Zaitsev v Building Appeals Board
[2019] VSC 364
•3 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00942
| BORIS ZAITSEV | Plaintiff |
| v | |
| BUILDING APPEALS BOARD | First Defendant |
| and | |
| ALAN ANTHONY LORENZINI | Second Defendant |
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JUDGE: | QUIGLEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 May 2019 |
DATE OF JUDGMENT: | 3 June 2019 |
CASE MAY BE CITED AS: | Zaitsev v Building Appeals Board & Anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 364 |
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JUDICIAL REVIEW – Appeal from the Building Appeals Board - Order 56 – Certiorari to quash the determination of the Building Appeals Board – Internally inconsistent determination of the Building Appeals Board – Impossible to comply – Irrationality - Wednesbury unreasonableness – Failure to take into account a relevant consideration – No evidence – Building Regulations 2006 – Building Code of Australia – Remittal to the Building Appeals Board – Building Act 1993 ss 124, 149, 160, 162, sch 3.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.\V Aghion | Boris Pogoriller |
| For the First Defendant | No appearance | Victorian Government Solicitor’s Office |
| For the Second Defendant | No appearance | Clyde & Co |
HER HONOUR:
Introduction
The plaintiff Boris Zaitsev (‘the Plaintiff’) by originating motion seeks relief in the nature of certiorari to quash the Determination and Orders (‘the Determination’) of the first defendant, the Building Appeals Board (‘the Board’) dated 28 June 2018.
The Plaintiff is the owner of land at 30 Cromwell Street, North Caulfield, where a two storey plus basement dual occupancy residential building is under construction. The construction history of the building is a somewhat unhappy and complicated one. A summary of the history is set out in the affidavit of the Plaintiff sworn 20 August 2018.[1] In brief, the construction of the building commenced in 2009. The basement and framework above the basement were completed. Construction stalled in 2010 following discovery of problems with the building. The second defendant, Alan Anthony Lorenzini (‘the Second Defendant’), was appointed as the relevant building surveyor in late 2013 after the appointment of the original relevant building surveyor, Mr Tsaganas was terminated.
[1]Court Book, Zaitsev v Building Appeals Board & Anor (Supreme Court of Victoria, S ECI 2018 00942, Justice Quigley, 17 May 2019) E28 (‘CB’).
Construction recommenced in early 2014 pursuant to building permits issued by the Second Defendant. The framework was demolished down to ground level, rectification works were undertaken in relation to the basement, and the dwellings were reconstructed to lock-up stage.
After the discovery of further problems with the building, including the basement following the rectification works in the newly constructed superstructure above, the Second Defendant issued several building notices and building orders in relation to the building namely:
(a)A building order for minor work dated 16 March 2015, requiring replacement of flashings to the balconies and some windows (BOMW No.1);
(b)A building notice dated 11 August 2015 requiring the Plaintiff as owner to show cause why the basement concrete walls should not be replaced with structure that complies with AS3600 (BN No.1);
(c)A building order dated 18 December 2015 requiring rectification of the basement walls in accordance with an attached report by Tim Gibney & Associates (BO No.2);
(d)A building order for minor work dated 18 December 2015, requiring rectification of external balconies and external ground levels (BOMW No.3);
(e)A building order for minor work dated 18 December 2015, requiring rectification of external cladding to the building and all windows and external door flashings (BOMW No.4); and
(f)A building notice dated 8 September 2017 requiring the Plaintiff, as owner, to show cause why the Alucobond cladding should not be replaced, the foam board cladding should not be replaced and the Hebel common wall should not be replaced (BN No.2).
The Plaintiff wrote to the Second Defendant requesting him to make appropriate amendments to one or more of the building notices and orders to facilitate demolition of the existing structure, including the demolition and removal of the ground floor slab and the basement car park slab.[2] The Second Defendant did not amend the building notices and orders as requested by the Plaintiff.
[2]CB 61-63, 65-66, 95-96 ‘Complete Application Book filed with the BAB’.
Application to the Building Appeals Board
On 30 October 2017, the Plaintiff lodged an appeal to the Board against the Second Defendant’s refusal or failure within a reasonable time to cancel or amend the building orders. The appeal was lodged under s 142(2)(c) (refusal to cancel or amend a building order) and s 142(2)(d) (failure within a reasonable time to cancel or amend a building order) of the Building Act 1993.
