Livingspring Pty Ltd v Building Appeals Board
[2025] VSC 134
•25 March 2025
| Not Restricted |
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 04144
| LIVINGSPRING PTY LTD (ACN 078 943 352) | Plaintiff |
| v | |
| BUILDING APPEALS BOARD | First Defendant |
| MELBOURNE CITY COUNCIL | Second Defendant |
| OWNERS CORPORATION PS419696X | Third Defendant |
| DR TIOW HOE GOH | Fourth Defendant |
| J JIREH PTY LTD (ACN 600 145 695) | Fifth Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 31 July, 1 and 12 August 2024 |
DATE OF JUDGMENT: | 25 March 2025 |
CASE MAY BE CITED AS: | Livingspring Pty Ltd v Building Appeals Board |
MEDIUM NEUTRAL CITATION: | [2025] VSC 134 |
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JUDICIAL REVIEW – Building Appeals Board’s determination (‘the Board’) – Building completed in 2000 pursuant to building permits issued by private building surveyor – Certificate of occupancy issued – Building notice served and building orders made in 2017 by Municipal Building Surveyor requiring fire safety works – Appeal to Board – Board varying building order but fire safety work still required – Jurisdiction of Municipal Building Surveyor and Board to make building order when building constructed under building permit and occupancy permit issued – Contraventions of Building Code of Australia 1996 – Board’s finding as to danger to members of the public or persons using building – Classification of building – Most closely resembles regulation – Effective height of building – Topmost storey – Whether floor a mezzanine – Lowest storey giving of direct egress to road – Materiality of Board’s error – Proceeding dismissed – Building Act 1993 ss 16, 24, 37, 46, 102, 106, 111, 142 – Building Regulations 1994 reg 13.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Munt | Fairweather Legal |
| For the First, Third, Fourth and Fifth Defendants | No appearance | No appearance |
| For the Second Defendant | Ms E Smith | Ashurst |
TABLE OF CONTENTS
Summary of the judgment’s conclusions.................................................................................. 7
The building permits.................................................................................................................... 7
Occupancy permits....................................................................................................................... 8
The Council‘s Building Notices and Building Orders............................................................. 8
Building Orders........................................................................................................................... 10
The nature of the appeal to the Board...................................................................................... 11
Ownership of Lots in the Building........................................................................................... 11
Legislation and Regulations...................................................................................................... 12
Description of the building........................................................................................................ 17
Livingspring’s Grounds for Judicial Review.......................................................................... 18
Livingspring’s explanation of its grounds.............................................................................. 18
Ground 2 – The Board erred in holding that the MBS and, on appeal the Board, had jurisdiction to form the requisite opinions as required by s 106(a) and s 106(d) of the Building Act to issue the second building notice and to make (or for the Board to vary or affirm) the building order because the Building was constructed and occupied in accordance with valid building and occupancy permits..................................................................................................... 19
The Board’s reasons on jurisdiction......................................................................................... 19
Livingspring’s submissions on the Board’s jurisdiction....................................................... 21
The Council’s submissions on the Board’s jurisdiction......................................................... 24
Ground 2 insofar as it relates to the Board’s reliance on s 106(d) in making the building order.............................................................................................................................................. 26
The Board’s finding that it could make the building order under s 106(d)....................... 26
Livingspring’s submissions on the Board’s reliance on s 106(d) to make the building order 29
The Council’s submissions on the Board’s reliance on s 106(d) to make the building order 30
Authorities................................................................................................................................... 30
Ground 2–Analysis of the Board’s jurisdiction – reliance on ss 106(a) and (d) to make the building order.................................................................................................................................... 31
Ground 2–Analysis of jurisdiction–Board’s reliance on s 106(d) to make the building order 39
Ground 1(c) the Board's errors in holdings............................................................................. 40
Ground 1(a) that the Board erred in holding that the Arrow Apartments were being used as Class 3 buildings.......................................................................................................................... 41
Classification of Arrow Apartments........................................................................................ 41
BCA classification provisions.................................................................................................... 42
The Board’s reasons for classifying the Arrow Apartments as Class 3.............................. 43
Livingspring’s submissions on the classification of the Arrow Apartments..................... 48
The Council’s submissions on the classification of the Arrow Apartments....................... 50
Analysis of ground 1(a)–the classification of the Arrow Apartments................................ 52
Ground 1(b) The effective height of the Building.................................................................. 53
The Board’s findings on the Building’s topmost storey........................................................ 55
The Board’s finding on Lot 1019............................................................................................... 56
Livingspring’s submissions on the topmost storey............................................................... 57
Livingspring’s submissions on Lot 1019.................................................................................. 60
The Council’s submissions on the topmost storey................................................................. 60
The Council’s submissions on Lot 1019................................................................................... 61
Analysis of topmost storey issue.............................................................................................. 62
Analysis of the Lot 1019 issue................................................................................................... 63
Board’s findings on the Building’s lowest storey................................................................... 64
Authorities on the meaning of ‘direct egress’ in the BCA.................................................... 66
The Owners-Strata Plan No 69312 v Rockdale City Council...................................... 66
The Owners – Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3)......................... 68
Livingspring’s submissions on the lowest storey.................................................................. 69
The Council’s submissions on the Building’s lowest storey................................................. 70
Analysis of the issue of the Building’s lowest storey............................................................ 72
Conclusion.................................................................................................................................... 77
HIS HONOUR:
The plaintiff, Livingspring Pty Ltd (‘Livingspring’) seeks judicial review of a determination of the Building Appeals Board (‘the Board’) of 5 July 2023 as to the additional fire safety works and measures required for a multi-storey city building.
That determination followed the Board’s hearing of appeals against a building order made by the Municipal Building Surveyor (‘MBS’) of the Melbourne City Council (‘the Council’) in 2017 which required fire safety works and measures to be carried out and undertaken at a multi-storey building at 581-589 La Trobe Street Melbourne, which is the south-east corner of La Trobe and Spencer Streets. The building was constructed in 1999 and 2000.
The appeal to the Board was made by the Owners Corporation (PS 419696X) as first applicant, with Dr Tiow-Hoe Goh, Livingspring and J Jireh Pty Ltd as second applicants. Livingspring is the present plaintiff and Dr Goh, the fourth defendant, is a director. The appeal was made under s 142 of the Building Act 1993 (‘the Act’).
The Board, the first defendant and the Owners Corporation, the third defendant made Hardiman appearances in this proceeding. Dr Goh, the fourth defendant wrote to the Court stating that he did not wish to participate in the proceeding and a director of J Jireh Pty Ltd, the fifth defendant, wrote to the Court stating that it did not intend to participate in the proceeding.
The Board described its task as to determine whether the Building, which was apparently built in accordance with building permits, should, more than 20 years later, be required to undergo an extensive fire safety retrofit, including installation of sprinklers throughout it.[1] The Board described the following issues as being central to the appeal:[2]
[1]Owners Corporation PS 41996X v Municipal Surveyor for the City of Melbourne [2023] VBAB 7, 10 [15] (‘Reasons’).
[2]Ibid 10-11 [16].
(a) whether the Board should determine that:
(i) the Building has an effective height of more than 25m;
(ii)part of the Building is a Class 3 building as a result of the operation of the Arrow on Spencer (previously known as the Harbour View Apartment Hotel);
(b)whether, for the purposes of s 106(a) of the Act, building work has been carried out on the Building in contravention of the Act or the building regulations;
(c)whether, for the purposes of s 106(d) of the Act, the Building is a danger to the life, safety or health of any member of the public or of any person using the Building; and
(d)whether the Board should affirm the Second Building Order (with or without variations), having regard to:
(i) the effect of the Building Permits and Occupancy Permits;
(ii)the lawfulness of the Second Building Notice and Second Building Order;
(iii)evidential considerations relating to the appeal; and
(iv)a range of statutory interpretation matters relating to the Act.
The outcome of the appeal was that the Board varied the building order, but determined that fire safety works were required and ordered that they be carried out.
In summary, on 27 January 2023, the Board found that:
(a)the Building was a danger to the life, safety or health of members of the public and people using the Building, including its occupants, within the meaning of s 106(d) of the Act;
(b)it would be appropriate, having regard to the purposes of the Act, to make a building order on the basis of this danger to life, safety and health in order to protect the health and safety of people;
(c)building work was carried out on the Building in contravention of the Act and the Building Regulations 1994 (‘the Building Regulations’), being a failure to comply with Clauses E1.5, D2.22, E4.9 and C3.2 of Amendment 5 of the Building Code of Australia 1996 (‘ BCA’) given the absence of alternative solutions; and
(d)it would be appropriate, having regard to the purposes of the Act, to make a building order on the basis of these contraventions in order to protect the health and safety of people.[3]
[3]Ibid 119 [441].
In more detail, the Board’s determination found that the Building was in contraventions of clauses E1.5 (sprinkler systems), D.22 (Re-entry from fire-isolated exits), E 4.9 (emergency warning and intercommunication systems) and C 3.2 (protection of openings in external walls) of the BCA based on the following considerations and findings:
(a) the effective height of the building is more than 25m;
(b)the Building Permits and Occupancy Permits do not, in law, deem the Building to comply with E1.5, D2.22, E4.9 and C3.2 of the 1996 BCA;
(c)the MBS (and the Board standing in the shoes of the MBS) is able to determine for themselves whether the Building is in contravention of E1.5, D2.22, E4.9 and C3.2 of the 1996 BCA (despite the existence of the Building Permits and Occupancy Permits);
(d)there was no performance solution regarding E1.5, D2.22, E4.9 or C3.2 of the 1996 BCA;
(e)the Building does not have the following:
(i)an AS1670 Smoke detection & alarm system throughout the entire Building;
(ii)an AS2118.1 fire sprinkler system throughout the entire Building; and
(iii)an emergency warning and intercommunication system throughout the entire building in accordance with E4.9 of the 1996 BCA; and
(iv)suitable fire resisting elements to the unprotected window openings on the south side of the building in accordance with C3.2 of the 1996 BCA.[4]
…
Having regard to the totality of the evidence provided, the Board is satisfied, on the balance of probabilities, that the Building does not have re-entry on all floors, with signage, in accordance with D2.22.[5]
[4]Ibid 89 [323].
[5]Ibid 91 [337].
