Chan v City of Subiaco

Case •

[2017] WASC 134

•

19 MAY 2017

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CHAN -v- CITY OF SUBIACO [2017] WASC 134

CORAM:   PRITCHARD J

HEARD:   25 MAY 2016; SUPPLEMENTARY SUBMISSIONS 24 OCTOBER 2016 & 3 NOVEMBER 2016

DELIVERED          :   19 MAY 2017

FILE NO/S:   GDA 2 of 2016

BETWEEN:   MING CHAN

KEN CHAN
Applicants

AND

CITY OF SUBIACO
Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :MS D QUINLAN (MEMBER)

Citation  :CHAN and CITY OF SUBIACO [2016] WASAT 3

File No  :CC 377 of 2015

Catchwords:

Leave to appeal - Applicable principles - Turns on own facts

Building Act 2011 (WA) - Interpretation - Section 178(2) - Meaning of 'a building licence that was in effect immediately before commencement' - Whether building licence under Local Government (Miscellaneous Provisions) Act 1960 (WA) taken to be a building permit under the Building Act

Legislation:

Building Act 2011 (WA), s 3, s 20, s 29, s 32, s 110, s 112, s 122, s 133, s 153, s 177, s 178, s 179, s 180, s 181, s 182A, s 182, s 183, s 184, s 185, s 186, s 187, s 189, s 190, s 191, s 192, s 193, s 194, s 195, s 198, s 199, s 200, s 201, s 202
Building Regulations 1989 (WA), reg 15, reg 16
Interpretation Act 1984 (WA), s 3, s 19, s 37
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374, s 401A, s 401, s 409A
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 105

Result:

Leave to amend the grounds of appeal granted
Leave to appeal granted in part
Appeal allowed

Category:    B

Representation:

Counsel:

Applicants:     Mr P G McGowan

Respondent:     Mr D P Gillett

Solicitors:

Applicants:     Hotchkin Hanly Lawyers

Respondent:     McLeods Barristers & Solicitors

Cases referred to in judgment:

Allpike v Lang (Unreported, WASC, Library No 9163, 29 November 1991)

Armstrong v Commissioner for Consumer Protection [2014] WASCA 71

Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153

Chan and City of Subiaco [2016] WASAT 3

Chin v Legal Practice Board Western Australia [2009] WASCA 117

City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91

Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60

Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60

Lourey v Legal Profession Complaints Committee [2012] WASCA 112

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

  1. PRITCHARD J:  Since 1999, Mr Ming Chan and Mr Ken Chan (the Owners) have been the owners of land at Nos. 67 ‑ 77 Rokeby Road Subiaco (the Land).  The Land is leased to tenants.  In early 2006, the lessee of Nos. 71 ‑ 75 Rokeby Road (the Lessee) obtained development approval from the City of Subiaco to make alterations and additions to facilitate the use of the existing premises on that part of the Land (the Building) as a restaurant.  In September 2006, the Lessee's builder obtained a building licence (the Building Licence) to undertake those alterations and additions.  The development approval and the Building Licence permitted alterations and additions which were depicted in a plan which was referred to in those documents (the Approved Plan).  One feature of the Approved Plan was that immediately adjacent to the western side of the Building there would be nine car parking bays, including one disabled car parking bay (the disabled parking bay).

  2. In about May 2014, it came to the attention of the City of Subiaco that there was no disabled parking bay at the rear of the Building.  The City initially assumed that signs indicating the location of the disabled parking bay had been removed.  It appears, however, that no disabled parking bay had ever been designated in the car park adjacent to the rear of the Building, and in fact only eight parking bays had been designated immediately adjacent to the western side of the Building. 

  3. The City wrote to the Owners requesting that they rectify the situation. The Owners refused to do so. Eventually, the City issued a building order (the Building Order) to the Owners, pursuant to s 110 of the Building Act 2011 (WA) (the Building Act). The Building Order required the Owners, within 30 days of the service of the Order 'to provide 9 car parking bays, including a disabled car parking bay, to be located adjacent to the western side of the Building in accordance with the Approved Plan'.

  4. The Owners sought a review of the City's decision in the State Administrative Tribunal (the SAT).  The SAT concluded that the Building Order should be varied so that it only required the Owners to provide a disabled parking bay on the western side of the Building, by converting one of the existing eight parking bays into a disabled parking bay (the SAT decision).[1]

    [1] Chan and City of Subiaco [2016] WASAT 3.

  5. The Owners have appealed against the SAT decision, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). They require leave to appeal to do so.[2]  The question of leave to appeal was referred to the hearing of the appeal.

    [2] State Administrative Tribunal Act 2004 (WA) s 105(1).

  6. For the reasons set out below, leave to appeal should be granted, and the appeal should be allowed.

  7. In these reasons for decision, I deal with the following matters:

    1.The relevant factual and legislative background;

    2.The SAT decision;

    3.The grounds of appeal, and the questions of law raised by the grounds of appeal;

    4.Leave to appeal;

    5.The question of law raised by ground 1A of the Grounds of Appeal ‑ the proper construction of s 178(2) of the Building Act; and

    6.Disposition of the remaining grounds of appeal.

  1. The relevant factual and legislative background

The factual and procedural history

  1. In February 2006, the Lessee submitted an application for development approval to convert the existing restaurants and a shop (for which the Building was then used) for use as a restaurant.  The application for development approval, which was in evidence before the SAT,[3] was signed by the Owners. 

    [3] Respondent's s 24 Bundle of Documents, Doc No 1.

