On 19 December 2023, the much-anticipated decision in City of Port Phillip v Shout Rock Cafes Pty Ltd & Anor [2023] VSCA 327 was handed down by the Victorian Supreme Court of Appeal.
This decision has important and beneficial impact for Municipal Building Surveyors (and building surveyors) with respect to their powers when making building orders and building orders for minor work under sections 111 and 113 of the Building Act 1993 (the Act). Those powers had previously been curtailed following the decision in Shout Rock Cafes Pty Ltd v City of Port Phillip & Anor [2022] VSC 615.
Key takeaways:
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When making building orders and building orders for minor work under sections 111 and 113 of the Act building surveyors are not limited to only being able to order “building work” and “protection work” as “required by the regulations” to be carried out.
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A building order for minor work cannot be used to restrict access, use or occupation of a building or part of a building. Such power is confined to an emergency order under section 102 of the Act or a building order under section 111 of the Act.
We have set out a further summary of the determination below.
What is this case about?
The Supreme Court decision
This case was an appeal from the Building Appeals Board decision in Shout Rock Cafes Pty Ltd v City of Port Phillip & Anor [2022] VSC 615, and concerned the operation of a building order for minor work issued by the Municipal Building Surveyor of the City of Port Phillip under section 113 of the Act.
In summary, the Court determined that:
- the building order for minor work, which operated to restrict access to a balcony and outdoor area, was void as the works orders were not “required by the regulations”; and
- section 113 (and section 111(5)) should be read to provide that the “building work” and “protection work” must be building work and protection work “required by the regulations”.
The Appeal
In City of Port Phillip v Shout Rock Cafes Pty Ltd & Anor [2023] VSCA 327, City of Port Phillip (Council) sought leave to appeal the earlier decision of the Supreme Court including on the following ground:
The primary judge erred in holding that the phrase ‘building work, protection work or other work required by the regulations’ in s 113 of the Building Act 1993 (Vic) should be read conjunctively such that the words ‘building work’ and ‘protection work’ are qualified by the words ‘required by the regulations’, rather than being interpreted as simply bearing their meanings as defined in the Act.’[1]
The determination
The Court of Appeal, after setting out at length the principle purposes and objectives of the Act, and the purposes of the Building Regulations, agreed with Council’s position that, in summary, restraining the power of a municipal building surveyor and building surveyors to only be able to order “building work” and “protection work” as “required by the regulations” did not achieve the purposes of the Act and would prevent orders being made to rectify specific situations not covered by the regulations (which if of themselves do not “require” work but set standards for building work).[2]
The Court of Appeal determined:
- section 113 (and 111(5) introduces a third category of work which may be the subject of a building order for minor work (and a building order), being “other work required by the regulations to be carried out”;
- that the construction of sections 113 and 111(5) Act which would limit “building work” and “protection work” to only work which is “required by the regulations” is not to be accepted; and
- such construction is necessary in consideration of “…the provisions of s 106 giving effect to the safety hazards objective of the Act, the need to give s 111(5) full force and effect, and the need to avoid anomalous outcomes.”[3]
What this means
It follows that municipal building surveyors and building surveyors can proceed with certainty when issuing building orders and building orders for minor work requiring building work and protection work that they determine reasonably necessary, and specific to the circumstances – including requiring the demolition of building work undertaken without, or in contravention of, a building permit.
Full decision
The full decision can be access HERE.
Contact us
Should you wish to discuss the impact of the decision in City of Port Phillip v Shout Rock Cafes Pty Ltd & Anor [2023] VSCA 327 please contact the Local Government team at Beck Legal on (03) 5445 3333.
[1] At [13].
[2] At [102].
[3] At [103].