Case Note: Protection Works Notices

Protection Works Notices

Case Note

Colonial Range v CES-Queen (BAB4 – Protection Works) [2017] VSC 317 (5 June 2017), Digby J A recent Victorian Supreme Court judgement provides useful guidelines concerning the protection works notices required for many building projects. EXECUTIVE SUMMARY

1. In this case, the Supreme Court of Victoria ruled on the application of the Building Act 1993 (Vic) provisions in Part 7 on works for the protection of adjoining property.
2. The Court held that the paramount object of those provisions is efficiency, cost-minimisation and efficacy in resolving disputes, and interpreted the legislation accordingly.
3. The case rules out certain methods used by adjoining landowners to attempt to delay building proposals, which were available under the previous legislative regime.
4. The case confirms the broad discretion of Building Surveyors engaged under the Act to determine the appropriateness of protection works as well as whether demolition works comply with the precautionary measures required for such works.

FACTS This case concerns the Tower Melbourne development at 150 Queen Street, Melbourne (the Queen Street Site). CES-Queen planned to demolish the current building on the Site and construct a 71-storey residential tower. Colonial owned the adjacent land that could potentially suffer damage from the demolition unless protection works were undertaken. In May 2013, CES-Queen issued notices to Colonial proposing to undertake protection works for Colonial’s land. In July 2013, a Building Surveyor made a determination in respect of that proposal (the 2013 Determination). Colonial appealed to the Building Appeals Board (BAB), and CES-Queen withdrew the protection works notice in November 2013. On 24 December 2014, CES-Queen issued revised protection works notices to Colonial. A new Building Surveyor, Mr Ari Akritidis, was engaged. On 5 January 2015, Colonial notified Mr Akritidis and CES-Queen that it disagreed with the December 2014 protection works notices under s 85 of the Act. On 4 May 2015, Mr Akritidis determined, under s 87 of the Act, what he considered to be the ‘appropriate’ protection works (the 2015 Determination). Mr Akritidis’s determination was different to the CES-Queen proposal. Despite the protection works determination, Colonial still considered the CES-Queen development to be likely to cause damage to its own development site. Colonial appealed Mr Akritidis’s determination to BAB, which upheld the determination and gave written reasons for so doing. Colonial sought judicial review of BAB’s decision in the VSC. The decision of Justice Digby (5 June 2017) sheds light on the role and scope of a Building Surveyor’s power under the Act, and the purpose and legislative intent of the protection works scheme. This case note focuses on these elements of the decision. ISSUES Colonial sought an order quashing the decision of BAB on three grounds:

1. That the 2013 Determination remained in force, and it was not possible for Mr Akritidis to issue a new determination;
2. That the Building Surveyor exceeded his powers in the 2015 Determination, because the determination was different to that proposed by CES-Queen; and
3. That inconsistently with an earlier BAB decision on the same dispute (BAB2), BAB exceeded its powers in affirming the 2015 Determination, because the Building Surveyor had failed to either inspect and approve precautionary measures for demolitions under Building Regulations 2006 (Vic) R 607 (the Regulations); further, that the BAB denied Colonial procedural fairness by refusing to consider its submissions on R 607, or failing to give adequate reasons in response to those submissions[1].

FINDINGS Withdrawing Protection Works Proposals Digby J rejected Colonial’s first ground. His Honour held that nothing in the Act or Regulations made a protection works notice invalid just because that the 2013 Determination remained in force. He said that under Part 7 of the Act, it is for the owner seeking to build the building to propose the protection works. The owner is always able to withdraw a protection works notice, even after the notice is the subject of a determination by a Building Surveyor or a BAB appeal. Doing so would lead to adverse cost consequences, but Digby J held that ‘the applicant owner, like a litigant in a court system can bring its own process to an end when it chooses, subject to possible cost consequences and any order or direction which the Board is empowered to make’[2]. He said it would be ‘nonsensical and unreasonable’ for an owner to be locked into an earlier protection works proposal, upon determination or appeal, even when its proposal changed. Building Surveyor’s Discretion on ‘Appropriate’ Protection Works His Honour rejected Colonial’s second ground, finding that a Building Surveyor is not restricted to determining the appropriateness of an actual proposal by an owner. He rejected an argument that, in determining different protection works, the Building Surveyor ‘devised his own measures’[3]. Digby J examined the legislative history of the protection works scheme, finding that the previous regime had created costly delays that the new scheme sought to overcome. His Honour noted the legislative intent of the current legislation and placed emphasis on efficiency and decreasing costs, as well as efficacy in dispute resolution. In his view, efficiency and effectiveness are served by the Building Surveyor being able to consider the original proposal as well as any alterations which he or she considers appropriate. His Honour found that it would be ineffective and inefficient if a Building Surveyor was limited to the proposal put forward by the owner without any ability to alter it after considering the adjoining owner’s concerns or the information gathered pursuant to the broad power to make inquiries under s 87(3) of the Act. Digby J, in this context, agreed with parts of an earlier VSC decision by Vickery J that was overruled on other grounds by the Court of Appeal[4]. Thus, both Digby J and Vickery J found that the intent of the Act is to facilitate protection works determinations in a ‘reasonably efficient’ manner, and that any narrow reading of the provisions would be ‘positively inimical’ to that object[5]. Freeman Zhong 1 September 2017 Copyright © Kellehers Australia 2017 Liability limited by a scheme approved under Professional Standards Legislation This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances. [1] Digby J’s findings on this third ground were relatively technical and will not be discussed in this case note. He found against Colonial. [2] At [78]. [3] At [163]. [4] Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2015] VSCA 356. [5] Colonial Range [2015] at [80], quoted in Colonial Range [2017] at [237].