Chan and City Of Subiaco
[2016] WASAT 3
•21 JANUARY 2016
CHAN and CITY OF SUBIACO [2016] WASAT 3
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 3 | |
| 21/01/2016 | |||
| BUILDING ACT 2011 (WA) | |||
| Case No: | CC:377/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS D QUINLAN (MEMBER) | 21/01/16 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The building order is varied so that it now only requires the provision of a disabled parking bay | ||
| B | |||
| PDF Version |
| Parties: | MING CHAN KEN CHAN CITY OF SUBIACO |
Catchwords: | Building Act 2011 (WA) Building order for owners to comply with plan approved with building licence Building work completed approximately nine years ago Licence issued to builder and occupier not owners Occupier has now changed Order required increase from eight to nine parking bays including a disabled parking bay Correct and preferable decision on review Principles in exercising discretion to issue building order |
Legislation: | Building Act 2011 (WA), s 6, s 29, s 29(1)(a), s 29(1)(b), s 32(2), s 110, s 112, s 112(2)(e), s 122, s 178(2), Pt 16 Building Code of Australia 2006, Pt D3.5, Table D3.5 Building Regulations 1989 (WA), reg 16 Interpretation Act 1984 (WA), s 56 State Administrative Tribunal Act 2004 (WA), s 27, s 29(3), s 32, s 60(2) |
Case References: | Allpike v Lang (unreported, WASC, Library No 9163, 29 November 1991) City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91 Drake and City of South Perth [2005] WASAT 271 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Thomas and City of Stirling [2013] WASAT 110 |
Orders | 1. Upon review of the building order issued by the City of Subiaco on 20 February 2015 concerning land and buildings at Nos 67 77 Rokeby Road, Subiaco, pursuant to s 122 of the Building Act 2011 (WA) and s 29(3) of the State Administrative Tribunal Act 2004 (WA), the Tribunal varies the building order and directs Mr Ken Chan and Ms Ming Chan under s 112 of the Building Act 2011 (WA) as follows:,You are required within 30 days of the date of this decision to provide a disabled parking bay on the western side of the building immediately adjacent to Hay Street in accordance with Australian Standard AS 2890.1 1993 as indicated on the plan attached to this order. |
Summary | The applicants, Ms Ming Chan and Mr Ken Chan, have owned the land at Nos 67 77 (Lots 30 35) Rokeby Road, Subiaco, Western Australia since 1999. During 2006 and 2007, the current occupiers of part of the land, Nos 71 75 Rokeby Road, Subiaco, obtained development approval and then a building licence from the City of Subiaco. The approved plan attached to the building licence showed nine car parking bays, including one disabled parking bay, on the western side of the building. Only eight parking bays were provided and no disabled parking bay.,In exercising this discretion to not order the owners to reconfigure the carpark to now provide nine parking bays on the western side, however to order the owners to convert Bay 8 into a disabled parking bay the Tribunal considered all the facts and circumstances and found:,a) there is a public interest in complying with the Building Code of Australia 2006 and the Building Act 2011 (WA);,b) the substantive contravention by the builder in not providing the ninth parking bay including the disabled parking bay;,c) the fact the owners did not undertake the building work;,d) the 10 year elapse of time;,e) that there is some inconvenience and expense to the owners; however, that is balanced against the benefit the owners have had in leasing a parking bay that perhaps should never have been available for lease; and,f) the impact of the contravention on the public, in particular disabled parking bay users. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING ACT 2011 (WA) CITATION : CHAN and CITY OF SUBIACO [2016] WASAT 3 MEMBER : MS D QUINLAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 JANUARY 2016 PUBLISHED : 21 JANUARY 2016 FILE NO/S : CC 377 of 2015 BETWEEN : MING CHAN
- KEN CHAN
Applicants
AND
CITY OF SUBIACO
Respondent
Catchwords:
Building Act 2011 (WA) Building order for owners to comply with plan approved with building licence Building work completed approximately nine years ago Licence issued to builder and occupier not owners Occupier has now changed Order required increase from eight to nine parking bays including a disabled parking bay Correct and preferable decision on review Principles in exercising discretion to issue building order
Legislation:
Building Act 2011 (WA), s 6, s 29, s 29(1)(a), s 29(1)(b), s 32(2), s 110, s 112, s 112(2)(e), s 122, s 178(2), Pt 16
Building Code of Australia 2006, Pt D3.5, Table D3.5
Building Regulations 1989 (WA), reg 16
Interpretation Act 1984 (WA), s 56
State Administrative Tribunal Act 2004 (WA), s 27, s 29(3), s 32, s 60(2)
Result:
The building order is varied so that it now only requires the provision of a disabled parking bay
Summary of Tribunal's decision:
The applicants, Ms Ming Chan and Mr Ken Chan, have owned the land at Nos 67 77 (Lots 30 35) Rokeby Road, Subiaco, Western Australia since 1999. During 2006 and 2007, the current occupiers of part of the land, Nos 71 75 Rokeby Road, Subiaco, obtained development approval and then a building licence from the City of Subiaco. The approved plan attached to the building licence showed nine car parking bays, including one disabled parking bay, on the western side of the building. Only eight parking bays were provided and no disabled parking bay.
