Beech v Building Appeals Board [2005] VSC 231
In the Supreme Court of Victoria, Hargrave J discharged an order for review under the Administrative Law Act of a Building Appeals Board determination, holding that a building order requiring an owner to install restraint beams along a party wall did not deprive her of vested property rights and, alternatively, that the Building Act authorised such orders even if they affect property rights, at least where the building surveyor considers there is a danger to safety [1], [35], [62], [63].
What the court decided
Ms Beech owned a single storey brick dwelling which shared a common boundary with the neighbours' property [7]. The building on the neighbours' property was double storey [7]. In late 1996, before Ms Beech became the owner, building works within her property removed certain ceiling joists [10]. The building surveyor of the City of Yarra inspected the party wall at her request because it was bulging into rooms of her building [11]. The neighbours' engineer attributed the bulging to the removal of the ceiling joists and recommended steel restraint beams along the party wall [15], [16]. Her engineer attributed the bulging to structural inadequacies in the arches [19].
The Building Act 1993 binds the Board to act in accordance with natural justice, so its determination was subject to review [2]. On 26 November 2003 the building surveyor, acting under section 111 of the Act, made a building order requiring Ms Beech to install the restraint beams [21]. The Board dismissed her appeal against the building order [5]. On her application under section 158 of the Act, the Board ordered that she bear all of the cost of the neighbours' proposed works [6]. The Board found that the removal of the ceiling joists removed lateral support to the party wall, causing it to become dangerous [27]. On 20 December 2004 Master Wheeler granted Ms Beech an order for review under the Administrative Law Act 1978 [1].
Counsel for Ms Beech gave four reasons why compliance would permanently affect her property rights [31]. They also argued that the Act did not evince an intention to authorise building orders which infringe vested property rights [33]. The council and the neighbours argued that her property rights were unaffected and that, subject to any issue estoppel arguments the neighbours might raise, she remained free to pursue remedies against them [34].
On the first issue, Hargrave J rejected all four of her reasons [36]. The purpose of the building order was to protect life, safety or health, not to rectify the existing encroachment [37]. It had no effect on any common law right Ms Beech may have against the neighbours arising out of the encroachment of the party wall [37]. Her title would remain with her and property in the restraint beams would be hers [38]. The order did not create an easement, though one might arise in the future under the common law if the beams remained indefinitely [39]. The order did not perpetuate any encroachment of the props on the carriageway easement; it made no reference to either, and the props had been erected under the emergency order [40].
In the alternative, his Honour held that the Act authorised the building order even if it did interfere with her property rights [42]. He treated the public safety object in section 4(c) as central to the interpretation of Part 8 [44].
His Honour concluded that Part 8, construed as a whole, expressly and unambiguously authorises any building order the building surveyor considers necessary to protect people using a building which, in the surveyor's opinion, is a danger to the life, safety or health of any person using the building [58]. He accepted the presumption that a statute is not intended to alter common law rights without a clear intention, despite doubts about its strength [60]. Quoting earlier authority, he said that an intention to interfere with fundamental rights, such as property rights, must be "clearly manifested by unmistakable and unambiguous language" [61]. He held that Parliament had so manifested its intention, and that using the presumption to limit the power would defeat the object in section 4(c) [62]. The order for review was discharged and Ms Beech was ordered to pay the costs of the second, third and fourth respondents [63].
Why it matters
On the alternative holding, the presumption against interference with property rights did not cut down the power to make building orders where the surveyor considers a building dangerous [35], [42], [62]. The decision left open any common law remedy Ms Beech may have for the encroachment, but the neighbours flagged possible issue estoppel arguments and the Board's findings and cost order were not disturbed [34], [37], [63]. The decision is that of a single judge, and readers should check the current text of the Act.
Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.