CORPUS and SHIRE OF BROOME - [2017] WASAT 66

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING ACT 2011 (WA)

CITATION: CORPUS and SHIRE OF BROOME [2017] WASAT 66

MEMBER: MS L EDDY (MEMBER)

HEARD: 12 TO 13 DECEMBER 2016 AND 10 JANUARY 2017

DELIVERED : 2 MAY 2017

FILE NO/S: CC 786 of 2016

BETWEEN: MICHAEL CORPUS
Applicant
AND
SHIRE OF BROOME
Respondent
AND
MINISTER FOR LANDS
Third Party

Catchwords:

Review of decision to make building order - Structures erected on Crown land - Whether applicant is occupier of land - Whether structures in dangerous state or unfit for human occupation - Whether building permit required for structures - Discretion to disapply or modify subsidiary legislation about building

Legislation:

Building Act 2011 (WA), s 9, s 16(b), s 94, s 110, s 110(2), s 111, s 112, s 112(2)(g), s 115, s 122(1)(a), s 123, s 123(3), Pt 8 Div 5
Building Regulations 2012 (WA), reg 41, Sch 4, cl 1, cl 2
State Administrative Tribunal Act 2004 (WA), s 29, s 38

Result:

Application allowed
Building order directed to the applicant set aside
Building order directed to the Minister for Lands affirmed

Summary of Tribunal's decision:

The application was made under s 122(1)(a) of the Building Act 2011 (WA) (Building Act) by Mr Michael Corpus who sought review of the decision of the Shire of Broome to make a building order that was served on him. The building order related to 'unauthorised building works', being 'buildings and/or incidental structures' located on Crown land that was reserved for the purposes of a stock route. Mr Corpus had constructed or erected a number of structures on the reserve land in order to create a camp that he resided at in order to 'keep an eye' on country and to facilitate his protest activities in relation to fracking.
The Shire issued building orders to Mr Corpus as an 'occupier' of the land and to the Minister for Lands as the owner of the land. The building orders directed each of Mr Corpus and the Minister for Lands to demolish and remove all of the structures from the land on the basis that they were erected without any building permit in place and on the basis that the structures were dangerous or unfit for human habitation, contrary to s 112(2)(g) of the Building Act.
The Tribunal determined that Mr Corpus was not an occupier within the meaning of s 110 of the Building Act and therefore set aside the building order issued to him. The Tribunal affirmed the building order issued to the Minister for Lands. The Tribunal was satisfied that a building permit had been required but not obtained prior to the building work involved in the construction or erection of the structures by the applicant. The Tribunal was also satisfied that the structures were structurally inadequate and, in the circumstances, were unfit for human habitation.
Although not strictly necessary for the decision, as the applicant's case substantially focused on a submission that the Tribunal should exercise the discretion in s 123 of the Building Act so as to excuse the applicant from having had to obtain a permit for the building work and to therefore set aside the building order, the Tribunal determined this issue. The Tribunal did not consider that it was possible to make an order under s 123 of the Building Act in this case because it was not satisfied that such an order was required for the purpose of enabling effect to be given to an order of the Tribunal. In any event, the Tribunal did not consider that, even if it were possible, an order of the kind contemplated by the applicant would not have had the effect sought by the applicant. The Tribunal was also not persuaded that the discretion ought to be exercised in the circumstances because of the nature of the structural inadequacies of the structures.

Category: B

Representation:

Counsel:

Applicant:     Ms E Carlean (12 to 13 December 2016) and Mr D Blades (10 January 2017)
Respondent:     Ms A Wood (12 to 13 December 2016) and Mr L James (10 January 2017)
Third Party  :     Ms C Taggart

Solicitors:

Applicant:     Environmental Defender's Office WA
Respondent:     Kott Gunning Lawyers
Third Party  :     State Solicitor's Office

Case(s) referred to in decision(s):