  2. On 4 May 2006, the Council of the City granted approval to the Lessee to commence that development.  The approval granted was 'to commence development in accordance with the plans dated 3 April 2006 attached' to the Lessee's application for development approval.[4]  On 22 September 2006, the Building Licence was issued to the Lessee's builder, authorising the erection of the alterations to the restaurant 'as per the application, plans and specifications approved by the City of Subiaco'.[5]  A copy of what appears to be the Approved Plan referred to in the Building Licence (which is described as 'Locality Sketch and Site Plan') was also before the SAT.[6]  The Approved Plan indicated that on the western side of the Building there were to be nine car parking bays, and the most northerly of those bays was designated as a disabled parking bay.

The City's decision to issue the Building Order 

[4] Respondent's s 24 Bundle of Documents, Doc No 2.

[5] Respondent's s 24 Bundle of Documents, Doc No 3.

[6] Respondent's s 24 Bundle of Documents, Doc No 4.

  1. On 9 May 2014, an officer of the City wrote to the Owners to advise that it had come to the City's attention that signage indicating the location of the disabled parking bay had been removed, advising that legislation required that 'an owner of a property must ensure ongoing compliance with both planning and building approvals' and requesting the Owners' co‑operation 'in rectifying this situation, by immediately reinstating the line markings and signage delineating the required designated disabled car parking bay as required by your building and planning approvals'.[7]  The Owners disputed any obligation on their part to rectify the situation, and correspondence between the Owners and the City failed to resolve the impasse. 

    [7] Respondent's s 24 Bundle of Documents, Doc No 5.

  2. The City took the view that it was entitled to issue the Building Order, to stop what was a suspected contravention of the Building Act.[8]  The City issued the Building Order on 20 February 2015.

    [8] Respondent's submissions [3.18].

  3. According to its terms, the Building Order was issued pursuant to s 110 of the Building Act. Section 110 of the Building Act provides that a permit authority (in this case, the City) may make an order, known as a building order, in respect of particular building work, demolition work, or a particular building or incidental structure, whether completed before or after the commencement day for relevant provisions of the Building Act (namely 2 April 2012). ('Building work' is defined in the Building Act and includes the renovation, alteration or improvement of a building or an incidental structure, while a 'building' includes a part thereof, and an 'incidental structure' is a structure attached to or incidental to a building.[9])

    [9] Building Act 2011 (WA) s 3.

  4. A building order may be issued under the Building Act to the builder named on a building permit (if the building permit is in effect), or to the owner or occupier of the land on which the building or incidental structure is located.[10]

    [10] Building Act 2011 (WA) s 110(2).

  5. The Building Order directed the Owners, pursuant to s 112 of the Building Act, to 'provide 9 car parking bays, including a disabled car parking bay, to be located adjacent to the western side of the Building in accordance with the [Plan]' and to do so within 30 days.

  6. Most of the directions which may be given to a person in a building order (and certainly any which might have been thought applicable here) are concerned with preventing or stopping a suspected contravention of the Building Act. The City's position was that the failure to install the disabled parking bay shown on the Approved Plan was a contravention of s 29 of the Building Act.[11] That was because s 29(1) provides that a builder named in a building permit must ensure that the building or incidental structure to which the permit applies is completed in accordance with any plans and specifications specified in any applicable certificate of design compliance, and with the building permit, including each condition that applies to the permit. A 'building permit' is a permit granted under s 20 of the Building Act.[12] 

    [11] Respondent's submissions [3.17].

    [12] Building Act 2011 (WA) s 3.

  7. However, s 29 of the Building Act, on its face, had no application in this case, because no building permit had been granted under the Building Act. Instead, in this case, the builder in question had been issued with the Building Licence pursuant to s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the LGMP Act). As I discuss below, that provision was repealed by the Building Act.

  8. The City's view was that the effect of s 178(2) of the Building Act was that the Building Licence was taken to be a building permit under the Building Act, and that the 'building' or 'building work' had been completed otherwise than in accordance with the Building Licence and with the implied condition of that Licence, namely that the building work be done in accordance with the Approved Plan.[13] 

    [13] Cf City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91 [46].

  9. It is convenient at this point to refer to some aspects of the legislative context in a little more detail.

The legislative background

The legislative regime under which the Building Licence was issued

  1. As I have noted, the Building Licence was issued pursuant to s 374(1) of LGMP Act. Subsection 374(1)(b) of the LGMP Act prohibited a person from amending or altering the structure of a building until that person had submitted to the local government a copy of the specifications of, and a plan which clearly showed, the amendment or alteration to be made; and until the local government had approved that alteration or amendment by issuing a building licence; and unless that person complied with any conditions specified in the licence. A building licence could be issued under s 374(1) subject to such conditions as were specified in it, including any condition limiting the time within which the licence was valid.[14] 

    [14] Local Government (Miscellaneous Provisions) Act 1960 (WA) s 374(1a).

  2. I note that the Building Regulations which were in force when the Building Licence was issued also provided that a building licence would be void if 'the work covered by the licence (the building)' was not substantially commenced within 12 months (subject to any extension of time granted by the local government).[15] Furthermore, the Building Regulations provided that where a licence was issued for the construction of a 'building', that 'building' was to be completed within 24 months of the date of issue of the licence (subject to any different time approved by the local government).[16]  Where that building was not completed within the time prescribed, the local government was entitled to issue a notice to the owner of the building to show cause why the building should not be demolished and removed.[17] 

    [15] Building Regulations 1989 (WA) reg 15(1).

    [16] Building Regulations 1989 (WA) reg 16(1).

    [17] Building Regulations 1989 (WA) reg 16(2); Local Government (Miscellaneous Provisions) Act 1960 (WA) s 409A.