The relief sought by the Plaintiff on appeal to the Board was that:
(a)BO No.2 be amended to require demolition of the entire structure, including basement and footings;
(b)BOWM No.3 be cancelled;
(c)BOWM No.4 be cancelled; and
(d)BN No.1 be cancelled.
The Plaintiff subsequently withdrew its request to cancel BN No.1 on the basis that it formed the foundation for BO No.2 which was sought to be amended. After evidence was heard in the appeal to the Board, the Plaintiff amended his request to demolish the existing structure including the basement to demolition to the ground floor slab.
On 26 February 2018, the Board conducted its hearing. It had before it the expert reports prepared by Mr Stephan Kosa, architect dated 4 October 2017 and Mr Tim Gibney, engineer, dated 24 July 2016. The Plaintiff was represented by his solicitor, Mr Boris Pogoriller. The Board heard evidence from Mr Gibney and Mr Jon Royce of ABS Services Pty Ltd, an expert building surveyor. Amongst the documents that were before the Board was a defects list prepared by ABS Services Pty Ltd.
The Board heard evidence that the ground floor slab was constructed without an edge rebate and that an edge rebate was required to prevent ingress of moisture into the building. Part 3.2.2.7 of the Building Code of Australia provides that an edge rebate is required for all brick veneer walls. Mr Kosa’s report identified that the architectural drawings did not address the provision of any or any adequate edge rebate. There was no evidence that an edge rebate or any adequate edge rebate had in fact been constructed. Mr Gibney and Mr Royce gave oral evidence to the Board concerning the absence of an edge rebate.
On 16 March 2018 the Board made directions and orders, inter alia, providing for an inspection of the works on 23 March 2018. In its directions the Board stated that it intended ‘to conduct the site visit using the Defects List prepared by ABS Services Pty Ltd (Annexure C to the appeal documentation) as a checklist for matters to inspect.’[3] Additionally, the Board directed that it ‘shall determine how it intends to proceed to finalise this matter. Parties will be advised by the Registry of any requirements for further submissions or any further hearings should the Panel decide these are required.’[4]
[3]CB C22 ‘Direction & Orders No.3’.
[4]CB C23 ‘Direction 5’.
Annexure C contained information which identified that the defects included:
(a)edge rebate not constructed in the concrete ground slab of both units; and
(b)unit 1 – ground level the precast concrete retaining wall on the east boundary that drainage not provided (design requires drainage to be set in neighbour’s property); slab rebate not provided; inadequate design to prove compliance with the BCA Vol.1.[5]
[5]CB E39 [39].
The Board conducted an unaccompanied site inspection on 23 March 2018.
The Board’s Determination
On 28 June 2018 the Board published its Determination together with reasons.[6]
[6]CB 1-15 ‘Determination and Orders’; Zaitsev v Lorenzini [2018] VBAB 15.
In its Determination, the Board set aside and remitted to the Second Defendant for reconsideration the decision to refuse to amend the Building Order dated 18 December 2015 requiring the rectification of the basement walls in accordance with its directions (relevantly):
(a)that the Building Order dated 18 December 2015 be amended to require the Owner to:
(i)demolish the following parts of the existing basement:
A. the entire scab wall installed in or around 2015;
B.sections of the basement floor slab required to allow the rectification works described below to be constructed;
C.southern block wall and footing;
(ii)rectify the basement, so that:
A.the internal and external structure, including the perimeter walls, slab, footings and internal columns, are capable of supporting the superstructure generally shown in building permit. BP BS–U1091 20140026/2 Amendment No.3 and the associated town planning permit to a standard that would enable a registered building practitioner in the category of civil engineer to issue a certificate of compliance (inspection) - for building work at the completion of the works;
B.the basement includes an effective waterproofing and drainage system, including spoon drains, subfloor drains and sumps or other suitable drainage provisions beneath the lift shafts appropriate for a private garage and non-habitable areas of a Class 2 building (laundry, residential storage, cellar and lift/stair lobby);
C.ensure the ground floor slab and internal columns in the basement are appropriately fire rated for a Class 2 building with a Class 7a basement residential car park;
D.…
E.…
(iii)…
(iv)…
(v)The Building Order must require the demolition and rectification works to be designed and constructed in such a way that a suitably qualified and registered building practitioner is able to certify that the basement and superstructure, when rectified, complies with:
A.the requirements of the Building Regulations and the Building Code of Australia in force as at 6 March 2015 (‘the Applicable Standards’);
B.the building permit to be obtained for the demolition and rectification works; and
C.BP BS–U1091 20140026/2 Amendment No.3 and the associated town planning permit (as amended if required in order to comply with the Applicable Standards).