In exercising this discretion to not order the owners to reconfigure the carpark to now provide nine parking bays on the western side, however to order the owners to convert Bay 8 into a disabled parking bay the Tribunal considered all the facts and circumstances and found:
- a) there is a public interest in complying with the Building Code of Australia 2006 and the Building Act 2011 (WA);
b) the substantive contravention by the builder in not providing the ninth parking bay including the disabled parking bay;
c) the fact the owners did not undertake the building work;
d) the 10 year elapse of time;
e) that there is some inconvenience and expense to the owners; however, that is balanced against the benefit the owners have had in leasing a parking bay that perhaps should never have been available for lease; and
f) the impact of the contravention on the public, in particular disabled parking bay users.
Category: B
Representation:
Counsel:
Applicants : N/A
Respondent : N/A
Solicitors:
Applicants : N/A
Respondent : McLeods
Case(s) referred to in decision(s):
Allpike v Lang (unreported, WASC, Library No 9163, 29 November 1991)
City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91
Drake and City of South Perth [2005] WASAT 271
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Thomas and City of Stirling [2013] WASAT 110
Introduction
1 The applicants, Ms Ming Chan and Mr Ken Chan (owners) have owned the land at Nos 67 - 77 (Lots 30 - 35) Rokeby Road, Subiaco, Western Australia (land) since 1999.
2 During 2006 and 2007, the then occupiers of part of the land, Nos 71 - 75 Rokeby Road, Subiaco, obtained development approval and then a building licence from the respondent, the City of Subiaco. The approved plan attached to the building licence showed nine car parking bays, including one disabled parking bay, on the western side of the building. Only eight parking bays were provided and no disabled parking bay.
3 On 20 February 2015, the City of Subiaco, following consideration of the owners' submissions, issued a building order under s 110 of the Building Act 2011 (WA) (Building Act) requiring the owners to provide nine parking bays, including one disabled parking bay, in accordance with the approved plan (building order).
4 Pursuant to s 122 of the Building Act, the owners have sought a review by the State Administrative Tribunal (Tribunal) of the decision of the City of Subiaco to make the building order.
Issue for determination
5 The issue to be determined is: in making the correct and preferable decision, should the Tribunal exercise its discretion to confirm, vary or set aside a building order issued by the City of Subiaco requiring the owners to provide nine parking bays on the western side of the building, including one disabled parking bay, in accordance with the approved plan?
Background facts
6 On 23 February 2006, an application was made to the City of Subiaco for development approval for a change of use of part of the land at Nos 71 - 75 Rokeby Road, Subiaco from 'shop' to 'restaurant' (application for development approval). The application for development approval lodged on 23 February 2006 was not made by the owners; it was made by Mr Murray Kimber of Busen Pty Ltd. However, there is a section of the application entitled 'owner's details' and it is signed by both the owners. The 'Site Plan' that was part of a plan entitled 'Proposed Restaurant Application' attached to the application for development approval and which was approved as part of the development approval shows seven bays, including a disabled bay, on the western side of the building.
7 On 4 May 2006, the City of Subiaco granted development approval for a change of use for part of the land at Nos 71 75 Rokeby Road, Subiaco from 'shop' to 'restaurant' subject to conditions (development approval). Those conditions included the provision of parking bays.
