Demolition appeal at court

The validity of orders relating to the demolition of buildings on the former Bonlac milk factory site in Warragul came under scrutiny during an appeal hearing in the Supreme Court on Friday.

Justice Joanne Cameron has reserved judgment on the matter after hearing submissions from counsel for Baw Baw Shire and Warren and Diane Turner in Melbourne.

The appeals hearing related to an outstanding demolition order for buildings at 121 Queen St and a Building Appeals Board decision that instructed council to issue a new building order.

Mr and Mrs Turner presented a new report to the BAB in December last year, claiming “changed circumstances” in the condition of buildings on the site.

The BAB determined council’s original order on the property should be cancelled. The BAB required a new building order be issued that addressed a number of issues including asbestos and the safety of the boiler house and brick chimney.

Council appealed the BAB decision to the Supreme Court, claiming its decision was an abuse of power and had no authority over the matter.

In court on Friday, Queen’s Counsel for the shire Peter Hanks said there had been an “abuse of process” in the BAB’s consideration of the matter when there was already a magistrates’ court order

Mr Hanks said the series of events surrounding the matter had unfolded over the past six years, with a number of changes in legislation, since the shire’s Chris Carson first issued a building notice on the Turners in October 2012.

He said the Turners were found guilty in the Latrobe Valley Magistrates’ Court in September 2014 for failing to comply with the order.

Mr Hanks said a court order instructing them to demolish all buildings on the site had not been complied with.

By taking it to the BAB, Mr Hanks said the Turners sought to cancel all previous building orders and court orders relating to the demolition.

Mr Hanks told Justice Cameron she had to determine whether the BAB had the power to make an adjudication on the matter.

“On the one hand you have provisions that give powers to the court to make those orders and also provisions that permit the board to carry out a review function.

“There must be some way of reconciling the functions of the court and the functions of the BAB,” he said.

Mr Hanks said the BAB’s decision undermined the powers of the court.

“Our submission is that the court (Supreme Court), in its supervisory role, can correct that process. The court can correct what has happened by quashing the board’s decision,” he said.

Mr Hanks said the Turners were given a court order and instructed to take certain steps towards the demolition of the buildings. He said taking it to the BAB was “an affront to the course of justice.”

Representing the Turners, QC Jason Pizer said the BAB was assessing an appeal on its merit and passed down its decision based on the material presented to it.

Mr Pizer said the board did not have the power to “dispose of the appeal” when the Turners presented new evidence and changed circumstances.

He said the board was considering whether there was a change of circumstances in the building order issued in 2013.

Mr Pizer said the magistrates’ court held enforcement powers, not the power to cancel.

“All the court did was determine whether a breach of that order had occurred. There was no power for the court to cancel a building order.

“The change in circumstances is not a matter for the court. The Turners are not asking to set aside the court enforcement but whether it should be set aside because of the change of circumstances.

Mr Pizer said the BAB, when handing down its decision, stated “the Turners, like any owner, has a statutory right to seek the building order be amended if there has been a change or circumstances.”

Mr Pizer said the shire claimed too late there had been an abuse of process, saying it had an opportunity during a merit hearing with the board.

He said the board’s decision had given Mr Carson the discretion to issue a new building order with certain conditions.

“The board did not contemplate the site would remain unoccupied forever. It would remain unoccupied until a surveyor certified the site was fit for occupation.

“The board was saying identify any hazards and do what is needed to remedy those hazards,” he said.

The BAB will make a written submission to the court to be considered by Justice Cameron before she hands down her decision.