Fire Rescue Commissioner v Building Appeals Board
[2021] VSC 217
•4 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01447
| FIRE RESCUE COMMISSIONER | Plaintiff |
| v | |
| BUILDING APPEALS BOARD (and others according to the Schedule attached) | Defendants |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 March 2021 |
DATE OF JUDGMENT: | 4 May 2021 |
CASE MAY BE CITED AS: | Fire Rescue Commissioner v Building Appeals Board & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 217 |
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BUILDING – Fire safety – Refusal to consent to variation of ‘deemed to satisfy’ provisions – Appeal to Building Appeals Board – Meaning of ‘satisfied that a satisfactory degree of fire safety is achieved’ – Irrelevant considerations – Relevance of circumstances leading up to the original decision and the reasons given for the decision – Failure to take relevant considerations into account – Superior fire engineering design beyond ‘deemed to satisfy’ provisions – Decisions of Building Appeals Board – Weight to be given to relevant considerations – Preparation of a report – Lack of utility – Proceeding under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Building Act 1993 (Vic) ss 1(a), 1(c), 144(1), 148(1), 149(1)-(2), 149(4), 161, 166(1)-(3), sch 3 cl 16, Building Regulations 2018 (Vic) regs 121, 129, Building Code of Australia 2013 cl EP1.3, Australian Standard AS 2419.1 (2005) cl 3.2.3.1.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G Costello QC with Ms S Pathan | Fire Rescue Victoria |
| For the Second Defendant | Mr H Foxcroft QC with Mr B Reid | McMahon Fearnley Lawyers Pty Ltd |
| No appearance for the First and Third Defendants |
HIS HONOUR:
Introduction
The Fire Rescue Commissioner (‘Commissioner’) seeks judicial review of a decision (‘decision’) of the Building Appeals Board (‘Board’) under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) to consent to vary the ‘deemed to satisfy’ provisions of the Building Code of Australia 2013 (‘Code’)[1] in accordance with the performance solution documentation filed in Board case number 451975 (‘appeal’). The Commissioner seeks an order quashing the decision, and remitting the appeal back to the Board for hearing by a differently constituted panel. The Commissioner also seeks a declaration that the decision was affected by jurisdictional error.
[1]Australian Building Codes Board, Building Code of Australia (at 1 May 2013) (‘Code’). The third defendant determined that the 2013 Code was applicable to the project.
The Commissioner is the successor in law of the Chief Officer of the former Metropolitan Fire and Emergency Services Board (‘MFB’).[2]
[2]Fire Rescue Victoria Act 1958 (Vic) s 100(d), as inserted by s 82 of the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (Vic) commencing 1 July 2020.
The second defendant (‘owner’) is the owner and developer of a retirement village (‘project’) under construction on a property located at 131-141 Central Road, Nunawading (‘subject land’). The building surveyor for the project (‘building surveyor’) is employed by the third defendant.
The project consists of eight residential buildings of up to five storeys, constructed over three stages on the subject land. The buildings are to have an effective height of up to 9.6m, a total floor area of about 33,760m2, and are to be of type A construction with concrete floors, concrete/lightweight walls and a metal roof.
Application under reg 129(1)
On 6 August 2019, the owner applied for the report and consent of the Commissioner to an application for a building permit for the subject land under reg 129(1) of the Building Regulations 2018 (Vic) (‘Regulations’), as aspects of the fire design for the project did not meet the ‘deemed to satisfy’ provisions of the Code.
The application followed consultations between the owner and officers of the MFB concerning the project, including the owner’s submission to the MFB of:
(a) a fire engineering brief dated 20 September 2017 (‘brief’);[3] and
(b) a fire engineering report dated 6 June 2019 (‘report’).[4]
[3]LCI Consultants, Nunawading Estate Retirement Village (NERV): Fire Engineering Brief (20 September 2017) (‘brief’).
[4]LCI Consultants, Nunawading Estate Retirement Village (NERV): Fire Engineering Report (6 June 2019) (‘report’).
On 4 September 2019, the Commissioner refused to consent to the variations sought by the owner on the basis that the proposed design did not provide a satisfactory degree of fire safety for occupants and responding fire brigade personnel. The principal reason for the refusal was that the owner’s proposal for fire hydrants required two lengths of hose to be used to achieve full coverage of the buildings. This would adversely affect fire safety, particularly for upper residential levels.
Appeal
On 1 October 2019, the owner appealed to the Board against the refusal under s 144(1) of the Building Act 1993 (Vic) (‘Act’).
On 18 October 2019, the owner filed a statement of contention in support of the appeal, together with the brief and report. The owner’s statement of contention submitted that the layouts of the buildings, including stair locations, had been redesigned to comply with the Commissioner’s requirement, articulated in previous discussions with the owner, that the travel distance from the external door of an apartment to a building exit was to be no more than 28m, with a single hose length reaching within one metre of each apartment. Full fire hydrant coverage was achieved by the use of two lengths of hose. The Commissioner’s approval of the use of two lengths of hose was said to be ‘very common across projects’.
The fire safety features that had been included by this time were:
(a)AS 2118.1 sprinkler protection throughout carparks and Building 7, AS 2118.4 sprinkler protection for other buildings, and monitored flow switch for each residential level;
(b)smoke isolated stairs;
(c)construction features based on Type A constructions with variations associated with fire resistance level and smoke proof barriers;
(d)compliant fire hydrant system pressure and flow; and
(e)AS 1670.1 cl 3.22 Building Occupant Warning System per building.
The owner stated that a number of these features were additional to the ‘deemed to satisfy’ provisions of the Code.
The Commissioner’s statement of contention of 25 October 2019 said that the request to permit the use of two lengths of hose to achieve fire hydrant coverage meant that the owner’s proposal did not achieve a satisfactory degree of fire safety.
The Commissioner provided the following reasons for this conclusion:
… the request to permit an additional length of hose, in conjunction with the Performance Solution to omit a fire isolated stair shaft and fire ratings to the public corridors, responding fire fighting personnel are limited to the safe working environments of the stair shaft only. Fire fighter [standard operating procedures] do not permit the entering of a public corridor where it has been compromised, and this is more likely in this instance due to the fire engineering undertaken.
From within the stair shaft fire fighters must connect a single… length of 30m hose to the hydrant outlet located at the floor level below the fire origin door, lay the hose up and down the stair flights until fully laid, then couple a second length of hose to the first and again lay the hose up and down the stairs until fully laid. A total of 60m of hose will be laid up and down two… flights of stairs limiting fire fighter movement, and any building occupants evacuating. The hose will then be charged causing it to naturally move towards the stair walls as the desired water pressure is delivered.
