The recent Building Appeals Board (Board) decision of Keymore Pty Ltd v Brewer  VBAB has provided some guidance on the meaning of item 6 of schedule 3 of the Building Regulations 2018 (Vic) (Regulations).
In particular, the decision means that developers may not be required to obtain a building permit to construct a building used for display purposes and as an office to sell land packages.
On or about 13 September 2018, Keymore Pty Ltd (Applicant) delivered a temporary building office to the subject land (Land) in Officer, Victoria by crane (Building) (Pictured below).
It was constructed in a factory and was a relocatable module.
Following the issuing of a building notice, the Municipal Building Surveyor (MBS) of Cardinia Shire Council (Council) issued a building order on 21 November 2018 which required the removal of the Building which had been constructed without a building permit.
The Applicant in December 2018 filed an appeal with the Board against the MBS of Council making the building order which required the removal of the Building.
The Applicant has associated entities, which own or develop different subdivisions adjacent to the Land relevant to the appeal. The Building was not situated on any land where building work was occurring.
The main ground of appeal advanced by the Applicant was the Building did not require a building permit for its construction as it was exempt under item 6 of schedule 3 of the Regulations.
Item 6 provides:
A building used only temporarily for the duration of building work for:
- construction purposes; or
- display purposes.
The Applicant submitted that it was utilising the Building temporarily, namely for the duration of building work which comprised of the current construction of the retaining walls on subdivided lots, the current and future construction of residential dwellings on lots which have already been purchased and the future construction of residential dwellings on lots which have not been purchased yet, but will be commenced prior to the removal of the display building.
The Applicant also submitted that the display building is being used solely for display purposes, namely the display of land for sale within the estate where building works have occurred or will occur. The public can enter and view displays containing information on the estates.
Further, the Applicant submitted that, where the building work is across multiple sites, a builder should be permitted to have a display building on one site for all of the building sites. The Applicant conceded that some sales occur in the Building but the predominant use was the purpose of displaying land.
The MBS submitted that a movable building had been delivered to the Land and placed on stumps and that the Building is more properly classified as a Class 6 building pursuant to the Building Code of Australia (BCA).
The MBS also submitted amongst other things that the building work referred to by the Applicant was not visible from the Land or relatable to the Land on which the Building is placed and that the exemption provides for building work, being work relating to the Building, extending the boundaries of the exemption is not the intent of the exemption.The Building is labelled ‘Land Sales & Information Centre’ and the sales material suggests it is a sales suite.An ordinary customer would expect to be sold land and the Building should not be considered to be a display of building work, as it simply shows the land for sale.
In relation to item 6 the MBS contended that:
- there is no building work occurring at the Subject Land, where the Building is located;
- there must be a nexus between a building used only temporarily for the duration of building work for display purposes and the building work;
- in order for the exemption to apply, ordinarily, the building work would need to be occurring on the same land as the display building; and
- the act of having land for sale is not building work.
Further, the MBS also submitted that the Board should have regard to section 4 of the Building Act 1993 (Vic) (Act), which includes the protection of the safety and health of people who use buildings.
The Board confirmed that there is more than one possible construction of item 6 and ultimately determined that the Building did fall within the exemption provided by item 6 and therefore quashed the building order made by the MBS.
The Board considered that there needs to be a connection, or sufficient nexus, between the temporal limitation (i.e. ‘for the duration of building work’) and the display purposes meaning that the ‘display purposes’ need to directly relate to the building work that is being undertaken.The Board considered that the purpose of the Building was to display land for sale.
Importantly the Board noted that the requirement that the building work needs to be a discrete body of work (or overlapping work) and not separate intermittent building work reflects the limitation that the Building can only be used for the duration of the building work.The Board confirmed that if the building work is separate, such as the development of separate parcels of land, then the periods when the work is not being undertaken would not be included.
The decision of the Board also confirmed that although it is not necessary for the Building to be on the same allotment as where the building works were occurring, the Board found that there needs to be a reasonable physical proximity or connection between the display building and the building works. In this case, the display building appears to be proximate to the building works which have been displayed.From this it can be assumed that building works occurring in Officer cannot have a display building displaying the building work located in Berwick.
The decision of the Board is not binding and developers should be careful when constructing buildings used temporarily for display purposes.Whether item 6 applies to a building will need to be carefully assessed based on the facts of that particular matter.
A differently constituted Board presented with similar facts may conclude that a similar type building is used as an office to sell land and therefore the item 6 exemption would not apply. It is open for argument that the purpose of display should be interpreted as land upon which building work being built (ie. the inside of an apartment in a large apartment complex), sheds, spas, above ground pools or the like are displayed for the purpose of sale.
In this instance as the Board determined that a building permit is not required the developer is not required to comply with the Act, Regulations or the BCA which includes the provision of access for the disabled, fire safety services and engineering.
Please contact our Statutory Building and Prosecution Team should you require any further advice: Ian Pridgeon, Marcus Heath, Daniel Silfo and Elizabeth Flanagan.
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