City of Port Phillip v Shout Rock Cafes Pty Ltd [2023] VSCA 327

Peter Wood  |  Isobel Carmody  |  Xavier Vale

Key takeout

The Victorian Court of Appeal has confirmed that the power for building surveyors to issue building orders for minor works (BOMW) under the Building Act 1993 (Vic) (Act):

• may be given for requiring that certain building work, or protection work, or other work required by the regulations to be carried out; but
• does not extend to the making of orders that are, in substance, orders with respect to the entry into, use and occupancy of, a building or part of a building.

Facts

Section 113 of the Act provides that a building surveyor may issue a BOMW which requires an owner to ‘carry out building work, protection work or other work required by the regulations to be carried out‘.

A municipal building surveyor for the City of Port Phillip (council) became concerned that a steel balcony forming part of a building was ‘a danger to life, safety or health of any member of the public using the building‘.  The municipal building surveyor issued a BOMW to Shout Rock Cafes Pty Ltd (owner), the owner of the building where the steel balcony was located.  The BOMW required the owner to restrict access to the balcony, and also mechanically fix shut the doors with a permanent fixing that cannot be removed without the use of a tool.  The owner appealed the BOMW to Building Appeals Board (where it was unsuccessful), and then appealed the Building Appeals Board decision to the Supreme Court of Victoria.    

The Supreme Court of Victoria found in favour of the owner on the basis that the BOMW was invalid because:

• the phrase ‘building work, protection work or other work required by the regulations‘ should be read conjunctively so that the building work and protection work which may validly be the subject matter of a BOMW must be work ‘required by the regulations‘ (and the works required by the particular BOMW in this case were not required by the regulations); and
• the power to require minor works in a BOMW does not extend to a power to restrict access to a balcony.

The council appealed the decision of the Supreme Court of Victoria to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal and decided that the BOMW was invalid.  In doing so the Court of Appeal concluded that:

• Contrary to the conclusion of the Supreme Court of Victoria, section 113 of the Act is not to be read conjunctively such that the reference to ‘building work‘ and ‘protection work‘ relates only to those types of work as required by the regulations, and instead a BOMW can be given for building work, or protection work, or other work required by the regulations to be carried out; however
• a BOMW cannot validly be used to achieve the evacuation, or restriction of use of a building.

Broad interpretation of section 113 of the Act

The trial judge had given section 113 a narrow interpretation and held a BOMW could only relate to ‘building work‘ and ‘protection work‘ specifically dealt with in the regulations.  The Court of Appeal disagreed with this conclusion, and held that the words ‘other work required by the regulations’ was a separate and distinct type of work for which a BOMW could be issued.  This was because a broad interpretation (which the Court of Appeal preferred) would give effect to the two key objectives of the Act, being the enforcement of safety standards and building standards and support the intention of a flexible and discretionary regime to issue building orders. 

The Court of Appeal considered there are sufficient limitations on the impact on owners of BOWMs under the Act (including that the works must be minor, and the owner has a right to request amendment, cancellation and appeal) to justify the broad interpretation of section 113 of the Act.

Invalidity of the BOMW

Separately, the Court of Appeal upheld the trial judge’s finding that BOMW was invalid as it sought to restrict the entry, use and occupancy of the balcony (being part of the building). Section 113 of the Act does not empower a building surveyor to issue a BOMW to exercise control over occupation and use of buildings, and so a BOMW that seeks to restrict access to a building (such as the BOMW in the present case) would be invalid under the Act.  Those sorts of orders would need to be the subject of other kinds of notices under the Act, such as building orders other than BOMWs or emergency orders, which have other (generally higher) requirements or standards that must be met before they can be validly issued.