Stock and the Shire of Victoria Plains [2007] WASAT 231

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application under s 122(1)(a) of the Building Act 2011(WA) (Building Act) by Mr Michael Corpus (applicant) who seeks review of the decision of the Shire of Broome (respondent) to make a building order that was served on the applicant on or around 27 May 2016.
The building order related to 'unauthorised building works', being 'buildings and/or incidental structures' located in part of 'Unmanaged Reserve 9697, Vol LR3127 Folio 124 Part lot 278, Great Northern Highway, LaGrange, Western Australia'. The 'buildings and/or incidental structures' were identified in the building order as:
(A)One main building 20 metres long x 3 metres deep and 2.4 metres high, made from round timber, sawn timber and corrugated iron.
(B)One protector wall in front of the main building, 15 x 3 metres, made from round timber, F72 steel mesh and corrugated iron.
(C)One smaller protector wall at the eastern end of the main building 4 x 3 metres and made from Timber, F72 Steel mesh and shade cloth.
(D)Two smaller buildings 3 x 3 metres, made from timber and corrugated iron.
It is further stated in the building order that:
…
c)A search of the Shire of Broome's records has revealed that Building Permits have not been issued for the unauthorised building works.
d) The unauthorised building works are therefore in contravention of the Building Act 2011.
e)The unauthorised building works are reasonably believed by the Shire of Broome to be structurally inadequate and unsuitable for severe storm or cyclonic conditions.
f)In the event of these adverse conditions the unauthorised building works would be considered dangerous to any occupiers of the unauthorised building works or members of the community using the Public Reserve or driving along the Great Northern Highway in proximity to the unauthorised building works.
The building order required the applicant to, within 14 days of the date of the notice, demolish, dismantle or remove the unauthorised building works and remove all materials from the reserve.
A building order in similar terms addressed to the Minister for Lands was served on the Minister for Lands as owner of the land on or about 27 May 2016.
On 7 June 2016, the applicant lodged the current application with the Tribunal.
By order of the Tribunal made on 28 June 2016, the Minister for Lands was joined as a party to the proceedings pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Relevant facts