  3. It is also convenient, at this point, to mention the means by which the requirements of a building licence issued under the LGMP Act were able to be enforced. It was an offence to contravene s 374(1) of the LGMP Act.[18] In addition, if a building was constructed, adapted, amended, enlarged or added to in contravention of the LGMP Act, and the work was still ongoing, the local government could serve a notice on the builder to stop all work done in contravention of the Act.[19] Further, if a building was constructed which did not comply with the plans and specifications for that building, or if anything in the construction of the building was a contravention of the LGMP Act, or had been carried out without the requisite permission of the local government, the local government could issue a notice to the builder, or the owner, pursuant to s 401(1) of the LGMP Act, requiring that person to pull down, or alter, the building so as to remove the cause of the objection.[20]  A person issued with such a notice had a right to seek a review by the SAT of the local government's decision to issue the notice.[21]

The transitional provisions in div 1 of pt 16 of the Building Act

[18] Local Government (Miscellaneous Provisions) Act 1960 (WA) s 374(5).

[19] Local Government (Miscellaneous Provisions) Act 1960 (WA) s 401A(1).

[20] Local Government (Miscellaneous Provisions) Act 1960 (WA) s 401(1).

[21] Local Government (Miscellaneous Provisions) Act 1960 (WA) s 401(1), (3).

  1. When the Building Act was enacted in 2011, the provisions of the LGMP Act to which I have referred were repealed.[22] However, s 177 of the Building Act provided:

    Except where the contrary intention appears, the provisions of this Division do not prejudice or affect the application of the Interpretation Act 1984 to and in relation to the repeals effected by section 153(2).

    [22] Building Act 2011 (WA) s 153.

  2. (The provisions of the Interpretation Act which deal with the repeal of legislation include, most significantly for present purposes, s 37 of the Interpretation Act, which is set out at [70] below.)

  3. A number of transitional provisions were enacted, which were, relevantly for present purposes, set out in div 1 of pt 16 of the Building Act. One of those provisions, s 178, dealt with building licences. Given its significance in this case, it is appropriate to set out s 178 in full. It provides:

    (1)In this section ‑

    building licence means a building licence under section 374(1) of the former provisions.

    (2)A building licence that was in effect immediately before commencement day is, on and from commencement day, to be taken to be a building permit on the conditions applying to the building licence immediately before commencement day.

    (3)Despite section 32 a building licence that, under subsection (2), is to be taken to be a building permit, is of no effect if the building work to which it applies is not substantially commenced within 12 months of the date of its issue or review, or such longer period that the permit authority approves on an application under section 32.

    (4)An application for a building licence that had been made, but not decided by the local government, before commencement day is, on and from commencement day, to be taken to be an application for a building permit under section 14 for which the fee mentioned in section 16(l) has been paid.

    (5)A review under section 374AAD(1)(a) or (b) of the former provisions that was started, but not finalised, before commencement day must be dealt with as if the former provisions had not been amended by Part 15 Division 1, and a building licence that is issued or varied as a result of such a review is to be taken to be a building permit on the conditions applying to the building licence on its issue or variation.

  4. The 'commencement day' was 2 April 2012 and the 'former provisions' were the provisions of the LGMP Act which were in force before the commencement day.

The Owners' application for a review by the SAT

  1. A person who is served with a copy of a building order may apply to the SAT for a review of the decision of the permit authority (in this case, the City) to make the building order.[23]  Following their receipt of the Building Order, the Owners made an application for a review of the City's decision to issue the Building Order. 

    [23] Building Act 2011 (WA) s 122.

  1. The SAT decision

  1. When conducting its review of the City's decision to issue the Building Order, the SAT conducted a hearing de novo,[24] exercised such power as the City had to issue a building order, and its decision was to be regarded as, and given effect as, a decision of the City.[25]

The parties' contentions in the SAT

[24] State Administrative Tribunal Act 2004 (WA) s 27(1).

[25] State Administrative Tribunal Act 2004 (WA) s 29(1), 29(5).

  1. The case advanced by the Owners in the SAT was that they did not carry out the development of the Building, were not issued with the Building Licence, had had no dealings with the builders or the architects involved, and knew nothing of the requirements in respect of the parking bays adjacent to the Building until the matter was drawn to their attention by the City.  Their submission, therefore, was that they were not responsible for what occurred, and that it would be 'grossly unfair'[26] to issue a building order to them so long after the event.  They submitted that the Building Order should be issued to either the Lessee which had obtained development approval, or to the current occupier of the Building.[27]

    [26] Chan and City of Subiaco [2016] WASAT 3 [15].

    [27] Chan and City of Subiaco [2016] WASAT 3 [15] ‑ [16].

  2. The City's position was that a building order could not be issued to the builder as the Building Licence was no longer in effect, and that it would be an abuse of process to issue a building order to a builder where the builder had no present right of access to the site.  The City's position was that the correct and preferable decision for the SAT was to confirm its decision to issue the Owners with a building order because they had authority and control over the Land, they derived benefit from the Land, there was a public interest in ensuring building works were completed in accordance with a building licence - especially where there is a specific public benefit such as a disabled parking bay - and the installation of the disabled parking bay would be inexpensive and relatively easy.[28]

The SAT's conclusion in relation to the application of the Building Act

[28] Chan and City of Subiaco [2016] WASAT 3 [19] ‑ [20].

  1. The learned Member noted that the Building Licence was issued under the LGMP Act, and considered the operation of the transitional provisions in the Building Act, including s 178(2) of that Act. The learned Member did not give the construction of s 178(2) any detailed consideration, probably because the application of the Building Act was not a matter in dispute between the parties at that stage. Instead, the learned Member summarised the operation of s 178(2) of the Building Act as being that 'a building licence is taken to be a building permit on the conditions applying to the building licence',[29] and thereafter in her reasons she simply equated the Building Licence with a building permit under the Building Act.

