Case Note
Supreme Court Clarification on Building Order Powers of Municipal Building Surveyors.
Building Orders of Minor works
In this case, the court found that a Building Order of Minor Works (BOMW) that was upheld by the Building Appeals Board was void. This was because the power to issue a BOMW is fettered by the requirement of s113 Building Act: “confined to works required by the Regulations”. [1]
The BOMW was issued with respect to the balcony where there was evidence of rust and disintegration. The order amongst other things, stated that the balcony was in a:
‘‘state of disrepair, considered unsuitable for use and in possible risk of structural failure”.[2] The required work was to “restrict access from all doors leading to the balcony and the lower space. The doors are to be mechanically fixed shut with screws or permanent fixing that cannot be removed without the use of a tool.” [3]
Shout Rock Cafes.
The Plaintiff contended that: “It was important to recognise that building work which the Municipal Building Surveyor (MBS) is empowered to direct under section 113 is not infinite in scope”. [4] Further, the “Board considered, in the abstract, whether fixing the doors with the use of screws was ‘appropriate’.” The plaintiff described this as a “nebulous standard of appropriateness” and submitted that the Building Appeals Board not only applied the wrong test, but failed to apply any qualitative standard. [5]
The judge found that regard must be had to:
The judge observed that Part 8 established three types of orders. They were those:
- Made in emergency situations.
- Orders made after notice.
- Orders for minor works required by the regulations. [6]
The MBS “sought to use the power conferred upon him as a MBS under S113 to effectively prohibit the use of the plaintiff’s balcony and terrace.” [7]
The judge accepted the plaintiff’s submissions that the “Board’s reference to the use of screws as being appropriate, demonstrates that it incorrectly considered the requirements of S113. It should have asked what work was required under the Regulations, and if so, whether such work was minor.” [8]
The judge was satisfied that:
“s113 is confined to works required by the Regulations, and the terms of the BOMW (and the varied BOMW) made no reference to any regulation which required the placing of screws on the balcony doors. I am satisfied that there was a fundamental error of law in deciding that the BOMW was a lawful means to restrict access to the balcony…. The Board erred in law in purporting to use the power under s113 to achieve an objective that under the scheme of the Act, requires compliance with different provisions. The consequence of such errors is that the BOMW is void”.
Shout Rock Cafes, 176.
Key Take-outs
Minor building works orders have limitations and are confined to work required by the building regulations. The power to issue a BOMW is fettered to the extent that the order can only extend to work to be carried out in accordance with building regulations 2018.
Although the case did not venture into the connotations of the word “minor”, the decision seems to reinforce the idea that careful consideration needs to be given to the choice of statutory instrument, having regard to whether the work is “minor” or of a greater nature; ie harbours the potential for greater harm. In the case of the latter, other building order instruments are available.
That which is required pursuant to a BOMW cannot be too ambitious in it’s reach and no licence is afforded to go beyond the regulations or to apply that which is considered ‘appropriate’ if the regulations curtail the import of that which is considered appropriate.
If there is risk to property or life or limb there are other orders available under the Building Act and resort should be had to them along with the notice requirements that govern same. It reinforces a key legal maxim; ie when it comes to applying statute, the literal meaning is afforded paramount status.
For other articles on notices and orders, see below:
Disclaimer
This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.
Lovegrove & Cotton Lawyers to the building industry
For thirty years, Lovegrove & Cotton have represented property owners, builders, building surveyors, and building practitioners in Melbourne, Canberra, Sydney and Queensland. Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute. If you wish to engage the firm, feel free to contact us via our website, by emailing enquiries@lclawyers.com.au, or via phone at (03) 9600 4077.
References:
[1] Shout Rock Cafes P/L V City of Port Phillip (Municipal Building Surveyor) V Building Appeals Board [2022] VSC 615, 176.
[2] Ibid, 153.
[3] Ibid, 47.
[4] Ibid, 137.
[5] Ibid, 139.
[6] Ibid, 165.
[7] Ibid, 174.
[8] Ibid, 175.