It will then be the responsibility of two… fire fighters to attend to the branch and, in order to enter the public corridor, multiple fire fighters (minimum of four…) will be required to feed the charged hose line up the stair and out into the public corridor. All of this whilst walking on top of a charged hose line over risers and goings, contending with leaking/excess water and manoeuvring the hose and couplings around obstacles like the balustrades/handrails. Further complication such as environmental, occupant egress, issues with water supply, arrival of appropriate appliances/personnel and the like cannot be discounted.
Hearing
On 7 November 2019, the Board heard the appeal. The owner was represented by Kevin Chan, who had prepared the fire engineering design for the project on behalf of Lehr Consultants International (Australia) Pty Ltd. Mr Chan is an experienced chartered professional engineer in the field of fire safety engineering, and a registered building practitioner in the category of Fire Safety Engineer. The Commissioner was not represented at the hearing and refused to attend by telephone.
There is no transcript of the hearing, which appears not to have been recorded. Evidence of what was said at the hearing is found in Mr Chan’s affidavit.[5] Parts of this affidavit were excluded following objection and are disregarded.
[5]Affidavit of Kevin Chan deposed 27 August 2020 (‘Mr Chan’s affidavit’).
Mr Chan addressed the Commissioner’s statement of contentions at the hearing in detail. In summary, he submitted the following:
(a) the fire engineering design for the project was a performance design as permitted by the Code;
(b) the design did not need to meet the ‘deemed to satisfy’ provisions if it met the performance requirements of the Code;
(c) the design provided automatic fire sprinklers throughout the buildings in conjunction with smoke proof construction of the public corridors and solid core doors; and
(d) this design alternative met the performance requirements of the Code.
Mr Chan submitted that by providing automatic fire sprinklers and smoke proof construction to public corridor walls, the fire safety design for the project resulted in a much higher level of fire safety than a building with only fire rated corridor walls and no automatic sprinkler system. The superior level of fire safety significantly mitigated the fire risk for occupant evacuation and did not compromise fire brigade intervention.
Mr Chan described the performance of the automatic fire sprinkler system to be installed as ‘well tested and documented in literature’. He said that it achieved fire safety well beyond fire rated construction, and that automatic fire sprinkler systems like the one to be installed in the project had a much higher reliability than passive fire barriers. They provided fire control at the source, and early occupant warning of a fire building-wide.
Mr Chan said that activation of an automatic fire sprinkler would provide automatic fire brigade notification, which is not provided in a ‘deemed to satisfy’ compliant building where only smoke detectors are installed. Given the early fire brigade notification, any fire event would, in all likelihood, be smaller in scope and intensity than in a building design with only smoke detection. Mr Chan submitted that the fire risk to a fire fighter was likely to be smaller.
Mr Chan stated that the fire engineering approach for the project was holistic, and addressed the fire risks specific to the project, resulting in a more robust fire engineering design that included additional fire safety measures. He developed his submission in considerable detail.
Finally, Mr Chan submitted that the Commissioner had consented on many other occasions to two lengths of hose being used from internal hydrants for sprinkler protected buildings, referring to apartment buildings, office buildings, nursing homes and hospitals.[6]
[6]Two hoses totalling 60m were permitted by the Board in In the matter of 717 Bourke Street, Docklands [2019] VBAB 38.
The Commissioner’s position was not assisted by the fact that no representative attended to answer the owner’s submissions, or sought to be heard at a later time.
On 13 November 2019, the Board gave directions for the building surveyor to file and serve any comments in response to the Commissioner’s statement of contentions, and for the Commissioner to file and serve any response to the building surveyor’s comments.
On 19 November 2019, the building surveyor provided comments that included his support for the fire engineering process and outcomes undertaken by Mr Chan to demonstrate compliance with the performance requirements of the Code. Although given the opportunity by the Board, the Commissioner did not make any response to these comments.
The Board’s decision was published on 22 January 2020.
Decision
After setting out the background to the appeal, the Board summarised the respective submissions of the parties, including the building surveyor’s comments.[7]
[7]Decision [13]–[26].
The Board then set out its findings as to the project’s fire safety and fire engineering design in these terms:
The Board finds that the [report] is both comprehensive and extensive in respect to fire safety design and fire engineering design.
The [building surveyor] submits, in respect [of the] report, that the [building surveyor] supports the fire engineering process and outcomes undertaken by [Mr Chan]… to demonstrate compliance with the performance requirement of the [Code]. That is, the [building surveyor] has suggested that the fire safety design of the [owner] achieves a satisfactory degree of fire safety.
The Board finds that the [owner] has consulted extensively with the [Commissioner] for 3 years in respect to the fire engineering design of the [project]. It appears the [owner] has followed all expected and reasonable consultation processes with the [Commissioner] in respect to fire engineering design.
The Board also finds that the [owner] has made significant building design and fire engineering design changes over that period to take into account issues raised by the [Commissioner]. These design changes have come at considerable cost to the [owner].
It would seem that where appropriate, the [performance solution documentation] proposed by the [owner] in certain circumstances goes beyond the standards of the [‘deemed to satisfy’] provisions of the [Code].[8]
[8]Ibid [28]–[32].
The Board responded to the Commissioner’s contentions in these terms:
Whilst acknowledging the fire design approach initially proposed by the [Commissioner] had merit, it would appear to the Board that the [Commissioner] did not fully take into account that the [owner] made a number of changes to the building design and fire engineering design to give effect to the proposed changes advocated by the [Commissioner]. The Board concludes therefore that the [Commissioner] did not consider holistically the fire safety and design solution presented by the [owner] in the [report].
The Board finds that the [Commissioner], earlier in the consultation process, agreed or accepted that the proposal by the [owner] proposed two lengths of hose for coverage. The Board understands that the two lengths of hose for coverage is commonly used across many building projects.[9]
[9]Ibid [33]–[34].
The Board made ultimate findings in these terms:
The Board finds that based on the evidence before it, it is satisfied that a satisfactory degree of fire safety is achieved to consent to a variation of the [Code].
Accordingly, it determines that the decision of the [Commissioner] to refuse consent to vary the [‘deemed to satisfy’] provisions of the [Code] under regulation 129(1) of the Regulations, be set aside and substituted with the Board’s own decision being that it consents to a variation of the requirements of the [‘deemed to satisfy’] provisions of the [Code] under regulation 129(2) of the Regulations.[10]
[10]Ibid [35]–[36].
Relevant provisions and authorities
The Act
The main purposes of the Act include:
(a) to regulate building work and building standards; and
...
(c)to provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes; ...[11]
[11]Act ss 1(a), (c).
In the second reading speech for the Building Bill 1993, the Minister for Planning described the Board as a ‘one-stop-shop approach to dispute resolution’,[12] and said:
It is proposed to enhance the existing functions of the building referees boards by establishing a new Building Appeals Board to be responsible for all appeal matters under the new legislation. The non-legalistic approach of the former building referees boards will be, and must be continued.[13]
[12]Victoria, Parliamentary Debates, Assembly, 11 November 1993, 1689 (Robert Maclellan, Minister for Planning).