The Board made the following findings:
(a)at the time that building notice BUI–2017–498 (Second Building Notice) was made on 21 August 2017 by a delegate of the Municipal Building Surveyor for the City of Melbourne (MBS) in relation to the building at 581-589 La Trobe Street, Melbourne (Building), the MBS held the following opinions, which were, in the circumstances, reasonable opinions:
(i)the apartments at the Building that were used by Arrow on Spencer (Arrow Apartments) were Class 3 (rather than Class 2) buildings;
(ii)given that the Arrow Apartments were being used as Class 3 (rather than Class 2), the absence of an AS1670 Smoke detection and alarm system throughout the Building posed a danger to the life, safety or health of any member of the public or of any person using the building;
(iii)the effective height of the Building was, for the purposes of the Building Code of Australia 1996 (Amendment 5), as adopted by the Building Regulations 1994 (1996 BCA), greater than 25m; and
(iv)the Building contravened the provisions of the 1996 BCA, which are referred to in clauses 2.2.1 to 2.2.5 of the Second Building Notice and, as a result of these contraventions, posed a danger to the life and safety of any person using the Building;
(b) for the purposes of determining the effective height of the Building:
(i)the second level of the topmost residential apartments at the Building (tenth floor) is, for the purposes of the 1996 BCA, a storey;
(ii)the open living area on the tenth floor is not, for the purposes of the definition of storey in the 1996 BCA, a mezzanine;
(iii) Lot 1019 of the Building:
· was, for the purposes of the 1996 BCA, a storey, when it was used as a gymnasium or exercise room; and
· is, for the purposes of the 1996 BCA, a storey, when it is a vacant room;
(iv)The Lower Ground Floor is, for the purposes of the definition of storey in the 1996 BCA, ‘the lowest storey [of the Building] providing direct egress to a road or open space’;
(c)the effective height of the Building is, for the purposes of the 1996 BCA, more than 25m, being at least 28.65m;
(d)the Arrow Apartments so closely resemble the residential part of a hotel as properly to be classified by the Board (pursuant to reg 13 of the Building Regulations 2018) as being Class 3 buildings;
(e)there was not a performance solution regarding E1.5 of the 1996 BCA in relation to:
(i) the carparks in the Building; or
(ii) any other aspect of the Building;
(f)building work was carried out on the Building in contravention of the Building Act 1993 (Act) and Building Regulations 1994 because:
(i)the building work failed to satisfy E1.5, D2.22, E4.9 and C3.2 of the 1996 BCA; and
(ii)in the absence of alternative solutions, the building work therefore failed to meet the corresponding performance requirements in the 1996 BCA (BCA contraventions);
(g)it would be appropriate, having regard to the purposes of the Act, to make a building order against Owners Corporation PS 419696X (Owners Corporation) in relation to the Building on the basis of the BCA contraventions in order to protect the health and safety of people;
(h)the Building poses a danger to the life, safety or health of members of the public or people using the Building (including its occupants), within the meaning of s 106(d) of the Act;
(i)if (contrary to the finding in paragraphs (d) above) the Arrow Apartments were Class 2 buildings, the Building would still be a danger to the life, safety or health of any member of the public or of any person using the Building;
(j)it would (irrespective of whether the Arrow Apartments were Class 3 or 2 buildings) be appropriate, having regard to the purposes of the Act, to make a building order against the Owners Corporation in relation to the Building on the basis of this danger to life, safety and health in order to protect the health and safety of people; and
(k)although it is appropriate for the MBS to issue a building order against the Owners Corporation:
(i)the time for undertaking the building work should be more than 120 days; and
(ii) the required works should be limited to–
· installing an AS2118.1 or AS2118.6 fire sprinkler system throughout the entire building, via a building permit; and
· providing re-entry from the stairs in accordance with D2.22 of the 1996 BCA, via a building permit; and
· installing a sound system and intercom system emergency warning and intercommunication systems throughout the entire building in accordance with E.49 of the 1996 BCA, via a building permit.[6]
[6]Ibid 1-3.
On 5 July 2023, having receiving submissions about the terms of the proposed building order, the Board varied the building order made by the MBS and ordered and directed that the Owners Corporation must carry out the following building work by 1 July 2025:
6.1 Install an AS2118.1 or AS2188.6 fire sprinkler system throughout the entire building, via a building permit; and
6.2 Provide re-entry from the stairs in accordance with D2.22 of the 1996 Building Code of Australia, via a building permit; and
6.3 Install an emergency warning and intercommunication system throughout the entire building in accordance with E4.9 of the 1996 Building Code of Australia, via a building permit. Without limiting this requirement, these works must include the following:
(a)the new emergency warning and intercommunication system must interface with the existing AS 1670 smoke detection and alarm system; and
(b)any upgrade work to the existing AS 1670 smoke detection and alarm system that are required in order to ensure that this interface is effective.[7]
[7]Owners Corporation and Ors v Municipal Surveyor of the City of Melbourne (No 2) [2023] VBAB 157, 1-2.
The Board gave extensive reasons for its determination of 27 January 2023 and further reasons for its determination of 5 July 2023 explaining its reasons for the terms of the varied building order that it made.
Livingspring estimates that the works required by the building order will cost approximately $3 million. Lot owners may have to contribute to that cost.
Livingspring contended that the Board erred in finding that the MBS and the Board on appeal had jurisdiction to make the building order when the Building had been constructed in accordance with building permits and had been occupied since 2000 under an occupancy permit. The MBS and the Council had not sought to have these building or occupancy permits set aside.
Livingspring also contended that the MBS and the Board erred in deciding that the ‘effective height’ of the Building was more than 25m, which thereby required more extensive fire safety equipment and measures be installed or implemented. The effective height of the Building required the calculation of the height to the floor of the topmost storey from the floor of the lowest storey providing direct egress to a road or open space. The Board decided that the topmost storey was the tenth floor of the Building, whereas Livingspring contended that that floor was a mezzanine floor and part of the ninth floor, which was therefore the topmost storey.
The Council contended, and the Board decided, that the lowest storey providing direct egress to a road was the Lower Ground Floor, being a carpark providing egress onto Spencer Street, whereas Livingspring contended that it was the ground floor which gave direct egress through a lobby to La Trobe Street. Livingspring contended that the Lower Ground Floor did not provide the required direct egress because a person seeking to exit the Building from that point required a pass to open the carpark gate giving egress to Spencer Street and not all persons using the Building would have such a pass. It also argued that the Ground Floor exit to La Trobe Street was the point of direct egress that most building occupants would use in an emergency.
Summary of the judgment’s conclusions
I have reached the following conclusions. That the MBS and the Board on appeal, had the jurisdiction to make the building orders that they did, although the Building had been built under building permits and that occupancy permits had been issued. That Livingspring has not established that the Board made a jurisdictional error in determining that the Arrow Apartments should be classified as Class 3 buildings under the Building Code of Australia 1996 (‘BCA’). That the Board did not make a jurisdictional error in determining that the topmost storey of the Building was the tenth floor for the purposes of deciding its ’effective height’ under the BCA. That the Board did make a jurisdictional error in determining that the lowest storey of the Building for the purposes of deciding its effective height under the BCA was the Lower Ground Floor. That this jurisdictional error was not a material error as there was no realistic possibility that the Board’s decision could have been different if the error had not occurred because the effective height of the Building would still have been more than 25m. That, therefore, the proceeding should be dismissed.
The building permits
On 16 July 1999, a private building surveyor issued the first of five building permits for the land on which the Building was to be constructed. The building permit was for stage 1 of a new building. Ground floor shops were classified as Class 6, the ground floor office as Class 5, the ground floor and levels 1 and 2 car parking areas as Class 7 and levels 3 to 10, for apartments, as Class 2. The estimated value of the building work was $12,000,000.[8]
[8]Affidavit of David Ashley Fairweather, 4 September 2023, Exhibit ‘DAF-1’, 17-18 (‘Fairweather Affidavit’), Court Book (‘CB’) 22-23.
A private building surveyor issued four further building permits for stages 2-5 of the Building on 19 August 1999,[9] on 5 October 1999,[10] on 19 October 1999,[11] and on 2 December 1999.[12] On each occasion, the classifications for the building were the same as in the first building permit. The building permits stated that they were subject to the building regulations and the BCA. It appears that the building surveyors calculated the effective height of the Building at less than 25m.
[9]Ibid, Exhibit ‘DAF-1’, 19-20, CB 24-25.
[10]Ibid, Exhibit ‘DAF-1’, 21-22, CB 26-27.
[11]Ibid, Exhibit ‘DAF-1’, 23-24, CB 28-29.
[12]Ibid, Exhibit ‘DAF-1’, 25-26, CB 30-31.
Occupancy permits
On 9 November 2000, a private building surveyor issued an occupancy permit for the Building. The occupancy permit stated that the following parts of the Building were suitable for occupation, subject to the conditions placed on the permit:
(a) ground floor car park (Class 7) and public corridors;
(b) levels 1 and 2 car park (Class 7); and
(c) levels 3 to 8 apartments (Class 2), balconies and public corridors.[13]
[13]Ibid, Exhibit ‘DAF-1’, 27-28, CB 32-33.
On 17 November 2000, the private building surveyor issued a second occupancy permit for levels 9 and 10 apartments (Class 2) and for balconies and public corridors in the Building.[14]
[14]Ibid, Exhibit ‘DAF-1’, 29-30, CB 34-35.
The Council‘s Building Notices and Building Orders
Between 17 May 2007 and 5 December 2013, the MBS for the Council served a series of building notices and made building orders requiring fire safety or prevention works to be undertaken on the basis that the Building was a Class 3 building rather than a Class 2 building and therefore required a higher level of fire protection. Those building orders were not enforced.[15]
[15]Reasons 9 [6].
On 17 May 2017, Mr Stephen Braybrook, a deputy building surveyor and delegate of the MBS, made a building order concerning the Building which was addressed to the Owners Corporation. In June 2017, the Owners Corporation appealed against that building order, however a delegate decided that the first building notice needed to be cancelled because of deficiencies in its service.[16]
[16]Ibid 9 [8]-[9].
On 21 August 2017, Mr Braybrook caused a second building notice to be served on the Owners Corporation stating that pursuant to s 106 of the Act he was of the opinion that:
2.1. The building is a danger to the life, safety or health of any member of the public or of any person using the building, in that:
2.1.1. Numerous Sole Occupancy Units (SOU) are currently being used as Class 3 hotel rooms (Harbour View Apartment Hotel) without the building having an AS1670 Smoke detection & alarm system throughout the building;
2.2. The building is greater than 25 meters in effective height and does not have several required essential safety measures or components of those measures as required by the relevant BCA. These are as follows:
2.2.1. A fire sprinkler system installed throughout (BCA Clause E1.5),
2.2.2. Re-entry provisions from fire-isolated stairways into the building (BCA Clause D2.22),
2.2.3. A Sound System or Intercom System for emergency purposes (BCA Clause E4.9),
2.2.4. The two fire-isolated stairways are within the same shaft and are not fire isolated from each other (BCA Clause D1.7),
2.2.5. There are south side SOU's on levels 3 to 9 of the building that have unprotected window openings located within 3m of the boundary (BCA Clause C3.2).
Without these required essential safety measures the building does not provide the minimum required level of life safety for the occupants.[17]
[17]CB 49-50.
