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
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.
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  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.
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.
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.
If you’d like to stay up to date with insights from our Building Enforcement team, please email us at firstname.lastname@example.org.
Amendments to section 241 of the Building Act 1993 – limitation periods for offences
| Published by Ian Pridgeon, Marcus Heath, Daniel Silfo, Elizabeth Flanagan, Angelina Bell
The Building Amendment (Enforcement and Other Measures) Act 2017 has resulted in amendments to section 241 of the Building Act 1993 (“Act”). Section 241 – Proceedings for offences, was amended on 16 August 2017.
The changes to section 241 are of importance to proceedings pursuant to Part 3, 4, 5, 7 and 8 of the Act, are as follows:
- subsection 241(7), which was substituted by a different subsection; and
- subsection 241(8), being an additional new subsection.
What has remained unchanged?
A council can still commence a proceeding for an offence within the period of three years after the commission of the alleged offence, this provision has remained unchanged.
With the exception of subsections 241(7) and 241(8) the remainder of section 241 has not been amended.
The changes to section 241 of the Act, allow proceedings to be brought within two years after the offence first came to the attention of Council, provided it is not more than 10 years after the offence occurred.
For example, subsection 241(7) of the Act allows a council two years to commence a prosecution for building work it has just discovered that occurred eight years ago without a building permit.
We are of the view the offence is not required to have occurred after the amended section 241 came into operation (i.e. 16 August 2017) for the amended section 241 to apply. What is relevant to the application of section 241 is when the alleged offence first came to the attention of council and when a proceeding is commenced.
For example if an alleged offence, being the carrying out of building work without a building permit occurred in 2010 and the relevant council became aware of the building work on 17 August 2017 (after section 241 was amended) section 241 would apply to the alleged offence.
What may constitute coming to the attention of the relevant council is not yet fully understood. Arguably it ought to be interpreted as coming to the attention of those in the council responsible for enforcing the Act. If it was interpreted as meaning any part of the council, such as cleaning staff, this could be problematic. Until this has been tested in a Court it will remain partially unclear as what it exactly means.
Should you require any further advice or assistance regarding the recent amendments to the Act please do not hesitate to contact our Statutory Building and Prosecution team: Ian Pridgeon, Marcus Heath, Daniel Silfo, Elizabeth Flanagan and Angelina Bell.
An interesting Article by Justin Cotton
Untangling the Requirements of Protection Works Insurance for Large and Small Building Projects in Victoria 13 Dec 2017
By Justin Cotton, Director, Lovegrove & Cotton
The Victorian Municipal Building Surveyors Group is looking at running a 14 day China study tour in June 2018 visiting in the cities of Shanghai, Chengdu, Xian and Beijing. The cost of the tour including international and domestic flights, bullet train and shared accommodation is $3995 pp. This tour is open to all members who wish to attend including partners and friends. Anyone who is interested in participating should complete and return the expression of interest by 29th December 2017.
Video link 2015 tour
Victorian Cladding Taskforce Interim Report November 2017Please find a link the Interim report, this is a Chairs report and not the final Taskforce report.
Also link to Victorian Cladding Taskforce website
The significant changes document has been updated made it available for all to use.
Please CLICK HERE to access the document.
The following information was sent from MFB to VMBSG.
Please find attached a letter on the issue of interference of Fire Alarm Monitoring Systems.
Also attached is a copy of a Fire Engineers report and interface schematic regarding the same.
CLICK HERE to download Fire Engineers Report
CLICK HERE to download Interface Schematic
BUILDING MINISTERS’ FORUM
6 October 2017
The third Building Ministers’ Forum (BMF) for 2017 held in Brisbane on Friday, 6 October 2017, continued to drive decisive action on potentially hazardous aluminium cladding and other efforts to improve the compliance and safety of Australian buildings.
BMF Ministers recognise the public safety concern and clear risk arising around the use of cladding that does not comply with the National Construction Code (NCC). All Ministers agreed that they will use their available laws and powers to prevent the use of aluminium composite cladding with a polyethylene (PE) core for class 2, 3, or 9 buildings of two or more storeys, and class 5, 6, 7 or 8 of three or more storeys, until such time as they are satisfied that manufacturers, importers, and installers, working in collaboration with building practitioners, will reliably comply with:
- the newly established standard setting test against which fire retardant cladding products are deemed to be reasonable for use in high rise settings; and
- an established and implemented system of permanent labelling on cladding products to prevent substitution.
For its part, the Commonwealth will regularly provide the states and territories with import data on (more…)