21 December 2023
On 19 December 2023, the Victorian Court of Appeal handed down its decision in the appeal by City of Port Phillip (Council) against the decision of the Supreme Court which set aside a Building Order – Minor Works (BOMW) issued by Council. The Court of Appeal’s judgement in this long-running matter analyses the Building Act in detail and sets out very useful guidance for building regulators in the exercise of powers under the Victorian Building Act.
What did Council’s building order require and why was it appealed?
Council discovered back in 2007 that the balcony of the owner’s two story building was in a state of disrepair and unsafe to use. Between 2007 and 2017 Council took a series of actions which the owners challenged in the Building Appeals Board and court. With the condition of the balcony unresolved, Council proceeded to issue a BOMW in 2017. The BOMW required that the owner to use screws to mechanically fix shut the doors to the balcony so that it could not be used. The owner appealed against the issuing of the BOMW, first to the Building Appeals Board and then to the Supreme Court on the basis that it was invalid because:
- the work was not minor;
- the threshold criteria for exercise of the BOMW power had not been met; and
- Council was improperly using the BOMW to restrict access to the balcony area.
Why is this judgement so important for building regulators?
When the owner appealed to the Supreme Court, the Supreme Court held, among other things, that Council’s power to issue a BOMW was restricted, in that it could only require work to be carried out if that work was specifically required in the Building Regulations. By implication this also applied to regular building orders, given that the provisions for building orders contained the same phrasing.
Given that the Regulations only require the carrying out of building work in very limited situations (such as in relation to maintenance of essential safety measures or pool barriers), this severely restricted the ability of building surveyors to issue either building orders or BOMWs to remedy non-compliant buildings or safety hazards. The Court of Appeal’s decision has reversed the position taken by the Supreme Court, saying that building surveyors can exercise their discretion as to what work to require under either a BOMW or a building order.
What was the legal issue?
The primary issue of relevance to building regulators is the interpretation of sections 113 (relating to BOMWs) and 111(5) (relating to building orders) of the Building Act. Each of those provisions provide that a building order or BOMW, as the case may be, can direct the owner of a building, land or place of public entertainment to carry out ‘building work, protection work or other work required by the regulations in relation to the building, land or place’.
Those words had always been interpreted to mean that the words ‘required by the regulations’ only applied to the preceding words ‘other work’, meaning that the order could require any building work or protection work that Council’s municipal building surveyor (MBS) deemed appropriate in the circumstances, or any other work which was required by the Building Regulations.
However, the Supreme Court took that phrase to mean that the words ‘required by the regulations’ applied to the entirety of the phrase ‘building work, protection work or other work’ with the result that the only work (whether building work, protection work or other work) that could be included in an order was work which was required by the regulations. Given that the Building Regulations do not specify work to be carried out (other than in limited circumstances), the result of this interpretation was that a building surveyor could only use the building order powers in very limited circumstances and could not use their own discretion to decide what the appropriate work should be.
What findings did the Court of Appeal make?
The Court of Appeal held that the BOMW issued by Council was invalid, because it was issued in order to prevent further access to the balcony, which is beyond the power of a BOMW – a BOMW is limited to the purpose of requiring minor building work to be carried out.
However, the Court of Appeal nevertheless agreed with Council’s submissions on the interpretation of s113 and, by inference, s111(5) of the Act. The Court of Appeal effectively reversed the decision of the Supreme Court, finding that those sections empower a building surveyor to decide on what building work or protection work should be required, rather than being limited only to work that is required by the Regulations.
The Court came to this conclusion for a number of reasons, including:
- if the building order power was limited only to requiring work required by the Regulations, this would prevent building surveyors from enforcing safety standards in relation to buildings, given that there is nothing in the Regulations that requires work to be done to restore or maintain the safety of a building;
- building orders may potentially be made with respect to buildings that are unfit for occupation or which are a danger to the life, safety or health of any member of the public or person using the property and it is appropriate that laws with those sorts of public interest purposes be given their full effect;
- the type of safety hazards that might arise may change over time with new construction methods or changes in the environment and so the power should be construed to allow a building surveyor to determine what work is appropriate, in the absence of work being specified in the Regulations;
- otherwise, work that is required by the Act, but not the Regulations could not be captured by a building order because it is not work ‘required by the Regulations’. This is particularly the case with protection work;
- in many cases, particularly with respect to a damaged building for which the emergency order provisions cannot be invoked, the work required to be done cannot realistically be prescribed by regulations;
- allowing an interpretation that gives building surveyors the broader discretion of deciding what building work or protection work should be carried out under the order does not mean that building surveyors have an unchecked power. The power is still limited by:
- the need to act consistently with the purposes of the Building Act (namely the enforcement of appropriate standards for building works and prevention and remediation of safety hazards arising from the condition of buildings);
- the fact that, for a BOMW, works must be minor;
- the right to seek amendment of cancellation of the order; and
- the right of appeal to the Building Appeals Board.
What practical guidance comes out of the judgement?
The Court of Appeal judgement provides useful guidance on the following matters:
1. When issuing a building order or BOMW under section 111(5) or 113 of the Act, building surveyors must ensure that the purpose for which it is issued aligns with the objectives of the Act and purpose for which the order powers were established. The said there were two key objectives of the Act and the powers, namely to resolving a non-compliance with a standard for building work or to resolving a safety hazard. The work cannot be required under a BOMW in order to achieve a secondary aim, such as preventing the use of the building or part of the building. That can only be achieved by using the appropriate power for that purpose, such as section 111(3)(b) or 111(4) in the case of a building order or section 103(1)(b) or 103(2) in the case of an Emergency Order.
2. Building surveyors are able to use their discretion when deciding what building work or protection work should be specified in a building order or BOMW. They are not restricted to merely specifying work that is required by the Regulations, but may determine what work is necessary, depending on the context.
3. When issuing a BOMW, building surveyors don’t necessarily need to be satisfied that one of the circumstances in section 106 applies. Those conditions are either:
(a) building work has been carried out without a permit or contrary to the permit or the Act or Regulations;
(b) the use of the building contravenes the Act or the Regulations;
(c) safety measures have not been maintained;
(d) the building is unfit for occupation; or
(e) the building is a danger to the life, safety or health of the public or a person using the building or land.
Whilst one of the above circumstances might apply, to issue a BOMW the building surveyor only needs to form the view that the work in question is minor and that the BOMW is being issued for at least one of the purposes of the Act, being either the enforcement of standards of building work or the prevention of safety hazards in buildings.
The decision provides welcome relief to Councils, the VBA acting as MBS and private building surveyors exercising powers to issue building notices and orders who had had to restrict their use of these powers pending the appeal being determined. The Supreme Court decision had also thrown into doubt the validity of thousands of existing orders issued by Councils and the VBA. The Building Appeals Board had also delayed or stayed a number of appeals from the decisions to issue building notices or orders which may otherwise have needed to be overturned based on the Supreme Court decision. Those cases can now proceed on their merits.
There is of course the possibility that the owners will exercise their rights to seek leave to appeal the Court of Appeal’s decision to the High Court! Also if the balcony remains unsafe, Council will now have to decide whether to once again issue notices and orders to require building work to the balcony to mitigate the safety hazard.
Frances Hall, Special Counsel, Weir Legal and Consulting
Krista Weymouth, Special Counsel, Weir Legal and Consulting
Bronwyn Weir, Director, Weir Legal and Consulting