The building notice gave the Owners Corporation 60 days to show cause why the following building work should not be carried out:
5.1.1.Install an AS1670 Smoke detection & alarm system throughout the entire building;
5.1.2. Install an AS2118.1 fire sprinkler system throughout the entire building;
5.1.3.Provide re-entry from the stairs in accordance with Building Code of Australia clause D2.22;
5.1.4.Install a sound system and intercom system throughout the entire building in accordance with Building Code of Australia clause E4.9;
5.1.5.Fire isolate the flights of stairs from each other in accordance with Building Code of Australia clause D1.7;
5.1.6.Install suitable fire resisting elements to the unprotected window openings on the south side of the building in accordance with Building Code of Australia clause C3.2.[18]
[18]Ibid 50.
Building Orders
On 23 November 2017, Mr Braybrook made a second building order which was sent to the Owners Corporation. The building order required it to carry out the following building works:
6.1 Install an AS1670 Smoke detection & alarm system throughout the entire building, via a valid building permit;
6.2 Install an AS2118.1 fire sprinkler system throughout the entire building, via a valid building permit;
6.3 Provide re-entry from the stairs in accordance with Building Code of Australia clause D2.22, via a valid building permit;
6.4 Install a sound system and intercom system throughout the entire building in accordance with Building Code of Australia clause E4.9, via a valid building permit;
6.5 Fire isolate the flights of stairs from each other in accordance with Building Code of Australia clause D1.7, via a valid building permit;
6.6 Install suitable fire resisting elements to the unprotected window openings on the south side of the building in accordance with Building Code of Australia clause C3.2, via a valid building permit.[19]
[19]Reasons 23 [58].
The nature of the appeal to the Board
On 18 December 2017, the Owners Corporation and the second applicants appealed the building order to the Board. The appeal was heard for four days in October 2021 with the parties thereafter providing written submissions.
The appeal to the Board was a re-hearing. Therefore, the Board was obliged to decide whether it should make a building order and, if so, to decide its terms.[20] The Board could exercise all the powers of the MBS and, as it is said, stand in his shoes.[21] The Board had jurisdiction to hear the appeal even if the building order under appeal was invalid.[22]
[20]See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[21]Building Act 1993 (Vic) s 149(2).
[22]See Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338.
The Owners Corporation and Livingspring brought the appeal in their capacities as owners of common property and a number of apartments within the building complex.
Ownership of Lots in the Building
The Building contains 236 apartments with part of the ground floor and the two levels below the ground floor allocated for car parking.[23]
[23]Fairweather Affidavit, 2 [8], CB 7.
The Board stated that in November 2021 Livingspring owned 50 lots in the Building being the reception area, 27 car park spaces, 13 storage areas on 9 different floors and 9 apartments.[24] It managed 17 lots on behalf of other owners, being 2 car parks and 15 apartments. The second applicants, Dr Tiow-Hoe Goh, Livingspring and J Jireh Pty Ltd were collectively the registered proprietors of approximately 56 apartment lots in the Building.[25]
[24]Reasons 72 [257].
[25]Ibid 10 [13].
In November 2021, the Goh related entities, other than Livingspring, owned 6 lots and in total either owned or managed 73 lots, being the reception area, 31 car parks, 14 storage areas and 27 apartments.[26]
[26]Ibid 72 [257]-[259].
As at September 2023, Livingspring owned about 16 of the 236 apartments in the Building. It rents those apartments and, some owned by other lot owners, for short-stay or long-stay residential accommodation through an agency which does not own apartments. The apartments are marketed for occupancy as serviced apartments under the business name ‘Arrow on Spencer’.[27]
[27]Fairweather Affidavit 2 [11]; CB 7.
The number of apartments that Livingspring manages varies from year to year depending on demand and the willingness of apartment owners, who are not Goh related entities, to provide their apartments for rent as part of Arrow on Spencer. COVID-19 significantly reduced demand for rooms and the number of apartments that Livingspring managed.[28]
[28]Reasons 72 [260]-[261].
Legislation and Regulations
The relevant legislative instruments are the Building Act 1993, the Building Regulations and the Building Code of Australia 1996 (‘the BCA’), in the terms of those instruments in 1999.
The relevant provisions of the Act are as follows. Section 3(1) defines a building as including a structure, temporary building, temporary structure and any part of a building or structure. Thus each self-occupancy unit within the Building could be described as a building as could the whole of the Building. Other relevant provisions of the Act are:
4 Objectives of Act
(1) The objectives of this Act are-
(a)to protect the safety and health of people who use buildings and places of public entertainment; ....
(d) to facilitate the adoption and efficient application of-
(i) national building standards; ...
(e)to facilitate the cost effective construction and maintenance of buildings ...; ...
(g)to aid the achievement of an efficient and competitive building ... industry…
(2) It is the intention of Parliament that in the administration of this Act regard should be had to the objectives set out in subsection (1).
16 Offences relating to carrying out building work
(1)A person must not carry out building work unless a building permit in relation to the work has been issued and is in force under this Act.
Penalty: 500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(2)A person must not carry out building work unless the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work and any binding determination that applies to the carrying out of that work.
Penalty: 500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(3)An owner of land must ensure in relation to building work carried out on that land that a building permit in relation to the work has been issued and is in force under this Act.
Penalty: 500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(4)A building practitioner, an endorsed building engineer or an architect who is engaged to carry out building work must ensure that a building permit in relation to the work has been issued and is in force under this Act.
Penalty: 500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(4A) A builder named in a building permit must ensure that the building work to which the building permit applies is carried out in accordance with this Act, the building regulations, the building permit and any binding determination that applies to the carrying out of that work.
Penalty: 500 penalty units, in the case of a natural person;
2500 penalty units, in the case of a body corporate.
(5)Subsection (3) does not apply to an owner if the owner has engaged a building practitioner, endorsed building engineer or architect to carry out the building work on that land.
(6)Subsections (1), (2), (3), (4) and (4A) do not apply if the building work is exempted by or under this Act or the regulations.
24 Refusal of building permit
(1)Subject to section 24A and Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that—
(a)the building work and the building permit will comply with this Act, the building regulations and any binding determination that applies to the carrying out of that building work; and
(b)any consent of a reporting authority required under this Act or the regulations or under any other Act or regulations is obtained or taken to have been obtained in accordance with Schedule 2; and
(c)any relevant planning permit or other prescribed approval has been obtained; and
(d)the building permit will be consistent with that planning permit or other prescribed approval.
46 Effect of occupancy permit
(1)An occupancy permit under this Division is evidence that the building or part of a building to which it applies is suitable for occupation.
(2)An occupancy permit under this Division is not evidence that the building or part of a building to which it applies complies with this Act or the building regulations.
102 Emergency orders
A municipal building surveyor may make an emergency order under this Division if the municipal building surveyor is of the opinion that the order is necessary because of a danger to life or property arising out of the condition or use or proposed use of—
(a) a building; or
(b)the land on which building work is being or is proposed to be carried out; or
(c)a place of public entertainment.
106 Building notices
Subject to section 107, a municipal building surveyor or a private building surveyor may cause a building notice to be served on an owner of a building, land on which building work is being or is proposed to be carried out or a place of public entertainment if the building surveyor is of the opinion that any one of the following circumstances exists—
(a)building work has been carried out on the building, land or place without a building permit required by this Act, or in contravention of a building permit or this Act or the building regulations;
(b)the use of the building or place contravenes this Act or the building regulations;
(ba)safety or emergency services, installations or equipment have not been maintained in accordance with the occupancy permit and the regulations;
(c)the building or place is unfit for occupation or for use as a place of public entertainment;
(d)the building, land or place or building work on the building, land or place is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property.
111 Building orders—general
(1)Subject to section 107, a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.
(2)Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.
(3)A building order under this section may—
(a)direct an owner or occupier to evacuate a building or land or a place of public entertainment within a specified time or times; and
(b)if an order under paragraph (a) is given, direct any person to vacate a building or land or a place of public entertainment within a specified time or times.
(4)A building order under this section may prohibit any person from entering, using or occupying a building, land or a place of public entertainment for a specified period unless permitted by the municipal building surveyor.
(5)A building order under this section may direct the owner of a building, land or a place of public entertainment to carry out building work, protection work or other work required by the regulations in relation to the building, land or place.
(5a)If a municipal building surveyor or a private building surveyor is of the opinion that—
(a)a circumstance referred to in section 106(d) exists in relation to a building, land or place of public entertainment or building work that is being or is proposed to be carried out on the building, land or place; and
(b)certain action is necessary to remove or to wholly or partially reduce, or to contribute to removing or to wholly or partially reducing, the circumstance—
a building order made by the relevant building surveyor under this section may direct the owner of the building, land or place to take the action that is necessary.
(6)A building order may require the owner of a building or land or a place of public entertainment to cause an inspection of that building, land or place to be conducted by a specified person within a specified time.
(7)A building order may require the owner of a building or a place of public entertainment or a builder to cause specified material used in that building or place to be tested (other than destructively tested) by a specified person within a specified time.
(8)A building order may require the owner of a building or a place of public entertainment that is a building, or a builder, to, in accordance with the regulations (if any), arrange for, within a specified time, a specified building product or material used in that building to be subjected to destructive testing conducted by a prescribed testing authority if the relevant building surveyor believes on reasonable grounds that the use of the building product or material is connected with a contravention of this Act or the regulations.
(9)An owner or builder referred to in subsection (8) must provide the results of the destructive testing of the building product or material to the relevant building surveyor or another person authorised by the relevant building surveyor to receive the results within the time specified in the building order.
118A Building notices and building orders to be last resort
A municipal building surveyor or private building surveyor must not cause a building notice to be served on an owner or make a building order in relation to the carrying out of building work unless—
(a)a direction to fix the building work was given under Division 2 of Part 4 and it is clear that the direction will not be complied with; or
(b)the municipal building surveyor or private building surveyor is satisfied that it is either not possible or not appropriate to give a direction to fix the building work under that Division.
Reg 1.5 of the Building Regulations 1994 defined ‘BCA’ to mean the ‘Building Code of Australia’. Regulation 1.7 adopted the BCA and made it part of the regulations as modified by the regulations. In this judgment, I refer to the Building Code of Australia 1996 as the ‘BCA’.
Description of the building
The Building was constructed in 1999 and 2000 for approximately $12 million. It contains 236 apartments situated on seven levels, with the upper most apartments containing two levels. The carpark has three levels with two levels below the ground floor. The apartments, which range in size, each contain a kitchen with cooking facilities, bedrooms, bathrooms and toilets and a laundry area with a washing trough and space for a washing machine and dryer. Coin operated washing machines and dryers were located in a dedicated room on the fifth level of the Building, but they were not operating at the time of the Board hearing.
The Board found that each of the Arrow Apartments had its own title, including car park space. Each of the apartments was offered and provided as a whole apartment to one or more persons, a pair or groups of persons. Arrow on Spencer’s staff met all guests at the apartment to provide access, keys and information on arrival and collected keys on departure. The staff also processed payments, receipts and check-in forms and provided additional storage for occupants’ possessions. If the occupants requested, room service comprising laundry and removal of rubbish could be provided.[29]
[29]Ibid 71 [252]–[253].
