Colonial’s submission in relation to the appropriateness of indemnities for Colonial and the adjoining occupiers as compensation for any damage caused by the proposed Gantry.[81] This is clear from the Board’s Reasons at paragraph [55] and [56]:[82]

[55]In the Board’s opinion, it is unnecessary to require CES-Queen to provide indemnities to either Colonial or the adjoining occupiers. Further, in the Board’s opinion, it would be inappropriate to require CES-Queen to obtain the consent of Colonial, with the expectation that Colonial “might reasonably refuse to give its consent to the erection of a gantry unless and until CES-Queen gave appropriate indemnities.
[56]The Board considers that it is inappropriate to impose a condition that the Adjoining Owner must consent to the proposed gantry. Such a condition would provide the Adjoining Owner with, in effect, a veto over the erection of the gantry.

[81]Ibid [35].

[82]CB3286.

The fact that the Board deemed as “unnecessary” the compensation referred to by Colonial also demonstrates that the Board did consider this matter.[83]
[83]CB3286, [55]. See also Colonial’s Submissions, 16 August 2016, [45].

Need for Board to expose its path of reasoning

Both Colonial and CES-Queen agree that the Board is required to reveal the path of reasoning for its decision made under s 149 of the Building Act.

In my view for the reason I have earlier referred to, the Board gave genuine and realistic consideration to Colonial’s contentions concerning the potential impact on Colonial and the tenants of 140 Queen Street if the proposed Gantry was erected. I also consider that the Board’s reasons adequately explained how it had dealt with those matters.[84]
[84]Board’s Reasons for Determination, [38], [40], [42], [43], [45], [50] and [55]. See also safety issues at [24] and [25].

In relation to the Board’s consideration of the relevant part of Colonial’s contentions and supporting evidence, it is clear from the Board’s reasons at [38], [40], [42], [43], [45] and [55] that it was cognisant of and considered Colonial’s contentions and evidence in support of Colonial’s impact case. The paragraphs of the Board’s reasons cited reflect that after considering a significant body of evidence and the parties’ submissions, the Board concluded that for safety reasons a gantry was required,[85] and that although it appreciated that there was a relevant consideration in relation to the impact of a gantry on owners and occupiers, in the circumstances, the existential safety issues and the statutory and regulatory requirements to guard the public must be prioritised.[86]
[85]Ibid [24] and [25].
[86]Ibid [38], [40], [42], [43], [45], [50], [51], [52], [54] and [59].

Furthermore, it was not incumbent upon the Board to explain why it rejected Colonial’s evidence and contentions in relation to Colonial’s asserted impact of the proposed Gantry precaution on Colonial and its tenants.[87]
[87]Supple v Building Appeals Board [2015] VSC 83 at [75] and [77].

The Board’s determination in this matter clearly reflects that it regarded Colonial’s case in relation to the impact of the proposed Gantry precautions as of less paramountcy and weight when considered in light of CES-Queen’s submissions and evidence concerning the public safety related need for a gantry of the type CES-Queen proposed.[88]
[88]Board’s Reasons for Determination, [42], [43] and [54].

The rejection by the Board of the “condition” relating to Colonial consenting to the erection of the proposed Gantry, which was initially imposed by the Council, also in my view reflects the Board’s consideration of matters to do with impact and detriment to Colonial and its tenants, and further clearly conveys that the Board did not consider the condition imposed by the Council to be justified or to be appropriate.[89]
[89]Ibid including [45] and [55].

For the above reasons I am not satisfied that the Board failed to give adequate reasons explaining how it dealt with Colonial’s case concerning the impact on it as adjoining owner, and on its tenants and the relevant local community in that respect. Nor am I at all satisfied that there is any basis upon which to conclude, as submitted by Colonial, that the Board preferred CES-Queen’s commercial interests to those of Colonial and its tenants. The Board considered that ultimately its report and consent should be primarily concerned with public safety.[90]
[90]Ibid including [42], [45] and [54].

Further, in my view, given the way the Board dealt with the local community impact issue, it was not necessary for the Board to deal with the potential relevance of s 98 of the Building Act. Section 98 of the Act provides for compensation to an adjoining owner or occupier for inconvenience, loss and damage in connection with the carrying out of protection works. In my view s 98 was not relevant to the Board’s determination, in the circumstances presented to it, because the Board appropriately considered that public safety issues, not convenience or commercial interests, were paramount and compelling in relation to the Board’s determination to consent to CES-Queen’s proposed precautions and protection works.