(vi)The Building Order must require the Owner to obtain a building permit(s) for all works required under the order (including demolition works and rectification works).
2.This determination does not limit the Applicant’s opportunity to request the Relevant Building Surveyor to issue a certificate under s 10 of the Act (sic) Building Act 1993 permitting the works to comply with building regulations applicable to the works at the time construction commenced.
...
Additionally, the Board upheld the Second Defendant’s decision to refuse to cancel the building order for minor work dated 18 December 2015 requiring rectification of external balconies and external ground levels (BOMW No.3). It also upheld the decision to refuse to cancel the building order for minor work dated 18 December 2015 requiring rectification of external cladding to the building and all windows and external door flashings (BOMW No.4) and it reserved costs.
Correspondence with the Board after the Determination
On 3 July 2018, after receiving the Determination and reasons, the Plaintiff’s solicitor Mr Pogoriller wrote to the Board in relation to the edge rebate issue.
Mr Pogoriller raised the concern that the Determination did not address the absence of the edge rebate and that no orders were made in relation to this defect in the works. He noted that the expert witnesses identified this as a significant defect requiring the demolition of the superstructure to achieve an adequate remedy. He specifically referred to the list of defects prepared by ABS Services Pty Ltd and the evidence of Mr Gibney and Mr Royce. He requested that the Board amend its Determination to address the defective construction of the ground floor slab, namely the absence of the edge rebate. He submitted that to give effect to the Determination, which aims to bring the works into compliance with the requirements of the Building Regulations 2006 and the Building Code of Australia in force as at 6 March 2015 (‘the Applicable Standards’), the absence of the edge rebate needed to be addressed.[7]
[7]CB E45-46 ‘Exhibit BZ-10’.
It is difficult to determine on what basis Mr Pogoriller requested the Board to amend its Determination after it had been published, as it appears that the Board’s power to do so is limited to clerical slips or omissions, material miscalculations of figures or mistakes in the description of a person, property or thing.[8] Clearly here the amendment requested would not fall into these categories.
[8]Building Act 1993 sch 3 cl 18(1).
Nonetheless, by email dated 12 July 2018 the Senior Appeals Officer responded on behalf of the Board as follows:[9]
I have referred your correspondence to the panel of Board members that determined these proceedings. The panel has confirmed that the issues raised in your correspondence were considered in reaching their determination, including the evidence (written and oral) submitted, and the Board member’s observations of the issues made during the site inspection. Accordingly, the Board will not be issuing an addendum to the determination.
[9]CB E48 ‘Exhibit BZ-11’.
The Plaintiff’s submissions
In this proceeding it was submitted by the Plaintiff that the uncontested evidence before the Board was that:
(a)the ground floor slab was constructed without an edge rebate;
(b)an edge rebate was required to prevent ingress of moisture into the building;
(c)installation of the edge rebate required demolition of everything above the ground floor slab; and
(d)a slab rebate is required by the Building Code of Australia pt 3.2.2.7.
The Board’s decision did not require demolition of the entire superstructure down to the ground floor slab and was silent as to the construction of the edge rebate.
Paragraph 1(v) of the Determination required, inter alia, that the demolition and rectification be designed and constructed in such a way that a suitably qualified and registered building practitioner can certify that the basement and superstructure, when rectified, complies with the Building Code of Australia. The Board’s decision did not state how the work could or would comply with Building Code of Australia pt 3.2.2.7 if there was no edge rebate installed to the ground floor slab. The Board did not order the demolition of the superstructure for the purposes of installing an edge rebate to the ground floor slab. Aside from the specific demolition and rectification as ordered by the Board, the superstructure and the ground floor slab, absent an edge rebate, are to remain in situ.
