Valorne Pty Ltd v Building Appeals Board - [2013] VSC 641

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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…

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 641
Decision Date: 22 November 2013

CaseChat Overview and Summary

Valorne Pty Ltd challenged a decision by the Building Appeals Board to issue a "stop work" notice, arguing that the Board denied procedural fairness and that the adjoining landowner's appeal was invalid. The matter was heard in the Supreme Court of Victoria. The primary legal issues were whether the Board had erred in its procedural fairness obligations, whether the Board should compensate the plaintiff for its conduct, and whether the adjoining landowner's appeal was valid under Part 7 of the Building Act 1993 (Vic).

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.

Orders