Morris v Municipal Building Surveyor for the City of Whitehorse & Anor [2024] VSC 316

Chris Hey  |  Michael Lo |  Joseph Xuereb

Key takeout

Building work under the Victorian Building Act cannot proceed without a valid building permit, regardless of advice from ‘tradies’ or the local council.

Facts

Prior to reconstructing and extending the raised timber deck in his family home Mr Morris (owner) sought clarification from his local council as to whether a building permit would be required.  Specifically, the owner asked, ‘I would like to extend a deck by 1 metre, which increases the total deck size by about 7 sq. metres. I’ve been told by a tradie that I won’t need a building permit as the extension is less than 10 sq. metres. Is that correct?’.

The council’s building surveyor’s assistant advised the owner that a building permit was not required for the proposed extension based on the information provided.

The owner replaced his original deck by reconstructing and extending the deck without a building permit.  However, the ‘…’total works’ of repairing and extending the deck [was] ‘about 24 square metres’, contrary to the information initially provided by the owner to the council.

The Municipal Building Surveyor for the City of Whitehorse (MBS) issued a building notice under s 106 of the Building Act 1993 (Vic) (Act) to the owner on the basis that he had done work without a building permit.  Subsequently, the MBS issued a Building Order requiring the deck to be removed.  The owner appealed the Building Order to the Building Appeals Board (Board), which affirmed the decision of the MBS.

The owner sought judicial review of the Board’s decision on 24 individual grounds.

Decision  

Justice Harris in the Supreme Court of Victoria rejected the owner’s judicial review application and upheld the Board’s decision. Three key questions were examined.

Did estoppel arise from the council’s response to the owner that he didn’t require a building permit?

The court held that in the circumstances no estoppel arose.  The court concluded that the Board was correct to recognise the general position that estoppel cannot be used to hinder the exercise of statutory discretion, unless a public interest exception applies (which was not the case).  The work carried out was materially different to the work described by the owner and the representation made by the building surveyor’s assistant was not a representation that no building permit was required for the reconstruction and extension of a deck that was also a raised structure.

Did the works require a building permit?

The court held that a building permit was required as the work undertaken to the deck constituted ‘work for or in connection with the construction … of a building’ as defined by the Act, noting that ‘building’ is defined to include ‘structure, … and any part of a building or structure’.

The court highlighted that one purpose of the building permit system is to further the main purposes of the Act in regulating building work and building standards, and administering and enforcing related building and safety matters.  The absence of a building permit means that an important process directed to building safety is avoided, as was the case here.

Did the Board afford the owner procedural fairness?

The owner relied on multiple grounds of review directed to the manner in which the Board heard and resolved the application, alleging that all constituted a denial of his right to natural justice. The court found that the Board had committed no errors capable of impugning its decision.

Notably, the owner submitted that the Board showed an arrogant attitude in the way it sought a site inspection.  The court concluded that an ‘arrogant attitude’ on the part of a decision-maker is not a proper ground of judicial review, unless it involves some specific failure to afford procedural fairness or other error.  In any case, the court considered that the Board’s conduct was not arrogant.