8 On 28 June 2006, an application for a building licence was made by Mr Kimber. The application identifies 'JA Constructions' as the builder. The owners are identified in the application. However, that form only requires the applicant, Mr Kimber, to sign the application.
9 On 22 September 2006, the City of Subiaco issued building licence 6.2006.189.1 authorising building work at Nos 71 - 75 Rokeby Road, Subiaco, principally additions and alterations required for the change of use to a restaurant (building licence). The locality sketch and site plan submitted with the application for the building licence was approved by the City of Subiaco when it issued the building licence (approved plan). The building licence granted on 22 September 2006 was issued to the builder, JA Constructions Pty Ltd. The approved plan that forms part of the building licence was prepared by Oldfield Knott Architects.
10 The approved plan included the provision of nine parking bays on the western side of the building with one of those bays being a disabled parking bay directly adjacent to the bin store. The building work authorised by the building licence was carried out. However, only eight parking bays were provided on the western side of the building and no disabled parking bay.
The proceedings in the Tribunal
11 By orders dated 28 August 2015, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal determined by consent that these proceedings will be determined entirely on the basis of documents. Both parties provided a bundle of documents, a statement of issues, facts and contentions andsubmissions.
12 On 23 October 2015, the Tribunal called a directions hearing in this matter. Pursuant to s 32 of the SAT Act, the Tribunal requested that the parties consider providing further evidence to assist the Tribunal in exercising its discretion to confirm, vary or set aside the building order. In particular, the owners were requested to consider providing evidence in relation to two matters:
1) any practical issues that may arise if they had to increase from eight to nine parking bays, including one disabled parking bay, on the western side of the building; and
2) to support their submissions at paragraphs 11 and 12 that the owners 'do not currently have possession of the parking bay in question. Authority and control of the parking bay in question is with Tonic Enterprises … where all available parking bays have already been leased to various occupiers of the Building, to order that the Applicants install a disabled parking bay will result in a breach of the lease term as well as suffer loss, or, detriment'.
13 The Tribunal made programming orders allowing the parties time to consider whether they wish to provide further evidence and submissions. The parties provided the following to the Tribunal:
a) On 4 December 2015, the applicants provided affidavits of Mr Chris Chan, Mr Peter Keenan and Mr Ronan McDonagh.
b) On 21 December 2015, the City of Subiaco provided a responsive witness statement from Mr Paul Foran.
c) The owners provided further written submissions on 11 January 2016.
14 It was discussed at the directions hearing on 23 October 2015 whether a hearing was now required. However, the parties agreed for the matter to be determined on the documents subject to an order that the parties have liberty to apply before 15 January 2016 to seek a hearing of the matter if they wished to put forward further submissions or cross-examine witnesses. No party has made any such application and the Tribunal has determined the matter entirely on the basis of the documents provided.
The applicant's submissions
15 The owners have provided extensive written submissions. In short, the owners contend that they:
a) did not do the building work;
b) were not issued with the building licence;
c) have had no dealings with JA Constructions Pty Ltd or Oldfield Knott Architects; and
d) knew nothing until recently of the requirement in the building licence for nine parking bays on the western side of the building, including a disabled parking bay.
- Consequently, the owners submit they are not responsible for what occurred and that it is grossly unfair that the City of Subiaco could issue a building order to them so long after the event.
16 The owners also submit that the building order should be issued to either the then occupier, Busen Pty Ltd (namely, Mr Kimber who applied for both the development approval and the building licence) or Tonic Enterprises, the current occupier of part of the relevant land owned by them, being Nos 71 - 75 Rokeby Road, Subiaco.
17 The owners are unrepresented in these proceedings and the Tribunal notes that much of their submissions are misguided as to the law. The owners seek to rely on areas of law that are either not within the jurisdiction of the Tribunal or are simply not relevant. For instance, the owners make submissions concerning waiver, estoppel, laches, unconscionable conduct, Wednesbury unreasonableness and abuse of process. However, whilst much of the owners' submissions are misguided as to the applicable law, many of the matters identified by the owners are relevant facts that will inform the exercise of the discretion by the Tribunal.
