The Court held that the power to issue a BOMW is limited to requiring an owner to carry out work that is necessary under the Building Regulations 2018 (Regulations). This may include building work, protection work or other work, but in all instances it must be required by the Regulations. Where no requirement exists under the Regulations, the BOMW cannot require that work to be carried out.

Background

The question before the Court concerned a BOMW issued by an MBS in relation to a balcony structure which had deteriorated. The MBS believed that the situation posed a risk but did not warrant the issuing of an emergency order. The BOMW required the owner to restrict access to the balcony by mechanically fixing shut the doors leading to it.

The owner unsuccessfully appealed to the Building Appeals Board against the issuing of the BOMW and subsequently applied for judicial review before the Supreme Court, contending, among other things, that the Board erred in accepting that the terms of the BOMW complied with section 113 of the Act.

Outcome

The Court held that the BOMW was void because:

• as agreed by the parties, the power in section 113 can only be exercised if one of the circumstances set out in section 106 exist (e.g. non-compliant building work, non-compliant use of the building, emergency equipment not maintained, the building being unfit for occupation or a danger to life, safety or health);
• section 113 can’t be used to achieve the objective of evacuating, vacating, or restricting the use of a building – that should only be achieved via a building order under sections 108-111 (other than where an emergency order is issued);
• when considering whether to issue the BOMW, the MBS should have:
  • asked whether work was required under the Regulations; and if so
  • whether such work was minor.
• section 113 and 111(5) should be read consistently, meaning that building work, protection work or other work can only be required under a building order where that work is required by the Regulations.

Key considerations for Victorian Councils and MBS’

A building order or a BOMW can only require work to be carried out that is work necessary under the Regulations. This is a significant limitation. An MBS may regard certain work as being sensible measures for an owner to take to remedy an issue or make a building or land safe, but those measures cannot be incorporated into a building order or BOMW unless the Regulations (incorporating the National Construction Code) can be shown to require them.

Where an MBS identifies risk to life or property arising out of a building’s condition or use, they should consider issuing an emergency order, which will enable them to specify measures to address that risk, without being tied to requirements under the Regulations.

MBS' will also need to limit BOMWs to address a non-compliance rather than to specify measures to restrict the use of the building, which should be achieved only via an emergency order or via the notice and order procedure in sections 108-111 of the Act.