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Supple v Building Appeals Board

Supple v Building Appeals Board

Case [2015] VSC 83 12 March 2015

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 04471

BETWEEN

STEVEN JEFFREY SUPPLE AND KATARZYNA SUPPLE	Plaintiffs
and
BUILDING APPEALS BOARD	First Defendant
and
GERARD COUTTS	Second Defendant
and
ROBERT MAYBIN	Third Defendant
and
JOHN ATHANASIOU	Fourth Defendant

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2015
DATE OF JUDGMENT:	12 March 2015
CASE MAY BE CITED AS:	Supple & Anor v Building Appeals Board & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 83

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ADMINISTRATIVE LAW — Determination of panel of Building Appeals Board — Panel member becoming unavailable before all matters before it decided — Whether matters so far decided must be reconsidered by new panel — Whether second defendant an adjoining owner — Whether Board had jurisdiction — Whether reasons adequate — Whether failed to take into account a relevant consideration.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T Margetts QC and Mr S Stafford	Noble Lawyers
For the Third Defendant	Mr R Niall QC and Mr N Andreou	LMS Lawyers

HIS HONOUR:

The plaintiffs, by originating motion, seek relief in the nature of judicial review in respect of a determination by the first defendant, the Building Appeals Board (‘the Board’), dated 30 June 2014.

Background facts

In June 2012, the plaintiffs purchased unit 8, 36 Brighton Road, Balaclava. The third defendant is the owner and occupier of unit 9 at that address, which is located immediately above the plaintiffs’ unit.

Upon purchasing the unit, the plaintiffs decided to carry out alterations to it, consisting of creating an opening in the brick wall between the bedroom and the living room, and creating an opening in the brick wall between the kitchen room and the water closet. For that purpose, on 24 September 2012, they appointed the fourth defendant as the relevant building surveyor under the Building Act 1993 (‘the Act’). On 29 September, the plaintiffs, pursuant to s 84(1) of the Act, served a works protection notice on the third defendant.

In turn, the third defendant, on 1 October 2012, served a response on the plaintiffs, requesting five items of additional information, pursuant to s 85(1)(b)(ii) of the Act. As the issues raised by that response were not resolved, the fourth defendant, as the relevant building surveyor, made a determination in relation to those matters dated 12 December 2012, pursuant to s 87 of the Act.

On 21 December 2012 the third defendant lodged an appeal with the Board against the determination of the fourth defendant pursuant to s 141 of the Act. There is a dispute, in the affidavits, whether notice of that appeal was served on the plaintiffs and the fourth defendant on 21 December (as maintained by the third defendant) or whether it was not served until 25 January 2013 (as maintained by the plaintiffs). However, it is not necessary for me to resolve that issue.

In the meantime, between 26 December and 31 December 2012, the…

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.

Continue reading Supple v Building Appeals Board

Details

AGLC: Supple v Building Appeals Board [2015] VSC 83
Case: [2015] VSC 83
Decision Date: 12 March 2015

CaseChat Overview and Summary

The case of Supple v Building Appeals Board involves the plaintiff, Supple, challenging the decision of the Building Appeals Board, the first defendant, regarding appeals related to building works. The second defendant, an adjoining owner, was also involved in the proceedings. The primary dispute centred on whether the Building Appeals Board had the authority to make its decisions and whether those decisions were adequately reasoned. Furthermore, the plaintiff argued that the Board failed to consider relevant factors in its determination.

The central legal issues that the court had to address were whether a panel of the Building Appeals Board could continue to hear matters if a member became unavailable before all matters were decided, and if so, whether previously decided matters needed to be reconsidered by a new panel. Another issue was whether the second defendant qualified as an adjoining owner under the relevant legislation. Additionally, the court needed to determine if the Board had jurisdiction over the appeals, if its reasons for the decision were sufficient, and whether it had overlooked pertinent considerations.

The court found that the Building Appeals Board did not need to reconstitute the panel if one member became unavailable before all matters were decided, and previously decided matters did not need to be reconsidered by a new panel. The court also held that the second defendant was not an adjoining owner for the purposes of the legislation. Regarding jurisdiction, the court determined that the Board had the authority to make the decisions in question. The reasons provided by the Board were deemed adequate, and it was concluded that the Board had not failed to take into account any relevant considerations.

No further orders were made beyond the findings of the court.

Orders