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Council to appeal short-stay decision

02 Jul 2013

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City of Melbourne is appealing the Supreme Court’s decision to return the Watergate short-stay apartment case back to the Building Appeals Board (BAB).

On June 12, council lodged an appeal in the Victorian Court of Appeal against the Supreme Court decision.

On May 30, Supreme Court Justice Beach had instructed the BAB to rehear the case, saying that the board had incorrectly interpreted the Building Code of Australia (BCA).

Justice Beach also ordered council to pay Docklands Executive Apartment operator, Paul Salter’s appeal costs, which are believed to be in the vicinity of $70,000 to $80,000.

Mr Salter had successfully appealed the decision of the BAB to affirm building orders issued by council against short-term operators in the Watergate building in 2011.

Watergate is a Class 2 building according to the BCA but the building orders demanded short-term accommodation operators comply with building regulations applicable to Class 3 buildings such as hotels and rooming houses.

After lodging its appeal, council released the following statement: “The City of Melbourne believes the earlier decision of the Building Appeals Board was correct in determining that the use of the building for this purpose is not permitted under the Building Code of Australia.”

Council has said it will not comment further on the case until the appeal is complete.

According to City of Melbourne’s notice of appeal, it is appealing each of Justice Beach’s orders and is seeking that they be set aside.

The council is seeking that Mr Salter’s Supreme Court appeal be dismissed and that Mr Salter pays the council’s costs.

This is despite the fact that Justice Beach dismissed council’s application for an indemnity certificate with respect to costs on June 3 (see the story on page 2).

The grounds for the appeal provided in the notice of appeal are:

  • The judge erred in law in holding that the BAB misconstrued the BCA, by its finding that Mr Salter’s use of Watergate apartments for short-term commercial accommodation was a permitted use of a Class 2 building;
  • The judge erred in law in holding that the BAB misconstrued the meaning of the word dwelling;
  • The judge erred in law by not taking into account the BAB’s finding of fact that Mr Salter’s use of the apartment was not permitted under Class 2 of the BCA;
  • The judge erred in law by overturning the BAB’s basis for upholding the building orders on the grounds there was no evidence of changed use, when the BAB made a finding of fact that the use of the apartments was most like a hotel;
  • The judge erred in law by failing to take into account a section of the Building Act, which was the basis of the BAB’s decision to uphold the building order; and
  • The judge erred in law by disregarding the BAB’s finding of fact that the apartments’ use for short-term accommodation resulted in a danger to life and safety and therefore was a proper basis for upholding the building order.

Mr Salter said he believed the Supreme Court decision was very clear, well reasoned and an accurate legal interpretation.

“I am confident that the Supreme Court decision will be upheld in the Court of the Appeal,” he said.

The date of the first Victorian Court of Appeal hearing is yet to be scheduled.

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