    [29] Chan and City of Subiaco [2016] WASAT 3 [21].

  2. The learned Member then went on to consider whether a building order could issue in this case, on the basis that there had been a contravention of s 29(1) of the Building Act, as the City contended. In considering whether a building order could be issued to the builder in this case, the learned Member considered whether the Building Licence was still in effect.

  3. The Building Licence contained terms which referred to the time limits under the Building Regulations within which the building work it authorised had to be undertaken. It provided that the Licence would be void if the work covered by it was not substantially commenced within 12 months of the date of issue of the Licence. It also referred to the fact that buildings which were incomplete at the end of 24 months would be required by the Council of the City to be completed within a time stated in a notice, or would be demolished unless sufficient reason could be shown for non-compliance.[30] It does not appear to have been in dispute in the SAT that the alterations permitted by the Building Licence had been completed at some earlier point, proximate in time to the issue of the Building Licence (and presumably within two years of the issue of the Building Licence), and thus several years before the Building Act was enacted.

    [30] Respondent's s 24 Bundle of Documents, Doc No 3.

  4. The learned Member expressly found that the Building Licence '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'.[31] That was a finding which was apparently based on a consideration of the application of both the provisions of the Building Act, and of the Building Regulations which were in force under the LGMP Act. That finding was not subject to any challenge in this appeal.

    [31] Chan and City of Subiaco [2016] WASAT 3 [25].

  5. The learned Member then concluded that a previous contravention of s 29 of the Building Act by a builder (which occurred long before the application of the Building Act) was capable of forming the basis for the issue of a building order pursuant to s 110 of the Building Act, directed to an owner or occupier, and notwithstanding that the building permit (in this case, the Building Licence) had expired.[32]

    [32] Chan and City of Subiaco [2016] WASAT 3 [27].

  6. The balance of the learned Member's reasons for decision proceeded on the basis that it was open to the City to have issued a building order in the circumstances, and thus focused on what was the correct and preferable decision at the date of the hearing in all of the circumstances.  In the latter respect, the learned Member considered whether a building order should be directed to the Owners, and what the terms of that building order should be.

The SAT's conclusion as to whether a building order should be directed to the Owners in this case

  1. The learned Member noted that as the Building Licence was no longer in effect, the builder no longer had any right to enter onto the land, and she accepted the City's submission that it would be an abuse of process to issue a building order to the builder in those circumstances.[33] 

    [33] Chan and City of Subiaco [2016] WASAT 3 [25], citing Allpike v Lang (Unreported, WASC, Library No 9163, 29 November 1991) 30, 31.

  2. The learned Member also concluded that it would not be appropriate to issue a building order either to the Lessee (as it was no longer an occupier of the Building) or to the current occupier of the Land (as it was not the occupier who undertook the building work pursuant to the development approval).[34] 

    [34] Chan and City of Subiaco [2016] WASAT 3 [38].

  3. The learned Member concluded that the correct and preferable decision was that a building order should be issued to the Owners.[35]  In reaching that conclusion, the learned Member had regard to the following matters.

    [35] Chan and City of Subiaco [2016] WASAT 3 [39].

  4. First, the learned Member found that the Owners were aware of the application for development approval in that they signed and consented to that application (which included a site plan showing a disabled parking bay).  The learned Member accepted that the Owners were not aware of the details of the application for the Building Licence, and its approval.  However, she noted that once a development approval was granted, it was not necessary for owners to be involved in the application for a building licence.[36]

    [36] Chan and City of Subiaco [2016] WASAT 3 [29] ‑ [30].

  5. Secondly, the learned Member accepted that the Owners did not undertake the work associated with the development, and thus that they had not, themselves, contravened s 29 of the Building Act. She also noted that a considerable time (some nine years) had elapsed since the non‑compliance had occurred. She accepted that these factors were important, but again not determinative, of the exercise of the SAT's discretion.[37]

    [37] Chan and City of Subiaco [2016] WASAT 3 [31].

  6. Thirdly, the learned Member rejected an argument by the Owners that a building order should not be issued to them because the parking bays adjacent to the Building had all been leased to tenants.  While the learned Member accepted the evidence adduced by the Owners that all of the car bays in the car park were 'either leased to, or are allocated to the various tenants of the building'[38] she found that no evidence had been provided '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.'[39]  Consequently, she concluded that this was not an issue which affected the exercise of the discretion to issue a building order in this case. 

    [38] Chan and City of Subiaco [2016] WASAT 3 [32].

    [39] Chan and City of Subiaco [2016] WASAT 3 [37].

  7. Fourthly, the learned Member also noted that the Owners were obtaining a commercial benefit by leasing out a car bay that was intended to have a public benefit as an allocated disabled parking bay.[40] 

    [40] Chan and City of Subiaco [2016] WASAT 3 [32] ‑ [34].

  8. Finally, the learned Member had regard to the public interest in complying with the relevant building code and the Building Act, and to the fact that there had been a substantive contravention by the builder in not providing nine car parking bays, including a disabled parking bay. She also took into account that the contravention had had an impact on the public, in particular disabled parking bay users.[41]

The SAT's conclusion as to the terms of the building order which should be issued

[41] Chan and City of Subiaco [2016] WASAT 3 [48].

  1. The learned Member then went on to consider the terms of the building order which should be issued.  She noted that the Building Order issued by the City required the Owners to install nine car parking bays, including one disabled parking bay, on the western side of the Building.  However, the learned Member had regard to evidence adduced on behalf of the Owners that requiring nine car bays, including a disabled parking bay, would not be practicable having regard to the size of the car park.[42] 

    [42] Chan and City of Subiaco [2016] WASAT 3 [43].