Whilst counsel for the Plaintiff conceded that it was possible to seek a modification of the Building Regulations 2006 (the ‘Building Regulations’) (in effect a modification of the Building Code of Australia) such that an edge rebate might not be required, an application for this modification was not before the Board. The Board might have invited the Plaintiff to seek such a modification, but this course was not pursued. Consequently, to comply with the Building Code of Australia an edge rebate was required to be constructed. Without such a modification or the construction of an edge rebate it would be impossible for a registered building practitioner to lawfully certify that the basement and superstructure complied with the Building Code of Australia.
As such, the Plaintiff’s position was that the Board’s Determination is internally inconsistent and cannot be performed in the manner directed and be compliant with the Building Code of Australia.
The First and Second Defendant’s position
The Board took no active role in the proceeding and has said that it will abide by the decision of this Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors.[10] The solicitor for the Second Defendant advised the Court that it would not be participating in the proceeding, save to be heard as to costs.
[10](1980) 144 CLR 13, 35.
Procedure of the Board
The Board is empowered to hear an appeal against the refusal to amend or cancel a building order, or a failure within a reasonable time to amend or cancel that order.[11]
[11]Building Act 1993 (Vic) ss 142(2)(c)–(d).
Schedule 3 pt 3 of the Building Act 1993 sets out the general procedure of the Board including that the Board must give the parties to the proceeding a reasonable opportunity to make oral submissions at a hearing or written submissions in the case of proceeding that is not a hearing.
The Board must consider and determine an appeal, and by its determination may affirm, quash or vary the decision under appeal, or set aside and substitute its own decision or remit the decision to the decision-maker for reconsideration in accordance with any direction or recommendations it considers appropriate.[12] This includes a power to make any necessary ancillary orders to give effect to the Board’s determination on the appeal.[13] The Board may inform itself in any manner it thinks fit, it is not bound by any rule or practice as to evidence but is bound by the rules of natural justice.[14] It must proceed with as little formality and technicality and with as much expedition as the requirements of the Building Act 1993 and the Building Regulations and the proper consideration of the matter before it permit.[15]
[12]Ibid s 149(1).
[13]Ibid s 149(4).
[14]Ibid sch 3 cls 15(3)(b)–(d).
[15]Ibid sch 3 cl 15(3)(f).
Schedule 3 cl 16 provides that a determination of the Board must be in writing and that it may include any other incidental orders or directions that the Board considers necessary. Schedule 3 cl 16(5) provides that within one month after being served a copy of the Board’s determination, or within such further time allowed by the Board, a party to a proceeding may request the Board to provide written reasons for its determination. As stated, sch 3 cl 18 provides for correction of errors where there is a clerical or accidental slip or omission, an evident material miscalculation of figures or evident material mistake in the description of a person, property or thing.
Power to modify the Building Regulations or the Building Code of Australia
The Building Code of Australia is incorporated into the Victorian Building Regulations by operation of the Building Act 1993 and the Building Regulations 2006.
An application may be made to the Board for a determination that a provision of the Building Regulations does not apply or applies with the modifications or variations specified in the application, to a building or land specified in the application.[16] The Board must consider and determine a matter referred or application made to it under the Building Act 1993 or any other act and may make an order that it considers appropriate in the circumstances. Pursuant to s 162 of the Building Act 1993, before determining an application under s 160 the Board must consult specified parties.
[16]Ibid s 160.
The Board must not determine that a provision of the Building Regulations does not apply to a building or land unless it is satisfied in the particular circumstances the provision is inappropriate[17] and must not determine that a provision of the Building Regulations applies to a building or land in a modified or varied form unless satisfied that to do so is reasonable and not detrimental to the public interest.[18]
[17]Ibid s 162(2).
[18]Ibid s 162(3).
The Board could have invited the owner to make a s 160 application for modification of that part of the Building Code which applies, but it did not. There is no provision in the legislation for an implied modification. In this case, there has been no application made pursuant to s 160 to modify the applicable Building Regulations. Consequently, pt 3.2.2.7 of the Building Code of Australia applies.
Power to review the Boards Determination
As the Building Act 1993 does not provide for a statutory review, consideration by this Court of the Board’s decision is arguably limited, insofar as an error on the face of the record is claimed, to the formal Determination comprising the first four pages of the document dated 28 June 2018.[19]
[19]See Supple & Anor v Building Appeals Board & Ors [2015] VSC 83, 23 [72] (Kaye JA). C.f. Colonial Range v CES–Queen (BAB4 – Protection Works) [2017] VSC 317 (Digby J).
