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Fire Rescue Commissioner v Building Appeals Board

Fire Rescue Commissioner v Building Appeals Board

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Case Copied 4 May 2021 45 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 217
Decision Date: 4 May 2021

CaseChat Overview and Summary

The Fire Rescue Commissioner sought judicial review of a decision by the Building Appeals Board to grant consent for a variation of ‘deemed to satisfy’ provisions under the Building Act 1993 (Vic). The Board’s decision was in relation to a building application which proposed a superior fire engineering design that went beyond the ‘deemed to satisfy’ provisions of the Building Regulations 2018 (Vic). The Commissioner argued that the Board had failed to take relevant considerations into account and had given irrelevant considerations undue weight. The Commissioner also contended that the Board’s decision was not rationally related to the evidence and was therefore unreasonable. The Court had to determine whether the Building Appeals Board had failed to take relevant considerations into account and had given irrelevant considerations undue weight, and whether the Board’s decision was unreasonable.

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