On 22 May 2015, Magistrate Gwynn made her decision in Victorian Building Authority v Westmoreland (VBA v Westmoreland). The matter concerned the prosecution of Mr Westmoreland for constructing a timber structure (hoarding) affixed to the brick wall along the boundary of the property at 2-78 Bouverie Street, Carlton without a building permit.
Mr Westmoreland was prosecuted for the offence against s 16 of the Building Act 1993 (Act) which provides:
‘A person must not carry out building work unless a building permit in respect of the work has been issued and is in force under this Act and the work is carried out in accordance with this Act, the Building Regulations and the permit.’
On 28 March 2013, the brick wall collapsed during high winds killing three people. The site was owned by Grocon Square Developments Pty Ltd, who engaged Aussie Signs to erect the hoarding with the intention that it would be affixed with signwriting and act as a sign. Aussie Signs engaged JT Hire who then engaged the accused to erect the hoarding. The accused physically performed the work together with two others employed by him. Aussie Signs later arranged for the signwriting.
There was no dispute that the accused carried out the work without a building permit. In defending the matter the accused, Mr Westmoreland, raised two arguments, namely that:
- he had been mistaken as to the need for a building permit and that this was a defence to the charge
- the building work was exempted from the requirement for a building permit by item 6 of Schedule 8 of the Building Regulations 2006.
Mistake about the need for a building permit
First, the accused argued that he had mistakenly assumed a building permit had been obtained and also that it was not his responsibility to obtain a building permit given the arrangement under which he’d been engaged. He said it was either for Aussie Signs or the owners to obtain any necessary building permit. In considering this argument, the Court considered whether the accused state of mind was able to be taken into account when determining whether there had been an offence. This question depends on whether Parliament intended for s 16 of the Act to be a ‘strict’ or ‘absolute’ liability offence.
A strict liability offence is one where an accused can defend the charge if they honestly and reasonably had a mistaken belief about a fact. An absolute liability offence is one where there can be no defence based on a person’s state of mind, so, in the case of section 16 of the Building Act, the mere fact that building work was carried out without a building permit makes the person who carried out the work liable for an offence, regardless of whether or not they knew there was no permit.
It is often difficult to tell from the way a provision is worded whether it is an offence of strict or absolute liability. The courts will look at a number of factors including the intention of the Act as a whole, the amount of the penalty and language of the provision itself.
In this case, the Magistrate considered these factors and concluded that section 16 of the Act is an absolute liability offence. In drawing this conclusion the Court considered that the use of the words ‘must not’ and ‘unless’ within section 16 indicated that absolute liability was intended (although this in itself was not determinative). The Court also considered the primary objective of the legislation, which is stated to protect the safety and health of the people who use buildings and places of public entertainment. Although the Court accepted Mr Westmoreland’s evidence that he would not have carried out the works if he didn’t believe a building permit was in place, it was found that Parliament had intended for s 16(1) to be breached regardless of any consideration about the intention of the person carrying out work. Therefore, the person who carries out the work without a building permit will be in breach of s 16 even if they did not intend to do anything wrong or did not know they were doing anything wrong.
However, the Court also stated that even if s 16 was a strict liability offence, the ‘mistakes’ claimed by the accused were not reasonable in that, although he was not obliged to apply for a building permit himself, he was obliged not to carry out the work unless he had determined that a building permit had been obtained. In his evidence, Mr Westmoreland conceded that he had not asked if he could see the building permit for the work. The Court determined that the accused had not turned his mind to whether or not a building permit was required or had been issued for the works to be carried out.
Therefore, even if s 16 was a strict liability offence, the Court determined that the accused would not have had a defence, as he did not make an honest and reasonable mistake of fact, rather he simply did not turn his mind to whether a permit was required or had been issued.
Schedule 8 exemptions
The second defence raised was that the building work in question was exempted from the requirement for a building permit by Schedule 8 of the Building Regulations 2006.
The accused argued that the sign was exempted by item 6 of Schedule 8 which provides for an exemption from the requirement for a building permit where:
A building used only temporarily for the duration of building work for
- construction purposes, or
- display purposes.
The Court found that the evidence was that the hoarding was built with the intention it be painted to become a sign. Therefore, the only relevant exemption was item 12 in Schedule 8 of the Regulations and item 6 was not relevant. Under item 12, signs are exempted if they are less than 3 metres from a street alignment and do not exceed 1 metre in height; or are more than 3 metres from a street alignment and do not exceed 8 metres in height. Neither of these criteria applied to the hoarding constructed by the accused, therefore item 12 did not apply and a building permit was required for the work.
Notwithstanding that the Court determined item 12 was the only relevant exemption, it did consider whether item 6 could have applied. The Court found that there was no evidence that the hoarding was temporary or ever intended to be temporary, there was no construction being carried out at the site (in that a building permit had not been issued and there was no work being carried out other than the erection of the hoarding), and the hoarding was not for display purposes, but was a sign. Therefore, even if item 6 was relevant, it would not have applied in this case.
The accused was found guilty of breaching s 16(1) of the Act. He was convicted and fined $7,500. Costs of $26,375 were ordered following agreement by the parties.
This decision sets out how hoarding and signs may be treated under the Act and Regulations. It also indicates that s 16 is an ‘absolute liability’ offence and that when carrying out building work, it is incumbent upon the person carrying it out to ensure that a building permit has been issued. Assuming that a building permit is not required or that someone else may have obtained one was not a defence to a breach of s 16 in this case.
The Court accepted that although Mr Westmoreland took no deliberate action to avoid his responsibilities, in saying he relied on others to obtain the appropriate permits, he was found to be guilty as charged, for he had not given specific consideration to the need for a building permit. Magistrate Gwynn highlighted that checking for the existence of a building permit could have easily been achieved through use of the Council registry or through compliance with regulation 317, which sets out that the building permit must be available for inspection at the allotment concerned whilst the permitted work is in progress.
This decision provides useful guidance on these issues but it is not binding on another Magistrate or Court. There is no written decision in this matter which also means that it will be difficult to rely on it or refer to it in other Magistrates Court proceedings.