| 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…
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- Case
- [2021] VSC 217
- Decision Date
CaseChat Overview and Summary
The Court found that the Building Appeals Board had failed to take into account relevant considerations and had given undue weight to irrelevant considerations. The Court held that the Board had not correctly applied the statutory criteria and had not exercised its discretion in accordance with the law. The Court also found that the Board had failed to take into account the Commissioner’s expert evidence and had given undue weight to the applicant’s evidence. The Court held that the Board’s decision was not rationally related to the evidence and was therefore unreasonable. The Court further held that the Board’s preparation of a report was of no utility as it did not assist in understanding the Board’s decision-making process.
The Court allowed the Commissioner’s application for judicial review and quashed the decision of the Building Appeals Board. The Court made no order as to costs.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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