To make the examined record accessible or meaningful it may be necessary for the Court to consider background material. In this regard, the reasons published at the same time as the Determination form part of that background material. Counsel for the Plaintiff submitted that in this case it is not necessary to make such a distinction as by confining oneself to the Determination only as the record, legal error is apparent.
I agree that by confining oneself to the four pages of Determination alone reviewable error is demonstrated given the relevant legislative context. That error is made more explicit when the admissible background material is examined, including the reasons, the transcript of the proceeding before the Board, and the subsequent correspondence between the Board and the Plaintiff’s representative. This is not a situation where taking into account the reasons is to create a different decision or one contrary to the face of the Determination. Rather, reference to the balance of the document confirms the assessment. To this end, I note also that the response from the Senior Appeals Officer on 12 July 2018 following the Determination does not provide any greater enlightenment.
There is an internal inconsistency within the Determination which restricts demolition in the manner described, with no reference to the edge rebate which makes it impossible for a registered building practitioner to certify that the building is compliant with the Building Code of Australia as is required by the Determination.
Grounds of Appeal
The Plaintiff’s originating motion for judicial review includes the review grounds of unreasonableness, failure to consider relevant considerations and no evidence from which the Board could properly conclude that partial demolition and rectification would comply with the requirements of the Building Code of Australia. These grounds all arise from the same proposition. That is, without demolition to the ground floor slab, an edge rebate required by the Building Code of Australia could not be constructed.
The Plaintiff’s position is that without an edge rebate, in the absence of a modification to the Building Regulations (such request for modification not being before the Board and could not be ordered by implication) the determination made by the Board was internally inconsistent and incapable of being realised. Consequently, the Determination:
(a)Would be oppressive and unreasonable in the Wednesbury sense;
(b)Failed to take into account a relevant consideration, namely the Determination would be incapable of being performed; and
(c)Was not based on any evidence from which it could reasonably conclude that the Determination could be carried out.
During the hearing the Court raised with counsel for the Plaintiff a further ground of procedural fairness, based on the failure of the Board to put the partial demolition and rectification option of the form it ultimately determined to the parties for their response. The Determination of the Board to order an alternative remediation course without giving the Plaintiff an opportunity to respond raised another arguable ground based on procedural fairness. The written submission of the Plaintiff touched upon this issue.[20] I gave counsel for the Plaintiff an opportunity to amend the grounds of appeal to allow this ground to be considered for reasons I will discuss below.
[20]Boris Zaitsev, ‘Outline of submissions on behalf of the Plaintiff’, Submission in Zaitsev v Building Appeals Board & Anor, S ECI 2018 00942, 4 December 2018, 4 [14].
Analysis
For the reasons that follow, I am satisfied that the Board fell into error in its Determination, and I propose to remit the decision to the Board to be heard and determined by a differently constituted panel. I find each of the grounds made out.
No evidence
There is a considerable body of authority to support the proposition that whether any evidence existed to support a finding of fact is a question of law. In Kostas v HIA Insurance Services Pty Ltd,[21] the majority of the High Court concluded:
A tribunal that decides a question of fact when there is ‘no evidence’ in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.[22]
[21](2010) 241 CLR 390.
[22]Ibid, 418 [91].
Here, it was argued by the Plaintiff that there was no evidence before the Board from which it could conclude that partial demolition and rectification would comply with the requirements of pt 3.2.2.7 of the Building Code of Australia, as required by its Determination.
Part 3.2.2.7 of the Building Code of Australia sets out the requirements for an edge rebate which applies in respect of this building as follows:
3.2.2.7 Edge rebates
Edge rebates for slab-on ground, stiffened raft or waffle raft with masonry cavity or veneer construction must comply with the following:
(a)The rebate must not be less than 20 mm, except as provided for in (d).
(b)Exterior masonry must not overhang more than 15 mm past the edge of the slab.
(c)The edge rebate must be flashed and drained in accordance with Part 3.3.4 and where it cannot be flashed it must be filled with mortar.
(d)Edge rebates are not required for single leaf masonry.
The evidence of the experts and the submissions made on behalf of the Plaintiff raised this defect explicitly. The ABS Services Pty Ltd defects list nominated this issue as a defect. There was simply no evidence before the Board for it to conclude that in the absence of an edge rebate that the building could comply with the Building Code of Australia.