The relevant facts are largely not in dispute.
The applicant is a member of the Yawuru Community Native Title Claim group. The Yawuru Community Native Title Claim group registered a native title application over specified land located in the northern part of Western Australia. Relevantly to this matter, a Crown reserve within the Shire of Broome, being Reserve 9697, which is Lot 278 on Deposited Plan 240321 Certificate of Title Volume LR3127, Folio 124, (Reserve 9697), is included within the registered Yawuru Community Native Title Claim.
Reserve 9697 is a reserve that was set aside for the purpose of 'Kimberley De Grey Stock Route', but is not subject to a management order. The owner of the land is the State of Western Australia.
At least two trafficable paths exist on that part of Reserve 9697 near where the applicant established his camp. They include:
a)part of the Great Northern Highway; and
b)a track that intersects with the Great Northern Highway about 100 metres from where the applicant's camp is located known as Bohemia Bore Road, also known as the Yulleroo Access Road.
In August 2014, the applicant set up a camp on part of Reserve 9697. Over time the applicant constructed or erected a number of buildings and structures at the camp (structures). The applicant's camp is located approximately 100 metres from the Great Northern Highway and approximately 8 metres from the Bohemia Bore Road.
There is a gate on the Bohemia Bore Road in the vicinity of the applicant's camp that is apparently associated with a pastoral lease held in relation to land in the vicinity. It is apparent from the evidence of Inspector Raymond Briggs of the WA Police that people working on the Roebuck Plains Station and/or for the mining company Buru Energy, have reason, from time to time, to use the Bohemia Bore Road and pass beyond the gate in order to carry out activities arising under their respective operations.
The applicant states that the reason he began to stay at the camp was so that he could look after country, in the context where the applicant was of the view that a mining company had previously conducted fracking activities on country without the permission of the Yawuru people.
This applicant describes what he does at the camp as keeping 'an eye' on country and keeping a record of all traffic that comes through the gate on the Bohemia Bore Road. The applicant says that he stops people from passing the gate on Bohemia Bore Road until he has ascertained that they have the permission of the Yawuru people to go on to country.
Inspector Briggs gave evidence that the WA Police had been called a number of times with complaints between late 2014 and May 2016 that access to Bohemia Bore Road was being denied to various people by the applicant from time to time.
The applicant also uses the camp to:
1)host 'wellbeing' tours every three to four months where he has afternoon tea, shows a film and visitors stay overnight in tents;
2)host members of the applicant's family, in particular his wife, children and grandchildren who visit regularly; and
3)provide a rest stop for visitors passing by travelling along the Great Northern Highway.
In crossexamination the applicant provided further details about the numbers of people that he hosted at the camp over the course of the year. He said that:
1)his family members normally stay the weekends at the camp, arriving on Friday night or Saturday and leaving on Sunday or Monday;
2)over the course of the past two years (as at the time of writing his statement) 40 different families had come to visit, sometimes staying overnight he clarified that some families were comprised of seven to 10 people and they sometimes stayed overnight or a couple of nights;
3)at the last wellbeing tour there was 3540 people in attendance; and
4)in addition to the wellbeing tours, he hosts three to four events throughout the year where there is a morning or afternoon tea 'to celebrate'.
The applicant stated that it was only himself and his family that stayed at the camp during the wet season. He said that visitors did not stay at the camp during that time. The applicant said that he stayed at the camp most of the year and that he would stay at the camp until the weather 'gets really bad' 'when the roof is lifting off the shelter'.
The Tribunal finds, on the uncontradicted evidence of the applicant, that the applicant effectively lives at the camp year round. His close family members visit the camp most weekends. Various other members of the public visit the camp, at the very least six times per year, and likely more often than that. The number of people who might be at the camp is at times up to 35 to 40 people. There is no evidence in contradiction to the applicant's statement that members of the public do not visit during the 'wet season'. However, the applicant and members of his family are at the camp during that time.
Mr Mark Dudley, the Manager of Building Services at the Shire of Broome, gave evidence in relation to the structures that were in place at the camp when he visited in June 2015 and again prior to the hearing in 2016. Mr Dudley observed the structures from the other side of the gate on Bohemia Bore Road, from a distance of approximately 10 to 15 metres away from the various structures. Mr Dudley stated in his witness statement (Exhibit 6, at [7]) that 'from my long standing experience as a building surveyor it was apparent to me that the buildings were constructed in an ad hoc and structurally inadequate manner and not suitable for severe storm or cyclonic conditions'. Further, he said '[t]he method of construction used for the unauthorised structures do not appear to meet any relevant design standard. The timber sizings, spans and fixings were inadequate and the fixing of the roofing was insufficient. Some of the posts appeared OK but the roof beams and batons did not appear to be structurally adequate'. Mr Dudley expanded on these issues during the hearing, explaining, with the assistance of relevant photographs of the structures, where the problems with overlarge spans, insufficient size (and therefore strength) of components of the roof structure and some supporting beams, and insufficient fixing of various elements to each other existed in each of the structures. His evidence was not contradicted by any expert called by the applicant.
The Tribunal finds that all of the structures are not built to any relevant standard and are not structurally sound.
Mr Andrew Douglas Moore, a scientist with experience in geographic information systems and mapping, gave evidence to the effect that the applicant's camp is greater than 50 kilometres from the smoothed coastline. This evidence was not disputed. As a consequence, the applicant's camp is located within wind region B under the Australian Standard 1170.2 (AS 1170.2) 'Wind Actions'. Under this standard, Australia is divided into four wind regions A, B, C and D. Wind regions C and D are described as cyclonic regions. The applicant's camp is not located within a cyclonic wind region. However, it was Mr Dudley's evidence that wind region B is still considered, in terms of building requirements, to be a high wind region.
There was no dispute between the parties, and the Tribunal is satisfied, that the structures at the camp were not constructed, erected or placed on Reserve 9697:
a)by the Minister for Lands;
b)at the Minister's request or direction; or
c)with the approval or authority of the Minister.