[13]Ibid 1690.
The Board is a specialist expert tribunal, as can be seen from s 166 of the Act, which provides:
(1)There is established by this Act a Board to be called the Building Appeals Board.
(2) The members of the [Board] are to be appointed by the Governor in Council on the Minister’s recommendation.
(3)The [Board] is to consist of—
(a) a person appointed to be chairperson of the Board; and
(b)a person who, in the Minister’s opinion, has experience in the building industry or in matters related to that industry, who is to be appointed deputy chairperson of the Board; and
(ba)at least one person who is an Australian lawyer of at least 5 years’ standing; and
(bb) at least one person who, in the Minister’s opinion, is able to represent the interests of users of the services of building practitioners; and
(c)as many other persons as the Minister considers necessary for the purposes of this Act, and who, in the Minister’s opinion, have experience in the building industry or in matters related to that industry.
...
The Board and its jurisdiction are the subject of pt 10 of the Act. Section 144(1) of the Act provides:
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 [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.
An appeal to the Board is in the nature of a re-hearing.[14] The Board must consider and determine an appeal, and may affirm, quash, vary or set aside the decision under appeal.[15] It may substitute its own decision, or remit the decision to the decision-maker for reconsideration in accordance with any directions or recommendations that it considers appropriate.[16] In addition to its other powers, the Board has all of the powers of the decision-maker in relation to the decision under appeal.[17] It has the power to make any ancillary or incidental orders that it considers necessary to give effect to its determination,[18] or any order that it considers appropriate in the circumstances.[19]
[14]Act s 148(1).
[15]Ibid s 149(1).
[16]Ibid s 149(1)(d).
[17]Ibid s 149(2).
[18]Ibid s 149(4).
[19]Ibid s 161.
The Regulations, Code and Standards
The Code is a performance-based code containing mandatory performance requirements for the construction of buildings. Compliance with the performance requirements of the Code can only be satisfied by:
(a) complying with the ‘deemed to satisfy’ provisions;
(b) formulating a performance solution that complies with the performance requirements or is shown to be at least equivalent to the ‘deemed to satisfy’ provisions of the Code; or
(c) a combination of both.[20]
[20]Code (n 1) cl A0.5.
Regulation 121 of the Regulations deals with the determination of complying performance solutions:
Despite anything to the contrary in the [Code], the relevant building surveyor must not determine that a performance solution complies with a fire performance requirement of the [Code] unless the relevant building surveyor—
…
(c)relies on a report of the [Commissioner] under regulation 129, that states that the [Commissioner] is satisfied that a satisfactory degree of fire safety is achieved by that performance solution; or
(d)relies on a certificate under section 238 of the Act by a fire safety engineer, who did not design the building work, that states that the performance solution complies with that performance requirement; or
…
(f)relies on a determination of the [Board] under section 160A of the Act that the performance solution complies with that performance requirement…
Regulation 129 authorises the Commissioner to consent to a variation of the requirements of the Code:
(1)The report and consent of the [Commissioner] must be obtained to an application for a building permit which involves any of the following fire safety matters if those matters do not meet the deemed-to-satisfy provisions of the [Code]—
(a) fire hydrants;
…
(2)In a report under subregulation (1), the [Commissioner] may consent to a variation of the requirements of the [Code] if the [Commissioner] is satisfied that a satisfactory degree of fire safety is achieved.
Part E1 of the Code lists the fire fighting equipment performance requirements. Requirement EP1.3 provides as to fire hydrant systems:
A fire hydrant system must be provided to the degree necessary to facilitate the needs of the fire brigade appropriate to –
(a) fire-fighting operations; and
(b) the floor area of the building; and
(c) the fire hazard.
Australian Standard AS 2419.1 (2005) is concerned with fire hydrant installations. Clause 3.2.3.1 provides:
Internal fire hydrants shall be provided to protect the whole building or those parts of the building not able to be protected by external fire hydrants. Each internal hydrant shall have a single valve controlled outlet and attack hydrant performance.
Internal fire hydrants shall cover only the level on which they are located.
All points on a floor shall be within 10 m hose stream issuing from a nozzle at the end of a 30 m length of hose laid on a floor connected to the fire hydrant outlet.
The hose shall extend a minimum length of 1 m into the area to which the fire hydrant is providing coverage.
The report and consent process
The report and consent process is described by the Board in Simpson Sierra Pty Ltd v Fire Rescue Victoria, where the Board said:
Regulation 129 of the Regulations identifies the fire safety matters which, if they vary from the [‘deemed to satisfy’ provisions of the Code], are subject to the report and consent of the [Commissioner]. Part 1 of Schedule 5 to the Regulations lists the prescribed matters reported on by the [Commissioner].
Regulation 129 of the Regulations provides that [the Commissioner] may consent to a [Code] [‘deemed to satisfy’] variation of a prescribed matter where satisfied that a satisfactory degree of fire safety is achieved. The satisfactory degree of fire safety must therefore be in relation to the prescribed matter, otherwise the [Commissioner] could determine all fire safety matters in the building. This would in effect give [the Commissioner] the right to veto every design aspect related to fire safety, which would place them outside their authority pursuant to [reg] 129… of the Regulations.
Fire safety is a holistic process and it is accepted that many design features of a building may impact on the required or related fire safety systems and the overall level of fire safety, and by inference, prescribed matters to be reported on.
The [R]egulations enable the [Commissioner] to consider the impact of holistic issues in the report and consent process for those prescribed matters listed under [reg] 129 of the Regulations, which are proposed to be varied. A refusal of the report and consent must include the reasons supported by evidence, thereby giving the applicant an opportunity to amend the fire safety design or lodge an appeal.
Fire brigades have stakeholder roles through the International Fire Engineering Guidelines (IFEG) consultation process and within an assessment of the [Code] performance requirements, which identify fire brigade intervention as a relevant matter for determining whether a performance solution is in compliance with the [Code]. Under [reg] 129… of the Regulations, the report and consent authority differ as it is limited to the prescribed matters.[21]
[21][2020] VBAB 79, [32]–[36].
It is significant that the consent of the Commissioner pursuant to reg 121(c) is only one of a number of ways that a building surveyor can be satisfied that the performance solution complies with the performance requirement. Under reg 121(d), the certificate of a fire safety engineer who did not design the building work is also sufficient. However, if the application for the building permit involves any of the fire safety matters specified in reg 129(1) that do not meet the ‘deemed to satisfy’ provisions of the Code, the consent of the Commissioner must be obtained.
