On 22 May 2015, Magistrate Gwynn made her decision in Victorian Building Authority v Westmoreland. The matter concerned the prosecution of Mr Westmoreland for constructing a timber structure (hoarding) affixed to the brick wall along the boundary of the property at 2-78 Bouverie Street, Carlton without a building permit.
On March 28 2013, the brick wall collapsed during high winds killing three people. The site was owned by Grocon Square Developments Pty Ltd, who engaged Aussie Signs to erect the hoarding with the intention that it would be affixed with signwriting and act as a sign. Aussie Signs engaged the accused to erect the hoarding. The accused physically performed the work together with two others employed by him. Aussie Signs later arranged for the signwriting.
In defending the matter the accused raised two arguments. Firstly, he said he’d mistakenly assumed a building permit had been obtained and also that it was not his responsibility to obtain a building permit given the arrangement under which he’d been engaged. He said it was either for Aussie Signs or the owners to obtain any necessary building permit. In considering this argument, the court considered whether s 16 of the Building Act was a ‘strict’ or ‘absolute’ liability offence. That is, were mistakes of fact a defence to the charge (ie: strict liability) or was the mere fact that the work was done without a building permit sufficient to establish the breach (ie: absolute liability)?
The court concluded that s 16 of the Building Act is an absolute liability offence. However, it also said that even if it were a strict liability offence, the ‘mistakes’ claimed by the accused were not reasonable in that although he was not obliged to apply for a building permit himself, he was obliged not to carry out the work unless he had determined that a building permit had been obtained. Therefore, even if s 16 was a strict liability offence, the accused would not have a defence in this case.
The second defence raised was that the building work in question was exempted from the requirement for a building permit by Schedule 8 to the Building Regulations 2006 as the hoarding was to be used temporarily for display purposes. The court considered schedule 8 and determined that the work was not exempted from the requirement for a building permit.
Ultimately, the accused was found guilty of breaching section 16(1) of the Building Act. He was convicted and fined $7500. Costs of $26,375 were ordered following agreement by the parties.
The court did not produce a written decision. However, we are currently reviewing transcript of the findings and will prepare a more detailed analysis of the decision which we will distribute in due course.