Articles

By Justin Cotton, Director, Lovegrove & Cotton

A fertile ground of litigation regarding protection work determinations of the Relevant Building Surveyor is proving interesting reading for those with an interest in Part 7 of the Victorian Building Act 1993.

In Victoria the Building Appeals Board is the destination for appeals either by subject land owners or more commonly adjoining owners, after the Relevant Building Surveyor for a development has made a determination under section 87 of the Building Act. This is after the Protection Works Notices have been served by the Owner on adjoining owners and after a Protection Works Response Notice has been received in reply.

As we know, the Response Notice can agree with the proposed protection works, or disagree with the proposal. The third option is that the Response Notice can request further information, as a result of which the Relevant Building Surveyor (“RBS”) can direct the Owner to supply this extra information.

At the end of this notice process the RBS is then required to issue a determination in regard to the appropriateness or otherwise of the proposed protection works. In effect, to deliver a binding ruling on the point in circumstances where there is a dispute between neighbours.

However, this is not necessarily the end of the question. A party aggrieved with the RBS’ decision (ie the owner or the adjoining owner) can appeal the RBS’ determination to the Building Appeals Board (“BAB”).

In addition, an appeal to the BAB can be made in regard to any matters concerning protection works that are in dispute, if there is no other provision in the Building Act which can assist to resolve the point (for example, disputes in regard to the survey of adjoining property and the mandatory protection works insurance).

In turn, if a party is unhappy with the decision made by the BAB about protection works, that decision can be appealed (on a question of law) to the Supreme Court. As a result, there are some recent enlightening decisions and pronouncements by the Supreme Court following such appeals.

Initially, an appeal hearing about the RBS determination over the appropriateness of proposed protection works, will be a hearing from the beginning. This means that the BAB Panel at the hearing has all the powers of the original decision maker (the building surveyor) to analyse the facts ‘from scratch’, and come to a decision in regard to the appropriateness of the protection works.

Also, the BAB has the same ability and legal capacity as the original RBS to consider whether the RBS had been properly appointed in the first place. In a recent Supreme Court decision in December 2014, the Court said that because the RBS should initially make the assessment on whether or not he/she had been validly appointed, so too did the BAB have the power to make that assessment.

Therefore, in the case concerned the Court found that the BAB had every right to decide, as it did, that because the RBS had acted as a consultant to a party involved in the demolition works for the site within 12 months of his appointment, that this was in breach of the conflict of interest provisions in section 79 of the Act, and that due to the section 79 prohibition on accepting an appointment in these circumstances the actual appointment was invalid.

Given this finding about the invalidity of the building surveyor’s engagement, the BAB had gone on to say that the RBS’ determination about protection works also had to be a nullity and should be quashed.

Pursuant to section 149 of the Act, when deciding a protection works appeal the BAB can do any of this:

• Affirm the original determination;
• Quash the determination;
• Vary the determination; or
• Set the determination aside and substitute the BAB’s own decision about the appropriate protection works required instead, or remit the question back to the original decision maker (presumably, the RBS) with or without directions on how to reconsider the point.

The Supreme Court decision referred to above confirmed that it was indeed possible for the BAB to substitute its own determination about protection works, consistently with section 149, after it had set aside the building surveyor’s original determination. Furthermore, the Court said that even if the BAB had said in its written judgment that it had ‘quashed’ the determination, if in fact the effect of the Board’s decision was to set aside the original determination and then substitute another, it mattered not what actual wording had been used.

To expand on this idea, the Supreme Court referred to the BAB’s very nature as a specialist tribunal with technical expertise (albeit there is usually at least one legal member on each Panel), and said that the written decisions of the BAB should not be dissected and over analysed with a view to mounting some obscure later legal challenge on refined points of law.

On the question of whether it mattered if a particular finding by the Board appeared at the front of its decision under the heading “Determination” or later in the decision under the heading “Reasons”, the Court did not consider it correct to be overly preoccupied by that.

The Judge stated: “…I do not consider it is appropriate to dissect the determination of the Board into distinct component parts comprising its ‘determination’ on the one hand, and its reasons on the other…In this case the two components were to some extent rolled together to comprise a determination made under s 148(1) of the Act.”

Some of these judicial statements, if not findings, certainly assist with guidance on the legal principles to be applied where protection works disputes go to ‘higher end’ argument, particularly on those higher end or more high profile developments that find their way to the Building Appeals Board and beyond.

However, whether we are talking of a high rise development or a neighbourhood dispute over protection works in a suburban street, the same principles will be applicable. Other recent Supreme Court decisions regarding BAB appeals include the following:

• A Supreme Court finding that an adjoining owner has no legal standing to challenge a decision by the Victorian Building Authority to consent to an RBS being replaced;
• A Supreme Court finding that an adjoining owner does not need to be actually named as ‘the insured’ for the policy of insurance for protection works under s 93 of the Act, provided the insurance policy is otherwise compliant with the requirements, including that the adjoining owner is still in a class of persons identified as a beneficiary under the Policy.

For more information, advice and guidance in regard to the legal issues surrounding protection works, building surveyors and building regulatory compliance, or for dispute advocacy, you should contact construction lawyers with applicable expertise as soon as possible.

Lovegrove & Cotton: Leaders in building practitioner legal representation

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Kim Lovegrove RML, FAIB is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedence in a number of Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.