A lobby and reception area was located on the ground floor near the entrance to the Building. The website for Arrow on Spencer stated that it offered a range of facilities, including ’24 hour reception’, ‘exercise room’, ‘general daily room service’, ‘onsite coin laundry facilities’, ‘vending machine’, ‘tour desk’ and ‘multi-lingual staff’.[30]
[30]Ibid 72, [256].
Livingspring’s Grounds for Judicial Review
Livingspring relied on the following grounds in its amended Originating Motion:
(1) The Board erred in holding that:
(a)the apartments within the building at 581-589 La Trobe Street (‘Building’) used by Arrow on Spencer (‘relevant apartments’) were being used as class 3 rather than class 2 buildings because the Board erred in its construction and its application of the definitions of ‘Class 2’ and ‘Class 3’ buildings in Part A3 of the Building Code of Australia 1996; (the ‘classification ground’);
(b)the effective height of the Building was greater than 25m because the Board erred in its construction and application of the definitions of the terms ‘effective height’, ‘mezzanine’ and ‘storey’ in Clause A1.1 of the Building Code of Australia 1996 (the ‘effective height ground’); and, as a consequence
(c) the Building
i.was constructed contrary to the requirements of the Building Act 1993, the regulations, and the Building Code of Australia 1996; and
ii.posed a danger to the life, safety or health of any member of the public or of any person using the building.
(2)The Board erred in holding that the municipal building surveyor and, on appeal, the Board, had jurisdiction to form the requisite opinions required by ss 106(a) and 106(d) of the Building Act 1993 to issue the ‘Second Building Notice’ and hence to make (or, for the Board, to vary and affirm) the Building Order because the Building was constructed and occupied in accordance with valid building and occupancy permits. (the ‘jurisdiction ground’).[31]
[31]References to the ‘First Defendant’ in this quotation have been amended to ‘the Board’ to maintain consistency in references to the Board in this judgment.
Livingspring’s explanation of its grounds
Livingspring expressed its grounds of appeal as contentions that that the Board’s holdings were not open to it. That formulation might suggest a challenge to the Board’s findings of fact. Such a challenge could not establish a jurisdictional error unless there was no evidence to support the Board’s findings.[32] However, counsel for Livingspring clarified that the grounds were intended to argue that because of errors in the interpretation of terms in the Act, the regulations or the BCA, the Board’s conclusions involved legal errors that amounted to jurisdictional error.[33]
[32]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[33]Transcript of Proceedings Livingspring Pty Ltd (ACN 078 943 352) v Building Appeals Board (Supreme Court of Victoria, S ECI 2023 04144, Ginnane J, 31 July) (‘T’) 139.
Arguments that the Board had improperly characterised or classified work, or failed to establish the circumstances necessary to enliven the powers in the Act or regulations or acted on a wrong principle are matters, which if established, may give rise to jurisdictional error.[34]
Ground 2 – The Board erred in holding that the MBS and, on appeal the Board, had jurisdiction to form the requisite opinions as required by s 106(a) and s 106(d) of the Building Act to issue the second building notice and to make (or for the Board to vary or affirm) the building order because the Building was constructed and occupied in accordance with valid building and occupancy permits.
[34]City of Port Phillip v Shout Rock Cafes Pty Ltd [2023] VSCA 327 [10]; Genco v Salter (2013) 46 VR 507, 516 [39[ (Nettle JA).
The first ground Livingspring argued, ground 2, challenged the Board’s decision that the MBS and the Board on appeal, had the jurisdiction to form the requisite opinions required by ss 106(a) and (d) of the Act to serve the second building notice and to make, or for the Board to vary or affirm, the building order when the Building was constructed and occupied in accordance with valid building orders and occupancy permits.
The Board’s reasons on jurisdiction
The Board concluded that, although under s 24 of the Act, the relevant building surveyor (‘RBS’), which term includes a MBS or a private building surveyor, must not issue a building permit unless satisfied of the matters specified in s 24(1) to (d), it did not follow that the building work thereafter undertaken was deemed to comply with those matters. The relevant building surveyor Thus, inflammable cladding would not be deemed to be consistent with the building regulations, merely because the plans attached to the building permit provided for such cladding.[35]
[35]Reasons 39 [120].
The Board also stated that the limited right given by a building permit did not include a right to construct a building that was contrary to the requirements of the Act or the building regulations.[36] Section 16(2) of the Act provides that the building work must be in accordance with the Act and the building regulations, as well as being in accordance with the building permit. Section 46(2) provides that an occupancy permit is not evidence that the building or part of a building to which it applies complies with the Act or the building regulations.
[36]Ibid 41 [124].
The Board stated that the presumption of regularity did not remove the obligation of the MBS and the Board under the relevant provisions in Division 2 of Part 8 of the Act, to hold the requisite opinions and as the relevant building surveyor, under reg 13 of the 2018 Regulations (or the corresponding previous provision) determine the classification of a building.[37]
[37]Ibid 42 [129].
The Board stated:
The relevance of permits on the exercise of the discretion under Division 2 of Part 8 of the Act
From a practical perspective, and having regard to the need for a level of certainty in the building industry, a municipal building surveyor (and the Board) should be cautious about serving building notices and making building orders in relation to buildings that receive building and occupancy permits more than 20 years ago. This is particularly the case when the rectification work is extensive and expensive, and it is likely that relevant documentation and insurance may be inadequate or non-existent.
However, there is a difference between a municipal building surveyor (and the Board) being cautious and a municipal building surveyor failing to act merely because a non-compliant or dangerous building was built in accordance with the relevant building permits and has the relevant occupancy permits.
If the building permit provided for a building design that clearly failed to satisfy the fire safety requirements of the applicable BCA, the existence of building permits and occupancy permits reflect a mistake in the permitting process. The permits would not prevent the municipal building surveyor from serving a building notice or making a building order to protect the life and safety of people who occupied the building.
People who occupy or visit the building should be able to presume that the building is safe and complies with the applicable fire safety standards. Building notices and building orders are an important mechanism to increase compliance with the Act and building regulations and mitigate risks for people who use or visit a building.[38]
[38]Ibid 43 [130]–[133].
The Board also accepted that s 106(a) of the Act is enlivened where there are building works carried out ‘on the building, land or place in any of four separate and distinct circumstances’:
(a) without a building permit required by the Act; or
(b) in contravention of a building permit; or
(c) in contravention of the Act; or
(d) in contravention of the building regulations.[39]
[39]Ibid 77 [283].
Livingspring’s submissions on the Board’s jurisdiction
Livingspring synthesised its argument as follows: that Parliament did not intend the MBS, or the Board, to make or confirm the building order, given that the building work which it intended to rectify, was carried out in accordance with valid building permits and the Building was occupied in accordance with a valid occupancy permit.[40] Under s 24(1)(a), an RBS must not issue a building permit unless satisfied that the building work and the building permit will comply with the Act and the building regulations.
[40]T 101.
Livingspring argued that s 106(a) did not apply to building work carried out in accordance with a building permit. That provision applied to building work which contravened the regulations, or was not authorised by a building permit or other instrument issued under the Act. The Building was built in compliance with the building permit and it had not been changed in a way that might engage the power of the MBS given by s 72(b) to cancel the occupancy permit. The building owners had received express formal and lawful permission to construct the Building and it was built in accordance with that permission. Accordingly, the full force and effect of the permits could not be disregarded or undermined by making the building orders, as that would be contrary to the regulatory scheme.[41]
[41]Ibid 100-101.
Livingspring stressed the primacy of the building permit as establishing the validity of work performed under it for building regulation in Victoria. It submitted that it would be extraordinary for the Court to accept as lawful, a determination of the Board that invalidated aspects of the approvals issued by the RBS for the Building. The Building has a new owner and the builder has long gone. The owners no longer have any cause of action against the building surveyors. The rebuild would cost $3 million.[42]
[42]Fairweather Affidavit 11 [42], CB 16.
Livingspring referred to the Court of Appeal decision in in Moorabool Shire Council v Taitapanui (‘Taitapanui’)[43] in which Ormiston and Ashley JJA stated of a building permit:
The permit, once issued, both authorised the building work and implied that such work would comply with the Act, the Regulations and the Code as it was imported.[44]
[43](2006) 14 VR 55.
[44]Ibid [151].
Livingspring also relied on the statement of Basten JA, with the agreement of Payne and Brereton JJA, in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (‘Omaya Investments’):[45]
…It would be a surprising result if compliance with plans which were conceded to be consistent with the development consent and had, in each case, been approved by the certifying authority, could result in invalidity of the development undertaken in accordance with them.[46]
[45][2021] NSWCA 2; (2021) 247 LGERA 62.
[46]Ibid [70].
The fact that the power in s 106(a) of the Act was not subject to temporal constraint, only reinforced the importance of recognising the finality of a RBS’s decision to issue building and occupancy permits.
Livingspring argued that the Board could not affirm a MBS’s decision to make a building order by undertaking what was tantamount to a merits review of long-established decisions by the RBS approving the building work, when it was not suggested that the RBS had failed to comply with his or her duties under the Act. It argued that it appeared that the building notices and orders served and made by the MBS and the Board were to correct what they viewed as errors in the building permits that had been issued.[47] However, the RBS possessed the principal role in assessing and determining applications for building permits, carrying out inspections and then considering whether to issue an occupancy permit.
[47]T 97.
The building and occupancy permits issued for the Building still stand and the MBS lacked power to make a building order and the Board to vary it and thereby chip away at action taken under the building permits. Neither the MBS or the Board had sought to set aside the building or occupancy permits. If the building order stands, the permits would also, thereby establishing two inconsistent instruments governing the building work. The Council has argued for a decade about previous building orders that MBSs had made, but had not sought to enforce them.
Livingspring also submitted that the MBS erred by failing to supervise in a timely fashion the issue of the building and occupancy permits upon being given copies of them and of supporting documents in 1999 and 2000.
Both the building and occupancy permits conferred valuable rights on the owners and by virtue of ss 28(2)(d) and 28(2)(e) of the Interpretation of Legislation Act 1984 amendments to the BCA could not affect the permits’ operation or the rights that the owners had accrued under those instruments unless the contrary intention appeared.[48] The building order deprived the building owners and the original land owners of those rights.
[48]See Elwick 9 Pty Ltd v Freeman [2018] VSC 234 (‘Elwick 9’); Sixty-Fifth Eternity [2012] VSC 298.
Neither the MBS or the Board had considered whether the requirement to comply with the building order might unintentionally affect the performance of the Building under other parts of the BCA. It was unclear whether the building work required by the building order would result in the Building complying with the Act, the regulations and the BCA as at the date of the building permits.
The Council’s submissions on the Board’s jurisdiction
The Council contended that the MBS, and the Board, had the power and jurisdiction to serve the building notice and make the building order.