18 There are also a number of facts that the owners dispute, or allegations that the owners make, regarding which the Tribunal will not make any findings as they are not relevant to the issue in dispute that requires determination.
The respondent's submissions
19 The City of Subiaco submits that the building contravenes the Building Act in that it has been completed otherwise in accordance with the building licence and the approved plan. Further, a building order cannot be issued to the builder as the building licence is no longer in effect and, in circumstances where the builder presently has no right of access, it would be an abuse of process to issue an order to the builder.
20 The City of Subiaco submits that the correct and preferable decision is to issue the owners with a building order for the following reasons:
a) the owners have authority and control over the land;
b) it is they who derive benefit from the land and the leasing of the parking bays;
c) there is a public interest in ensuring building works are completed in accordance with the building licence, particularly where there is a specific public benefit such as a disabled parking bay; and
d) the installation of a disabled parking bay would be inexpensive and relatively easy.
Statutory regime and principles
21 The building licence was issued under the statutory scheme in place prior to introduction of the current Building Act. Relevant to this decision is that the transitional provisions in Pt 16 of the Building Act, principally s 178(2) of the Act, provide that a building licence is taken to be a building permit on the conditions applying to the building licence. These reasons will use the terms 'building licence' and 'building permit' interchangeably.
22 Section 110 of the Building Act provides as follows:
(1) A permit authority may make an order (a building order) in respect of one or more of the following -
(a) particular building work;
(b) particular demolition work;
(c) a particular building or incidental structure, whether completed before or after commencement day.
(2) A building order must be in an approved form and must be directed to any one or more of the following persons as is appropriate in the case -
(a) if a building permit is in effect for the particular building work, the person named as the builder on the permit;
(b) if a demolition permit is in effect for the particular demolition work, the person named as the demolition contractor on the permit;
(c) a person who is an owner of the land on which the particular building or demolition work is being, or has been, done;
(d) a person who is an owner or occupier of the land on which the particular building or incidental structure is located.
- Relevant to this matter are s 110(1)(a), s 110(2)(c) or s 110(2)(d) of the Building Act. However, the Tribunal does, later in these reasons, give consideration to whether a building order could be issued to other parties under s 110(2) of the Building Act. Pursuant to s 6 of the Building Act, the 'permit authority' is the City of Subiaco, and the Tribunal, when reviewing the issue of the building order, stands in the shoes of the City of Subiaco.
23 Applying the oft quoted principles of statutory interpretation as to literal and grammatical meaning as well as context, the use of the word 'may' in s 110 of the Building Act conveys a discretion on the decisionmaker whether to issue a building order: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 and s 56 of the Interpretation Act 1984 (WA).
24 Section 112 of the Building Act provides as to the content of a building order. Relevant to this matter is that s 112(2)(e) of the Building Act provides that a building order may require a person to whom the order is directed to take specified action to stop a suspected contravention of the Act. The respondent submits that there has been a contravention of s 29(1)(a) and s 29(1)(b) of the Building Act in that the 'building' and/or 'building work' have been completed otherwise than in accordance with the building licence and the implied condition that it must be done in accordance with the approved plan: see City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91 at [46].
25 Section 29 of the Building Act is directed at the person named as the builder on the building permit who must ensure that the building or incidental structure to which the permit applies and the building work all comply with the building permit. In the present case, the building permit is no longer in effect, as the building work was completed many years ago and the building licence in any event expired two years after issue: see s 32(2) of the Building Act and reg 16 of the now repealed Building Regulations 1989 (WA). The builder no longer has any right to enter on the land. The respondent submits that it would be an abuse of process to issue a building order to the builder in these circumstances: see Allpike v Lang (unreported, WASC, Library No 9163, 29 November 1991) decision of Franklyn J (Allpike v Lang) at 30 and 31. The Tribunal accepts the respondent's submissions in this regard.
26 Indeed, Allpike v Lang found that it is also an abuse of process to issue a building order to a former owner or builder who, to the knowledge of the Council, had no power or authority to enter onto the land to do the work required by the order. This was noted at the directions hearing on 23 October 2015 and is why the Tribunal sought that the owners give further consideration to providing additional information (such as copies of leases, redacted if necessary as to commercially confidential terms) as to the owners' right of entry onto the land or otherwise. The owners, as is their right to present their case as they wish, decided not to provide any evidence of that nature to the Tribunal.
