What is a “building” – Ballina Shire Council v Joblin

In a decision delivered by the Court on Friday 22 July, the Court considered the meaning of “building” in the context of a development control order.

Facts

In the proceedings, Ballina Shire Council (Council) charged Mrs Nellie Genevieve Joblin (the Defendant) with an offence pursuant to section 9.37 of the Environmental Planning and Assessment Act 1979 (EPA Act) for failing to comply with a development control order issued by Council on 19 July 2019 for the demolition of a swimming pool at the property (which was the Order).

The Order was a “demolish works order” and required the Defendant “to demolish or remove a building”. The table of orders in the EPA Act relevantly states:

Schedule 5 Development control orders

 

Column 1

Column 2

Column 3

 

To do what?

When?

To whom?

     

3

Demolish Works Order

To demolish or remove a building

A building—

• requiring a planning approval is erected without approval, or

• requiring approval under the Local Government Act 1993 is erected without approval, or

• is or is likely to become a danger to the public, or

• is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or

• is erected in contravention of this Act.

Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building

The Council were of the view that the swimming pool was a “building” and the Defendant was of the view that it was not.

In determining the matter, the Court was required to decide if the swimming pool is a “building” for the purpose of a development control order under the EPA Act.

What the Court determined with respect to the meaning of “building”

The Court found that, on the evidence before it, the swimming pool was a building and/or structure that fit in the definition of ‘building’.

The Court gave consideration to the following matters in coming to its conclusion:

  1. The definition of “building” in the EPA Act includes “any structure or part of a structure (including any temporary structure or part of a temporary structure)”. Although it is not always appropriate to insert discrete definitions (for example “structure”) into broader wording (such as “building”), in simple terms, the Court considered that “building” as defined includes the construction (or structure) associated with the in-ground pool in this case, which involved excavation, the laying of steel reinforcement and concrete pouring of the pool, in addition to the construction of above-ground level concrete capping.
  2. Although it is clear that “structure” is a wider term than “building”, the question was whether the reference to “structure” in the definition of “building” expands the concept of a “building” to the extent it includes the swimming pool structure.
  3. In Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 (Royal Motor Yacht Club), in determining whether swing moorings constituted a “building” or moreover a structure (in circumstances where the definition of “building” at the time included “any structure or part thereof”), considered that three criteria were relevant:
    1. first, the structure must be of some considerable size or substance;
    2. second, the structure must be sufficiently affixed to land; and 
    3. third, the structure must remain permanently or indefinitely on the land.
  4. In adopting these criteria, the swimming pool was plainly a ‘structure’ in that (based on the evidence):
    1. first, it was of a considerable size and substance in that it involved substantial excavation and associated building or works;
    2. second, it was affixed to and recessed in the land; and
    3. third, it was a structure which will remain indefinitely on the land by virtue of its beneficial addition to the amenities of the land, its design and construction.
  5. All three criteria need to be considered – it is not enough that the pool was “immovable” alone.
  6. In Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, the Court of Appeal was considering whether gates on a property were “buildings” for which development consent was required and had not been obtained, and, having expressed reservations as to whether gates were buildings, cautioned that although the definition of “building” (in that matter) included “any structure or part thereof”, it could not be said that a structure of any kind may not be erected or altered without Council approval:

    It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to things which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. … If read literally the administration of them would in practice be unworkable …

    The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve. This is, of course, a long recognised approach to the construction of statutes; more recently, it has been described as ‘purposive’. …

    In principle, the purposive approach to construction of, for example, ‘structure’ or ‘erect’ would proceed in a manner such as the following. The Court would determine the purposes which the legislature sought to achieve by prescribing that no structure may be erected without council approval. … It would not give to the terms a meaning which had no relevance to the achievement of that purpose.

  7. Given the above judicial commentary, even if it is too simplistic to suggest that the pool is a “structure” and therefore is literally caught in the definition of “building”,  it is appropriate to adopt a purposive construction based upon text, context and purpose of the legislation.
  8. In construing “building”, a meaning which accords with the purpose the legislature intended the provision to achieve, even if that approach may trump an “ordinary” interpretation of the words, is to be preferred (for example, other judgments have identified that planning law is often concerned for matters such as safety and stability of structures, and the word ‘building’ within the Order must be interpreted within the context in which it is used, which exposes the purpose to which it is directed).
  9. Therefore, it was determined that it was consistent with the text, context and purpose to find that the term “building” in the Order was not confined to buildings and structures “erected” (in the sense of erected above-ground) and its purpose is to provide for the regulation of the safe and orderly use of land such that the term “building” in this context would be given a meaning that includes, in the present case, the swimming pool.

What the Court determined with respect to this case

Although Council won the battle regarding the meaning of “building”, it did not win the war.

With respect to the Order, it was unclear whether the document was itself a development control order requiring enforceable compliance, or a form of further notice or warning. As a result, the Court determined that the Order was not expressed in clear and unambiguous language.

The requirement for clear and unambiguous language is well established by the Court, the Court was of the view that the principles and approach which have been consistently and regularly applied by the Court were not followed in the Order. 

As a result, the Court determined that the Order issued was invalid and therefore the proceedings were dismissed.

Important takeaways

  1. Whether a “structure” is a “building” or not depends on the facts of the case.
  2. There is a three-part test to consider when determining whether a “structure” is a “building”.
  3. There are strict rules regarding the requirements for drafting of development control orders, and if they are not followed then the order could be found to be invalid by a Court.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.