The Council contended that Livingspring’s submissions about lack of power were inconsistent with the text, context and purpose of the Building Act, as it was on 16 July 1999, being the date of the issue of the first building permit. Section 106(a) enabled a building order to be made notwithstanding the previous issue of a building permit in respect of the Building. If a MBS could only make a building order when the building work was carried out either ‘without a building permit’ or ‘in contravention of a building permit’, the words in s 106 (a) ‘in contravention of a building permit or this Act or the building regulations’ would have no purpose. Section 111 enables a MBS or private building surveyor to make a building order after the time allowed for making representations following the service of a building notice has ended and the surveyor has considered any representation made by the owner concerned.
Second, while building and occupancy permits conferred rights on landowners, they were not without limits. As the Board found, the right conferred by a building permit did not include a right to construct a building in contravention of the requirements of the Act or the building regulations. Livingspring’s argument was contrary to the provisions of the Act, including s 16(2) which provides that a person must not carry out building work unless it is carried out in accordance with the Act, the building regulations and the building permit. Section 24(1)(a) provides that a surveyor must only issue a building permit when satisfied that the work and the permit will comply with the Act and the building regulations. While s 46(1) provides that an occupancy permit is evidence that a building or part of a building to which it applies is suitable for occupation, s 46(2) provides that an occupancy permit ‘is not evidence that the building or part of a building to which it applies complies with [the] Act or the building regulations’. A MBS could make an emergency order under s 102 if necessary despite the prior issue of a building permit. An MBS can cancel an occupancy permit under s 72 when the building is no longer suitable for occupation for the classification stated on the permit, the use of the building has changed or the strength of the building has become less than required to carry the loads stated on the permit.
The suggestion that a building owner has the right to have a building remain in its built condition, is inconsistent with orders that the MBS can make under Part 8 of the Act to require a building owner to carry out building work, e.g. ss 104(1)(b) (emergency orders), 111(5) (building orders) and 113 (building orders minor work). Moreover, it is inconsistent with the Court of Appeal’s judgment in City of Port Phillip v Shout Rock Cafes Pty Ltd (‘Shout Rock’),[49] which emphasised that orders under Part 8 of the Building Act serve the public interest.
[49][2023] VSCA 327 [102].
Thirdly, Livingspring’s assertion that the building order undermined the role of private building surveyors as the principal regulator is incorrect as the power to make building orders is conferred on the MBS in addition to private building surveyors. Moreover, other provisions in the Act expressly confer functions on the MBS which take primacy over the functions of the RBS.
Fourthly, the power given to the MBS to serve building notices and make building orders, and for the Board to undertake merits review of such decisions, including in situations where a building permit has been issued but the building work does not comply with the Act, the regulations or the BCA reinforces confidence in the reliability of building permits. It enables deficient buildings to be brought into compliance. Parliament’s grant of these powers to MBSs ensures the building compliance regime has appropriate ‘checks and balances’ on the issue of building and occupancy permits.
Fifthly, the power to serve a building notice or make a building order is not subject to a statutory time limit.[50]
[50]L U Simon Builders Pty Ltd v Victorian Building Authority [2017] VSC 805, [46].
Sixthly, it is irrelevant whether the MBS received from Livingspring’s private building surveyor copies of the permits and documents, or could have requested the private building surveyor to amend the building permit. The Act did not require the MBS to check or verify the permits and the associated documents sent to them under Act.
Livingspring’s contention that building works performed in order to comply with the requirements of a building order may require the obtaining of further permission from another authority, did not identify what that permission might be. In any event, the building order made by the Board required the Owners Corporation to carry out the building work ‘via a building permit’. Thus, the relevant building surveyor would have to be satisfied that the consents or approvals specified in s 24 of the Act had been obtained before issuing a building permit for the building work required by the building order. Moreover, if any further permission required was denied, the Owners Corporation could request the MBS to amend or cancel the building order under s 116 of the Act.
Ground 2 insofar as it relates to the Board’s reliance on s 106(d) in making the building order
I will briefly consider Livingspring’s challenge to the Board’s reliance on s 106(d) in making the building order. The issues it raises are largely the same as Livingspring and the Council addressed in submissions about the Board’s reliance on s 106(a) in making the building order, which I have discussed above.
The Board’s finding that it could make the building order under s 106(d)
The Board found that it would be appropriate, having regard to the purposes of the Act, to make a building order under s 106(d) as well as under s 106(a), in order to protect the health and safety of people.
The Board considered that it was reasonable for the MBS to have formed the opinion that the Building contravened provisions of the BCA when the building permits were issued and that it posed a danger to the life and safety of any person using it. I refer to the passage in the Board’s reasons relevant to this issue that I have set out in paragraph [47] above.
The Board found that it was necessary, when considering whether to serve a building notice under s 106(d), to carefully consider the use being made of the building, the persons using the building and whether the building posed a danger to them.[51] The Board found that even if the Building was not a Class 3 building, it still was a danger to the life, safety or health of any member of the public or persons using it so as to engage the power in s 106(d). The Arrow Apartments were being used as Class 3 rather than Class 2 buildings. The absence of an AS1670 smoke detection and alarm system throughout the Building posed a danger to the life, safety or health of any member of the public or of any person using the building.[52]
[51]Reasons 78-80 [291]-[292].
[52]Ibid 83-84 [306].
The Board referred to expert evidence, including from fire safety engineers, that had been presented in the appeal. It found that:
Based on the material that was provided to the Board, and the information provided during the hearing, we find that the Building poses a danger to the life, safety or health of members of the public or people using the building (including its occupants), within the meaning of s 106(d) of the Act, due to the following considerations:
(a)the Building has an effective height of more than 25m and fails to have essential fire safety measures that are required, under the 1996 BCA, including fire sprinkler system throughout the entire Building;
(b)the absence of the fire sprinkler system results in a very significant increase in fire risk (compared to the risk that would exist if the sprinkler system was in place);
(c)there are a range of factors that further increase the fire risk associated with the Building:
(i)defects with essential fire safety measures that were identified in the FRG report and the First and Second Basic Reports;
(ii)the tenth floor area, being a sleeping area where the capacity to exit during a fire would involve the occupants needing to find the internal spiral stairway and then exit from the ninth floor;
(iii)there are a significant number of SOUs that are used for short term rentals, including a range of penthouse suites;
(iv)there is not a AS1670 Smoke detection & alarm system throughout the entire Building;
(v)the other forms of non-compliance identified in paragraphs 437 and 438 above; and
(a)there are no special features that significantly reduce the dangers posed by the Building.[53]
[53]Ibid 118-119 [439].
We also find that, even if (contrary to our conclusion in section 8 above) the Arrow Apartments were not Class 3 buildings, we would, for the reasons noted above, have still found that the Building is a danger to the life, safety or health of any member of the public or of any person using the Building.[54]
[54]Ibid 118-119 [439]-[440].
…
Further to the discussion in sections 11 and 12 above, we find that:
(a)the Building is a danger to the life, safety or health of members of the public and people using the Building (including its occupants), within the meaning of s 106(d) of the Act;
(b)it would be appropriate, having regard to the purposes of the Act, to issue a building order on the basis of this danger to life, safety and health in order to protect the health and safety of people;
(c)building work was carried out on the Building in contravention of the Act and building regulations, being the requirement to comply with Clauses E1.5, 02.22, E4.9 and C3.2 of the 1996 BCA (given the absence of alternative solutions); and
(d)it would be appropriate, having regard to the purposes of the Act, to make a building order on the basis of these contraventions in order to protect the health and safety of people.[55]
The Board noted that numerous sole-occupancy units were used as hotel rooms by people who were unfamiliar with the layout of the Building thus creating a safety risk in the event of a fire, irrespective of the classification of the Arrow Apartments. This risk was acute for people who were sleeping in the tenth floor open area who in the event of fire would need to evacuate via the internal staircase to the ninth floor.[56]
[56]Ibid 96-97 [357].
The Board found that it was reasonable for the MBS:
(a)to form the opinion that the Arrow Apartments were Class 3 rather than Class 2;
(b)to form the opinion that, given that the Arrow Apartments were being used as Class 3 rather than Class 2, the absence of an AS 1670 Smoke detection and alarm system throughout the Building posed a danger to the life, safety or health of any member of the public or of any person using the building;
(c)to rely on the string measurement of Brett Dundules to form the opinion that the effective height of the Building was greater than 25m; and
(d)to form the opinion that the Building:
(i)contravened the provisions of the 1996 BCA, which are referred to in clauses 2.2.1 to 2.2.5 of the Second Building Notice; and
(ii)posed a danger to the life and safety of any person using the Building.[57]
[57]Ibid 83-84 [306].
The Board found that the delegate of the MBS held the opinions set out in the previous paragraph when issuing the building order and noted that:
(a)the 15 June [2017] email demonstrates that Stephen Braybrook had significant knowledge regarding the Building, and the dangers related to the effective height of the Building and the Arrow Apartments;
(b)the Grenfell fire was a stark illustration for members of the building regulatory system throughout Australia of the dangers of non-compliant high rise buildings- the fact that the Second Building Notice was issued months after the Grenfell fire,[58] increases the likelihood that Stephen Braybrook actually had the opinion that the non-compliance created the requisite danger; and
(c)the fact that Stephen Braybrook made the First Building Order is a further indication that he was aware of the nature of the alleged non-compliance and risks.[59]
[58]In London on 14 June 2017.
[59]Reasons 85 [311].
Livingspring’s submissions on the Board’s reliance on s 106(d) to make the building order
Livingspring in submissions challenging the MBS’s and the Board’s jurisdiction to rely on s 106(d) to make the building order adopted its submissions made in respect of the Board’s reliance on s 106(a), described above, that they had no such jurisdiction. Livingspring argued that the power in s 106(d) could not be exercised when a private building surveyor had issued a building permit for the building work concerned.
Livingspring submitted that the Board’s findings were interdependent. As I understood the submission, it meant that the Board’s ultimate findings of contraventions of the Act, and that the Building was a danger to members of the public and persons using the Building, were based on the totality of its findings and so could not be disentangled.
Beach J observed at first instance in Salter v Building Appeals Board[60] (herein referred to collectively with the appeal proceeding Genco v Salter[61] as ‘Genco’) that:
…[S]ection 106(d) of the Act did not permit a building notice to be served unless the building was a danger to relevant people. In this case, while there might have been some evidence of a relevant danger as a result of the use of the apartments, there was no evidence that the apartments themselves constituted a danger.
[60][2013] VSC 279 [56].
[61](2013) 46 VR 507.
The Council’s submissions on the Board’s reliance on s 106(d) to make the building order
The Council relied on its submissions that that s106(a) gave the MBS and the Board the power to make the building order.
The Council also noted that there was evidence before the Board that the Building was a danger to members of the public or persons using it.