27 In considering s 29 and s 110 together, as well as their context in the Building Act, and in particular the fact that s 110 of the Act contemplates that a building order can be issued to owners and occupiers (but not a builder) after the building permit has expired, the Tribunal considers that the contravention referred to in s 112(2)(e) of the Building Act can refer to a contravention of s 29 of the Act, even though the permit has expired. Therefore, the Tribunal considers that a prior contravention of s 29 of the Building Act by a builder is capable of forming the basis for the issue of a building order against an owner or occupier. However, that does not mean that the Tribunal will not take into account in exercising its discretion the fact that the building work which contravenes s 29 of the Building Act was not done by the owners.
28 Although not exhaustive by any means, the following principles or factors can guide or inform the Tribunal in exercising its discretion in the present matter:
a) it is in the public interest that there should be ongoing compliance with the Building Code of Australia 2006 (Building Code) and the Building Act;
b) the extent of the contravention, whether it be technical or substantive;
c) the impact of the contravention on the public, and also in this case a person in need of a disabled parking bay;
d) the factual circumstances in which the contravention has taken place;
e) the time which has elapsed since the contravention; and
f) the expense and inconvenience which would be involved in remedying the contravention.
- See Thomas and City of Stirling [2013] WASAT 110 at [60] - [64] and Drake and City of South Perth [2005] WASAT 271 at [90] - [97].
Should a building order be issued to the owners?
29 The Tribunal finds that the owners were aware of the application for development approval. They both signed and consented to the application for development approval as owners are required to do. The owners assert that they were unaware until recently of the requirement for nine parking bays on the western side of the building, including one disabled parking bay. However, it is noted that the plan attached to the application for development approval shows seven bays, including a disabled parking bay in the drawing entitled 'Site Plan'. This is also the same plan formally approved by the City of Subiaco as part of the development approval. Presumably only seven parking bays are shown for the reasons explored further below concerning the space available for parking bays.
30 The Tribunal finds that the owners were not aware of the details of the building licence application and approval. However, the fact that they were unaware of the building licence and its terms is not determinative of the question whether to issue a building order. The fact they were unaware is a factor in exercising the discretion whether, and in what terms, to issue a building order. This must be weighed up with the evidence that the owners consented to an application for development approval which included a site plan showing a disabled parking bay. Further, the owners probably should have been aware of what follows a development application. The owners consented, as is required, to the application for development approval being made. Once that development approval is granted, the Building Act process which follows does not require owners to be part of the application for a licence/permit.
31 Important to the exercise of the Tribunal's discretion is that the owners did not undertake the work associated with the development approval and the building licence. Simply put, it is not the owners who contravened s 29 of the Building Act. The owners submit that because it is not their fault, they should not be made to rectify the situation. Further, a considerable time has elapsed since this noncompliance with the building licence as it occurred some nine years ago. These two matters are important, but not of themselves determinative, to the exercise of the Tribunal's discretion.
32 The Tribunal accepts the evidence of the property agents, Mr Keenan and Mr McDonagh, as well as Mr Chan (father of the owners), who each have an identical paragraph in their affidavits that '[a]ll the 19 car bays in the car park are either leased to, or, are allocated to the various tenants of the building'. This is an important factor to consider in exercising the discretion whether to issue a building order. However, the Tribunal has been provided with no further evidence of the leasing and allocation arrangements. The owners made submissions as to inconvenience (parking bays are leased and tenants should not be interfered with by landlords) and expense ($1,200 per parking bay per annum), but provided no evidence to support those submissions. In any event, inconvenience and expense is to be considered along with the fact that the owners are obtaining a commercial benefit by leasing out a parking bay that was intended for the public benefit as an allocated disabled parking bay. The Tribunal must also consider that there is a public interest in compliance with the Building Act, the building licence and the approved plan.
