Case Study: Richard O'Bryan and Oliver Da Silva v Municipal Building Surveyor for the Hepburn Shire Council [2024] (14 June 2024)
The Building Appeals Board (Board) is an expert Board that makes decisions about matters relating to the Building Act 1993 (Vic) (Act) and the Building Regulations 2018 (Vic).
The Board's jurisdiction is set out under Part 10 of the Act and includes the consideration and determination of disputes and appeals (ss 138 to 144A of the Building Act).
An Application was made by an adjoining owner to the Board under section 144(1)(b) of the Building Act against the failure of a Municipal Building Surveyor (MBS) to issue a building notice or an emergency order. The MBS considered the condition of the subject property and formed the view based on his qualifications and experience that Part 8 enforcement was not required.
The Application raised preliminary questions, namely, does the Board have jurisdiction under section 144(1)(b) of the Act (being the appeal power exercised by the adjoining owner) to make orders compelling the MBS to make an emergency order under section 102, serve a building notice under section 106 or make a building order under section 111 of the Act.
These sections of the Act refer to powers that a MBS (and in ss 106 and 111, a private building surveyor) may exercise. Thus, the primary issues in this Appeal were whether the Board could direct the MBS to exercise powers that are discretionary under Part 8 of the Act.
Considering submissions filed by the parties in response to the preliminary questions, the Board determined that it does not have jurisdiction under section 144(1)(b) of the Building Act to make orders compelling the MBS to make an emergency order, to serve a building notice, or make a building order.
The Board found at paragraph 38 of its Determination that ‘There is nothing in the Act to suggest that the Board can, at any time when a MBS, in the exercise of his or her discretion, decides not to serve a building notice or make a building order, stand in the shoes of the MBS and direct it to serve a notice or make an order.’ The Board also commented that it is a creature of statute and can only do what it is expressly empowered to do.
Implications
This decision established that the Board does not have the jurisdictional authority to exercise powers under s 149 to direct a MBS to exercise powers under Part 8. The Board’s jurisdiction is enlivened once a decision to issue an emergency order, building notice or building order has been made but it does not have jurisdiction to compel the MBS to issue that enforcement in the first instance.
A link to the Determination and Orders can be found here.