Authorities
In connection with their submissions about ground 2, the jurisdiction ground, the parties referred to the judgment of Cavanough J in L U Simon Builders Pty Ltd v Victorian Building Authority.[62] That case concerned a direction to fix building works given under s 37B of the Building Act and whether such a direction could be issued after a certificate of final inspection or an occupancy permit had been issued. Cavanough J held that that such a direction could not be issued after the issue of such certificates. His Honour found that s 37B was in a division and part of the Act which dealt with the phase occurring between the issue of a building permit and the issue of a certificate of final inspection or an occupancy permit. He considered that a direction to fix was an intervention in an ongoing process, rather than an intervention after the fact of the completion of the building. His Honour stated:
As indicated above, the plaintiffs also submit that other inconvenient, improbable and irrational consequences would follow from the defendant's construction of Division 2 of Part 4. Among other things, the plaintiffs submit, correctly in my view, that, on the defendant’s construction, a direction to fix could be issued long after the event to a person who is no longer a builder or who bore absolutely no responsibility or blame for the alleged defect(s) or who answered both of those descriptions; or who, because of the passage of time, could no longer enforce any rights of contribution the person may have otherwise have had. Examples could be multiplied.[63]
[62][2017] VSC 805.
[63]Ibid [56].
I do not consider that the power in s 37B of the Act governs the proper interpretation of the power given by s 106 to the MBS and, on appeal, to the Board.
The parties also referred to Elwick 9 Pty Ltd v Freeman (‘Elwick 9’)[64] in which Quigley J decided that a planning permit was a right conferred under the Planning and Environment Act 1987 and that orders could not be made under the Owners Corporation Act 2006, which were inconsistent with the rights given by the permit. Her Honour quoted from the judgment of Emerton J in Boroondara City Council v Sixty-Fifth Eternity Pty Ltd,[65] who stated:
A planning permit is permissive, but in a limited sense. It entitles the permit applicant to do certain things, but subject to any conditions in the permit and any other restrictions imposed by law on the use or development of the land. The grant of a planning permit will overcome a particular restriction on the use and development of the land, namely the requirement to obtain a planning permit under the Act, but it will leave other restrictions as untouched. As a result, it is not unusual for a planning permit to authorise a use or development that cannot take place until some other legal barrier has been removed, for example, by the grant of a gaming licence or an approval under environment protection legislation. This is a function of the layering of controls over land use and development, including in the Act itself.
Ground 2–Analysis of the Board’s jurisdiction – reliance on ss 106(a) and (d) to make the building order
[64][2018] VSC 234.
[65][2012] VSC 298 [47].
The scheme enabling private building surveyors to issue building and occupancy permits was introduced by the Building Act in 1993 following a major review of the Building Control Act 1981. The second reading speech indicates that one of the objectives was to provide for a privatised option for building approval. The Minister in the second reading speech stated:
When the Bill becomes law, builders will be able to choose to engage a private building surveyor to carry out the building permit, inspection and occupancy permit functions and responsibilities or, where available, they may use to choose the system provided by local councils. The present system of private certification of non-structural aspects of a building design for submission to a council will remain as an option.
The private building surveyor will be required to work in a professional and impartial manner.[66]
[66]Victoria, Parliamentary Debates, Legislative Assembly, 11 November 1993, 1690, Robert Maclellan.
In the Bill’s debate in the Legislative Council, an opposition member raised the question of how the division of responsibility between private building surveyors and municipal building surveyors would work out.[67] However, the debates do not throw light on the issues of jurisdiction that are to be decided in this case.
[67]Victoria, Parliamentary Debates, Legislative Council, 1 December 1993, 1494-1495, Barry Pullen.
The circumstances of this case in which a building order has been made years after the construction of a building, and the Council’s failure to act on previous building orders, provides a stark situation in which to decide these issues of jurisdiction.
Livingspring contended that the building and occupancy permits conferred valuable rights on it. But as Emerton J stated, ‘A planning permit is permissive, but in a limited sense’.[68] A building permit cannot authorise building work that is contrary to the Act, the regulations or the BCA.
[68]Sixty-Fifth Eternity [2012] VSC 298, [47].
The Act must be interpreted in accordance with the text of its provisions considered in light of their context and purpose.[69] A principal purpose of the Act is to protect the safety of persons using buildings.
[69]SAS Trustees Corporation v Miles (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ), 157 [41] (Gageler J), 162–3 [64] (Edelman J).
The first statutory objective of the Act in s 4 is:
(a)to protect the safety and health of people who use buildings and places of public entertainment.
The most relevant principle of statutory interpretation to the present dispute is that the Act and the regulations must be read as a whole. As the plurality of the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority:[70]
The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) V Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70](1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).
Applying that principle, it is apparent that the Act requires that building work must be carried out in accordance with the Act, the building regulations and the building permit issued in relation to that work. The effect of Livingspring’s submission is that the Act requires that a person must not carry out building work that does not comply with the building permit, rather than the work must also comply with the Act and the building regulations. The submission proceeded on the assumption that the building work would be deemed to comply with the Act and the building regulations if it complied with the building permit.
The relevant provisions of the Act, when read together, make clear that the issue of a building permit or a certificate of occupancy is not conclusive evidence that the building complies with the Act and regulations. They also establish that a building must comply with the Act and the regulations as well as the building permit. Section 16(2) provides that a person must not carry out building work unless the work is carried out in accordance with the Act, the building regulations and the building permit issued in relation to that work. Section 38, which deals with certificates of final inspection, provides in sub-section (2) that such a certificate is not evidence that the building or building work concerned complies with the Act or the building regulations. Section 46(2) states that an occupancy permit is not evidence that the building or part of a building to which it applies complies with the Act or the building regulations.
The Council contended that the tenth floor was a distinct and separate floor from the ninth floor. It covered the full extent of the lower level except for the spiral staircase.
The Board’s findings did not rest solely on the existence of a floor separating the two levels. Rather, the two floors had separate bathrooms and bedrooms. The Board did not suggest that the existence of a floor separating two levels would necessarily mean that the two levels could not be within a single room. Its finding was that ‘in the circumstance, [the tenth level] was appropriately described as being a room that is separate to the living area on the ninth floor’.[147] The void between the ninth and tenth floors in the Building was ‘small’.
[147]Reasons 53 [181].
The Board correctly identified features of the sole-occupancy units which indicated that the tenth floor did not form part of a shared space with the ninth floor so as to be an ‘intermediate floor’. In contrast to a space that would usually be described as a mezzanine, no part of the walls of the ninth floor were part of the tenth floor. The space on the ninth floor was not at the same height above ground level as spaces on the tenth floor. The only shared boundary was the ceiling of the ninth floor in a manner consistent with contiguous storeys. The absence of a trap door at the small void did not result in the tenth floor being an intermediate level.
It was therefore open to the Board to find that the tenth floor was not a mezzanine, but was the ‘topmost storey for the purpose of the definition of ‘effective height’.
The Council’s submissions on Lot 1019
The Council submitted that, as the Board found that the tenth floor open area was a separate storey and not a mezzanine, the status of Lot 1019 did not affect the Board’s determination of the effective height of the Building. Therefore, if the Court found that it was open to the Board to decide that the tenth floor open area was not a mezzanine, this further question did not have to be decided.
In any event, the Board correctly found that Lot 1019, which was clearly a room, could not be deemed to be a stairway, which would have excluded it from the definition of ‘storey’.
Equally, it was open to the Board to find that Lot 1019 did not contain only heating, ventilating, lift or other equipment, water tanks or similar service units, which would have excluded it from being the topmost storey within the definition of ‘effective height’. The fact that Lot 1019 was the only way of accessing the plant room did not mean that cl A3.3(d) applied so that Lot 1019 had to be classified separately. Lot 1019 was a separate room from the plant room.
Analysis of topmost storey issue
In my opinion, Livingspring has not established any jurisdictional error in the Board’s finding that the tenth level of the Building was a storey as defined because, apart from the void over the spiral staircase, it was a complete floor, self-contained and not part of the ninth floor or its volume.
The Board addressed the terms ‘storey’ and ‘mezzanine’ and made findings of relevant facts to the proper application of those terms and those findings were open to it on the evidence.
It is important to note that the floor of the tenth level, with the exception of the void, extended for the whole width of the area of the ceiling of the ninth floor. It was not suggested that the ceiling heights of the ninth and tenth floors were less than normal height. The floor of the tenth level occupied a significant space. It was open to the Board to take into account that there were no portions of the walls of the ninth floor that were part of the tenth floor, and that the height of the ninth floor was not the same height above ground level as the space on the tenth floor.
It is also important that the tenth level had separate bedrooms, bathrooms and access to a terrace. These features suggest that the tenth level was not an intermediate floor that formed part of the ninth storey, but was a distinct space and a separate floor.
The fact that the tenth level did not have an exit to the lobby area of the tenth floor is not decisive. The definition of ‘storey’ does not required that ‘the space’, within the definition of ‘storey’, have an exit to the rest of the same level.
I agree with the Board’s conclusion that the tenth level was a room that was separate to the living area on the ninth floor. As mentioned, the ordinary meaning of ‘room’ is ‘a portion or space within a building or other structure, separated by walls or partitions from other parts’[148]. The tenth level was therefore a storey as defined as it was a space situated between one floor level, being the ninth level, and the ceiling or roof above.
[148]Macquarie Dictionary, (8th ed 2020) ‘Room’ (def 1).
I consider that the tenth floor was not a mezzanine as defined in the BCA. It was not an intermediate floor within a room, but was a separate, self-contained room, although the exit was by the spiral staircase to the ninth floor.
Therefore, the Board correctly applied the terms ‘effective height’, ‘storey’ and ‘mezzanine’ to the facts that it found and which I have set out above. Livingspring has not established that the Board did make a jurisdictional error in deciding that the tenth floor was the topmost storey for the purposes of the definition of ‘effective height’ in the BCA.[149]
[149]Reasons 54 [184].
Analysis of the Lot 1019 issue
The Board stated, in effect, that if had to decide the status of Lot 1019 it would have decided that it was:
(a) a storey for the purposes of the definition of ‘storey’ in the 1996 BCA; and
(b) included as a storey, for the purposes of determining the effective height of the Building.[150]
[150]Ibid 58 [209].
While it is unnecessary to decide the point, I am not persuaded that the Board erred in its ‘hypothetical’ conclusion about the status of Lot 1019. The term storey means a space within a building which is situated between one floor level and the floor next above, or if there is no floor above, the ceiling or roof above. There are exceptions to that definition, but Lot 1019 does not come within them. It appeared to be assumed that Lot 1019 was a space that led to the plant room and now has no other use. I consider that it was open to the Board to proceed on the basis that it was a space within a building, which was situated between one floor level and the ceiling or roof above, and therefore came within the definition of ‘storey’.
Livingspring bore the onus of establishing that the Board would have erred if it had found it necessary to make that hypothetical finding about Lot 1019. I do not consider that it has established that if the Board had made such a finding it would have made a jurisdictional error.
The Building’s lowest storey providing direct egress to a road or open space
Two possibilities as to the Building’s lowest storey providing direct egress to a road or open space were suggested. One was the egress from the Ground Floor to La Trobe Street for which Livingspring contended. The other was the egress provided by the car park from the Lower Ground Floor onto Spencer Street for which the Council contended.
Board’s findings on the Building’s lowest storey
The Board decided that the lowest storey providing direct egress to a road or open space was the Lower Ground Floor through the car park exit.