33 If there is a lease, or allocation arrangement, in existence which affects the ability of the owners to enter onto the land and do the work under a building order, then this information informs the Tribunal in exercising its discretion in this matter. The owners, despite a request on 23 October 2015 from the Tribunal for them to consider providing copies of the relevant leases or other evidence regarding these leases, have elected not to provide the Tribunal with any substantive evidence or legal submissions as to their authority and control over the land on which the eight parking bays on the western side of the building are located. All the affidavit of Mr Chris Chan (not an owner) provides is an assertion that the premises are leased, without providing any evidence of the existence and terms of the relevant lease/s.
34 The defining feature of a lease is whether the tenant has exclusive possession. The issue of exclusive possession is a question of fact. The mere fact that the owners assert there is a lease is not determinative as to whether a lease (that is, exclusive possession), in fact and at law, actually exists. Further, whilst the evidence provided informs the Tribunal that all the parking bays are leased or allocated to tenants, the Tribunal has not been provided with any evidence of the leasing or allocation arrangements affecting the area of the eight parking bays on the western side of the building. The submissions suggest complicated leasing and allocation arrangements for the eight parking bays but, again, insufficient evidence has been provided to inform the Tribunal.
35 Pursuant to s 32 of the SAT Act, the Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit. Not being bound by the rules on admissibility of evidence does not displace the importance of the provision of evidence to the Tribunal. The Tribunal's general practice and procedure in s 32 of the SAT Act cannot be utilised to turn assertions into evidence or for the Tribunal to make inferences where insufficient evidence has been provided to support such an inference.
36 The Tribunal is mindful that the owners are unrepresented litigants in this matter. Whilst the Tribunal sought to provide procedural assistance at the directions hearing on 23 October 2015, ultimately it is for the owners to present their case.
37 The Tribunal accepts the evidence presented by the owners that all of the parking bays are either leased or allocated to tenants. However, no evidence has been provided to the Tribunal as to limitations, if any, that those leases and allocations may impose on the owners' ability to enter the land and undertake work as required under the building order. Accordingly, the Tribunal must now infer that this is not an issue which affects the exercise of its discretion to issue a building order.
38 It is the Tribunal's view that under s 110(2)(a) of the Building Act, in circumstances where the building licence is no longer in effect, a building order cannot be issued to the builder. The Tribunal has not considered the issue as to whether s 110(2)(c) or s 110(2)(d) of the Building Act applies here and whether the building order could have been issued to either the then occupier or the current occupier. This is because the Tribunal is of the view that it is not appropriate to issue a building order either to Busen Pty Ltd, as it is no longer an occupier, or to Tonic Enterprises, as it is not the occupier who undertook the building work under the building licence and development approval.
39 In weighing up the matters identified and in accordance with the reasons outlined herein, the Tribunal is of the view that the correct and preferable decision is that a building order should be issued to the owners.
The terms of the building order
40 The next consideration for the Tribunal is the terms of the building order. The building order issued by the City of Subiaco required the owners to install nine parking bays, including one disabled parking bay, on the western side of the building.
41 The owners and the City of Subiaco have both provided evidence as to the practical implications of providing nine parking bays. The owners provided affidavits of Mr Chan, Mr Keenan and Mr McDonagh. The affidavit of Mr Chan attaches a report from a licensed surveyor, Mr Bill France, which includes an existing carpark survey and a proposed carpark survey. The City of Subiaco provided a witness statement from Mr Foran in response to affidavits provided by the owners.
42 Consideration of the affidavits and the witness statement of Mr Foran reveal that it is agreed that, even though the building licence approved plan shows a total of 22 parking bays, only 19 bays have been installed. An 'aisle width' is the distance between two rows of parking bays. If 22 parking bays were now installed in accordance with the approved plan (which is not what the building order requires) then the aisle width for a large part of the carpark would be only 3.969 metres rather than the current predominant aisle width of 5.105 metres. Mr France suggests that this reduced aisle width is problematic for pedestrian access to the rear of all tenancies and makes it difficult to manoeuvre a vehicle in or out of parking bays. Mr Foran concedes it may be difficult to manoeuvre a vehicle in or out of parking bays with an aisle width of 3.969 metres but is of the view that it is not impossible.