Regulation 129(2)
Regulation 129(2) vests a wide discretion in the Commissioner and, by extension, the Board to consent to a variation of the requirements of the Code if the Commissioner or the Board is satisfied that a satisfactory degree of fire safety is achieved. The regulation raises the issue as to what is meant by the requirement that the decision-maker be ‘satisfied’ that a ‘satisfactory degree of fire safety is achieved’. The requirement stands to be applied whenever an application is made to the Commissioner to consent to a variation under reg 129(2), or an appeal is made to the Board from a decision of the Commissioner. It is appropriate to consider both terms before turning to the grounds relied on by the Commissioner.
The word ‘satisfied’ simply assumes its ordinary meaning. In interpreting the meaning of ‘satisfied’ in a road safety regulation, Macaulay J stated in Agar v Dolheguy that:
As an ordinary English word, to be satisfied, in the relevant connotation, means to be furnished with sufficient proof or information, to be assured or convinced.[22]
[22](2010) 246 FLR 179, 186 [42].
The composite expression ‘satisfactory degree’ is more complex. The Macquarie dictionary definition of ‘satisfactory’ is:
affording satisfaction; fulfilling all demands or requirements: a satisfactory answer.[23]
[23]Macquarie Dictionary (online at 15 April 2021) ‘satisfactory’ (def 1).
The Oxford dictionary definition of ‘satisfactory’ gives the meanings of:
Sufficient, adequate; (of an argument) convincing. Also, that causes or gives satisfaction; such as one may be content or pleased with.[24]
[24]Shorter Oxford English Dictionary (6th ed, 2007) ‘satisfactory’ (def 3).
The Macquarie and Oxford dictionaries give meanings to the word ‘degree’ which include:
(a) a step or stage in an ascending or descending scale, or in a course or process;[25]
(b) a stage in a scale of intensity or amount;[26] and
(c) relative state or condition.[27]
[25]Macquarie Dictionary (online at 15 April 2021) ‘degree’ (def 1); see also Shorter Oxford English Dictionary (6th ed, 2007) ‘degree’ (def 5).
[26]Macquarie Dictionary (online at 15 April 2021) ‘degree’ (def 4); see also Shorter Oxford English Dictionary (6th ed, 2007) ‘degree’ (def 6).
[27]Shorter Oxford English Dictionary (6th ed, 2007) ‘degree’ (def 4).
The Macquarie and Oxford dictionaries also give meanings to the phrase ‘to a degree’ which include ‘to an undefined but not great extent’,[28] and ‘to some extent’.[29]
[28]Macquarie Dictionary (online at 15 April 2021) ‘degree’ (def 15).
[29]Shorter Oxford English Dictionary (6th ed, 2007) ‘degree’ (phrases).
In Nice Shoes Aust Pty Ltd v Minister for Immigration & Multicultural and Indigenous Affairs, Branson J was asked to construe the expression ‘satisfactory record’ in the context of a migration regulation that required an applicant to have a satisfactory record of training Australian citizens and Australian permanent residents in its Australian business operations.[30] Her Honour held that the expression ‘satisfactory record’, when put in ordinary language, meant ‘the applicant [made] a reasonable contribution to the training of the Australian workforce having regard to the nature and extent of its business operations in Australia.’[31]
[30][2004] FCA 252.
[31]Ibid [16].
In VQN Corporation Pty Ltd, the Administrative Appeals Tribunal considered the meaning of the same expression in a different migration regulation.[32] The Tribunal accepted the applicant’s written submission that:
The term “satisfactory record” is not defined in the legislation. The discretionary nature of [the regulation] along with the lack of legislative guidance, gives the Tribunal scope to consider relevant policy guidelines and to consider the term in accordance with its ordinary and natural meaning. The Oxford Dictionary provides for a lesser standard associated with the term ‘satisfactory’ as its meaning is synonymous with: ‘fulfilling expectations or needs; acceptable, though not outstanding or perfect’. The term is similarly defined by the Cambridge Dictionary as “good or good enough for a particular need or purpose”. The common and ordinary interpretation of “satisfactory” in the context of this provision, clearly does not require an absolute or perfect record of compliance.[33]
[32][2020] AATA 2715 (Georgiadis M).
[33]Ibid [12].
In Samaha v Hobsons Bay City Council, the Victorian Civil and Administrative Tribunal considered a requirement that a medium density housing development achieve a ‘satisfactory degree’ of compliance with relevant planning policy.[34] The Tribunal said:
A proposal will obtain approval if it achieves a satisfactory degree of compliance with relevant planning policy and achieves an appropriate outcome on the particular planning merits. In a location that is not overly sensitive, such as this one, and in the absence of a strong urban character requirement for a site, an application will not generally be refused simply because it is just “satisfactory”. In many cases before the Tribunal, there may be an alternative or improved design or level of finish that could constitute an improved design initiative, but the Tribunal has limited scope to direct this to be done where it is not required for a suitable site outcome.[35]
[34][2008] VCAT 1979 (Cook M).
[35]Ibid [11] (emphasis in original).
Consistently with these authorities, in my opinion, reg 129(2) requires the decision-maker, whether the Commissioner or the Board, to be satisfied that the fire safety design and performance of the proposal submitted for report and consent is acceptable and adequate, having regard to the purpose of the ‘deemed to satisfy’ provisions of the Code from which dispensation is sought and the overall standard of fire safety design and engineering that is achieved. It entails a holistic approach to fire safety and engineering design, where both fire safety features and mitigation measures are evaluated alongside fire safety risks to occupants, fire fighters, and the community at large. It does not require that the design submitted for consent be entirely risk-free, or that there be no better fire safety design achievable in the circumstances.
Fire performance requirement and fire safety matters
The Commissioner highlighted the distinction between the terms ‘fire performance requirement’, which appears in reg 121 of the Regulations, and ‘fire safety matters’, which appears in reg 129(1) of the Regulations.
‘Fire performance requirement’ is defined in reg 5(1) of the Regulations, and relevantly includes requirement EP1.3 of the Code. The expression ‘fire performance requirement’ is not found in the Act.
The expression ‘fire safety matters’, although not defined in the Act or Regulations, is a broad concept extending to measures to prevent, mitigate, control or extinguish fires, and to remediate their effects once they have started. It includes the effects and efficacy of fire safety and engineering design and performance solutions.
While, under reg 129, the Commissioner must report on and give consent to a variation that does not comply with a ‘deemed to satisfy’ provision regarding a fire safety matter specified in reg 129(1), the determination of whether or not a satisfactory degree of fire safety is achieved is likely to be inextricably linked to the fire safety and engineering design solution adopted as well as to the variation itself. The fact that a performance solution goes beyond the standard of the ‘deemed to satisfy’ provisions of the Code, although not decisive, will assist the Commissioner in determining whether a satisfactory degree of fire safety has been achieved for the purposes of reg 129(2).