  2. The learned Member then considered an alternative proposal which had been advanced by the City, namely that the disabled parking bay be installed in the most northerly of the eight existing parking bays adjacent to the western side of the Building.  The evidence suggested that there was sufficient space for a disabled parking bay in that position.  The learned Member accepted this alternative proposal advanced by the City, and concluded that 'it would be appropriate and would not place an unfair burden on the [O]wners'.[43]  Accordingly, the learned Member determined that the Building Order should be varied in this way.

    [43] Chan and City of Subiaco [2016] WASAT 3 [47].

  1. The grounds of appeal, and the questions of law raised by the grounds of appeal

  1. At the commencement of the hearing of the appeal, I granted leave to the Owners to amend their grounds of appeal, so that the grounds of appeal were as follows:

    1.The Tribunal erred in law in making the order when the work the subject of the order was not building work for the purposes of s 110 of the Building Act 2011 (WA);

    2.Alternatively, the Tribunal erred in law in determining that notwithstanding the combined effect of s 29 and s 133 Building Act 2011 (WA), it was open to the Tribunal to make a building order under s 112 of the Building Act 2011 (WA) when the order related to work carried out under a Building Licence issued on 22 September 2006 and, as such, any prosecution for a contravention of the Act in respect of the work was statute barred;

    3.If such an order was not statute barred then the Tribunal erred in law in making the building order since an order under s 112(2)(c) and or s 112(2)(e) Building Act cannot be made against an owner when they were not the holder of the building permit for that work and not the alleged contravener of the Act.

  2. The appeal was initially conducted by the parties on the basis that there was no error by the learned Member in her conclusion that in this case it was open to the City to issue a building order pursuant to the Building Act. Counsel for the City submitted that a building licence issued under the LGMP Act was, by virtue of s 178(2) of the Building Act, to be taken to be a building permit under the Building Act.[44] Counsel for the Owners expressly accepted that a building licence under the LGMP Act was taken to be a building permit,[45] and that the failure to comply with the Building Licence (which was to be treated as a building permit) was capable of constituting a suspected contravention of the Building Act.[46] 

    [44] Respondent's submissions [3.16].

    [45] ts 6 ‑ 8, 12.

    [46] ts 8.

  3. After having heard the appeal, and having reflected on the submissions of the parties, I invited the parties to make further submissions about the application of the Building Act in the circumstances of this case. The parties did so. After those submissions were provided, the Owners sought leave to further amend the Grounds of Appeal to add an additional ground, in the alternative to grounds 1 to 3 of the grounds of appeal. That alternative ground of appeal was in the following terms:

    1A.The Tribunal erred in law in finding that each building licence granted under the Local Government (Miscellaneous Provisions) Act 1960 (WA) is taken to be a building permit for the purpose of the Building Act 2011 (WA) when it should have found that only a building licence that was in force immediately before the 'commencement day' (as defined in s 176 of the Building Act 2011 (WA)) is taken to be a building permit, and, accordingly, s 29 and s 112(2)(e) of the Building Act 2011 (WA) had no application.

  4. The City did not object to the grant of leave in respect of this ground.  Leave should be granted to the Owners to further amend the grounds of appeal to add ground 1A.  For the reasons set out below, ground 1A clearly has merit. 

The questions of law raised by the grounds of appeal

  1. As s 105(2) of the SAT Act provides that an appeal may only be brought 'on a question of law', the first issue requiring consideration on an appeal to this Court from a decision of the SAT is whether the appeal is brought on a question of law.[47] Neither the grounds of appeal nor the Owners' outline of submissions expressly identified the question or questions of law on which the appeal was brought. Having regard to the submissions made by counsel for the Owners at the hearing, it is apparent that grounds 1 to 3 of the grounds of appeal are directed to the question whether, on the proper construction of s 110 and s 112 of the Building Act, it was open to the SAT (and before it, the City) to issue the building order to the Owners, to remedy a suspected contravention of the Act by another party. As the proper construction of a statute clearly involves a question of law,[48] grounds 1 to 3 of the grounds of appeal raise a question of law. 

    [47] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 [17] ‑ [ 33].

    [48] Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60, 79 (Isaacs J).

  2. However, for present purposes, more particular attention is warranted in relation to ground 1A of the grounds of appeal. The supplementary submissions filed by the Owners in relation to ground 1A and the application of the Building Act did not expressly identify the question of law raised by that ground. However, it is apparent that the question at the heart of ground 1A is that of the proper construction of s 178(2) of the Building Act, and whether that subsection had the effect that the Building Licence was taken to be a building permit under the Building Act. That is a question of law.

  1. Leave to appeal

  1. Once it is determined that an appeal raises a question of law, leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so.[49]  Whether it is in the interests of justice to grant leave to appeal will be informed by a variety of considerations, and there are no rigid or exhaustive guidelines governing the grant of leave.[50]  Considerations which may be relevant to that question include the importance of the question of law, whether there is sufficient doubt about the question of law to justify the grant of leave, and whether substantial injustice would result if the error of law were not corrected.[51]  If the order below is final, that injustice will often be more readily discernible.[52]  Leave will not be granted simply because an error of law is alleged, if the error is not a vitiating error (that is, one which might have affected the ultimate decision).[53]

    [49] Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [28] (Murphy JA); Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12] (Pullin & Newnes JJA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] (Buss JA, Wheeler & Pullin JJA agreeing).

    [50] See the authorities discussed in Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [27] (Martin CJ).

    [51] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 ‑ 373 [17] ‑ [18] (Buss JA, Wheeler & Pullin JJA agreeing).

    [52] Secretary, Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 [16] (Phillips JA, Tadgell & Batt JJA agreeing), referred to in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [17] (Buss JA).

