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Editions

Short-stay case returns to Building Appeals Board

08 May 2014

Short-stay case returns to Building Appeals Board Image

A newly-appointed Building Appeals Board (BAB) panel will hear the Watergate short-stay case next month, with a decision expected in June.

Lawyer Ian Pridgeon is chairing the new panel, which also comprises building surveyor Matthew Wright and fire safety engineer Stephen Kip.

On April 7, the Watergate case returned to the BAB for a directions hearing, after being ordered back to the BAB by both the Supreme Court and the Court of Appeal last year.

A different BAB panel originally heard the case in 2012 and found in favour of the City of Melbourne, upholding its decision to issue building orders against owners of short-stay apartments in the Watergate building in 2011.

Watergate is classified as a Class 2 building under the Building Code of Australia and the orders required the owners to comply with building regulations applicable to a Class 3 building (akin to a hotel or boarding house) or to cease trading.

Docklands Executive Apartments operator Paul Salter unsuccessfully appealed the orders at the BAB, but then successfully appealed the BAB decision at the Supreme Court, which sent the case back to the BAB to be reheard.

Before it could return, the council appealed the Supreme Court decision in the Court of Appeals, which led to the same outcome, with the case remitted to the BAB.

At the April 7 directions hearing, Mr Salter’s lawyer Richard Niall contended that the current BAB panel had two issues to resolve.

He said the building orders were “untenable” and subsequently the appeals should be allowed.

He also said he would press for an order for the council to pay the cost of the first BAB appeal.

Mr Niall said the appropriate course of action would be a half-day hearing to allow him to argue why the orders were untenable.

He said the problem with the first BAB appeal was that it proceeded on the fact that short-stay apartments couldn’t be considered Class 2 because the term “dwelling” was used in its definition.

The original BAB panel found that the term “dwelling”, as it was used in the Class 2 definition, did not only refer to the physical characteristics required by building codes but also to a sense of connection between the occupants.

In his Supreme Court determination, Justice Beach said the BAB misinterpreted the building code when it gave the term “dwelling” a temporal requirement.

Speaking at the April 7 directions hearing, council’s lawyer Tim Margetts said: “New facts and material can be relied upon by the board in making its decision.”

He said Mr Salter now managed nine serviced apartments, with another to be added the following week, which he said could be an issue in terms of building classification.

The original building orders were issued in relation to three of Mr Salter’s apartments.

Mr Margetts also said the BAB panel needed to address the safety issues related to the change in occupancy characteristics of short-term residents.

Mr Margetts said orders relating to costs should depend on the outcome of the case currently before the panel.

Following a short adjournment, Mr Pridgeon said the panel proposed to consider the grounds suggested by Mr Niall relating to the “untenable” nature of the orders, because they could deal with the whole proceeding.

Mr Pridgeon said the term of panel member Stephen Kip (who was not present at the April 8 directions hearing) ended in June and therefore the panel would aim to ensure the matter was settled before the end of June.

Mr Pridgeon said the panel would reserve the matter of costs until after a decision had been made and would deal with the matter separately.

The Watergate short-stay hearing has been listed for a full day hearing on May 22.

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