The evidence was that egress from the car park required a remote control device to open the car park door. There was no evidence of an exit next to, or near, the car park doors, as sometimes is present in car parks, that might have separately provided for pedestrian egress.
The Board stated that the text of the BCA related to egress, and therefore, relates to the ability of occupants within the Building to safely leave it.[151]
[151]Ibid 60, [217].
The Board also stated that:
[T]he definition of effective height does not refer to ‘pedestrian’ egress and it is therefore irrelevant whether the ‘egress’ is for a vehicle or pedestrian.[152]
[152]Ibid 58, [213].
The Board found that:[153]
[153]Ibid 60-61 [218]-[219].
… the reference to 'direct egress' requires the existence within the Building of a pathway, or pathways, reasonably accessible, from the point of egress to a substantial part of the Building on the basis that:
(a)this reflects the actual words of the definition of 'effective height' (whilst avoiding an interpretation that would capture an external door leading from a storeroom that did not have a pathway to any other part of the Building);
(b)the purpose of the definition of 'effective height' was to provide an objective measure to permit an assessment to be made of fire safety regulatory requirements that would, or may, have a bearing on the internal configuration of the building the subject of measurement - the internal configuration should therefore not be a principal consideration that determines the effective height of the building; and
(c)in an emergency there can be significant confusion and some exits may be inaccessible due to the fire or other events-it is therefore appropriate to adopt an interpretation of 'effective height' that reflects that a person evacuating a building may not use the most direct form of exit from a building.
In this case, we find that the Lower Ground Floor is the lowest storey because it is a pathway, or pathways, reasonably accessible, from the point of egress to a substantial part of the Building. The Lower Ground Floor is a pathway that is reasonably accessible from most of the building, even if it is not the only point of egress, or the quickest or most direct point of egress from much of the Building.
The Board noted that in an emergency, significant confusion may occur and some exits may be inaccessible due to a fire or other events. It was therefore appropriate to adopt an interpretation of ‘effective height’ that reflected that a person evacuating the building may not use the most direct form of exit.[154]
[154]Ibid 60-61 [218].
The Board therefore found that the effective height of the Building was more than 25m, being at least 28.65m.[155]
[155]Ibid 61 [221].
Authorities on the meaning of ‘direct egress’ in the BCA
The Owners-Strata Plan No 69312 v Rockdale City Council
The Board in its determination, and the parties in this proceeding, referred to the judgment of Lindsay J in TheOwners - Strata Plan No 69312 v Rockdale City Council[156] (‘Rockdale’) on the meaning and application of the term ‘direct egress’ in the BCA. In that case an Owners Corporation of a residential and commercial development sought indemnity from the insurer for loss and damage allegedly suffered in rectifying defects in the construction of the building. It also sued the Council for damages on the basis that it had approved the development and was also the principal certifying authority for the construction of the building, alleging that it was negligent in the discharge of its duties. The Owners Corporation alleged that the lowest point of exit was the vehicle entrance, and, therefore the building’s effective height was 26m, while the Council contended that the lowest point of measurement was the pedestrian entrance, and therefore the building had an effective height of 25m.
[156][2012] NSWSC 1244; (2012) 191 LGERA 160.
Lindsay J stated:
In my opinion, the word ‘egress’ implied identification in the features of a building of:
(a) at least one, and possibly more than one, point at which occupants of the building could exit it to a road or open space; and
(b) the existence within the building of a pathway, or pathways, reasonably accessible, from the point of egress to the whole of the building or, at least, a substantial part of it. [157]
[157]Ibid [72].
Lindsay J found that the Lower Ground Level fell within the definition of a ‘storey’. It was a ‘space within a building which was situate between one floor level and the floor level next above’.[158] It provided accommodation for well in excess of three vehicles and the entrance to, and exit from the Lower Ground Level accommodated vehicles driven into, and out of, the car park.[159] The fact that para (a)(iii) of the exclusions from the definition of storey contemplated accommodation of not more than three vehicles confirmed that a larger car parking area, such as that of the proposed building, was capable of falling within the definition of storey and thus being the floor of the lowest storey from which direct egress might be provided.[160]
[158]Ibid [75].
[159]Ibid.
[160]Ibid.
His Honour stated:
The Lower Ground Level had ‘direct egress’ to Market Street, patently both a ‘road’ and ‘open space’’. It could hardly have been more direct. The entrance to, and exit from, the Lower Ground Level accommodated vehicles driven in to, and out of, the car park. No awning covered the point of entrance/exit.
On the other hand, the language of the definition of ‘effective height’ does not sit altogether comfortably with identification of the pedestrian entrance to the Upper Ground Level of the building as ‘the floor of the lowest storey providing direct egress to a road or open space’. It plainly fell within the definition of storey, but other features call for comment.[161]
[161]Ibid [77]-[78].
The alternative pedestrian entrance to the building was via doors that divided a foyer area inside the doors from a covered verandah area outside the doors which was several steps up from the footpath.[162]
[162]Ibid [79]-[80].
Lindsay J in concluding his judgment stated:
The focus of attention is, and should remain, on the text of the BCA. The task of the Court is to construe the definition of ‘effective height’ according to law, not by reference to what may, or may not, be the opinion of an expert or an assumption about the practical operation of the BCA amongst fire control experts.
In my opinion, the text of the BCA is clear and is capable of ready reasonable application to the plans identified in the separate question. That flows from the construction of the words ‘direct egress’ as referring to a point of exit rather than the line of march from the storey of the proposed Building and, to a lesser extent, from the internal connection, via stairs, between the Lower Ground Level and the Upper Ground Level on the Ground Floor. The existence of the internal stairway between the Upper and Lower Ground Levels reinforces, but is not essential to characterisation of the vehicular entrance to, and exit from, the proposed Building (at RL 17.19) as a point of egress. That point was lower than the pedestrian entrance/exit at RL 18.19.
In my opinion, the fact that, in the abstract, the pedestrian entrance to the proposed Building at the Upper Ground Level could have qualified as a point of egress to which the definition of ‘effective height’ referred, does not detract from that the vehicular entrance to the car parking area at the Lower Ground Level also fell within that description. The definition of ‘effective height’ was not inconsistent with a building having points of egress at more than one level.
In my opinion, the Lower Ground Level was ‘the lowest storey providing direct egress to a road or open space’ of the proposed Building. Accordingly, the ‘effective height’ of the proposed building was 26 metres.[163]
[163]Ibid [111]-[114].
The Owners – Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3)
A second judgment of the New South Wales Supreme Court, The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) (‘Omaya Holdings’),[164] also considered the application of the term ‘direct egress’ in the BCA. This recent judgment was delivered after I had reserved judgment and I gave the parties the opportunity to make submissions about its relevance. The case concerned a residential apartment building comprising 99 lots and common property in Strathfield. The Owners Corporation sued alleging that the building had general building and fire safety defects and sought damages from the builder and developer.
[164][2024] NSWSC 1511.
The Owners Corporation contended that the effective height of the building was more than 25m and, if that was so, it was common ground that adequate fire safety equipment had not been installed and more than $3 million was required to install it. Three possibilities existed as to the lowest ground floor: the ground floor of the building, the garbage collection area or the car park entry area.
Stevenson J stated:
As constructed, the Garbage Area cannot be the ‘lowest storey providing direct egress to a road or open space’ as, although it might provide a point of such egress internally from the Garbage Area itself, there [is] no ‘reasonably accessible’ pathway, indeed no pathway at all, to that point of egress from any other part of the Building.[165]
[165]Ibid [85].
His Honour also decided that the car park entry could not be described as ‘the lowest storey providing direct egress’ to the street. He stated that it would strain language to describe the entry pad of the car park entry as a ‘floor level’ as it was a driveway, or perhaps, part of the ramp descending to the car park. Accordingly, the car park entry itself was not a ‘storey’ because it was not a space within the Building situated between one ‘floor level’ and the floor level next above.[166] In any event, it was not a point of egress that was reasonably accessible from the whole or part of the building, especially in the case of fire, as it was accessible only from the car park which, in turn, was accessible from the other storeys only by a lift.[167] His Honour also considered it was hard to see how the car park entry could be described as ‘within a building’ when, although within the building envelope, it was exposed to the open air and was described by experts as a ‘undercoft’.[168]
[166]Ibid [106]-[107].
[167]Ibid [108].
[168]Ibid [109].
His Honour therefore decided that the ground floor was the lowest storey providing direct egress to a road or open space. The effective height of the building was exactly 25m as it was designed to be.[169]
Livingspring’s submissions on the lowest storey
[169]Ibid [112].
Livingspring submitted that the Board had incorrectly determined the lowest storey of the Building providing direct egress to the road and should have determined it to be the Ground Floor which gave access to La Trobe Street. It was not open to the Board to find that the Lower Ground Floor, ie the car park, was reasonably accessible.
The Building, at the point that it opens onto La Trobe Street, is a little higher than it is at the car park entrance onto Spencer Street, as that street slopes down southwards from the La Trobe Street intersection. If the assessment of the lowest storey was from the carpark in Spencer Street then the effective height of the building was greater than 25m, assuming that the tenth floor was not a mezzanine and Lot 1019 was not a storey. If it was accepted as the lowest storey, the La Trobe Street Ground Floor entrance would provide a lower height to the Building.
Livingspring submitted that although the Board referred to the judgment in Rockdale,[170] it erred in its application of Lindsay J’s reasoning. Livingspring submitted that the decision in Omaya Holdings was consistent with its submissions. The Board had not considered whether the Lower Ground Floor entry and egress point to Spencer Street was ‘reasonably accessible’ to the Building or a substantial part of it, but instead asked whether ‘a person evacuating’ the Building might use it. The Board erred in considering that the Lower Ground Floor ‘was a pathway, or pathways, reasonably accessible to a substantial part of the Building even if it was not the only point of egress, or the quickest or direct point of egress from much of the Building’.[171] The need for access to the basement car park would only arise if an occupant or occupants of the Building who were leaving in the event of a fire were to forego the access point to La Trobe Street that was accessible to all occupants of the Building irrespective of whether they had the capacity to exit the Building from the Lower Ground carpark
[170][2012] NSWSC 1244; (2012) 191 LGERA 160.
[171]Reasons 61 [219].
The Board failed to consider, as Stevenson J put it, ‘the possibility of that pathway being used in the event of fire’.[172] Livingspring argued that pedestrian access to the car park in this case was both out-of-the-way and limited.
[172]The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511, [44].
Livingspring submitted that the Board erred in finding that the point of vehicle access from the Lower Ground car park to Spencer Street was, and is, ‘reasonably accessible to a substantial part of the Building’. The Board appeared to accept, or at least did not reject, that a person could only exit the Lower Ground Floor car park via an electronic gate intended for those driving vehicles. Livingspring contended that not every lot or unit had a carparking space.[173]
[173]T 133.