    [53] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (the Court); Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [93] ‑ [101] (Mitchell J).

  2. In the present case, I am satisfied that leave should be granted in respect of the question of law raised by ground 1A. The proper construction of s 178(2) of the Building Act does not appear to have been the subject of any previous judicial consideration, and the outcome of the question of law will clearly vitiate the decision made by the SAT.

  1. The question of law raised by ground 1A of the Grounds of Appeal ‑ the proper construction of s 178(2) of the Building Act

  1. The City's view was that on its proper construction, s 178(2) of the Building Act applied to any building licence issued under the LGMP Act, except a building licence which had been rendered void (by reason of the operation of the Building Regulations, which I noted at [20]). The basis for that view was that a building licence granted under s 374 of the LGMP Act did not have any finite term of operation and was rendered void only in the circumstance prescribed in the Building Regulations.[54] Accordingly, the City's submission was that provided that a licence had not been rendered void, that licence would continue to be 'in effect' for the purposes of s 178(2) of the Building Act.

    [54] Respondent's further submissions [12].

  2. The construction of a statute begins and ends with the words of the text.  However, the text must be considered in its context.  That context includes the legislative history and extrinsic materials.[55]  Having considered the text of s 178(2) within its statutory context, including the surrounding legislative provisions, and extrinsic materials, I am unable to accept the City's submission as to the construction of s 178(2).  The construction which I prefer is that s 178(2) applies only to a building licence which, immediately before the commencement day (that is, 2 April 2012) had an ongoing, practical operation as a source of authority to undertake the building work described in the licence.  I have reached that view having regard to the following considerations.

    [55] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 (French CJ, Hayne, Kiefel, Gageler & Keane JJ).

  3. First, in order to determine the meaning of s 178(2), it is necessary to give consideration to the meaning of the phrase 'in effect immediately before the commencement day' in that subsection. Neither that phrase nor its component parts (other than the 'commencement day') is defined in the Building Act. The ordinary meaning of the phrase 'in effect' is to 'be in operation, as a law'[56] and refers to 'the state or fact of being operative or in force'.[57]  The word 'immediately' when used as an adverb means 'without lapse of time, or without delay; instantly; at once'.[58]  The word 'before' means 'in time preceding; previously'.[59]  Accordingly, a reference to a building licence that was 'in effect immediately before the commencement day' is a reference to a building licence which was operative, or in force, without any lapse of time or delay, prior to 2 April 2012. 

    [56] Macquarie Dictionary Online.

    [57] Oxford Dictionary Online.

    [58] Macquarie Dictionary Online.

    [59] Macquarie Dictionary Online.

  4. The critical question for present purposes, however, is what it means for a building licence to be 'in effect' ‑ that is, to be operative, or in force. The answer to that question requires consideration of the legal effect of a building licence. It is apparent from s 374(1) of the LGMP Act that a building licence operated as a source of authority or permission to do something which was otherwise prohibited by the LGMP Act, namely to commence or proceed with a building, or to amend, alter, extend or enlarge a building (building work). In my view, it is also clear from the LGMP Act that it was not intended that a building licence would be a source of ongoing authority to conduct the building work referred to in the licence at any stage in the future. Instead, it was clearly contemplated that the authority to conduct building work, which was granted under a building licence, would operate only for a finite period of time. That that is so is apparent from the fact that the LGMP Act permitted a building licence to be issued subject to conditions specified in the licence, including any condition limiting the time within which the licence was valid.[60] Further, as I noted at [20], the Building Regulations provided that a building licence would be void if the work authorised by the licence was not substantially commenced within 12 months, and, if the building works in question were not completed within 24 months of the issue of the licence, the owner could be required to show cause why the building should not be demolished and removed.

    [60] Local Government (Miscellaneous Provisions) Act 1960 (WA) s 374(1a).

  1. It is clear that the words 'in effect immediately before the commencement day' are words of limitation or qualification. That is, the purpose of the phrase is to identify a category of building licences from within the broader group of all building licences issued under s 374(1) of the LGMP Act (and which are encompassed by the definition of 'building licence' in s 178(1)). If it had been the intention of the Parliament that s 178(2) should apply to every building licence issued before the commencement of the Building Act, it would have been sufficient simply to refer to a 'building licence' as already defined in s 178(1) of the Building Act. Furthermore, if, as the City contends, it was intended that s 178(2) would apply to all building licences issued under the LGMP Act save for those rendered void because the work authorised by the licence was not substantially commenced within 12 months of the date of the issue of the licence, that criterion could have been expressly stated in s 178(2) of the Building Act. Further, the construction of s 178(2) for which counsel for the City contended would have the result that the words 'that was in effect immediately before commencement day' would be left with little or no work to do. It is a fundamental principle of statutory construction that the words used in a statute should not be construed so as to leave them without any operation.[61] 

    [61] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [39] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ) (and the authorities there cited).

  2. Secondly, the legislative context supports the construction of s 178(2) which I prefer. The context in which the phrase 'in effect immediately before the commencement day' appears within s 178(2) itself supports the conclusion that a building licence would be 'in effect' only while it conferred authority to conduct the building work referred to in the licence. That is because a building licence which is subject to s 178(2) will be taken to be a building permit 'on the conditions applying to the building licence immediately before the commencement day'. Such conditions will ordinarily (and, perhaps, necessarily) apply to the performance of the building work which is authorised by the building licence. For that reason, it is to be expected that once that building work is completed, the conditions applicable to its performance would cease to have any ongoing, practical operation. (Of course, the existence of such conditions would still be relevant evidence in any enforcement proceedings.) Consequently, the reference to the application of the conditions 'applying to the building licence immediately before the commencement day' would have no content in relation to a building licence that authorised building work which was completed years before the commencement day for the Building Act.