It is therefore in my view, for the same reason, also unnecessary for me to deal with what I consider to be the inconsequential issue raised by Colonial as to whether the Board was persuaded that Colonial was genuinely concerned about the impact of the proposed precautions on the relevant tenants, and whether it was open for the Board to find (if indeed it did so find) that it was “unnecessary” to require indemnities on that basis.

Similarly, given that I have found that the Board has acted within jurisdiction, and that the Board did not fail to consider the public impact aspect of Colonial’s case, it is not necessary for me to decide whether the Board refused to impose a building permit condition requiring indemnities, so as to punish Colonial, as is submitted by Colonial. Furthermore, no decision is necessary in relation to this assertion by Colonial because Colonial itself raises this matter only as a hypothetical possibility and further because Colonial did not seek to adduce or refer to any evidence to make good this assertion.

Finally, for the reasons I have referred to I consider that it is sufficiently plain for Colonial to see how the Board’s decision “went against” Colonial. That is, the Board rejected Colonial’s submissions that the Board could not have regard to public safety issues when considering, reporting on and consenting to CES-Queen’s proposed Gantry, because the Board considered that Regulation 604(4) of the Building Regulations was primarily concerned with the effectiveness and appropriateness of precautions to protect the safety of the public. Further, Colonial’s gantry related proposals were considered by the Board to be inadequate to appropriately protect the public under, or in the vicinity of, the proposed Gantry when it was erected in Queen Street, Melbourne. Further, the Board did consider Colonial’s evidence and submissions in relation to “the interests of the ‘local community’” but considered that the assurance of the public’s safety must be prioritised as is clear from the Board’s decision including at [50], [52], [54], [55] and [56] and in relation to the Board’s consideration of the appropriateness of a ‘condition’ which the Board considered and ultimately rejected at paragraph [56] of its Reasons.[91]

Summary of conclusion in relation to Ground 2 (Failure to consider a relevant matter and to give adequate reasons))

[91]Ibid [56].

I consider that the Board’s Determination and reasons clearly reveal that:

(a) the Board appreciated that it should consider the issue as to the state of the façade of the building to be demolished at 150 Queen Street, Melbourne;

(b) that issue included uncertainty about whether during the demolition works parts of the façade may detach and fall onto construction workers or members of the passing public;

(c) Colonial had, in the Board’s view, failed to adequately investigate the state of the façade;

(d) CES-Queen had proposed undertaking non-invasive testing of the façade;

(e) Colonial however opposed CES-Queen undertaking non-invasive testing of the façade, although Colonial did not explain why it was opposed to such testing;

(f) an expert witness, Mr Cope, gave evidence that by examining the façade and knocking off potential spalls, the Board and Colonial and CES-Queen would be in a position to better understand the risk of debris falling from the façade and moreover the removal of the spalls (as part of the investigation and remediation process) would also, Mr Cope advised, very significantly reduce the risk of debris being dislodged during demolition and falling onto construction workers or the public;

(g) if the proposed inspection and remediation initiative referred to above had been adopted by Colonial, there would have been a high likelihood that no gantry would have been necessary at all;

(h) if there was no need for the proposed Gantry, the Board recognised that this would have benefited adjoining owners and would have improved the amenity of the relevant area for the general public;

(i) if the proposed inspection and remediation which was proposed by CES-Queen demonstrated that a gantry was required that would be so because of the identification of significant potential risk to the public;

(j) as a result of Colonial not being willing to undertake the proposed inspection and remediation plan, the Board was placed in a position where it was not in possession of clear evidence regarding the level of fragility of the façade, and in the circumstances the Board considered that it needed to adopt a cautious approach that prioritised the safety of the public.[92]

[92]Ibid [47]-[54].

The Board, pursuant to s 149(1)(c) varied Condition 6 and deleted Condition 1 but otherwise affirmed the report of the Council dated 5 May 2015, consenting to the proposed Gantry precaution works [Reasons [54] and the Board’s Determination].

