Salter v Building Appeals Board - [2013] VSC 279

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2013 02191

PAUL SALTER	Plaintiff
v
BUILDING APPEALS BOARD GIUSEPPE GENCO CITY OF MELBOURNE	First Defendant Second Defendant Third Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	23-24 May 2013
DATE OF JUDGMENT:	30 May 2013
CASE MAY BE CITED AS:	Salter v Building Appeals Board & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 279

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ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Error of law on the face of the record – Building Code of Australia, Parts A1 and A3 – Building Regulations 2006, regulations 109, 112 and 1101 – Building Act 1993, ss 9, 40, 102, 106, 111, 142 and 149.

WORDS AND PHRASES – Building Code of Australia – “Sole-occupancy unit” – Meaning of “dwelling” in Part A3 of the Building Code of Australia.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.M. Niall SC with Ms S.M.C. Fitzgerald	Fairweather Legal
For the First Defendant	No appearance	Victorian Government Solicitor’s Office
For the Second and Third Defendants	Mr T.J. Margetts SC with Mr T.C. Wallwork	Toby Hayes

HIS HONOUR:

Introduction

Paul Kenneth Salter, the plaintiff, is an owner or manager of Unit 909, Level 9, 8 Waterview Walk, Docklands in the State of Victoria (“Apartment S909”); Unit 802, Level 8, 8 Waterview Walk, Docklands (“Apartment S802”); and Unit 1502, Level 15, 18 Waterview Walk, Docklands (“Apartment N1502”).[1] Giuseppe Genco, the second defendant, is the Municipal Building Surveyor for the City of Melbourne, the third defendant.
[1]The plaintiff is an owner and manager of Apartment S909 and the manager (under the business name “Docklands Executive Apartments”) of Apartments S802 and N1502.

On 14 and 15 April 2011, the second defendant issued building notices in respect of Apartments S909, S802 and N1502. Each building notice was issued pursuant to s 106 of the Building Act 1993 (“the Act”). The building notices were, in substance, identical. The building notice in respect of Apartment S909 provided:

WHEREAS:
…
3.Pursuant to section 106 of the Act, I am of the opinion that:
3.1the use of the building contravenes the Act and Building Regulations 2006 in that:
3.1.1Apartment S909 is currently being used for short term accommodation as a hotel (class 3 or [sic] defined by the building [sic] Code of Australia) within a residential apartment, which contravenes the Occupancy Permit for the building. Occupancy Permit no: (10035F11da) dated 4 October 2004, states the use of building is a class 2 apartment.

3.2The building is a danger to the life and safety of any person using the building in that:
3.2.1The occupant characteristic, fire safety needs and reaction to a fire or other emergencies have varied from that for which the building was originally designed, approved and intended to be used.

4.The above are the reasons why this Notice was issued.
NOW THEREFORE TAKE NOTICE THAT:

5.You are required to SHOW CAUSE within…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSC 279
Decision Date: 30 May 2013

CaseChat Overview and Summary

The case of Salter v Building Appeals Board involves a dispute between the applicant, Mr. Salter, and the Building Appeals Board regarding the interpretation and application of the Building Code of Australia, specifically Part A3. Mr. Salter sought judicial review of a decision by the Building Appeals Board, which had dismissed his appeal against a decision by a building surveyor that a structure on his property was in breach of the Building Regulations 2006. The matter was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was the interpretation of the term "dwelling" as used in Part A3 of the Building Code of Australia and its application to the specific circumstances of Mr. Salter's property.

The court considered whether the Building Appeals Board had made a jurisdictional error by incorrectly interpreting the term "dwelling" in the Building Code of Australia. The dispute centred on whether a "sole-occupancy unit" constituted a "dwelling" for the purposes of the Building Code. The court examined the relevant provisions of the Building Code and the Building Regulations, as well as relevant case law, to determine the correct interpretation of the term "dwelling." The court concluded that the Building Appeals Board had erred in its interpretation of the term "dwelling" and that the structure in question did not constitute a "dwelling" within the meaning of Part A3 of the Building Code.

The court found that the Building Appeals Board had failed to correctly apply the law in interpreting the term "dwelling" and that this constituted a jurisdictional error. The court quashed the decision of the Building Appeals Board and remitted the matter back to the Board for reconsideration in light of the court's findings. The court did not make any further orders beyond the quashing of the decision and the remittal of the matter back to the Building Appeals Board.

Orders