Grounds of review
In an amended originating motion filed on 31 March 2021, the Commissioner relies on what are effectively three grounds alleging jurisdictional error, or alternatively errors of law on the face of the record. They are in substance:
(a) The Board took into account irrelevant considerations, being:
(1) the extent to which the owner had tried to meet the fire safety concerns raised by MFB employees during the period from September 2016 to January 2018 before the owner applied to the Commissioner; and
(2) the alleged agreement or acceptance by MFB employees during the same period of the owner’s proposal to use two lengths of hose for fire hydrant coverage.
(‘Ground 1’)
(b) The Board failed to take into account relevant considerations, being:
(1) the risks to fire safety arising from the use of two lengths of hose to achieve fire hydrant coverage in a building without ‘fire-rated’ public corridors or self-closing ‘fire-rated’ doors to each apartment in the project; and
(2) the risks to fire safety arising from the stair shafts being ‘smoke-separated’, rather than ‘fire-rated’ stair shafts.
(‘Ground 2’)
(c) The Board misconceived its role as being to assess whether the owner had tried to meet the concerns raised by the MFB, and whether the MFB had told the owner its ideas would be acceptable, rather than forming its own view on the merits of the proposal with respect to fire safety, and whether or not it was satisfied on the material before it that a satisfactory degree of fire safety would be achieved.
(‘Ground 3’)
The Commissioner provided particulars to the third ground that repeated the complaints made in Grounds 1 and 2, while also submitting that reg 129(1) required the Board to provide a report in relation to fire safety matters that did not meet the ‘deemed to satisfy’ provisions of the Code.
The owner contended that the application had no utility, as the building surveyor had issued an occupancy permit on 16 December 2020, and no useful result could ensue if the Commissioner were successful.
Ground 1: Did the Board take into account irrelevant considerations, being the extent to which the owner had tried to meet the fire safety concerns raised by MFB employees and the alleged ‘agreement’ or ‘acceptance’ by MFB employees of the owner’s proposal to use two lengths of hose for fire hydrant coverage during the period from September 2016 to January 2018?
Parties’ submissions
The Commissioner submitted that the history of past consultation and the fact of past satisfaction as to the merits of the proposal were irrelevant considerations for the following reasons:
(a)the statutory task of the Board is to consider the merits of the application and form its own state of satisfaction as to whether a satisfactory degree of fire safety would be achieved in respect of fire hydrants in the project. This is reinforced by the fact that Board is able to consider new information that was not before the Commissioner; and
(b)at various stages of the consultation process, MFB employees included various disclaimers and reiterated that any indications provided did not constitute approval in principle or consent.
The owner submitted that the history of the matter and the dealings between the owner’s fire engineer and the MFB concerning the project were relevant to the issues before the Board. It relied on Mr Chan’s affidavit as to how these matters were put to the Board at the hearing and submitted that the Board was entitled to take these matters into account.
What are the relevant factors under reg 129(2)?
Regulation 129(2) confers a broad discretion on the Commissioner and the Board on appeal. It does not specify factors which are required, or permitted, to be taken into account in the exercise of the discretion. How then are the relevant factors to be determined?
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (‘Peko-Wallsend’), Mason J said:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the [statute]. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard… By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the [statute].[36]
[36](1986) 152 CLR 24, 39–40 (citations omitted) (‘Peko-Wallsend’).
This classic statement of the law concerning the factors that can be taken into account has been followed on numerous occasions.[37]
[37]Minister for Families and Children v Arthur (2016) 51 VR 597, 611 [56] (Court of Appeal); Prisoners Review Board v Freeman [2010] WASCA 166, [123] (Murphy JA, Pullin and Newnes JJA agreeing) (‘Prisoners Review Board’); Minister for Planning v Walker (2008) 161 LGERA 423, 446–7 [34] (Hodgson JA) (‘Walker’); Rajendran v Tonkin (2004) 9 VR 414, 420 [20]–[21] (Morris AJA, Buchanan and Eames JJA agreeing) (‘Rajendran’); Kaur v Minister for Home Affairs [2019] FCA 2026, 7 [24] (Steward J); Konann Pty Ltd v Casey City Council [2018] VSC 565, 39–40 [108] (Garde J) (‘Konann’).
In the present case, the factors that may be taken into account in the exercise of the discretion in reg 129(2) are unconfined and must be discerned by the decision-maker from the subject-matter, scope and purpose of the Act and Regulations.
The weight to be given to each relevant factor is also left to the decision-maker. As Mason J also said in Peko-Wallsend:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned…
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power… I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".[38]
[38](n 36) 40–41 (citations omitted).
This passage has also been followed on many subsequent occasions.[39]
The relevance of the circumstances leading up to the original decision and the reasons given for the decision
[39]Walker (n 37) 446–7 [34]; Prisoners Review Board (n 37) [131]; Rajendran (n 37) 421 [22]; Konann (n 37) 52 [155].
Section 144(1)(a) of the Act provides that an owner of a building or land who requested a determination to be made, approval to be given, or discretion to be exercised under the Regulations may appeal to the Board against that determination, approval or exercise of discretion. In the case of an application under reg 129(2), the decision of the Commissioner is the subject matter of the appeal. It is relevant, if not essential, for an appellant to the Board to carefully revisit the circumstances in which the original decision under reg 129(2) was made and the reasons given by the Commissioner for refusing to consent.
As the Court of Appeal said in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd:
Although the review proceeding was a hearing de novo, the [Victorian Commission for Gambling Regulation’s] reasons should have been given considerable weight. As we noted earlier, the commission has the administrative responsibility for the [Gambling Regulation Act 2003 (Vic)]. It has both specialist expertise and unique experience in dealing with the issues which arise under the Act… Again, although it was for the Tribunal to decide what was the “correct or preferable” decision on the proprietor’s application, the Tribunal could not properly discharge its “review” function without evaluating the central element of the commission’s reasoning...[40]
[40](2008) 19 VR 422, 437 [53].
Likewise, as the High Court has said, greater weight should be accorded to an original decision on review if the evidence remains the same, and if the issue of fact is one in the resolution of which the original decision-maker’s knowledge of the industry specially equips it to provide an answer.[41]
[41]R v Alley; ex parte New South Wales Plumbers & Gasfitters Employees’ Union (1981) 153 CLR 376, 390 (Mason J); City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 155 [48] (Gleeson CJ, Gummow, Kirby and Hayne JJ). See also Hoskin v Greater Bendigo City Council (2015) 48 VR 715, 747 [107]–[110] (Court of Appeal).
The relevance of the owner’s case as presented to the Board
The owner’s case as presented to the Board was that it had engaged in extensive consultation with MFB officers over a three year period, undertaken a major building redesign, and achieved a satisfactory fire safety design and outcome. The Commissioner had a number of opportunities to persuade the Board that the owner’s case should not be accepted. The Commissioner could have appeared before the Board, called witnesses, provided file notes or made detailed submissions. It did none of these things.