The Council’s submissions on the Building’s lowest storey
The Council submitted that the Lower Ground Floor was the lowest storey because it provided a pathway that was reasonably accessible from most of the Building even if it was not the only point of egress or the quickest. The Lower Ground Floor connected through the stairway to the lobby and the remainder of the Building.
An evaluative judgement of whether an egress is ‘reasonably’ accessible is a matter over which reasonable minds might permissibly differ.
The Council submitted that egress was not reasonably inaccessible merely because of the presence of an electronic gate that was opened by remote control. The Lower Ground Floor provided an accessible pathway to or from the rest of the Building. It could be inferred that the occupants of the Building who used the car park were issued with passes to enable them to open the electronic gate to exit into Spencer Street either by foot or by vehicle.
The fact that not every person in every situation could exit by that pathway was not decisive as it was an exit that provided ‘direct egress’. The Board’s task was not to identify the point from which all people within the Building would exit during a fire or whether it provided an escape route.
The Council pointed out that the adoption of Livingspring’s suggested point of egress, being the Ground Floor, would be counterproductive to the provision of fire safety equipment because it would reduce the height of the Building and make it more likely that it would be less than 25m in effective height and therefore would be required to have less fire safety equipment.[174]
[174]T 215–216.
Livingspring’s argument that access to the Lower Ground Floor car park would only arise if occupants of the Building who were leaving in the event of a fire were to forego the access point to La Trobe Street that was accessible to all occupants of the building was inconsistent with the principle in Rockdale that ‘direct egress’ meant ‘a point of exit rather than an escape route.
The Council submitted that Stevenson J’s decision in Omaya Holdings largely endorsed the approach of Lindsay J in Rockdale. Thay each recognized that the ‘purpose of the definition of ‘effective height’ was to provide an objective measure to permit an assessment to be made of fire safety regulatory requirements and to facilitate the safe evacuation of people from buildings.[175]
[175]TheOwners - Strata Plan No 69312 v Rockdale City Council [2012] NSWSC 1244; (2012) 191 LGERA 160, [90].
The approach in OmayaHoldings were not inconsistent with the Board’s finding that the Lower Ground Floor was the lowest storey for the definition of ‘effective height’. The purpose of that definition was to provide an objective measure beyond which further fire protection measures were required.
In the present case, unlike in Omaya Holdings, the Lower Ground Floor could be accessed from the Ground Floor of the Building via a hallway and stairs. Access was not only via a lift. Pedestrian access to the Lower Ground Floor was not, as Livingspring contended ‘out-of-the-way and limited’.
The Board’s findings were consistent with Lindsay J’s finding in Rockdale that both the Ground Floor pedestrian exit and the Lower Ground Floor vehicle exit were points of ‘direct egress’.
Livingspring advocated for an interpretation for ‘effective height’ that would elevate the text of the Guide to the BCA to the same status as the text of the BCA and beyond any utility as an interpretive aid. That approach was contrary to the purposive approach evident in the authorities and principles of statutory interpretation.
Analysis of the issue of the Building’s lowest storey
The Board’s task in determining the Building’s lowest storey for the purposes of its ‘effective height’ of the Building was, as Lindsay J stated in Rockdale, to identify in the features of a building:
(a) at least one, and possibly more than one, point at which occupants of the building could exit it to a road or open space; and
(b) the existence within the building of a pathway, or pathways, reasonably accessible, from the point of egress to the whole of the building or, at least, a substantial part of it.[176]
[176]Ibid [72].
The point of egress must provide direct egress. Lindsay J considered that in the definition of ‘effective height’, ‘direct egress’ could be read as directed towards the point at which a person could exit the building or the route that connected that point and the topmost storey.[177] However, the dictionary definition of ‘direct’ is ‘proceeding in a straight line or by the shortest course; straight; undeviating; not oblique’.[178]
[177]Ibid [67].
[178]Macquarie Dictionary, (8th ed 2020) ‘Direct’ (def 11).
With respect, I do not consider that the Board correctly approached the question of identifying the lowest floor of the Building for the purposes of applying the definition of ‘effective height’.
I consider that the Board erred by not considering whether people using the Building had reasonable access by pathways to the egress provided by the Lower Ground Floor car park to a road in circumstances where they were likely to have required a pass to open the car park’s electronic gate.
In my opinion, the meaning of ‘direct egress to a road or open space’ in the definition of ‘effective height’ requires reasonable access to such egress and the pathways to it, for pedestrians, and for people in vehicles, who are seeking to exit the Building, including in the event of a fire.
It is noteworthy that Lindsay J in Rockdale appeared to consider that the purpose of the definition of ‘effective height’ was to enable ‘the safe evacuation of people from buildings’.[179] In like manner, Lindsay J stated that the word ‘egress’ implied identification in the features of a building of the ‘point[s] at which occupants of the building could exit it to a road or open space’.[180] Occupants must include people using or visiting the building.
[179]TheOwners - Strata Plan No 69312 v Rockdale City Council [2012] NSWSC 1244; (2012) 191 LGERA 160, [48], [90] (emphasis added).
[180]Ibid [72]. (emphasis added).
The use of the nouns ‘people’ and ‘occupants’ reflect that the direct egress required must enable reasonable access for people who are likely to seek to exit a building, including when a fire breaks out.
Lindsay J also stated that:
’Although, for convenience, reference may be made to points of ‘entrance’ to the proposed Building, the focus of the definition of ‘effective height’ is, by virtue of the word ‘egress’, on points of exit. For the most part, this distinction may not be important. However, I do not exclude the possibility that it may have some importance, for example, in the regulation of the types of doors or other barriers that might affect the flow, or direction of movement through a point of entrance/exit.[181]
[181]Ibid [33].
In my opinion, the effect on the flow or direction of movement through a point of entrance or exit is particularly important in this case, where the car park exit on the Lower Ground Floor could only be used by persons with a pass to open the car park door or by persons accompanying persons who had such a pass.
Stevenson J in Omaya Holdings stated that:
… As the point of an Effective Height of more than 25 metres is, relevantly, as a determinant of the point beyond which further fire protection measures are required, consideration in each case of what would be a reasonably accessible pathway to the point of egress or exit to a road or open space must take into account the possibility of that pathway being used in the event of fire.
I do no read Linsday J’s reasons as reaching a different conclusion or finding that the reasonably accessible pathway to the point to exit to a road or open space should be determined by reference to whether a particular pathway was reasonably accessible whether or not there was a fire, or when there was no fire.[182]
[182]The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511, [44]-[45].
The Board, itself, referred to ‘an emergency [in which] there can be significant confusion and some exits may be inaccessible due to a fire or other events’ and it was ‘therefore appropriate to adopt an interpretation of ‘effective height’ that reflects that a person evacuating a building may not use the most direct form of exit from the building’.[183] However, with respect, the Board did not take into account that the persons evacuating the Building to whom it referred, may well include people on foot hurrying to escape a fire, who may not have a pass to open the Lower Ground Floor car park door.
[183]Reasons 60-61 [218] (emphasis added).
I accept that the Lower Ground Floor provided a reasonably accessible pathway to and from the rest of the Building as depicted in diagram 10 relied on by the Council. But the question to be answered when applying the definition of ‘direct egress’ is a different one. It is what is the lowest storey which provides direct egress to a road or open space. That question cannot be answered in this case in the abstract without regard to the fact that, in the case of a fire breaking out in this multi-storey Building, many occupants or people visiting the Building may attempt to exit it on foot without a car park pass. The identification of the lowest point of direct egress can only be answered after consideration of the persons who may be seeking direct egress and the means by which they may seek it. The users and occupants of the Building have to be considered in assessing what pathways may lead to direct egress to a road.
In my opinion, the Board erred in deciding that, because the definition of effective height did not refer to ‘pedestrian’ egress, it was irrelevant whether the ‘egress’ was for a vehicle or pedestrian. The definition does not refer to either persons seeking to exit the Building in vehicles or exit it on foot. But, in applying the definition of ‘effective height’, the Board was obliged to consider whether some persons likely to be present in the Building if a fire broke out, and seeking to leave the Building quickly on foot, were likely to be able to use the egress of the car park exit on the Lower Ground Floor. As the passages I have quoted above from the judgments of Lindsay J and Stevenson J and from the Board’s own reasons make clear, the focus must on the safe evacuation of people from the Building.
With respect, in my opinion, the Board did not apply the definition of direct egress to the circumstances of possibly significant numbers of people who are likely to be seeking egress from the Building on foot in case of fire and whether the Lower Ground Floor and its exit would be reasonably accessible to them. That issue is not just one of fact, but of the application of the definition of ‘direct egress’ to the facts of the case.
I therefore consider that the Board made a jurisdictional error in its application of the definition of ‘effective height’ and its approach to the identification of the lowest storey providing direct egress to a road. To adapt Nettle JA’s remarks in Genco,[184] the Board proceeded ‘according to wrong principle’ in that it failed to consider for the purpose of determining whether the Lower Ground Floor provided a reasonably accessible point of direct egress, the question whether a number of occupants of the Building were unlikely to be able to use the Lower Ground Floor car park exit to obtain egress to Spencer Street if a fire broke out because they may not have a pass to open the electronic car park gate.
[184](2013) 46 VR 507, 516 [39].
The Board therefore made a jurisdictional error by not correctly applying the definition of ‘effective height’ and the words ‘the floor of the lowest storey providing direct egress to a road’ to the facts of this case.
If that jurisdictional error had been material in the legal sense I have described previously, I would have remitted the issue of the ‘effective height’ of the Building to the Board for rehearing and redetermination according to law. However, the Board’s jurisdictional error was not material. The only options suggested for the lowest storey providing direct egress to a road were the Lower Ground Floor and the Ground Floor. Because I have rejected Livingspring’s challenges to the Board’s conclusion that the topmost storey was the tenth floor, either of these options would have resulted in the effective height of the Building still being more than 25m. Three measurements were in evidence which gave the effective height of the Building from the tenth floor, the topmost storey to the Ground Floor, the La Trobe Street exit, as 27.82m, 27.73m and 27.77m.[185]
[185]T 189; CB 898.
There was therefore no realistic possibility that the Board’s decision that was made in fact could have been different if it had not made the error in its approach to the identification of the lowest storey of the Building for the purposes of the definition of ‘effective height’.[186]
[186]LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 [7]; (2024) 98 ALJR 610 [7].
I have previously explained why I do not accept Livingspring’s argument that the interdependence of the Board’s findings made an error on any of the key issues, a material error.
I add for the sake of completion, that I do not accept Livingspring’s submission of the significance, per se of the likelihood that, in the event of a fire, occupants would not forego the Ground Floor, La Trobe Street exit. I do not consider that that fact alone makes the Ground Floor the lowest storey. As Lindsay J concluded in Rockdale, the definition of ‘effective height’ is not inconsistent with a building having points of egress at more than one level.[187]
[187]TheOwners - Strata Plan No 69312 v Rockdale City Council [2012] NSWSC 1244; (2012) 191 LGERA 160, [113].
Conclusion
The proceeding is dismissed. I will hear the parties about costs.
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