Monthly Archives: February 2018


DECLARATION OF THE MINISTER THAT THE VICTORIAN BUILDING AUTHORITY IS TO CARRY OUT THE FUNCTIONS OF A MUNICIPAL BUILDING SURVEYOR

DECLARATION OF THE MINISTER THAT THE VICTORIAN BUILDING AUTHORITY
IS TO CARRY OUT THE FUNCTIONS OF A MUNICIPAL BUILDING SURVEYOR

I, Richard Wynne, Minister for Planning, and being the Minister responsible for the Building Act 1993, (‘Act’) under section 190 of the Act, after having formed the opinion that it is in the public interest to do so, declare that any or all of the functions of a municipal building surveyor under the Act and the Building Interim Regulations 2017 are to be carried out by the Victorian Building Authority in relation to any building work carried out at, and the building and
land situated at, 247 Williams Road, South Yarra, Victoria.

Dated 24 February 2018
RICHARD WYNNE
Minister for Planning

GG2018S065


Building Alert Supreme Court of Victoria provides guidance with regard to the interpretation of Regulation 414 of the Building Regulations

Building Alert

Supreme Court of Victoria provides guidance with regard to the interpretation of Regulation 414 of the Building Regulations

| Published by Marcus Heath, Ian Pridgeon, Daniel Silfo, Elizabeth Flanagan, Angelina Bell of RK Lawyers

Anderson v Building Appeals Board [2017] VSC 415 (21 July 2017)

Background

The plaintiffs filed two appeals with the Building Appeals Board (“Board”) against Stonnington City Council’s refusal to give its consent to requests for report and consent in respect of Regulation 414 of the Building Regulations 2006 (“Regulations”) to proposed alterations and additions to a dwelling.

The Board made a determination and refused to give its report and consent under Regulation 414 of the Regulations.

Appeal

The plaintiffs made an application to the Supreme Court of Victoria for an order quashing or setting aside the determination of the Board. The plaintiffs advanced two grounds at the hearing, namely the Board had regard to an irrelevant consideration, being daylight access, when determining whether it was acceptable to grant report and consent and the Board had misdirected itself when considering whether to grant report and consent.

The plaintiffs submitted that Division 2 of Part 4 of the Regulations is a comprehensive ‘code’ for the protection of amenity and neighbourhood character. They submitted that each Regulation within the Division addresses a separate aspect of amenity such that the term amenity should be construed narrowly to avoid overlapping.

Council, being the second defendant, represented by Mr Joe Forrest of counsel and briefed by Russell Kennedy Lawyers, submitted that when exercising discretion regarding whether or not to grant report and consent, consent must be refused to an application for report and consent if the application did not comply with any matter set out in the Minister’s Guidelines MG-12 (“MG”). This includes amenity to habitable room windows of existing dwellings on nearby allotments, in this case relating to limiting access to daylight and sky.

Justice McDonald held that the meaning of amenity in terms of Regulation 414 and the MG should not be read down, he stated at paragraph [45] of the judgement:

The discretion conferred upon the second defendant by (f) of the Reg 414 Ministerial Guidelines is unconfined. There is no basis for reading down the ordinary meaning of ‘amenity’ (which includes accessibility of daylight) because reg 416(1) provides that a building must be set back from a habitable room window in an existing dwelling on an adjoining allotment to provide for a light court to the window that has a minimum area of 3m² and a minimum dimension of 1m clear to the sky.

Conclusions regarding Regulation 414

Justice McDonald did not accept the plaintiffs’ arguments and preferred the arguments put on behalf of the Council. The application for judicial review was dismissed accordingly.

The ordinary meaning of amenity should be applied in relation to Regulation 414 and the MG, which includes accessibility to daylight. Accordingly, it is open to a council, in exercising its discretion when considering whether or not to provide its report and consent pursuant to Regulation 414, to refuse to give consent if the proposed setback would result in a significant impact on the amenity, including accessibility to daylight, of the secluded private open space and habitable room windows of existing dwellings on nearby allotments.

Please contact our Statutory Building and Prosecution Team should you require any further advice:  Ian PridgeonMarcus HeathDaniel SilfoElizabeth Flanagan and Angelina Bell.


Building Alert – Identity cards for authorised persons under the Building Act

Identity cards for authorised persons under the Building Act

Published by Ian Pridgeon, Marcus Heath, Daniel Silfo, Elizabeth Flanagan, Angelina Bell of RK Lawyers

Sections 228 and 228A of the Building Act 1993 (Building Act) operate to allow a municipal building surveyor (MBS) to authorise a person to exercise any or all of the powers of the MBS under Division 2 of Part 13 of the Building Act. Where a person has been so authorised by the MBS, the MBS must issue identification to that person.

The authorisation and identification requirements in the Building Act are separate from the requirements of a Council appointing a person to be an authorised officer under section 224 of the Local Government Act 1989 (LGA).

In most, if not all cases, it would be appropriate that a person appointed by the MBS to be an authorised person under the Building Act also be appointed as an authorised officer of Council under the LGA.

The instrument of appointment and authorisation by the MBS of an authorised person needs to be a separate instrument to the instrument appointing the person to be an authorised officer of Council as the authorisation is derived from a different legal entity.

The identification requirements in the Building Act and the LGA are also separate, such that an authorised person under the Building Act would require a separate form of identification to the identity card that must be issued to an authorised officer under the LGA.

The form of identification of an authorised person under the Building Act under section 228B(4) must:

(a)   display a photograph of the person; and

(b)   state the person’s name; and

(c)   state the fact that the person is an authorised person within the meaning of section 228.

The Building Act does not prescribe the exact form that the identification must take, rather provided the requirements in section 228B(4) have been met, it will be a valid identification.

For practical purposes, the MBS may issue the identification in the form of a sufficiently durable card.  Whilst it is not stipulated as a requirement in section 228B(4), we are of the view that the identification card should state that it has been issued by the MBS and accordingly consider it should also be signed by the MBS.

template instrument of appointment and authorisation of an authorised person under the Building Act and a template form of identification are attached.

Both the Building Act and the LGA contain requirements in relation to the production of identification when exercising powers and entering land.

We understand that separate guidance material in relation to the requirements for the exercise of powers by the MBS and an authorised person, including the requirements for entry onto land will be provided by the Victorian Municipal Building Surveyors Group (VMBSG) in due course.

For further information, please contact: Ian PridgeonMarcus HeathDaniel SilfoElizabeth Flanagan and Angelina Bell.

If you’d like to stay up to date with insights from our Building Enforcement team, please email us at newsletters@rk.com.au.