In reviewing the decision, the Court must have regard to the forensic realities of the way in which the parties put their cases to the Board, and to which the Board’s reasons have responded.[42] Here, the owner’s case significantly relied on the consultation process and the acceptance said to have been given for two hose lengths in the circumstances of the project. It was incumbent on the Board to respond to the owner’s case as presented.
[42]The Gombac Group Pty Ltd v Vero Insurance Ltd (2005) 23 VAR 460, 470 [59] (Osborn J), cited in Datta Yoga Centre Australia Pty Ltd v Wyndham City Council [2018] VSC 353, 4–5 [14] (Garde J) (‘Datta Yoga’); Richmond Football Club v Verraty Pty Ltd [2019] VSC 597, 5 [15] (Croft J) (‘Richmond Football Club’).
In its decision, the Board accepted the owner’s case by finding that:
(a) the owner had been in discussion with officers of the MFB for over three years, and had conducted a building redesign on the basis of the observations and requirements of which it had been advised;[43]
[43]Decision [3]–[9].
(b) the Commissioner had earlier in the consultation process agreed or accepted that the proposal involved two lengths of hose for coverage;[44]
(c) the owners had consulted extensively with the MFB in respect of the fire engineering design for the project and had followed all expected and reasonable consultation processes with the MFB in respect of fire engineering design;[45] and
(d) significant building design and fire engineering design changes had been made over that period to take into account issues raised by the MFB at considerable cost.[46]
[44]Ibid [34].
[45]Ibid [30].
[46]Ibid [31].
All of these matters were relevant to the central issue in the appeal, which was whether a satisfactory degree of fire safety had been achieved in the performance design solution, having regard to the variation sought in relation to the ‘deemed to satisfy’ provisions of the Code.
In seeking to overturn the Commissioner’s decision, it was appropriate for the owner to outline the process of consultation with the Commissioner, and seek to explain what had led to the adverse decision by an expert decision-maker. The owner was entitled to present a case that consent had been given by the MFB at officer level to matters that were later objected to. Equally, it was open to the Commissioner to present a case that the concessions said to have been made at officer level were not made, or that the Board should nonetheless uphold the Commissioner’s decision on its merits on the basis of the information before it, regardless of any concessions said to have been made. The Commissioner did not appear before the Board or present evidence in support of such a case.
Conclusion
In the statutory context of the Act and the Regulations, I am satisfied that the circumstances leading up to the Commissioner’s decision, including the consultations with MFB employees, were relevant matters for the Board to consider in determining whether a satisfactory degree of fire safety had been achieved.
For these reasons, Ground 1 fails.
Ground 2: Did the Board fail to take into account a relevant consideration, being the risks to fire safety arising from the use of two lengths of hose to achieve fire hydrant coverage in a building without ‘fire-rated’ public corridors or self-closing ‘fire-rated’ doors to each apartment in the retirement village?
Did the Board fail to take into account a relevant consideration, being the risks to fire safety arising from the stair shafts being ‘smoke-separated’, rather than ‘fire-rated’ stair shafts?
Parties’ submissions
The Commissioner submitted that:
(a)it was a long standing principle that failure to take into account a relevant consideration which the decision-maker was bound to take into account constitutes jurisdictional error if that consideration could have materially affected the decision;[47]
(b)the Board made no reference to fire hydrant coverage in its findings as the basis for the Commissioner’s refusal of consent; and
(c)the Commissioner’s statement of claim stated that an additional reg 129 matter was applicable for the fire hydrant being located within a smoke-separated stair shaft rather than a fire-rated stair shaft.
[47]Relying on Chang v Neill (2019) 62 VR 174, 194 [69].
The owner submitted that:
(a)the Commissioner did not provide any reasons in its refusal to consent as to why the strategy of sprinkler protection with smoke proof corridor walls and solid core doors to apartments would adversely impact fire safety;
(b)the Commissioner did not raise any objections relating to the use of smoke proof corridor walls and the lack of fire doors to apartments in a timely manner;
(c)the assessment by the owner’s fire engineer of the performance solutions to include smoke proof public corridors (non-fire rated) and solid core doors (no self-closing fire doors) is contained in the report, and was before the Board at the hearing;
(d)Mr Chan made extensive submissions to the Board at the hearing as to these issues, including why the fire engineering design was more robust than and superior to the minimum ‘deemed to satisfy’ provisions of the Code, providing additional fire safety measures including an automatic sprinkler system, smoke seals to doors, smoke-isolated stairs, an internal hydrant system, and fire water tanks;
(e)the owner’s fire safety design included fire safety features above the minimum ‘deemed to satisfy’ requirements and provided a much higher level of fire safety to both building occupants and firefighters; and
(f)if the Commissioner had attended the hearing, it would have been aware that the alleged relevant considerations were the subject of submissions.
Mr Chan’s evidence
I accept Mr Chan’s evidence as to the submissions made by him to the Board.[48] He extensively outlined the fire safety design of the project, highlighting the advantages of an automatic fire sprinkler based protection system over the protection system which would be obtained if the minimum standards permitted in the ‘deemed to satisfy’ provisions of the Code were adopted. He referred extensively to the fire safety benefits of the different design options available including external and internal fire hydrants and dry fire mains. He also referred at length to fire safety design options including smoke-isolated stairways, fire-rated public corridors, solid core and self-closing doors, and smoke seals to doors.
[48]Mr Chan’s affidavit (n 5) [1]–[8], [40]–[49], [54]–[61].
The brief and the report, which were submitted to the Board, also dealt extensively with these matters.[49]
[49]Brief (n 3) sections 3.6–8; report (n 4) sections 2–4.
The decision
The decision summarised the owner’s submissions as to the Commissioner’s requirement that the maximum travel distance in residential buildings is to be 28m.[50] The Board noted that that the project design was amended to comply with this requirement, and that this brought a single hose length to within one metre of each sole occupancy unit door, with the 28m maximum travel distance applicable to one building only.[51]
[50]Decision [19(a)–(e)], [18(b)–(c)] (where second appearing).
[51]Ibid [19(c)], [18(b)] (where second appearing).
The Board also noted:
(a) the owner’s comments that the issues identified in the Commissioner’s statement of contentions were new issues;[52]
(b) the owner’s submissions that it considered that smoke isolated stairs went beyond the ‘deemed to satisfy’ provisions,[53] and that a compliant fire hydrant system pressure and flow was provided;[54] and
(c) the Commissioner’s concerns as to permitting fire hydrant coverage to be achieved by two lengths of hose from internal hydrants,[55] and the need for workplace safety for firefighters.[56]
[52]Ibid [18(d)] (where second appearing).
[53]Ibid [20(b)].
[54]Ibid [20(d)].
[55]Ibid [22(d)] (where first appearing).
[56]Ibid [23], [21(a) and (c)] (where second appearing), [23] (where second appearing).
