Morris v Municipal Building Surveyor for the City of Whitehorse & Anor [2024] VSC 316
In the recent Supreme Court decision of Morris, Russell Kennedy Lawyers represented the Municipal Building Surveyor (MBS) for the Whitehorse City Council (Council) in an appeal against a decision of the Building Appeals Board (Board) affirming a decision of the MBS to issue a Building Order.
In dismissing the appeal, the Court held the MBS was correct to issue a Building Order for the construction of a deck without a building permit, being the subject of the original appeal before the Board. The Court also concluded that the Board's approach was not contrary to the fundamental duties of adjudicating bodies.
Background
In the period from late January to early February 2022, Mr Morris (Plaintiff) carried out building work at his property which involved reconstructing and extending a raised deck at the rear of a dwelling at the subject property.
Before starting the work, the Plaintiff asked the Council via email whether he required a building permit to extend the deck on his property by one metre and he was advised that he did not.
After the extension and reconstruction work on the deck was completed, the MBS issued a building notice under section 106 of the Building Act 1993 (Vic) (Act) to the Plaintiff on the basis that he had reconstructed and extended the deck without a building permit and without screening to prevent overlooking adjoining properties.
The building notice required the Plaintiff to show cause as to why the deck should not be demolished and removed, and the MBS identified categories of information which should be provided if the Plaintiff wished to retain the deck.
The Plaintiff refused to provide the requested information so on 1 June 2022 a building order was issued by the MBS for the Plaintiff to demolish and remove the deck.
The Plaintiff appealed the building order to the Board, which ultimately affirmed the decision of the MBS.
Appeal to the Supreme Court
The Plaintiff sought judicial review of the Board’s decision in the Supreme Court on 24 grounds, with the essential issues raised by his appeal being:
- whether the works required a building permit?
- whether the reconstructed deck required a physical barrier to prevent overlooking, and if so, whether trees are an adequate screen?
- whether the MBS was estopped from issuing the building notice or building order by reason of the statement of the Council’s employee that no permit was required?
- whether the Board denied the Respondent his rights to procedural fairness, failed to take into account relevant matters, or wrongly applied the law?
Judgment in the Supreme Court
Whether the works required a building permit?
The Court agreed with the Board that the Plaintiff required a building permit to carry out the building work and that work did not fall under the item 3 schedule 3 of Building Regulations 2018 (Vic) (Regulations) exemptions namely a repair, renewal or maintenance of a part of an existing building.
Whether the reconstructed deck required a physical barrier to prevent overlooking, and if so whether trees are an adequate screen?
The Court agreed with the Board that regulation 84 of the Regulations imposes a straightforward requirement that a raised open space of a building on an allotment must not provide a direct line of site on to a secluded private space of an existing dwelling on an adjoining allotment.
Further, the Court said there was no merit to the Plaintiff’s argument that the neighbours ‘created’ the overlooking by removing trees on their property some five to six years earlier.
Whether the MBS was estopped from issuing the building notice or building order by reason of the statement of the Council’s employee that no permit was required?
The Court found that the Council was not estopped from requiring a building permit for the deck on the basis of the early email because it is common ground that estoppel cannot be raised where it would fetter or hinder the exercise of a statutory discretion or power (Attorney-General (NSW) v Quin (1990) 21 FCR 193 and Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 170 CLR 1).
Further, the work, which involved a reconstruction and extension of a raised deck, was materially different to the work described by Mr Morris in his email in January 2021 as extending a deck by one metre.
Whether the Board denied Mr Morris his rights to procedural fairness, failed to take into account relevant matters, or wrongly applied the law?
The Court found that the Board did not err in its judgement as there was a proper basis to issue the building order, being that the deck required but did not have a building permit for its construction and failed to comply with the regulation 84 requirements relating to overlooking.
Similarly, there was no error in the way the Board proceeded with respect to the site inspection or the hearing. The Plaintiff had ample opportunity to provide any of the requested documentation to demonstrate the safety of the deck or its compliance with the Act and Regulations (and the Building Code of Australia) and refused.
Click here to view the Judgment
Further information
Please contact our Building Regulatory Team should you require any further advice: Daniel Silfo, Elizabeth Flanagan, Ian Pridgeon, Marcus Heath and Matt Taylor.
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