Obtaining injunctive relief under the Building Act 1993 (Vic), even after a successful prosecution may not bring about compliance.
The recent Supreme Court judgment of Carson v Turner & Ors  VSC 427 (Judgment) has the potential to raise issues regarding the enforcement of building orders.
In particular, the decision means that property owners who are the subject of court orders, including injunctions, based on building orders may nullify the effect of those court orders by challenging the original building order in the Building Appeals Board (BAB).
In September 2014, at the Latrobe Valley Magistrates’ Court, the Accused, Warren and Diane Turner (Turners) were found guilty of failing to comply with a building order issued by the Municipal Building Surveyor (MBS) of Baw Baw Shire Council (Council) on 14 February 2013 (Building Order). As part of the sentence the presiding Magistrate made an order pursuant to the then section 253 (now replaced by ss 234E-234J) of the under the Building Act 1993 (Vic) (Act) that the Turners were to demolish and remove the buildings at the subject site within 180 days. The site comprised a number of unoccupied former milk factory buildings. The state of the buildings was such that they presented a danger to those on or near the site in the opinion of the MBS at the date of the Building Order. This included a history of loose cladding material being blow off the site into neighbouring areas.
The Turners did not comply with the section 253 order and between December 2015 and October 2016 further Court orders were made to bring about demolition which were also not compiled with. The Turners were fined and ordered to pay costs.
The Turners unsuccessfully applied for leave to appeal all orders to the County Court. Leave was not granted on the basis that the original September 2014 Court order was out of time to be appealed and that all subsequent orders were not appealable to the County Court. Costs were awarded against the Turners.
Following this the Turners made a request to the MBS for the Building Order to be cancelled due to an alleged ‘change of circumstances’. The changed circumstances were said to include some rectification works and new expert opinions on the state of the buildings. When the MBS did not cancel the Building Order, the Turners filed an appeal with the BAB in May 2017 pursuant to section 142(2)(c) and (d) of the Act.
On 6 June 2017, the Magistrate made further orders requiring the complete demolition of the buildings on the subject site by 31 January 2018. Council being a model litigant, agreed to adjourn the Magistrates’ Court proceeding pending the outcome of the BAB appeal.
The position Council put to the BAB as a preliminary issue was that the appeal was an abuse of process by the Turners. The BAB decided that the appeal did not constitute an abuse process and proceeded to hear the substantive appeal.
On 13 February 2018 the BAB made its determination pursuant to section 149(1)(d)(ii) of the Act (Determination) that:
“the building order is cancelled and the matter remitted to the MBS with the direction to issue a building order…in accordance with the following:” (Direction)
The BAB cancelled the Building Order and directed that a new building order be issued in terms set out in its Direction.
Appeal to Supreme Court
Council applied to the Supreme Court for an order that the Determination of the BAB (broadly speaking) be quashed on the basis that the BAB erred in finding the Turners’ BAB Appeal did not constitute an abuse of process or, alternatively, that the making of the Direction was also defective.
Decision of the Supreme Court
Justice Cameron relevantly held:
- there was no abuse of process in the Turners’ BAB Appeal
, and even if there was, the BAB did not have the power to decide this question.Instead, that is a matter that could only be determined by the Supreme Court if a party applied that court;
- the BAB must consider and determine any appeal before it;
- the BAB has the power to make incidental orders or directions to aid its determinations;
- the BAB Determination was not binding on the Magistrates’ Court because the BAB and the Magistrates’ Court were considering different questions: the Magistrates’ Court could only enforce its previous orders based on the original building order whereas the BAB could consider a change in circumstances and cancel or amend the building order;
- the Direction of the BAB was suggestive in its terms;
- the Direction did not mandate that any revised building order remitted would be made precisely in the terms of the Direction, provided it was made ‘in accordance’ with it; and
- a direction made by the BAB ought not be subject to such severe scrutiny that it encourages an over-technical approach to the interpretation of its orders.
The BAB has a statutory function to ‘consider and determine’ an appeal and has no power to dispose of an appeal without considering it.
While the Judgment does not state so explicitly, an applied practical consequence is that the s253 order (now injunction pursuant to ss234E-234J) based on the original building order in the Magistrates’ Court might no longer be able to be pursued.
This is because:
- it was based upon a building order which has now been cancelled by the BAB;
- there has been a change of circumstances; and
- the Magistrates’ Court does not have a specific statutory power to consider a change of circumstances when enforcing its previous orders based upon the original building order.
Importantly the fines and costs orders made by the Magistrates’ Court against the Turners before the change in circumstances still stand and must be paid by the Turners.
The broader implication is that where an MBS obtains injunctive relief, even after a successful prosecution against an accused, it is open to the person who is the subject of that injunction to have the original underlying building order reconsidered in a BAB appeal on the basis of a change of circumstances. The BAB may then make a finding that initiating order should now be cancelled.
The practical implications of this may be significant.
Please contact our Statutory Building and Prosecution Team should you require any further advice: Ian Pridgeon, Marcus Heath, Daniel Silfo, Caroline Skeoch and Elizabeth Flanagan.
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