Issues

The applicant's case, until the last day of the hearing when closing submissions were made, raised the following issues for consideration.
1)Whether the building order issued to the applicant was defective or invalid because the order itself did not include written reasons as required by s 111 of the Building Act.
2)Whether the structures built at the camp were buildings or structures that required a building permit under the Building Act.
3)Whether there was any basis under s 112(g) of the Building Act to issue a building order on the ground that the structures at the camp are in a dangerous state or unfit for human occupation when it is only in the event of a cyclone that the structures may be in a dangerous state or unfit for human habitation.
4)Whether the Tribunal should exercise its discretion under s 123 of the Building Act to order that a provision of a building regulation or local law does not apply in this case or applies as modified by order of the Tribunal.
During opening, counsel representing the applicant stated that there was a further issue for determination, namely, whether the applicant can be said to have undertaken unauthorised building work when the term 'unauthorised' is not defined in the building order or in the Building Act. It was said that this meant that therefore the applicant cannot know the case he is expected to meet. On questioning by the Tribunal as to whether there was any lack of particularity in the Statements of Issues, Facts and Contentions provided by the respondent, or for any other reason, the applicant required further particularity of the respondent's case before the hearing proceeded, counsel for the applicant denied any such difficulty. Although it was difficult to ascertain with any clarity what was being raised, to the best of the Tribunal's understanding, it seems that the issue is an additional aspect of issue 1 above. That is, whether the building order was defective because at the time of being served with the building order, the applicant could not have been expected to understand the basis on which the building order was issued because of the use of the undefined term 'unauthorised'.
The Minister for Lands raised an additional issue for determination by the Tribunal that was not raised by either the applicant or the respondent. That issue is whether the applicant is an 'occupier' for the purposes of the Building Act and therefore whether he is someone to whom a building order can be directed.
On the last day of the hearing, the applicant was represented by a different counsel. During closing submissions, counsel for the applicant did not make any submissions in relation to issues 1 and 3 identified above, or the additional issue raised by the applicant's then counsel in opening, and also conceded that none of the structures fell within the exemptions from the requirement for a building permit contained in the Building Regulations 2012 (WA) (Building Regulations) and therefore the applicant was required to have obtained a building permit before carrying out the building work involved with creating the structures. The applicant's closing submissions touched on issue 2 but largely focused on issue 4 identified above, in relation to the Tribunal's discretion under s 123 of the Building Act.

Is the building order defective?

As this issue was never fully articulated or developed on behalf of the applicant, and given the conclusion reached in relation to the applicant's status below, it is not appropriate to determine this issue in these proceedings.

Is the applicant an occupier of the land?

Section 110(2) of the Building Act relevantly provides:
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.
There is no dispute that the Minister for Lands is the 'owner' of Reserve 9697 within the meaning of the Building Act.
The term 'occupier' is not defined generally in the Building Act. Rather, it is defined for the purposes of various parts or divisions of the Building Act.
Relevantly to this matter, the term 'occupier' is defined in s 94 of the Building Act, which provides a number of definitions to be applied in Pt 8 of the Building Act. Here, the term is defined as:
occupier, of a place, includes any person who appears to have the control or management of the place[.]
Part 8 of the Building Act relates to 'enforcement' and includes Div 5 Building Orders that contains the provisions that provide for the making of building orders. Thus, the ordinary meaning of the term 'occupier' is extended so as to include a person who appears to have control or management of the place or land in question. This inclusive definition does not exhaustively define the term 'occupier' and so consideration must be given to its ordinary meaning.
The Macquarie Dictionary Online (2017) defines 'occupier' as:
a person having the legal right to reside, or who is residing, in a house, on land, etc.