The Board also explained the reasons why it was unnecessary to require CES-Queen to provide an indemnity to either Colonial or the adjoining occupiers [Reasons [55] and [56]].

From the above summary it can be seen that ultimately, probably because of Colonial’s unwillingness to co-operate with CES-Queen’s proposed inspection and remediation plan, the Board, acting cautiously and taking into account public safety considerations, understandably, and quite properly in my view, consented to the erection of a gantry over the relevant part of Queen Street.

Furthermore in my view, if for the above reasons of public safety a gantry was required as determined by the Board, then considerations of impact on sections of the local community were necessarily relegated to the extent appropriate. Put simply: a gantry was necessary for the public’s safety, and to that extent impact on public amenity was necessarily secondary.

For the above reasons I reject Colonial’s argument that the Board has failed to consider a relevant matter or failed to give adequate reasons in its said determination.

Relief sought
Colonial’s submissions (on a remitter and reconstruction of the Board)

Colonial seeks an order in the nature of certiorari removing the effect of the Gantry determination on the ground of either or both jurisdictional error and error of law on the face of the record.[93]
[93]Colonial’s Submissions, 16 August 2016, [75].

It further submits that if such an order is made, it would be unfair to Colonial or would give the appearance of unfairness to Colonial, if CES-Queen’s appeal were to be determined on remitter by a Panel that included any of the same members of the Board that made the Gantry determination.[94] Colonial submits that the “guiding principle” is that matters of this kind ought to be remitted to a differently constituted decision-maker,[95] in order to ensure fairness and the “perception of a fair hearing”.[96]
[94]Ibid [79].
[95]Vegco Pty Ltd v Gibbons (2008) 30 VAR 1 at 10 [33].
[96]Barro Group Pty Ltd v Brimbank City Council (No 2) (2012) 36 VR 281 at 306 [9].

If the Panel of the Board is not constituted differently, Colonial submits, then there either would be, or would appear to be, “an ‘air of unreality’ and the risk of a ‘patch-up’ response” by the Board.[97]
[97]Colonial’s Submissions, 16 August 2016, [79], quoting Treacy v Newlands [2008] VSC 395, [31] (Beach J).

CES-Queen’s submissions (on a remitter and reconstruction of the Board)

CES-Queen observes that there may be undue impracticality and expense in making an order that the Board be differently constituted. CES-Queen also points out that Colonial can only point to the possibility that the Board may take an adverse view of Colonial’s case on remitter which being a mere possibility, CES-Queen submits should be insufficient to overcome the expense and difficulty involved in having the matter remitted to a newly-constituted Panel.[98]
[98]CES-Queen’s Submissions, 23 August 2016, [45]–[47]; Comcare v Broadhurst (No 1) (2011) 192 FCR 497 at 504 [31]–[32].

Decision

For the foregoing reasons I am not persuaded that the Board fell into error in any respect in relation to the subject appeal it determined pursuant to ss 141 and 149 of the Building Act and accordingly I dismiss the plaintiff’s Amended Originating Motion for Judicial Review.

I shall therefore dismiss both Ground 1 and Ground 2 of Colonial’s appeal.

It is unnecessary in the circumstances to decide whether or not it would be appropriate to order the reconstitution of the Board on a remitter.

Final Orders and Costs

I dismiss Colonial’s Amended Originating Motion for Judicial Review dated 15 August 2016 , as further amended at trial.

I shall await any further submissions, if necessary, before finalising and authenticating orders in this appeal, including in relation to the stay of the Board’s determination in relation to amended condition 6, pursuant to consent orders made 1 June 2017.[99]
[99]See: Moray & Agnew letter to the Supreme Court and the defendants dated 31 May 2017.

This Practice Note provides clarification on Building Regulation 604 of the Building Regulations 2006 (the Building Regulations) concerning precautions to protect the public while building work is being undertaken.

The Practice Note at part 8 ‘Who is responsible for approving the type of precautions?’ the Practice Note 2014-58, states that:

When a report and consent is applied for, the type and method of precautions are assessed by council to determine their appropriateness. Therefore, the precautions are approved not only by the RBS, but also by the council for the section of precautions over a street alignment.
In the process of approving the protection method, the RBS may require the precautions to be assessed by a structural engineer to ensure their structural stability.

[2017] VSC 256

5 June 2017