The Board as an expert tribunal
I invited counsel for the Plaintiff to consider what weight, if any, the Court should give that the Board as an expert tribunal is permitted as it is to inform itself as it thinks fit, is not bound by the rules of evidence but is subject to the rules of natural justice.
Counsel for the Plaintiff properly acknowledged that the Court ought to defer to their expertise and the Court should thus be slow in second-guessing an expert tribunal.[23] However, it was submitted that the Board is required to properly consider the evidence and the implications of its Determination. Here, examination of the material before the Court, including the transcript, the reasons and the later correspondence between the Board and the solicitors for the Plaintiff, demonstrates that the lack of the edge rebate defect was squarely raised with the Board. However, the Board is silent as to the edge rebate in its Determination.
[23]Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1.
It is possible that the Board, as an expert tribunal, may have considered some technical way that the building could be rectified to allow for the edge rebate to be constructed. However, I am of the view that if there was such technical knowledge and consideration the Board ought to have expressed that view and put that option to the Plaintiff so that the Plaintiff’s witnesses could have considered that position. This was not done although I note that the Board asked a number of questions of the witnesses which sought to test their view that demolition of the entire superstructure down to the ground floor slab was what they were recommending. The witnesses confirmed this was their position.
Notwithstanding the correspondence from the Senior Appeal Officer to the Plaintiff’s representative dated 12 July 2018 as set out above, I do not accept that the effect of the exchange is to demonstrate that the Board had material before it upon which it could form the view or draw an inference that no edge rebate was required. Nor is it indicative of the existence of evidence upon which the Board could conclude that the Determination made was one which was capable of being approved by a registered building practitioner as compliant with the Building Code of Australia.
In questioning counsel for the Plaintiff on the impact of the Board’s expertise, it became apparent that no alternative proposition as to rectification of the works, that otherwise would be satisfied by the construction of an edge rebate, had been put during the proceedings before the Board. If the Board did consider a technical way that the building could be rectified to allow for the edge rebate to be constructed, this raises a question of procedural fairness.
Whilst the originating motion in this matter does not contain a ground for judicial review based on procedural fairness, this ground was canvassed in the written submissions and insofar as a formal request to amend the originating motion to add this additional ground is necessary I indicated that I would allow such an amendment. It is unnecessary for the purposes of the final determination of this proceeding that reliance on this ground is necessary as I have determined that the other grounds pleaded in the originating motion have been made out.
However, in my view, this additional ground has substance. Where an expert tribunal intends to rely upon a matter which forms a fundamental part of its determination, the requirements of procedural fairness require that tribunal to raise the matter with the parties and allow them to respond.
Here, the expert evidence was that it was necessary to demolish the superstructure down to the ground floor slab to enable the edge rebate to be constructed and no alternative proposition was put to the Plaintiff by the Board. Based on this evidence, the Plaintiff amended its request for the entirety of the building to be demolished including the basement and amended its application to amend the building order was made to reflect this.
I am not convinced that in these circumstances, the Boards expertise alone provides a basis upon which the Board could conclude or infer that partial demolition and rectification would comply with the requirements of pt 3.2.2.7 of the Building Code of Australia, as was required by its Determination.
Conclusion on no evidence ground
Part 3.2.2.7 of the Building Code of Australia requires the construction of an edge rebate. As previously noted it is possible for a modification to this requirement to be sought. However, in this case this was not sought and consequently it was not open to the Board to assume or imply that this was to occur.
On the face of the Determination it is not possible to imply that there is another solution to rectifying the building to ensure its compliance with the Building Code of Australia other than to demolish the building to the ground floor slab consistent with the expert evidence. The Board does not refer to an edge rebate in its Determination. It compounds that error of omission by requiring the rectification works to be designed and constructed in such a way that a suitably qualified and registered building practitioner can certify that the basement and superstructure, when rectified, comply with the requirements of the Building Regulations. If the Board had the technical knowledge to direct how this ought to be done it should have put that in the Determination or at least raised it with the parties during the proceeding.