At law, the term 'occupier' can have a variety of meanings, generally affected by the relevant statutory context.
The LexisNexus Australian Legal Dictionary defines 'occupier' as:
A person physically using or taking up a place on land. Occupation encompasses a degree of control: Donaldson v Bottroff [1965] SASR 145; Wheat v E Lacon & Co Ltd [1966] AC 552; [1966] 1 All ER 582. However, the control need not be that of possession or ownership: Bulong Corporation v Cohn (1901) 3 WALR 74[.]
The explanatory memorandum for the Building Bill 2010 that became the Building Act specified:
[Section] 110(2) requires building orders to be in a consistent form and to be given to the person best able to respond to the order. Where building or demolition work is under way and a building or demolition permit is in place, the most appropriate person will be the builder or demolition contractor named on the permit. Where no permit is in place, or where the builder or demolition contractor is not available, the most appropriate person is the owner, or is some cases, the occupier.
The Building Act renders it an offence for a person who is served with a building order to fail to comply without reasonable excuse: s 115 of the Building Act.
A building order may direct the person to whom the order is directed to do any one or more of the following (s 112 of the Building Act):
(a)to stop all or specified building or demolition work that is being done in suspected contravention of a provision of this Act;
(b)to demolish, dismantle or remove a building or incidental structure that has been, or is being, built or occupied in suspected contravention of a provision of this Act;
(c)to do specified building or demolition work, or alter a building or incidental structure in a specified way, so as to prevent or stop a suspected contravention of this Act;
(d)to cause a building or incidental structure to be evacuated, or remain unoccupied, so as to prevent or stop a suspected contravention of this Act;
(e)to take or not take specified action so as to prevent or stop a suspected contravention of this Act;
(f)to finish the outward facing side of a close wall in a way specified under section 88(3);
(g)if a building or incidental structure is reasonably believed to be in a dangerous state or unfit for human occupation
(i)to conduct a survey of the building or incidental structure;
(ii)to cause the building or incidental structure to be evacuated or remain unoccupied;
(iii)to stop all or specified building or demolition work that is causing or contributing to the state or condition of the building or incidental structure;
(iv)to shore up, fence or otherwise secure the building or incidental structure in a specified way for the protection of persons, of other property or of the environment;
(v)to renovate or repair the building or incidental structure to a specified standard or in a specified way so as to prevent or stop the building or incidental structure from being a danger to persons, to other property or to the environment or to render it fit for human occupation;
(vi)to demolish, dismantle or remove the building or incidental structure;
(h)to take specified action that is reasonably incidental to doing a thing mentioned in any of paragraphs (a) to (g).
Having regard to this context, and to the inclusive definitions of 'occupier' in s 94 of the Building Act, as well as the ordinary meaning of the term, the Tribunal is satisfied that to be an 'occupier' for the purposes of s 110 of the Building Act, a person must have, or appear to have, a legal right of control or management of the land or premises so as to be in a position to be capable of complying with the type of directions that may be imposed by a building order.
In this case, the applicant has, at least at this point in time, no greater rights than any member of the public to go on to, stay on, or carry out building work on Reserve 9697. The applicant holds no lease, licence or any other agreement with the Minister for Lands that conveys on him any right or permission in relation to Reserve 9697. While he is a member of the Yawuru people who have registered a native title claim over land that includes Reserve 9697, that claim has not yet been determined. It has not yet been established whether or not the Yawaru people possess a traditional connection to the land and/or whether any native title rights have been extinguished. The fact that the land is subject to a reserve raises a real question in relation to the potential extinguishment of any native title right.
The applicant had no legal right to build the structures on Reserve 9697 as he did not have permission from the Minister for Lands to do so. He could not now seek to lawfully renovate or upgrade, or indeed demolish, the structures without the permission of the Minister for Lands. In order to obtain a building or demolition permit, the signature of the owner of the land is required. Therefore the applicant could not obtain either permit without the permission of the Minister for Lands: s 16(b) of the Building Act.
While the applicant purports to deny access to his camp and/or to the Bohemia Bore Road from time to time by utilising the pastoral lease gate, the evidence establishes that when this behaviour is reported to the police, the police can take, and have in the past taken, action to stop him from doing so. While the applicant believes he has a right to prevent access onto this part of Reserve 9697, in fact he does not have any such right or power.
At the time of making the building order, the respondent had received extensive submissions from the legal representative of the Minister for Lands which explained that the applicant did not have any control or management of Reserve 9697. The Tribunal is not satisfied that the applicant was someone who the respondent could reasonably have concluded appeared to have the control or management of Reserve 9697, or any part of it. In any event, in considering whether to affirm, set aside, or vary the building order the Tribunal is not satisfied that on the evidence before the Tribunal, the applicant is a person who has, or appears to have, control or management of Reserve 9697 or any part of it.