In its findings, the Board fundamentally addressed the divergence between the owner’s position and that of the Commissioner. The Board accepted that the report was comprehensive and extensive, and was supported by the building surveyor,[57] and that the building design and fire engineering changes made by the owner had achieved a satisfactory degree of fire safety.[58]
[57]Ibid [28]–[29].
[58]Ibid [35].
As an expert body, the Board is commonly asked to consider and resolve conflicting submissions relating to fire safety. With the adoption by the owner of sprinkler protection, smoke isolated stairs, a compliant fire hydrant system pressure and flow, a warning system and other measures,[59] the Board considered that a higher level of fire safety had been achieved than would have been the case if only the ‘deemed to satisfy’ provisions of the Code, including those emphasised by the Commissioner, had been adopted.[60]
[59]Ibid [20].
[60]Ibid [32].
In making this finding, the Board did not fail to take into account, or give weight to, the Commissioner’s concerns. Rather, it considered that they were outweighed by the fire safety measures embodied in the overall design and performance solution documentation of the project. The Board’s acceptance of the owner’s position and submissions is made clear in its findings. There is no reason to conclude that it failed to take into account the location of fire hydrants, fire or smoke characteristics, stair shafts, corridors or doors.
Conclusion
I am satisfied that the matters raised by the Commissioner were not overlooked by the Board but taken into account during its deliberations. The owner’s case was that it had provided what was overall a design of much higher fire safety than the level of fire safety provided by the ‘deemed to satisfy’ provisions of the Code. For this reason, the owner submitted that it should be allowed dispensation from any specific non-compliances with the ‘deemed to satisfy’ provisions of the Code. The Board consented to a variation of the ‘deemed to satisfy’ provisions.[61] The matters raised by the Commissioner were not overlooked or disregarded but were taken into account in the overall assessment of the Board.
[61]Ibid [36].
Ground 2 cannot be sustained and must fail.
Ground 3: Did the Board misconceive its role as being to assess whether the owner had tried to meet the concerns raised by the MFB, and whether the MFB had told the owner its ideas would be acceptable, rather than forming its own view on the merits of the proposal with respect to fire safety, and whether or not the Board was satisfied on the material before it that a satisfactory degree of fire safety would be achieved?
Parties’ submissions
The Commissioner submitted that:
(a)the Court should infer that the Board had not considered the material before it and formed its own view as to whether or not it was satisfied that a satisfactory degree of fire safety had been achieved;[62] and
(b)the Board had not properly applied the law and its jurisdiction remained constructively unexercised.
[62]Relying on Chang v Neill (2019) 62 VR 174, 200 [92].
In substance, the Commissioner described the decision in the following terms:
(a)Paragraphs 1-12 set out background matters.
(b)Paragraphs 13-20 summarised the owner’s position.
(c)Paragraphs 21-23, and 21-24 (where second appearing) described the Commissioner’s position.
(d)Paragraphs 25-26 set out the submissions of the building surveyor.
(e)Only in paragraphs 27-36 under the heading ‘Findings’ did the Board set out its own position, focussing on the owner’s efforts to consult with the Commissioner rather than assessing the merits of the proposal with respect to fire hydrants and fire safety.
The Commissioner also submitted that the Board failed to provide its own ‘report’ as required by reg 129.
The owner submitted that:
(a) while it was incumbent on the Board to reveal its path of reasoning, it was not obliged to explain why it did not accept certain evidence or contentions that were contrary to the conclusion that it ultimately reached;
(b) the Board was not required in its reasons to refer to every contention or every part of the evidence;
(c) the decision should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error.[63] The Board was clearly satisfied on the matters put before it; and
(d) as the Board accepted and adopted the report, there was no need for the Board to write its own.
[63]Relying on Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [54]; Supple v Building Appeals Board [2015] VSC 83, [75] and [77] (‘Supple’); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, [45] (‘Carrascalao’).
Did the Board fail to form its own view on the merits of the proposal?
I reject the Commissioner’s submission that the Board failed to form its own view, or was not satisfied actually or constructively that a satisfactory degree of fire safety had been achieved for the following reasons:
(a)The Board is a specialist expert tribunal made up of members appointed because of their experience in the building industry, assisted by a legally qualified chairperson.
(b)The Board expressly found as required by reg 129(2) that it was satisfied on the evidence before it that a satisfactory degree of fire safety was achieved.[64]
(c)The Board made appropriate orders based on its findings.
(d)The path of reasoning of the Board is clear: namely that it considered that the comprehensive fire safety and engineering design of the project provided a fire safety standard beyond the ‘deemed to satisfy’ provisions of the Code.[65]
(e)The Board relied on the opinion of the building surveyor who considered that the owner’s fire safety design achieved a satisfactory degree of fire safety.[66]
(f)The Board made clear that it rejected the Commissioner’s assessment of the owner’s fire safety and design solution as the Commissioner had not considered the design holistically.[67]
(g)The Board made clear that it rejected the Commissioner’s submission based on the possible need for two hose lengths for coverage as this had earlier been accepted during the consultation process and was in common use across many building projects.[68]
[64]Board decision [35].
[65]Ibid [27]–[36].
[66]Ibid [29].
[67]Ibid [33].
[68]Ibid [34].
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang, the High Court held that in an application for judicial review, a court should not be ‘concerned with looseness in the language’ or ‘unhappy phrasing’ of the reasons of an administrative decision-maker.[69] The Court also adopted the principle that ‘the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.[70] The Court observed that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[71]
[69](1996) 185 CLR 259, 272 (‘Wu Shan Liang’), quoting Collector of Customs vPozzolanic (1993) 43 FCR 280, 287 (Full Court of the Federal Court) (‘Pozzolanic’).
[70]Ibid, quoting Pozzolanic (n 69) 287.
[71]Ibid 272.
These principles have been followed in many cases.[72]
[72]Carrascalao (n 63) [45]; Wu Shan Liang (n 69) 272; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 195; Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 213, [31] (Full Court of the Federal Court); QSuper Board v Australian Financial Complaints Authority Ltd (2020) 276 FCR 97, [89] (Full Court of the Federal Court); Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 179, [36] (‘Oux’); Secretary to the Department of Justice and Regulation v McIntyre (2019) 56 VR 526, [103] (Garde J); Ferris v Victoria [2018] VSCA 240, [7] (‘Ferris’); Roncevich v Rapatriation Commission (2005) 222 CLR 115, [64] (Kirby J) (‘Roncevich’); Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994) (‘Vegas Nominees’), quoted in Datta Yoga (n 42) [12]; Richmond Football Club (n 42) [15] (Croft J); Gaycel Pty Ltd v Heski Carpenters Pty Ltd [2017] VSC 450, [38] (Kennedy J).
