| Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 03989
| VALORNE PTY LTD | Plaintiff |
| v | |
| BUILDING APPEALS BOARD AND ORS (according to the schedule) | Defendants |
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JUDGE: | DALY AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2013 | |
DATE OF JUDGMENT: | 22 November 2013 | |
CASE MAY BE CITED AS: | Valorne Pty Ltd v Building Appeals Board | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 641 | |
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JUDGMENT
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JUDICIAL REVIEW – Decision by Building Appeals Board to issue “stop work” notice – Denial of procedural fairness – Whether Building Appeals Board should pay the plaintiff’s costs by reason of its conduct – Whether appeal brought by adjoining landowner in relation to protection works governed by Part 7 of the Building Act 1993 (Vic) valid – Court’s exercise of discretion to not make declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Andrew | Giannakopoulos Solicitors |
| For the First Defendant | Ms C. Harris | Victorian Building Authority |
| For the Second Defendant | In person | |
| For the Third Defendant | No appearance |
HER HONOUR:
The plaintiff, Valorne Pty Ltd (“Valorne”) is the owner and developer of a property at Manningham Road, Doncaster (“site”). Valorne is developing the site with a substantial multi-unit residential development. The first defendant, the Building Appeals Board (“Board”), is the tribunal responsible for determining disputes under the Building Act 1993 (Vic) (“Act”). The second defendant, Mrs Cerantola, is the owner of a property adjacent to the site. The third defendant, Mr Flanagan, is a building surveyor with certain powers and duties under the Act.
Given the relatively limited nature of the matters which remain in dispute, I will not embark upon an exhaustive recount of the background to this proceeding and chronology of events. In summary, the following relevant events took place:
(a)on 7 March 2013 Mr Flanagan issued a Protection Work Notice (“Notice”) addressed to Mrs Cerantola and her husband, which specified the nature of certain protection works proposed to be carried out by the builder engaged by Valorne;
(b)the Notice specified what the Cerantolas were required to do under s 85 of the Act, namely:
the adjoining owner must respond to a notice under section 84 of the Act by giving to the owner within fourteen (14) days a notice under section 85 of the Act –
(i)Agreeing to the proposed protection work; or
(ii)Disagreeing to the proposed protection work; or
(iii)Requiring more information.
Failure to respond will be taken as agreement to the proposed protection work.
(c)on 21 March 2013 Mrs Cerantola and her husband sent a document headed “Protection Work Response Notice” (“Response Notice”) to Mr Flanagan. The Response Notice contained a notation circling (ii) against the words “Disagree with the proposed protection work for the following reasons”, under which was written the words:
Further information to be provided.
(d)on 21 March 2013 Mr Flanagan responded by email to Mrs Cerantola informing her that the Response Notice was unacceptable, and provided her with a further six days to provide reasons…
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- Case
- [2013] VSC 641
- Decision Date
CaseChat Overview and Summary
The court found that the Board had indeed breached procedural fairness by failing to provide the plaintiff with an opportunity to respond to critical allegations. However, the court held that the procedural error did not affect the outcome of the case, as the Board's decision was correct on the merits. The court also found that the adjoining landowner's appeal was valid, as it fell within the scope of Part 7 of the Building Act. Regarding the plaintiff's request for costs, the court determined that the Board's conduct was not egregious enough to warrant such compensation. The court exercised its discretion not to make a declaration in relation to the adjoining landowner's appeal.
The court dismissed Valorne Pty Ltd's application for judicial review and ordered that the costs of the proceeding be borne by the plaintiff.
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