43 Based on the evidence provided, the Tribunal is of the view that the altering of the area occupied by the eight parking bays on the western side of the building to accommodate nine parking bays, including one disabled parking bay, would not be appropriate in the circumstances. Such alterations would unfairly affect the use of the premises as well as the movement of vehicles and pedestrians. Further, such alterations would also place an unfair burden on the owners and occupiers who did not undertake the original building work which did not comply with the building licence.
Alternative proposal
44 Mr Foran suggested an alternative proposal if his opinion was not accepted that precise compliance with the approved plan can and should be ordered. Mr Foran suggested that a disabled parking bay could be installed in place of the existing Bay 8 identified in Mr Chan's affidavit. Bay 8 is the closest parking bay on the western side of the building to Hay Street. Mr Foran's measurements indicate that there is sufficient space for a disabled parking bay. This is also applying the relevant Australian Standard (AS 2890.1-1993) for a disabled parking bay when it is located alongside a walkway. Mr Foran notes that if Bay 8 was converted to a disabled parking bay, the number of parking bays available at the locality would still satisfy the relevant planning approval, which only required 18 parking bays. Mr Foran was unable to explain why the building licence approved plan shows 22 parking bays.
45 Mr Foran provided evidence that at the time the building licence was issued, the Building Code's Class 2 to 9 Buildings: Volume 1 classified the building as a Class 6 building (café, restaurant, bar). Under the current applicable Building Code, the building remains a Class 6 building. Pursuant to Pt D3.5 and Table D3.5 of the Building Code, the number of disabled parking bays required for a Class 6 building was one parking bay for every 50 bays or part thereof.
46 The owners object to any proposal to amend the building order and submit that any such amendment would be an abuse of process at this late stage in this proceeding. The Tribunal does not accept this submission. Firstly, this is not at a late stage. This suggestion was made by Mr Foran in his witness statement in response to the applicant's further evidence, all of which were programmed by the Tribunal at the directions hearing on 23 October 2015. Pursuant to s 27 of the SAT Act, this is a hearing de novo, and the purpose of the review is for the Tribunal to produce the correct and preferable decision at the time of the Tribunal's decision. Pursuant to s 29(3) of the SAT Act, the Tribunal may affirm, vary or set aside and substitute its own decision.
47 The Tribunal accepts Mr Foran's suggestion. The Tribunal is of the view that the correct and preferable decision on review is that it would be appropriate and would not place an unfair burden on the owners (and occupiers) for the owners to convert Bay 8 into a disabled parking bay as suggested by Mr Foran. This number of parking bays would satisfy the development approval for the number of parking bays and the requirements of the Building Code for one disabled parking bay, as well asAS 2890.1-1993 for the configuration of the disabled parking bay.
Conclusion
48 In coming to this decision - to not order the owners to reconfigure the carpark to now provide nine parking bays on the western side of the building, however to order the owners to convert Bay 8 into a disabled parking bay - the Tribunal has considered all the facts and circumstances outlined above. In particular, the Tribunal has considered:
a) there is a public interest in complying with the Building Code of Australia 2006 and the Building Act 2011 (WA);
b) it was a substantive contravention by the builder in not providing the ninth parking bay, including the disabled parking bay;
c) the owners did not undertake the building work and were not involved in the contravention;
d) it has been approximately nine years since the building work had been completed;
e) there would be some inconvenience and expense to the owners, however, that is weighed against the benefit the owners have had in leasing a parking bay that perhaps should never have been available for lease; and
f) the contravention has had an impact on the public, in particular disabled parking bay users.
Orders
49 Accordingly, the Tribunal makes the following order:
1. Upon review of the building order issued by the City of Subiaco on 20 February 2015 concerning land and buildings at Nos 67 - 77 Rokeby Road, Subiaco, pursuant to s 122 of the Building Act 2011 (WA) and s 29(3) of the State Administrative Tribunal Act 2004 (WA), the Tribunal varies the building order and directs Mr Ken Chan and Ms Ming Chan under s 112 of the Building Act 2011 (WA) as follows:
You are required within 30 days of the date of this decision to provide a disabled parking bay on the western side of the building immediately adjacent to Hay Street in accordance with Australian Standard AS 2890.1-1993 as indicated on the plan attached to this order.
- I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
_________________________________
MS D QUINLAN, MEMBER
Annexure A
5
5