Save for the fact that the Board comprised of a panel of experts, nothing on the material before me allows for an implication to be drawn that the Board’s expertise was used in concluding that the rectification works specified in the Determination could permit the building to be compliant with the Building Code of Australia. If such expertise was utilised, the Board has wholly failed to demonstrate the manner in which it was used to come to the conclusion drawn.[24]
[24]Cf Stojilkovic v Romas & Ors [2017] VSC 49; S. v Crimes Compensation Tribunal [1998] 1 VR 83.
The result of this, as counsel for the Plaintiff lyrically referred, is that the Board has ‘hand balled’ the determination of what is required to rectify the building to comply with the Building Code of Australia to other players. It does not set out what is required for rectification to occur to ensure the building can comply with the Building Code of Australia in the absence of an edge rebate otherwise required under the Building Code of Australia.
I am therefore satisfied that there was no evidence upon which the Board could find that the building could comply with the Building Code of Australia as no edge rebate was provided for in the works nor required explicitly by the Boards Determination.
Failure to take into account a relevant consideration
The Plaintiff’s reliance on this ground is premised on a failure by the Board to consider the relevant statutory Building Regulations in place, and therefore whether its Determination was capable of performance. It is well established that jurisdictional error is found only if there has been a failure to take into account a matter mandatory to be considered as part of the exercise of power.[25] A conclusion as to what is necessary is determined by reference to the subject matter, scope and purpose of the statute.[26]
[25]Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39-40 (Mason J).
[26]Ibid.
Whilst the Building Act 1993 does not set out a list of mandatory considerations for the Board to take into account in hearing an appeal, there is no doubt that one of the fundamental aspects of the scheme and structure of the Building Act 1993 is compliance with the Building Regulations 2006 which incorporates by reference the Building Code of Australia. Compliance with the Building Regulations is a mandatory and thus relevant consideration.
The structure of the Building Act 1993 is that the Building Regulations are to be complied with unless there is a modification made pursuant to the power to do so in s 160. Part 3.2.2.7 of the Building Code of Australia applies. Compliance with the amended building order, as directed by the Board’s Determination would not cause the superstructure to comply with the Building Code of Australia. Not to have explicitly turned its mind to this part of the Building Regulations is to fail to take into account a relevant consideration.
In my view it was necessary for the Board to consider pt 3.2.2.7 of the Building Code of Australia and the failure to do so is a failure to take into account a relevant consideration such that the Determination cannot stand.
Wednesbury unreasonableness
The Plaintiff argued that the Board’s decision is unreasonable in the Wednesbury[27] sense and that no properly informed decision-maker could have reached it.
[27]See Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 230 (Greene LJ).
Wednesbury unreasonableness in its original formulation concerned itself with decisions straying so far on a competent matter that no responsible authority could have reached it.[28] More recently, it has been acknowledged that unreasonableness might capture varied instances of jurisdictional error in which the conclusion reached is legally unreasonable.[29] Articulated in this way, a decision may be unreasonable where it is lacking evidence and intelligible justification, for example, by reason of an identifiable jurisdictional error such as little weight being given to a matter of great importance, or the outcome more generally itself bespeaks error in the context in which it was made.[30] Such is the case here that the jurisdictional error made by the Board by failing to take into account a relevant consideration has also produced an unreasonable outcome.
[28]Ibid.
[29]Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, 365 [72].
[30]Ibid 365–366 [72]–[76]; Minister for Immigration v Singh(2014) 231 FCR 437, 445 [44] (Allsop CJ, Robertson and Mortimer JJ).
The terms of the Determination require that the basement and superstructure when rectified comply with the Building Code of Australia and be able to be certified as compliant by a registered building practitioner. At the same time, the Board failed to squarely or by implication deal with the requirement for an edge rebate pursuant to pt 3.2.2.7 of the Building Code of Australia in its Determination. In the absence of provision being made for pt 3.2.2.7 the Determination of the Board produces an outcome that is impossible to realise and is therefore unreasonable.
Conclusion
The Plaintiff seeks an order in the nature of certiorari quashing the Determination made by the Board and an order remitting the application filed with the Board on 30 October 2017[31] to be decided according to law by differently constituted panel. I will make that order.
[31]The originating motion in this matter incorrectly lists the date of the application to the Board as 30 November 2017.
As both defendants indicated that they did not wish to be heard on the appeal save as to costs, I will direct that the parties make any submissions as to costs, in writing to be filed with the Court.
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