In Secretary to the Department of Justice and Regulation v OUX, the Court of Appeal adopted the same principles and observed that it had ‘endeavoured to take a broad and practical approach to the interpretation of the Tribunal’s reasons, bearing the foregoing principles steadily in mind’.[73]
[73]Oux (n 72) [36], followed in Ferris (n 72) [7].
Taking a broad and practical approach to the decision, it is plain that the Commissioner was unsuccessful because the Board accepted the owner’s case. It is not the role of this Court to determine the merits of the decision afresh. That is a role given by the Act to the Board as a specialist expert tribunal.
In Roncevich v Repatriation Commission, Kirby J said:
Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.[74]
[74]Roncevich (n 72) [64], followed in Vegas Nominees (n 72), Datta Yoga (n 42) [12], Richmond Football Club (n 42) [15].
I am far from persuaded that the Board misunderstood its role, or erred in law in its findings on the evidence before it. The Board was clearly satisfied that a satisfactory degree of fire safety would be achieved.
The weight to be given to relevant considerations
The Commissioner’s complaint about the decision is fundamentally that insufficient weight was given by the Board to the possible need of two lengths of hose to achieve full fire hydrant coverage.
The weight to be given to relevant matters is predominantly a matter for the decision-maker.[75] In Maleckas v Secretary, Department of Justice, Kyrou J held that an error of law was not demonstrated by the mere fact that the Victorian Civil and Administrative Tribunal gave a matter more or less weight than the plaintiff would have liked it to give to that matter.[76] To similar effect, in Psychology Board of Australia v Mair, Osborn J held that the weight that should be accorded to relevant factors in reaching an evidentiary conclusion is not a question of law.[77] Likewise, the relative weight to be given to the relevant factors bearing on the exercise of a discretion does not raise a question of law unless the conclusion reached is not reasonably open.[78]
[75]Peko-Wallsend (n 36) 40–41.
[76](2011) 34 VR 23, 37–8 [82].
[77][2010] VSC 628, 20–1 [61].
[78]Ibid.
In Supple v Building Appeals Board, Kaye JA highlighted the difference between a decision maker failing to take into account a relevant consideration, and failing to consider particular pieces of evidence before it:
It is well established that a tribunal may make an error of law, if it fails to take into account a consideration that it was bound to take into account. The considerations that a particular tribunal must take into account are determined by the issue which the tribunal must determine, and the statutory context in which the tribunal makes its determination. On the other hand, a tribunal does not make an error of law by failing to consider or take into account particular pieces of evidence put before it. In order to establish relevant error, the plaintiffs must demonstrate a failure by the Board to take into account a relevant consideration that it was obliged to take into account, as distinct from a piece or pieces of evidence put before the Board in respect of the issues which it was determining. The distinction between relevant considerations on the one hand, and evidence on the other hand, is important, as it is not the jurisdiction of this Court, on judicial review, to engage in a review of the merits of the decision of the tribunal in question. [79]
[79]Supple (n 63) 25–6 [78] (citations omitted).
The concern by the Commissioner that insufficient weight was given by the Board in reaching its decision to the possible need for two lengths of hose does not amount to a failure by the Board to take a relevant consideration into account. Nor, in light of the authorities above, is it for this Court to substitute its own opinion of the weight which should be given to each consideration in place of the Board’s. As concluded above, the Board did take the possible need for two lengths of fire hose into account, but was satisfied that the overall fire safety and fire engineering design was satisfactory and achieved a higher level of fire safety than that provided by mere compliance with the ‘deemed to satisfy’ provisions of the Code.
Should the Board have prepared a report or statement as to whether fire safety was achieved?
Regulation 129(1) requires a report and consent to be obtained from the Commissioner to an application for a building permit if a ‘deemed to satisfy’ provision of the Code is not met. Regulation 129(2) provides that the Commissioner may consent in a report to a variation of the requirements if satisfied that a satisfactory degree of fire safety is achieved.
The construction of reg 129(2) urged by the Commissioner is that the Board was required to do more than give a decision of whether to consent. If it did not remit the decision to the primary decision-maker, it was required to provide a statement as to whether fire safety was achieved.
Under s 144(1) of the Act, a right of appeal to the Board may arise from a refusal or failure within a reasonable time to give the approval or exercise the discretion pursuant to reg 129(2). It relates to the consent of the Commissioner, and not the preparation of a report under reg 129(1).
The obligations of the Board in giving reasons for its decision following an appeal are set out in sch 3 of the Act. A decision of the Board must be in writing, and may include any order as to costs, or any incidental order or direction considered necessary.[80] A copy of the Board’s determination must be served without delay on each party to the proceeding.[81] The Board must provide written reasons without delay if requested by a party to a proceeding within one month or any further time allowed by the Board.[82] The Board may make public any of its determinations in any manner it thinks fit.[83] Regulation 129 does not amend or alter these obligations. The appeal relates to the refusal or failure to consent, and not to the Commissioner’s obligation under reg 129(1) to prepare a report.
[80]Act sch 3 cls 16(1)–(3).
[81]Ibid sch 3 cl 16(4).
[82]Ibid sch 3 cls 16(5)–(6).
[83]Ibid sch 3 cl 16(7).
Did the Board apply the correct test?
The Commissioner orally submitted that while the Board had given ‘lip service’ to the correct test under reg 129(2), it had not in fact applied the correct test.[84]
[84]Transcript of Proceedings (30 March 2021) 46.
I reject this submission as:
(a)there is no ground alleging that the Board applied an incorrect test;
(b)it is not disputed that paragraph [35] of the decision adopts the correct test; and
(c)there is nothing in paragraph [34] of the decision that shows or suggests that the Board adopted an incorrect test.
Ground 3 must also fail.
Is there a lack of utility?
The owner contended that there was a lack of utility in the grant of prerogative or declaratory relief by the Court because the building surveyor had granted an occupancy permit on 23 December 2020 for stage 1 of the project. Stage 1 of the project consists of Buildings 1-3, stage 2 consists of Buildings 4A, 4B, 5 and 6, and stage 3 consists of Buildings 7 and 8. The decision applies to all of the buildings.
I reject the owner’s submission of lack of utility in the grant of relief by the Court, as the occupancy permit issued by the building surveyor on 16 December 2020 relates only to stage 1. The proceeding has utility in relation to Buildings 4A, 4B, and 5-8.
Conclusion
All of the grounds relied on by the Commissioner fail and the proceeding must be dismissed.
SCHEDULE OF PARTIES
| FIRE RESCUE COMMISSIONER | Plaintiff |
| - and - | |
| BUILDING APPEALS BOARD | First Defendant |
| AUSTRALASIAN CONFERENCE ASSOCIATION LTD (ACN 000 003 930) | Second Defendant |
| PLP BUILDING SURVEYORS & CONSULTANTS PTY LTD (ACN 084 420 477) | Third Defendant |
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