Status of structures and whether building permit required

There was no dispute, and the Tribunal is satisfied, that no building permit was issued by the respondent in relation to any of the structures. There is no dispute that the respondent is the relevant permit authority under the Building Act with the authority to issue a building permit in relation to any building on Reserve 9697.
There was, until the applicant's change of representation in terms of his counsel on the last day of the hearing, a dispute as to whether there was any need for the applicant to have obtained a building permit in relation to any of the structures.
Under s 9 of the Building Act, building work is prohibited unless:
(a)a building permit is in effect for the building work; or
(b)a building permit is not required for the building work under Part 5 or regulations or an order mentioned in Part 5 Division 1; or
(c)the work is done in accordance with a building order; or
(d)the work is done in the course of taking action under section 118(2).
The applicant submitted that a building permit was not required because an exemption under the Building Regulations was applicable in the circumstances. Regulation 41 of the Building Regulations relevantly provides:
(1)A building permit is not required for the following building work
(a)building work for a Class 10 building or incidental structure that is located, or to be located, in a local government district specified in column 1 of the Table in the area specified for that district in column 2 of the Table;
(b)building work for a building or incidental structure that is not a Class 10 building or incidental structure and that is located, or to be located, in a local government district specified in column 1 of the Table in the area (if any) specified for that district in column 3 of the Table.
(2)In subregulation (1)(a) and (b)
Table means the Table in Schedule 4 clause 1.
(3)A building permit is not required for building work of a kind described in the Table in Schedule 4 clause 2[.]
The table in Sch 4 cl 1 of the Building Regulations includes a number of, what might be described as relatively remote, local government districts. The local government district of Broome is, however, not included in that table.
The table in Sch 4 cl 2 of the Building Regulations relevantly specifies, at item 1, that:
Construction, erection, assembly or placement of a freestanding Class 10a building that
(a)has a floor area not exceeding 10m²; and
(b)is no more than 2.4m in height; and
(c)is not located in wind region C or D as defined in AS 1170.2.
There was no dispute that the structures on Reserve 9697 are Class 10a buildings for the purposes of the Building Regulations. Nor was there any dispute that the structures are located within wind region B as defined in AS 1170.2.
The applicant submitted that the evidence did not establish that any of the structures had a floor area exceeding 10m² and a height greater than 2.4 metres by way of any evidence of precise measurements. It was submitted that, therefore, no building permit was required in relation to the structures.
None of the witnesses who gave evidence had measured any of the structures with a tape measure. However, Inspector Briggs gave evidence that while at the camp he stood next to each of the structures and photographs were taken showing Inspector Briggs with his arms wide open at chest height. He said that he has previously measured himself and knows that he is 180 centimetres tall and has an arm span of 180 centimetres. He also paced out approximate distances of each of the structures. Based on these sources of information, Inspector Briggs formed the view that none of the structures had a floor area of less than 10m².
Mr Dudley, who is an experienced building surveyor, gave evidence that from his visual inspection of the structures from approximately 15 to 20 metres away, he was able to approximate the size of the structures and was of the view that none of the structures had a floor area of less than 10m².
Although the precise measurements of the structures cannot be determined on the evidence before the Tribunal, the Tribunal is satisfied that having regard to the known measurements of Inspector Briggs' height and arm span, it is possible from the photographs to be satisfied of the approximate dimensions of the structures. The Tribunal finds that none of the structures have a floor area of less than 10m².
It was submitted in closing, on behalf of the applicant, that item 12 in the Table in cl 2 of Sch 4 of the Building Regulations applied and a building permit had not been required for the structures under this exemption. That item provides that a building permit is not required for:
Building work for buildings owned or occupied by, or under the control or management of the Crown in right of the State or a department, agency or instrumentality of the Crown in right of the State that
(a)commences before 30 June 2017; and
(b)has, when it commences, an estimated value of less than $50 000.
The Tribunal is not satisfied that this item of the table in cl 2 of Sch 4 of the Building Regulations is applicable in the circumstances. Although the land is under the control or management of the Crown, the structures are not owned or occupied by, or under the control or management of the Crown or a department, agency or instrumentality of the Crown.
The Tribunal is not satisfied that the building work involved in erecting the structures was building work that did not require a building permit.

Are the structures in a dangerous state or unfit for human habitation?