  3. In my view, s 178(3) of the Building Act also supports the conclusion that s 178(2) was only intended to apply to building licences which, immediately prior to the commencement day, provided a continuing source of authority to undertake building work. The effect of s 178(3) was that if a building licence granted under the LGMP Act was, by virtue of s 178(2), taken to be a building permit under the Building Act, that licence would be of 'no effect' if the building work to which it applies was not substantially commenced within 12 months of its issue (that is, the time period applicable under the LGMP Act and the Building Regulations) rather than the 2‑year period which would otherwise apply under the Building Act.[62] That suggests that the intention of s 178(2) was to bring within the scope of the Building Act only those building licences where the building work was either underway, or yet to be commenced, as at the commencement day.

    [62] Building Act 2011 (WA) s 32(2).

  4. The broader statutory context in div 1 of pt 16 of the Building Act also supports the construction of s 178(2) which I prefer. In addition to s 178, there are a number of other transitional provisions in div 1 of pt 16 of the Building Act. The common thread which can be discerned through those provisions is that they applied to permissions, or to enforcement proceedings, which were in force, made or given, or which had been commenced but not concluded, immediately before the commencement day, or within a short period prior to the commencement day. So, for example, the transitional provisions applied expressly to various forms of permission to undertake building works (in the form of a building licence,[63] demolition licence,[64] building approval certificate,[65] certificates of classification,[66] occupancy permits,[67] or consents[68]) issued or given under the LGMP Act and which were either 'in effect immediately before commencement day'[69] or, in respect of consents, those which were 'given or made'[70] within a short period prior to the commencement day. 

    [63] Building Act 2011 (WA) s 178.

    [64] Building Act 2011 (WA) s 179.

    [65] Building Act 2011 (WA) s 180.

    [66] Building Act 2011 (WA) s 181.

    [67] Building Act 2011 (WA) s 182A.

    [68] Building Act 2011 (WA) s 183, s 184, s 185.

    [69] See Building Act 2011 (WA) s 178 ‑ s 181.

    [70] See Building Act 2011 (WA) s 183 ‑ s 185.

  5. In addition, the transitional provisions also dealt expressly with the impact of the repeal of the LGMP Act on various avenues of enforcement of the LGMP Act provisions, which had begun prior to the commencement day. So, for example, a notice under s 401(1) of the LGMP Act 'which was given to a person before commencement day' was taken to be a copy of a building order served on that person.[71] Similarly, a notice served on a builder pursuant to s 401A(1) of the LGMP Act before the commencement day was taken to be a copy of a building order served on that person.[72] Clearly, the intention of those provisions was that enforcement processes commenced but not concluded under the LGMP Act were able to be continued as if they were the equivalent or comparable enforcement processes under the Building Act.

    [71] See Building Act 2011 (WA) s 190(1).

    [72] See Building Act 2011 (WA) s 191.

  6. Thirdly, if the effect of s 178(2) was that the Building Act applied to any building licence issued at any stage prior to the commencement of the Building Act, then the consequence would arguably be that the Building Act would have a retrospective operation. In the present case, for example, if by virtue of s 178(2), the Building Licence is taken to be a building permit under the Building Act, and if the omission to include a disabled car parking bay was attributable to the builder to whom the Building Licence was issued, then s 29 of the Building Act would appear to have the result that that omission by the builder (which appears to have occurred in 2006 or shortly thereafter) would now constitute an offence under the Building Act. In the absence of a clear statement to the contrary, legislation will be assumed not to have retrospective operation.[73]  This presumption is most strictly applied in the context of provisions which create offences, because of the obvious potential injustice that can arise if conduct which is not an offence at the time it is engaged in is subsequently deemed to constitute a criminal offence.  That statutory presumption strongly militates against the construction of s 178(2) for which the City contended in this case.

    [73] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ).

  7. The construction I prefer would have the result that only building licences which were still operative immediately prior to 2 April 2012 would be taken to be building permits under the Building Act. In other words, the subsection would apply where the building work authorised by the licence had not commenced, or had not been completed as at the commencement day. No question of retrospectivity would then arise in relation to the offence-creating provisions of the Building Act.

  8. Fourthly, given that there is some ambiguity in s 178(2), it is permissible to have regard to extrinsic materials to assist in determining the meaning of that subsection.[74]  However, in my view, those materials do not assist to clarify the meaning of s 178(2).  The second reading speech for the Building Bill 2010 (WA) (the Bill) does not refer to the operation of the transitional provisions in Part 16. And the explanatory memorandum for the Bill regrettably adds to the ambiguity in the meaning of s 178(2) of the Building Act. The explanatory memorandum indicates that:

    The principles used in drafting the transitional provisions have been to:

    •Avoid leaving provisions in the repealed Act with continuing effect under section 37(1) of the Interpretation Act.  If provisions need to have continuing effect they are re-enacted as a part of this Bill;

    •Allow licences, permits and authorities granted under the repealed Act to have effect as if they were the equivalent licences, permits and authorities created under this Bill;

    •Allow processes commenced under the repealed Act to continue under the provisions of the repealed Act, but for the outcome of the process (a licence, a permit or an authority) to be the granting of a licence, permit or authority under this Bill;

    •Extinguish a right obtained under the repealed Act by a public authority (typically a local government) to take or continue enforcement or recovery action.  Where an equivalent right is created under this Bill the public authority is able to commence new action under the new provisions;

    •Preserve a right obtained under the repealed Act by a private individual.

    [74] Interpretation Act 1984 (WA) s 19(1)(b).

  9. These statements are of little assistance because of their generality. While it is apparent that some of the provisions of div 1 of pt 16 of the Building Act do exclude the operation of s 37 of the Interpretation Act, it is also apparent that a complete exclusion of s 37 of that Act is neither effected in, nor intended by, the provisions of div 1 of pt 16 of the Building Act. Indeed, the presence of s 177 of the Building Act confirms that it was contemplated that s 37 of the Interpretation Act would continue to have work to do, except where its application was excluded. Furthermore, throughout div 1 of pt 16, whenever it is intended that the operation of s 37 of the Interpretation Act 1984 (WA) is to be excluded, that is done expressly.[75] In contrast, nothing in s 178(2) expressly excludes the operation of s 37 of the Interpretation Act. 

    [75] See, for example, Building Act 2011 (WA) s 182(1), s 184(3), s 185(3), s 186(2), s 187, 189(4), s 190(7), s 192(6) and (7), s 193(6), s 194(6) and (7), s 195(4), s 198(5) and (7), s 199(6), s 200(4), s 201(5) and s 202.

  10. In relation to clause 178(2) of the Bill (which was in the same terms as s 178(2) of the Building Act) the explanatory memorandum states:

    178(2) gives a building licence issued under the former provisions before commencement day immediate effect as a building permit under [section] 20. (emphasis added)

  11. At first blush, this part of the explanatory memorandum supports the construction of s 178(2) for which the City contends. However, I am unable to place any weight on this part of the explanatory memorandum because it equates the words 'in effect immediately before commencement day' in s 178(2) with the words 'issued under the former provisions'. However, that meaning would apply in the absence of the words 'in effect immediately before commencement day', by virtue of the definition of 'building licence' in s 178(1). In other words, the explanation given for clause 178(2) of the Bill does not attribute any meaning or operation to the words 'in effect immediately before commencement day'. That being the case, I am not persuaded that it adequately explains or encapsulates the meaning and operation of s 178(2) of the Building Act.

  12. Fifthly, underpinning the construction of s 178(2) for which the City contended was the concern that if s 178(2) did not apply to all building licences issued under the LGMP Act (other than those previously rendered void), the effect would be that 'works which do not comply with a building licence carried out prior to the commencement of the Building Act [would be] immune'[76] from proceedings to enforce the requirements of the licence. That submission appears to have overlooked the possible application of s 37 of the Interpretation Act 1984 (WA) to the repealed s 374(1) and s 401(1) of the LGMP Act, in their application to any building licence to which s 178(2) of the Building Act does not apply.

    [76] Respondent's further submissions [25].

  13. Section 37(1) of the Interpretation Act relevantly provides:

    (1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears ‑

    (a)...

    (b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

    (c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;

    (d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;

    (e)...

    (f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,

    and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.

  14. If s 178(2) of the Building Act does not apply to a building licence, then s 37 of the Interpretation Act would arguably operate so that any obligation on a person to comply with the conditions of that building licence, or any liability for any failure to comply with those conditions, which arose by virtue of s 374(1) of the LGMP Act, would not be affected by the repeal of s 374 of the LGMP Act. Further, any 'power'[77] which a local government may have had under s 401(1) of the LGMP Act, to issue a notice to enforce such an obligation to comply, would arguably not be affected by the repeal of s 401 of the LGMP Act. Alternatively, the issue of a notice under s 401(1) of the LGMP Act would arguably be a 'remedy' which a local government could still pursue to rectify non‑compliance with the requirements of a building licence issued under the LGMP Act. Section 37 of the Interpretation Act would arguably operate so that such rights or remedies would continue to be available, notwithstanding the repeal of s 401(1) of the LGMP Act.

    [77] The term 'power' is defined in the Interpretation Act 1984 (WA) s 3 to mean any privilege, authority or discretion.

  15. It is not necessary to determine how s 37 of the Interpretation Act 1984 (WA) would apply in the present case, not least because it was not the subject of any detailed consideration in the parties' submissions, and because the issue may arise for consideration at some future point. It suffices to say that having regard to the construction of s 178(2) which I prefer, I do not see any reason why s 37 of the Interpretation Act would not operate to preserve any obligations, liabilities, rights and remedies which might have existed in relation to the Building Licence, notwithstanding the repeal of s 374(1) and s 401(1) of the LGMP Act.

Conclusion in relation to the application of s 178(2) of the Building Act

  1. As I have noted at [33], the learned Member found that the Building Licence in this case was not 'in effect' immediately prior to the commencement day on 2 April 2012. In my view, that conclusion was correct. On its proper construction, s 178(2) of the Building Act therefore did not apply to the Building Licence. That is, the Building Licence is not taken to be a building permit under the Building Act.

  2. As the Building Licence is not taken to be a building permit under the Building Act, it follows that it was not open to the SAT to have found that the correct and preferable decision was that a building order should issue to the Owners pursuant to s 110 of the Building Act, in the terms determined by the learned Member. In my respectful view, the learned Member erred in law in reaching the contrary conclusion.

  3. Accordingly, ground 1A of the grounds of appeal should be upheld. 

  1. Disposition of the remaining grounds of appeal

  1. I have considered whether to express a view on the other grounds of appeal, which occupied the entirety of the hearing of the appeal. However, as those grounds proceeded on the basis that the Building Act applied in this case, and as that conclusion is quite inconsistent with the view I have reached, it is neither necessary, nor appropriate, to address those grounds.

Conclusion

  1. Leave to amend the grounds of appeal to include ground 1A will be granted, leave to appeal will be granted in respect of ground 1A, ground 1A will be upheld, and the appeal will be allowed. The parties should confer about the form of these orders and any other orders which should be made to give effect to these reasons, having regard to s 105(9) of the SAT Act.


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Chan and City Of Subiaco [2016] WASAT 3
City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153