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Watergate case returns to court

05 Dec 2013

Watergate case returns to court Image

The Victorian Court of Appeals will decide if the Watergate short-stay apartment case should return to the Building Appeals Board (BAB) or if the board’s decision should stand, following an appeals hearing last month.

The hearings are completed and  Docklands News understands the two presiding Supreme Court judges are expected to issue their decision before the end of the year.

In March, the BAB upheld building orders issued by the City of Melbourne to Docklands Executive Apartments operator Paul Salter, who runs short-term apartments in the Watergate building.

The 2011 orders required owners to comply with building regulations applicable to a Class 3 building or to cease trading. Watergate is classified as a Class 2 building.

In May, Mr Salter successfully appealed the BAB’s decision at the Supreme Court, with the case ordered back to the BAB to be reheard.

However, the City of Melbourne appealed this decision and on December 2 Justice Geoffrey Nettle and Justice Robert Osborn heard the case.

Besides many references to precedent law, much of the material presented at both the BAB and Supreme Court hearings revolved around the meaning of the term dwelling, which is used in the definition of Class 2 buildings.

The Building Code of Australia (BCA) defines Class 2 as “a building containing two or more sole-occupancy units, each being a separate dwelling”.

Discussion around the definition of the term continued at the December appeals hearing.

Council’s lawyer Tim Margetts maintained the word had a condition of permanency, while Mr Salter’s lawyer Richard Niall said this was a narrow reading.

Mr Margetts maintained the BAB had made the right decision originally in terms of the way the word dwelling was defined.

The BAB’s determination, issued in March, stated that the panel had formed the view that a dwelling was not defined just by the physical characteristics required by the building code but also by a sense of connection between the occupants.

The panel found that nature of use was a factor a building surveyor considered when classifying a building.

But Mr Niall said there was evidence to suggest that the term dwelling does not have the narrow meaning prescribed.

He said there was no reason to “read down” the term dwelling.

In his submission, Mr Margetts argued that a change in use altered a building’s classification and elicited other requirements under the BCA.

He also said there was evidence of danger due to the change of use.

Mr Niall maintained that where the BCA has sought to regulate short-term accommodation it had done so specifically.

He also said because Class 3 of the BCA dealt with hotels, the approach of council and the BAB was to “shoehorn” anything that looked like a hotel into that category.

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