The uncontradicted evidence of Mr Dudley was that all of the structures are structurally inadequate and did not meet any relevant standard.
While the camp is located in a wind region that is not identified in AS 1170.2 as a cyclonic region, Mr Dudley's evidence that it was still an area where there could be high winds was not contradicted. The applicant gave evidence that he had been at the camp during times of high wind and that he had stayed at the camp until the weather gets really bad as he said 'when the roof is lifting off the shelter'.
The Tribunal is not satisfied there is sufficient evidence to determine that the structures are 'dangerous', although it seems likely that they either are, or will become at some point, dangerous because of the effects of weather, gravity and other impacts on existing structural inadequacies over time.
The Tribunal is satisfied that the structural inadequacies identified by Mr Dudley and the failure to comply with relevant building standards in this case render the structures unfit for human habitation within the meaning of the Building Act. As is stated in the long title to the Building Act, one of the purposes of the Act is to ensure that buildings are constructed to an appropriate standard. Patently, structural inadequacies in a building pose potentially catastrophic consequences should the building, or part of it, collapse. In this case the structural inadequacies relate to features that provide the proper support, and tie down, of the rooves and some walls, and these factors create a level of risk that renders the structures unfit for human habitation.
The applicant, his family and a not insignificant number of other people, regularly spend time at the camp. The Tribunal is not satisfied that that risk is isolated to cyclone season or to the advent of very high wind speeds.
Even if it were just the applicant who spent time at the camp, the Tribunal considers his safety alone warrants protection from the unnecessary risk that arises from these structurally unsound structures.
The respondent's decision to make a building order under s 112(2)(g) of the Building Act directed to the Minister for Lands should be affirmed.

Exercise of discretion under s 123 of the Building Act

The applicant submits that the Tribunal should exercise the discretion under s 123 of the Building Act to order that the structures did not require a building permit and are therefore not 'unauthorised' as stated in the building order. The applicant submits that the discretion should be so exercised because:
a)the applicant is a member of the Yawuru community, which hold native title rights and interests that include the right to live on the land;
b)the structures have been in situ for approximately two years without problem and are not located within a cyclonic wind region; and
c)the camp is located close to the boundary with the local government region of Derby, and if they were located within that local government region the exemption provided by cl 1 of Sch 4 of the Building Regulations would apply.
It was submitted on behalf of the applicant that pursuant to s 123 of the Building Act the Tribunal should not affirm the building order and allow the structures to remain at the camp and be modified so as to be substantially compliant with the relevant standards. The applicant cited the case of Stock and the Shire of Victoria Plains [2007] WASAT 231 (Stock) as an example of a case where the Tribunal allowed a structure to remain in situ despite a failure to have obtained a building permit prior to construction, albeit not a case concerning a building order.
The respondent submitted that the discretion in s 123 of the Building Act should not be exercised in this case. It argued that the situation under consideration in the Stock case was very different from this case. In the Stock case there was a nominal failure to comply with a relevant standard that did not affect safety. It was submitted that in this case, the failures of the structures were matters that raise real issues in relation to safety. Although the risk to safety from the structures may not be imminent, nonetheless the structural inadequacies rendered the structures a hazard and the Shire, and in its shoes the Tribunal, has an obligation to act to have the hazard removed.
The Minister for Lands submitted that, even if the Tribunal was inclined to exercise the discretion under s 123 of the Building Act in relation to the lack of building permits, there is no ability to excuse the applicant, and the Minister for Lands, from the building order in so far as it was issued under s 112(2)(g) of the Building Act.
Section 123 of the Building Act provides:
(1)In this section
building regulation or local law means
(a)a regulation under this Act; or
(b)a local law made by a local government under the Local Government Act 1995 about building work, demolition work, a standard for the construction or demolition of buildings or incidental structures, or the use and maintenance of, and requirements in relation to, existing buildings or incidental structures.
(2)The State Administrative Tribunal may order that any provision of a building regulation or local law
(a)does not apply in a particular case; or
(b)applies in a particular case as modified by the order.
(3)An order under subsection (2) may be made
(a)only for the purpose of enabling effect to be given to an order made by the Tribunal on an application under section 119, 121(1) or 122(1); and
(b)only if, in the opinion of the Tribunal, the circumstances of the case warrant the making of the order.
(4)An order under subsection (2) has effect according to its tenor, despite anything in this Act or the Local Government Act 1995.
(5)This section does not limit the powers given by the State Administrative Tribunal Act 2004 to the Tribunal.
Although all of the parties proceeded on the basis that the discretion under s 123 of the Building Act would allow the Tribunal to excuse the applicant from the requirement to have obtained a building permit before constructing or erecting the structures, the Tribunal is not necessarily persuaded of the correctness of that proposition.
The obligation to obtain a building permit (by way of the creation of an offence for carrying out building work without a building permit, being in effect for that work) is imposed by s 9 of the Building Act. That obligation extends to all people carrying out building work, except people carrying out building work of the kinds identified in s 9(b), (c) and (d) of the Building Act. Relevantly to these proceedings, s 9(b) of the Building Act excludes building work for which a building permit is not required under the Regulations. Regulation 41 of the Building Regulations provides that a building permit is not required for building work of the kind specified in the Tables in cl 1 and cl 2 of Sch 4 of the Building Regulations.
There is no provision in the Building Regulations, as opposed to the Building Act, in relation to which an order could be made that the provision does not apply in this case, that would have the effect of removing the requirement for a building permit in relation to the structures. The only way that the discretion in s 123 of the Building Act could arise, therefore, is by way of an order that a provision of the Building Regulations applies in this case 'as modified by the order'.
In order to render the structures as buildings for which the building work did not require a building permit, it would be necessary to amend cl 1 or cl 2 of Sch 4 of the Building Regulations in some way, or alternatively amend reg 41 of the Building Regulations to also include the building work involved with the construction or erection of the structures on Reserve 9697.

In the Tribunal's view, it is not without doubt that amendment of a provision by way of effectively adding a provision not contemplated by the Building Regulations is intended to be covered by the power to order that a provision applies as modified by the order in s 123 of the Building Act. In any event, while it may be possible for such an order to be made, that order would only have the result that if the building work of that type were to be carried out after the order was made, a building permit would not be required for that building work. It would not necessarily mean that a building permit was not required at the time the building work was carried out by the applicant so as to render the structures authorised, as opposed to 'unauthorised'.
In addition, the requirement in s 123(3) of the Building Act means that an order under s 123 can only be made for the purpose of enabling effect to be given to an order made by the Tribunal. The Tribunal does not understand how is it said that an order in this case, with the effect argued for by the applicant, has the purpose of giving effect to an order made by the Tribunal. The orders open to the Tribunal in this case (pursuant to s 29 of the SAT Act) are to:
1)affirm the decision to issue the building order;
2)vary that decision to issue the building order (by of varying to whom the order is issued, the buildings or structures in relation to which it is issued or by way of varying the directions in the building order); or
3)set aside the decision to issue the building order and substitute the Tribunal's decision or send the matter back to the respondent for reconsideration in accordance with any directions or recommendations the Tribunal considers appropriate.
If the Tribunal were to set aside the building order, as the applicant submits is appropriate, there is no building work required to be done by the applicant and therefore no need to exempt that work from the need for a building permit.
The Tribunal does not need to make an order under s 123 of the Building Act in order to decide to set aside the building order. Even if the Tribunal is satisfied that the decision of the respondent to issue the building order was not in error, the Tribunal is not necessarily required to affirm the building order. The Tribunal must produce the correct and preferable decision on the merits of the matter before it.
It is also the case that, in the circumstances of this matter, an order that modified the application of reg 41 of the Building Regulations (or of cl 1 or cl 2 of Sch 4 of the Building Regulations) would not have any effect in relation to the decision to issue a building order pursuant to s 112(2)(g) of the Building Act. As stated above, the Tribunal is satisfied that the structures on Reserve 9697 are unfit for human habitation and therefore there is power to issue a building order under s 112(2)(g) of the Building Act, whether or not the building work was carried out without a building permit.
For the sake of completeness, assuming that it were open to the Tribunal to make an order under s 123 of the Building Act in this case, the Tribunal is not persuaded it should exercise that discretion.
The Tribunal is satisfied that the structures are structurally inadequate and pose a potential risk to the safety of any person in, or near to, the structures. This is not a case of a merely technical failure to have obtained building permits, or only minor or insignificant variation from relevant building standards.
It is noted that the Minister for Lands, to whom the building order was also directed, did not seek the application of the discretion under s 123 of the Building Act.

Conclusion

For all of the reasons stated above, the Tribunal is satisfied that the correct and preferable decision in this matter is to set aside the building order directed to the applicant and affirm the building order directed to the Minister for Lands.

Orders

The Tribunal orders that:
1.The application is allowed.
2.The decision of the respondent to make a building order directed to Michael Corpus and served on or around 27 May 2016 is set aside.
3.The decision of the respondent to make a building order directed to the Minister for Lands and served on or around 27 May 2016 is affirmed.

I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER