DAPHNE HOLDINGS PTY LTD and SHIRE OF DUMBLEYUNG
[2012] WASAT 246
•21 DECEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING ACT 2011 (WA)
LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
CITATION: DAPHNE HOLDINGS PTY LTD and SHIRE OF DUMBLEYUNG [2012] WASAT 246
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 28 NOVEMBER 2012
DELIVERED : 21 DECEMBER 2012
FILE NO/S: CC 1281 of 2011
BETWEEN: DAPHNE HOLDINGS PTY LTD
Applicant
AND
SHIRE OF DUMBLEYUNG
Respondent
Catchwords:
Order for demolition Time elapsed since building licence had expired Extension of time to complete building work Balance of interest Should the demolition order be affirmed or revoked
Legislation:
Building Act 2011 (WA)
Building Regulations 1989 (WA), reg 16
Building Services Act 2011 (WA), s 195(5)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 409A, s 409A(3)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
Application dismissed and Order for Demolition and Removal of Structures affirmed
Summary of Tribunal's decision:
The applicant sought a review of a decision of the respondent to issue an Order for Demolition and Removal of Structures. The Order for Demolition and Removal of Structures required the applicant to pull down a partially completed steel frame structure which, when completed, would constitute a two bedroom house.
The respondent contended that the building licence, which had originally been issued for two years, had expired more than a year before the Order for Demolition and Removal of Structures was issued. The respondent said that it had made several attempts since the expiry of the building licence to assist the applicant to complete the structure but that there had been a general lack of progress; that the structure is not compliant with the approved building plan; and that the respondent has an obligation to bring a matter that has had such a protracted history to finality.
The applicant said that the structure is half-complete; that it was not able to complete the structure since the building licence had expired; that the respondent had been vindictive towards it; that as soon as a new building licence is issued or the previous building licence is extended, the remedial work would be undertaken so as to comply with the building plan; and that public interest should allow the applicant additional time to bring the structure to completion.
The Tribunal found that the Order for Demolition and Removal of Structures should be affirmed. The Tribunal emphasised that this was not a case where a local authority is unnecessarily pedantic in seeking compliance with a building license shortly after the licence had expired. The conduct of the respondent was found to be exemplary and accommodating of the requests by the applicant. When all facts were considered, it was, however, apparent that the structure did not comply with the approved building plan; the building licence had expired approximately two and a half years ago; the opportunity that had been granted to the applicant to provide additional documentation had not be properly utilised; and that the public interest demands that the matter be brought to finality.
The application for review was therefore dismissed and the Order for Demolition and Removal of Structures was affirmed.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr A Read
Solicitors:
Applicant: Self-represented
Respondent: Civic Legal
Case(s) referred to in decision(s):
Dawson & Anor and City of Fremantle [2008] WASAT 125
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The dispute arises from the Order for Demolition and Removal of Structures (Order for Demolition) that was issued by the Shire of Dumbleyung (respondent) which required Daphne Holdings Pty Ltd (applicant) to pull down a partially constructed, steel frame two bedroom house (structure or house). The structure is situated on Lot 12 Love Street, Dumbleyung.
The applicant seeks an order for the Order for Demolition to be revoked.
The applicant bought a block of land from the respondent in February 2006. A requirement of the Contract of Sale (Contract) was for the residence to be completed within two years from the signing of the Contract. The respondent's motivation for the sale of land was to sell lots in the town of Dumbleyung at an attractive price so as to encourage new residents to move to the town and establish their residences soon after having acquired the land.
The applicant's company director, Mr Stephen Lankford, applied for an ownerbuilder licence around April 2008, roughly two years after the sale of the block of land had settled. The building licence was issued on 22 April 2008 upon the requirement that a two room house be completed within two years from the date of issuing. This meant that, pursuant to the building licence, the house had to be completed by no later than 22 April 2010 (later extended to 24 July 2010).
By the time the building licence had expired, the applicant had erected a steel structure which wais incomplete and which did not comply with the building plan and it is without cladding. It is not contested that substantial work is required to bring the structure to compliance with the building plan and to complete it to the stage of lock-up.
Since the building licence had expired, discussions continued between the applicant and respondent about an extension of time being granted for the work to be completed. Several extensions were granted prior to the issuing of the Order for Demolition.
The respondent, which had concerns about the structure not being in compliance with the approved building plan, granted the applicant several opportunities to submit a structural engineer report and proposals for the remedial and remaining work to be completed. In the absence of sufficient progress being made, the respondent issued what is referred to as a 'show cause' notice in December 2010 to explain why an order for demolition should not be issued. Since the respondent was not satisfied with the reply it had received from the applicant in regard to the show cause notice, it issued the Order for Demolition on 18 August 2011.
These proceedings concern the application to review the Order for Demolition.
Since the filing of the application in the Tribunal on 29 August 2011, several efforts were made by the Tribunal to facilitate a resolution of the dispute by way of agreement. Those attempts were not successful and the matter was set down for a hearing.
The matter was heard on 28 November 2012, nearly 15 months after it had been lodged with the Tribunal. The time between lodgement of the application and hearing was, in the experience of the Tribunal, an exceptionally long period, but the Tribunal was hopeful that the matter would resolve amicably, and it therefore took an active approach to facilitate discussions between the parties.
Issue
Should the Order for Demolition issued by the respondent on 18 August 2011 be revoked?
Statutory framework
The application for review was lodged on 29 August 2011. The application was lodged pursuant to s 409A(3) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMPA Act). It provides as follows:
Uncompleted buildings
(1)Where the erection of a building has been commenced but not completed within the time prescribed … applicable to the building, the local government may, by notice served on the owner of the building, require him to show cause, within 60 days of the service of the notice, why the building should not be demolished and removed.
(2)Where an owner on whom a notice has been served pursuant to subsection (1) fails, within 60 days of the service of the notice, or within such further time as the local government allows for the purpose, to satisfy the local government that there are good and sufficient reasons for the failure to complete the erection of the building within the time referred to in subsection (1), the local government may
(a)by order served on the owner require him to have the building demolished and removed within such reasonable time as the local government specifies in the order; and
(b)subject to subsection (3), where the owner fails to comply with the terms of the order referred to in paragraph (a), demolish and remove the building, and recover the costs incurred on account of the demolition and removal as a debt due to it.
(3)An owner on whom an order is served pursuant to subsection (2)(a) may, within 15 days of the service upon him of the order, apply to the State Administrative Tribunal for a review of the order.
Although certain provisions of the Building Act 2011 (WA) (Building Act) became operative prior to lodgement of the application, the relevant sections of the Building Act that impact on s 409A(3) of the LGMPA Act only became operative on 2 April 2012. The proceeding therefore continued in accordance with s 409A(3) of the LGMPA Act. This is consistent with the transitional provisions in s 195(5) of the Building Services Act 2011 (WA) (BS Act) which provide that a review under s 403A(3) of the LGMPA Act that was commenced but not finalised before the commencement day of the relevant provisions of the Building Act must be dealt with as if the previous provisions had not been amended.
Regulation 16 of the Building Regulations 1989 (WA) (Building Regulations) provides as follows:
Building left incomplete
Time for completion
(1)Where a licence is issued under these regulations for the construction of a building that building shall be completed within 24 months of the date of the issue of the licence, or such other time as approved by local government.
Consequences of failure to complete
(2)Where work on the construction of a building is commenced but is not completed within the time prescribed by subregulation (1) the provisions of section 409A of the [LGMP] Act apply.
Facilitated dispute resolution
At the first directions hearing that took place on 15 September 2011, the Tribunal explored with parties the possibilities for the application to be resolved by way of agreement rather than by a decision of the Tribunal.
As a result of the interaction between the Tribunal and the parties, the applicant was ordered to provide to the respondent a proposal in which the applicant would set out:
•how the structure could be brought to compliance with the building plan;
•a timeframe for the entire house to be completed;
•the proposed date for completion;
•the name of the builder to undertake the work; and
•an estimation from the builder as to how long it would take to complete the house if the building licence were extended.
Since that first directions hearing, four further directions hearings were held over a period of 10 months to facilitate an agreed outcome. Although the applicant gave some information to the respondent, the respondent consistently raised concerns that insufficient detail had been provided so as to enable the respondent, with comfort, to consent to a further extension of the licence.
As a result of the lack of substantial progress being made after 10 months of directions hearings, the Tribunal, on 22 December 2011, set the matter down for a hearing.
At the commencement of the hearing on 29 February 2012, the parties informed the Tribunal that what could be called in these reasons a 'road map' had been agreed between them. The aim of the road map was to give to the applicant additional time to submit an application for a new building licence to the respondent, as well as to take other measures so as to satisfy the respondent that effective progress would be made to bring the structure to compliance with the building plan and to complete the house. The Tribunal made orders by consent of the parties on 29 February 2012 so as to give effect to the road map.
The Tribunal adjourned the hearing so as to enable the applicant an opportunity to comply with the road map. The respondent emphasised, and this is reflected in the road map, that if the applicant did not comply with the orders made on 29 February 2012, the respondent could immediately seek for the hearing to continue.
The respondent requested the Tribunal in September 2012 for the hearing to continue. The respondent said the request for the continuation was due to a lack of progress on the part of the applicant to comply with the road map. The matter was subsequently set down for a hearing.
Although the Tribunal did not undertake any formal mediation between the parties, it made extensive attempts within the context of the directions hearings to encourage the parties to settle the dispute by agreement; to provide additional opportunity for the applicant to submit proposals and information to the respondent; and to provide the applicant with the opportunity to give certainty to the respondent that it (the applicant) was in a position to address the concerns of the respondent.
The Tribunal commends the respondent for the constructive role it played during the extensive and often long running directions hearings. The Tribunal was aware that, on some occasions, there was a degree of reluctance on the part of the respondent to consent to additional adjournments, but the respondent nevertheless agreed to requests and the encouragement of the Tribunal to allow the applicant ample time to provide the assurances and documentation requested by the respondent.
The applicant made repeated mention during the directions hearings and at the hearing that the applicant was being singled out by the respondent for harsh exercise of its powers; that the respondent was vindictive; and that the respondent had a hidden agenda to 'entrap' the applicant so as to reclaim the applicant's land. The Tribunal does not find any substance in those allegations. The respondent acted during these proceedings with professionalism; it demonstrated extraordinary patience by consenting to many adjournments over a long period of time; and it utilised substantial resources to participate in these proceedings. There are no grounds whatsoever before the Tribunal to question the sincerity or professionalism of the respondent in the way that it discharged its powers.
Hearing de novo
In exercising its review function, the Tribunal deals with the matter in accordance with the enabling legislation as well as the State Administrative Tribunal Act 2004 (WA) (SAT Act). The enabling legislation provides that the applicant can seek a review of the decision to issue the Order for Demolition, but the exact nature and scope of the powers of the Tribunal on review are found in the SAT Act.
The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the respondent as the original decisionmaker. The Tribunal is not limited to the statement of reasons given by the respondent or to the submissions made by the respondent (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the respondent at the time the decision was made (s 27(1) of the SAT Act). The review hearing is therefore de novo (s 27(1) of the SAT Act).
The purpose of the review is to produce the 'correct and preferable decision at the time of the decision upon review' (s 27(2) of the SAT Act).
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision; or
b)vary the decision; or
c)set aside the decision,
and, in any case, to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the respondent (s 29(5) of the SAT Act).
Submissions and evidence
Both parties made extensive written and oral submissions and called witnesses to give evidence. The Tribunal took all of this information into account in its decision.
On the part of the respondent, which was legally represented, the submissions were made by Mr Read (counsel), while Mr Van der Ende and Mr Baxter were called to give evidence. Mr Van der Ende is the Chief Executive Officer of the respondent, and Mr Baxter is the Principal Building Surveyor of the respondent.
On the part of the applicant, Mr Stephen Lankford made submissions and he was assisted by Mr Colin Lankford, who is a co-director of the applicant. In earlier proceedings, the applicant was represented by Mr John Hill. Mrs Nadine Lankford also gave evidence at the hearing. Mr Stephen Lankford submitted a written statement of evidence for the purposes of the hearing, but when he was invited during the hearing to give oral evidence, he declined the opportunity. Mr Stephen Lankford and Mr Colin Lankford examined the witnesses during the hearing.
Chronology and facts
The parties were in general agreement about the essential facts giving rise to the proceeding. The dispute principally concerned the discretion exercised by the respondent to issue the Order for Demolition. The essential facts are:
a)The Contract of sale of the land for Lot 12 Love Street, Dumbleyung was executed by the respondent on 20 February 2006. The registered proprietor for the property is Daphne Holdings Pty Ltd as Trustee for the Bromlee Family Trust. A special condition of the Contract was that applicant had to 'construct a dwelling on the land' within two years from the date of the Contract. It was agreed that the special condition would be satisfied if the applicant, within the two years, signed a contract with a builder or prepared the site for the installation of a transportable home, or if a contract was signed with the supplier of a transportable home.
b)Mr Stephen Lankford registered as an ownerbuilder (No 16/0708) on 16 April 2008. A building licence (No OB/0906/08) to construct the house was issued to him on 22 April 2008 by the respondent. The date of expiry of the building licence was 24 July 2010.
c)Since the house was not completed within two years from the date of the Contract, the respondent wrote to the applicant on 14 July 2008 to show cause why the terms of the Contract should not be enforced. By letter of 11 August 2008, the applicant wrote to the respondent and explained that delays had been caused by Mr Lankford and his wife having a baby and the delay in the sale of another property. The respondent agreed for the special condition of the Contract to be extended for an additional six months so as to enable the applicant to comply with it. On 19 January 2009, Mr Lankford informed the respondent that the problem with the sale of another property of the applicant had been overcome and that 'funds are now available'. On 19 February 2009, the respondent resolved to grant the applicant an additional six months to 18 September 2009 to comply with the special condition of the Contract.
d)On 12 March 2010, the respondent wrote to the applicant and said that more than four years had lapsed since the Contract was entered into; that two years had elapsed since the special condition had to be complied with; that the partially completed structure did not comply with the 'appropriate standard'; and that the structure 'needs to be certified by a practising structural engineer'.
e)On 15 April 2010, the respondent resolved to grant to the applicant a further extension for the house to be completed by 24 July 2010. In its letter of 4 May 2010, the respondent again expressed concern that the work that had been done to date did not comply with the approved building plan. The respondent informed the applicant that unless the defects were remedied and certified as being compliant by a structural engineer, the respondent would require the structure to be removed. The applicant responded by letter dated 24 May 2010 that it would take at least another five months for the work to be completed. In regard to the concerns raised by the building surveyor as to the compliance of the structure with the plans, the applicant said that the trusses were in accordance with the plan, and that the design would give 'greater strength and artistic appeal'.
f)The respondent issued a notice pursuant to s 409A of the LGMPA Act on 17 December 2010 inviting the applicant to 'show cause' as to why the respondent should not issue an order for the structure to be demolished and removed. The applicant was informed by way of the notice that unless it could provide to the respondent within 60 days from the date of the notice 'good and sufficient reasons for the failure to complete the erection of the building', the respondent may issue an order for the structure to be demolished and removed. The applicant replied by way of letter dated 20 January 2011. In the letter, the applicant took issue with aspects of the 'show cause' notice. The applicant concluded the letter by saying the following:
For many other reasons which not now be addressed [sic] not canvassed at this stage the company rejects the Notices. (Tribunal emphasis)
g)The respondent issued the Order for Demolition on 18 August 2011. The respondent explained that, in its view, the applicant had not established that there were good and sufficient reasons for the failure to complete the erection of the house within the two years allowed for by the building licence. The Order for Demolition required the applicant to demolish and remove the structure within 60 days, and if it failed to do so or to obtain relief from the State Administrative Tribunal, the respondent would enter the premises to demolish and remove the structure and reclaim the cost from the applicant.
h)On 29 August 2011, the applicant lodged the application for review of the decision to issue the Order for Demolition.
i)On 27 September 2011, the applicant informed the respondent by way of letter that it had obtained a quotation from DM Spencer to bring the structure to lockup stage. The applicant sought an extension of the building licence for four months to bring the work to completion. The respondent replied by letter dated 30 September 2011 informing the applicant that the information the applicant gave was insufficient so as to enable the respondent to consider the request for an additional extension of time. The respondent invited the applicant to provide additional information. The additional information required by the respondent related to the following:
•an application for a new building licence, since the previous licence had expired;
•a certified engineer certificate to confirm that the partly completed structure was consistent with specifications;
•written confirmation from the builder about the scope of work; and
•dates for commencement and completion.
j)A report from Scott and Associates (Scott Report), consulting engineers, dated 14 November 2011 was filed with the Tribunal and given to the respondent. Mr Scott, the author of the Scott Report, noted several deficiencies in the partially completed structure and made recommendations for those to be remedied before any additional works could occur. Mr Scott recommended that before any additional work be authorised, his office should again inspect the remedial work so as to ensure that all structural requirements had been met.
k)In its letter dated 23 November 2011, the respondent requested further information from the applicant so as to enable the respondent to consider whether a new building licence should be issued. The applicant responded by letter dated 5 December 2011. The respondent, at the meeting of its council on 15 December 2011, resolved that the reply of the applicant was not adequate, since the applicant did not acknowledge the seriousness of the defects of the existing structure, and the detail provided for completion of the house was not credible in light of the respondent proposing Mr Stephen Lankford to be the builder.
l)At the commencement of the hearing of 29 February 2012, the parties agreed on the road map for the dispute to be resolved. The road map, as reflected in the orders of the Tribunal dated 29 February 2012, required the applicant to take various steps in an effort to facilitate the issuing of a new building licence. The road map contained specific actions and timelines to be complied with. The respondent reserved the right to seek for the hearing of the Order for Demolition to be continued if the respondent formed a view that insufficient progress was being made with the implementation of the road map. The respondent requested the Tribunal, by letter of 13 September 2012, for the hearing to continue in light of 'insufficient progress' being made with the implementation of the road map.
m)The respondent now seeks for the hearing to continue. A new building licence has not been issued.
n)This proceeding is concerned with the question whether the Order for Demolition dated 18 August 2011 should be revoked.
Witnesses
Both parties were given the opportunity to give evidence and to call witnesses, including expert witnesses, to give evidence at the hearing.
On the part of the applicant, Mrs Nadine Lankford gave evidence. Mr Stephen Lankford and Mr Colin Lankford were in attendance at the hearing. They made oral submissions and put questions to witnesses but they did not give oral evidence. Mr Stephen Lankford filed a witness statement (Exhibit J). The Tribunal asked Mr Stephen Lankford whether he also wished to give oral evidence and he declined.
On the part of the respondent, Mr Henry Van der Ende and Mr Darryle Thomas Baxter gave oral evidence in addition to the witness statements they filed.
Mr Phillip Warren Scott submitted the Scott Report (Exhibit C) by way of a witness statement (Exhibit I). Mr Scott was not called to give evidence and the contents of his report are not being challenged by the applicant.
The evidence given by the respective witnesses can be summarised as follows:
Mrs Nadine Lankford is the wife of Mr Stephen Lankford. Mrs Lankford did not file a witness statement but nevertheless requested on the day of the hearing to give oral evidence. The Tribunal allowed her to give evidence, regardless of the objections by the respondent. The Tribunal's reason for allowing Mrs Lankford to proceed was that the Tribunal prefers to hear evidence from a person who may be directly impacted upon by the outcome of a hearing, rather than to preclude such a person from giving her evidence for the mere reason of her not filing a witness statement. The Tribunal assured the respondent that an adjournment may be granted if the respondent needed to prepare prior to crossexamining Mrs Lankford. Mrs Lankford explained that it is their dream to settle in Dumbleyung but that their plans got interrupted by the global financial crisis, the arrival of a new baby and other family and work issues. She says that they have now secured funding to complete the house and the house can be completed within two months. She says both sides to the dispute had caused the process to be delayed, but when all circumstances are taken into account, the Order for Demolition is excessive, unnecessary and unjustified.
In his witness statement, Mr Stephen Lankford says that he is willing to address all the concerns that are raised in the Scott Report and that he would not undertake any building work until Scott and Associates certify that the structure is compliant with relevant standards. Mr Lankford explains that the reason he did not undertake any remedial work on the structure was the 'constant threat of the [r]espondent' to take his land. According to him, the delays that have been caused were attributable to actions on the part of both parties. He says he has done his utmost to address the queries raised by the respondent and to provide relevant documentation.
Mr Baxter, who is the Principal Building Surveyor of the respondent, says that he was concerned, when he inspected the structure in November 2009, that there were substantial deviations from the approved building plan; that no approval had been sought by the applicant to deviate from the approved building plan; that there were a number of flaws and defects in the structure that made it unsafe; and that it appeared as if Mr Stephen Lankford, who was the ownerbuilder, did not have a good understanding of the 'basic building principles because there were such a large number of flaws and defects in the dwelling, to the point that it was rendered unsafe' (paragraphs 13 14 of the statement dated 20 February 2012.) Mr Baxter says he has never seen wall frames like those of this structure and that the thought of climbing onto the roof of the structure scares him. He says it seemed to him as if the frame in its current state could fall apart like a 'deck of cards'. Mr Baxter informed the respondent of these concerns by memorandum dated 10 November 2009. Mr Baxter says the Scott Report sustains his concerns; namely, that major work is required to the structure to bring it to a standard where it would be compliant with the approved plans and be structurally safe. He regards the Scott Report as somewhat 'lenient' since, according to him, the deficiencies in the structure are even more serious than is acknowledged in the Scott Report. According to Mr Baxter, the Scott Report highlighted the following shortcomings and deficiencies of the existing structure:
•some of the footings within the building perimeter have not been poured;
•the C purlin connections should be removed and replaced;
•the flooring needs to be upgraded;
•the external wall frame design and layouts require upgrading to meet structural adequacy;
•the top of each wall frame requires additional strengthening;
•all openings to the wall frames require double studs;
•all full height frames require to be crossbraced prior to wall sheeting being applied; and
•the roof trusses are not adequate in design.
Mr Baxter also explained why, in his view, the information provided by the applicant pursuant to the road map for purposes of a new building licence was either late, incomplete or noncompliant with the orders made on 29 February 2012. Mr Baxter also explained how new building licence applications pursuant to the Building Act are now been treated.
Mr Van der Ende, who is the Chief Executive Officer of the respondent, explains all the efforts that have been made by the respondent to accommodate the applicant; to grant several extensions to the applicant so as to enable it complete the works; and the many opportunities given to the applicant to provide additional information so as to enable the respondent to either grant an extension of the building licence or to issue a new building licence. The respondent was and remains concerned, on the basis of the expert advice it received, that the structure is not compliant with the approved building plan and that it is structurally unsafe. In light of the deficiencies of the structure and the time that has elapsed since the building licence was issued, the respondent is of the view that it was justified to issue the Order for Demolition.
Contentions
Both parties submitted written submissions. The Tribunal also gave the opportunity for oral submissions and for final oral submissions at the closing of the hearing.
The essence of the contentions put forward by the applicant can be summarised as follows:
a)The respondent has been unreasonable and vindictive towards the applicant.
b)The respondent has been selective and biased by deciding to issue the Order for Demolition against the applicant, while not taking action against other proprietors in the town who also have partially completed structures on their lots.
c)The applicant faced severe financial constraints as a result of the global financial crisis, and also experienced challenges in the personal life of Mr Stephen Lankford and his wife Mrs Nadine Lankford. The lack of progress was therefore as a result of circumstances outside the control of the applicant and not due to it 'dragging its feet' on purpose or intentionally failing to comply with directives of the respondent.
d)Although the applicant was willing to continue with work to rectify any shortcomings to the structure and to complete the structure, the respondent had ordered it to stop work and, as a result, the applicant was unable to address any of the issues raised by the respondent or the Scott Report.
e)In its application to the Tribunal, the applicant said that an estimated one to two months from the date of commencement of work was required for the structure to be completed; that a local builder had been engaged to undertake the works; and that a 'consultant' had been retained to 'guide' the completion of works.
f)The applicant provided to the best of its ability all the information required by the respondent pursuant to the road map as per orders dated 29 February 2012.
g)The applicant remains willing and able to bring the structure to compliance with the building plan and the Scott Report, and to complete the house. It would be harsh and unconscionable for the Order for Demolition to be affirmed.
The essence of the contentions put forward by the respondent can be summarised as follows:
a)The respondent has been acting with patience since the Contract was signed and the building licence was issued. The willingness of the respondent to assist the applicant is evidenced by the several extensions that had been granted to the applicant to complete the works, and the constructive role the respondent fulfilled within the Tribunal review proceedings in working out the road map as contained in the orders dated 29 February 2012.
b)The partially completed structure does not comply with the approved building plan and the applicant has failed, despite numerous attempts, to provide certainty to the respondent that those shortcomings were acknowledged and would be addressed.
c)The applicant had repeatedly failed to comply with reasonable requests of the respondent to address the noncompliance of the existing structure or to provide information so as to satisfy that the structure would be completed to specification. The applicant has not demonstrated that there were 'good and sufficient reasons' for its failure to complete the building within the two years contemplated by the building licence.
d)The decision by the respondent to issue the Order for Demolition was reasonable and justified in light of the events leading to the issuing of the Order for Demolition. Nothing that has happened under the auspices of the Tribunal since the application for review was lodged has been of such substance that the Order for Demolition should be revoked. The Tribunal should take judicial notice of the considerable period of time, with lengthy delays on the part of the applicant.
e)In light of all the information before the Tribunal, the Tribunal should conclude that the decision by the respondent to issue the Order for Demolition was justified; that the application should be dismissed; and that the Order for Demolition should be affirmed.
Consideration
The framework within which the Tribunal exercises its powers comprises the following elements:
•Firstly, the hearing is de novo, which means the Tribunal can take into account all the information and material that were before the respondent when the decision to issue the Order for Demolition was made, as well as information and material that have become available since the decision.
•Secondly, the Tribunal is placed in the shoes of the respondent as the original decisionmaker. The Tribunal is therefore required to make the best and preferable decision in light of all the information and material before it.
•Thirdly, the Tribunal is not bound by the rules of evidence, but it must adhere to the rules of natural justice and procedural fairness.
•Fourthly, the decision of the Tribunal becomes the decision of the respondent. The decision takes effect on the same day as the respondent's decision unless otherwise ordered by the Tribunal.
•Fifthly, the decision under review before the Tribunal is the decision of the respondent to issue the Order for Demolition.
The matter has had a long run in the Tribunal. Since the application was lodged on 29 August 2011, the Tribunal has had many directions hearings; an adjourned hearing; a road map to facilitate an agreed outcome; and, ultimately, a final hearing. More than 15 months have expired since the proceedings in the Tribunal commenced.
The Tribunal receives from time to time applications for a review of demolition orders issued by local authorities, but rarely does the Tribunal encounter an application where so little is done by an applicant over such a long period of time to satisfy the requirements of the issuing authority. It is rare for the Tribunal to affirm demolition orders since applicants, in general, do their utmost to provide to the local authority the necessary assurances so as to enable some form of agreed outcome to be achieved. In this proceeding, the applicant, regardless of many months of adjournments and attempts at dispute resolution, has failed to adequately utilise the opportunities offered to it.
The conduct of the applicant leaves the Tribunal with the distinct impression that the applicant is keen to seek adjournments merely for purposes of delaying proceedings, to buy extra time and not to resolve the dispute.
The decision of the Tribunal is to dismiss the application for review and to affirm the decision of the respondent.
The reasons for this decision are as follows:
a)The statutory framework against which the building licence was issued requires the applicant to complete the work by not later than two years after the granting of the building licence, or such other time as is approved by the issuing authority. If compliance is not achieved, a show cause notice may be issued and if the issuing authority is not satisfied with the response it receives, an order for demolition may be issued. The Tribunal is satisfied that the respondent complied with its statutory obligations; that it granted additional time for the building licence to be complied with; that it considered the applicant's reply to the show cause notice; and that it concluded that the Order for Demolition should be issued since there was not good and sufficient reasons for the failure on the part of the applicant to explain the ongoing failure to comply with the building licence.
b)The applicant has demonstrated a persistent inability to comply with time limits set by the respondent and the Tribunal, and the applicant has shown a disregard to adhere to undertakings it had given to the respondent and to the Tribunal. Prior to the application being lodged, the applicant had the benefit of extensions of time that far exceeded the two years' completion requirement of the building licence. In fact, the Order for Demolition was issued more than a year after the building licence had expired. Even after the proceedings in the Tribunal had begun, the respondent played an active role to encourage the applicant to provide information to the respondent so as to enable the respondent to grant a further extension of the building licence or to issue a new building licence. Each of the opportunities was wasted, with the applicant repeatedly failing to provide information (or when information was provided, it was inadequate) or with the applicant seeking further adjournments.
c)The Tribunal accepts that the decision by the respondent to order the applicant to demolish the structure has serious financial and emotional implications for the applicant. At the same time, the Tribunal recognises that the respondent, and the Tribunal as final decision-maker, have a public interest obligation to ensure that provisions of a building licence are complied with; that deadlines are honoured; and that buildings are constructed in accordance with an approved building plan. In these proceedings, the Tribunal is impressed with the generosity and indulgence that have been shown by the respondent by way of many extensions of time, as is illustrated in the summary of events leading to these proceedings. In short, although the building licence was set to expire on 24 July 2010, the respondent only issued the Order for Demolition on 18 August 2011 and the hearing in the Tribunal only took place on 28 November 2012.
d)The many extensions granted to the applicant demonstrate how the respondent and the Tribunal went out of their way to provide the applicant with additional time to satisfy statutory requirements, but to no avail. The allegation by the applicant that the respondent's conduct has been unsympathetic, prejudiced, illustrative of bad faith and motivated by an effort to entrap the applicant is rejected.
e)The existing, partially completed steel structure does not comply with the building plan. The Scott Report confirms the concerns raised by Mr Baxter; namely, that there are serious deficiencies in the structure. The concerns of Mr Baxter were brought to the attention of applicant by letter dated 4 May 2010. At no stage prior to the Scott Report did the applicant acknowledge the seriousness of the deficiencies or the extent of noncompliance with the building plan. The response of the applicant signifies a lack of appreciation of the seriousness of the situation. The applicant now says that it would address those shortcomings if another extension of time is granted, but the applicant loses sight of two points:
•Firstly, the structure must comply with the approved building plan and no deviations from the plan are permitted without approval from the respondent. The applicant never sought approval to deviate from the plan. In fact, when its attention was drawn to the concerns of Mr Baxter, the applicant acted in denial and defectively, rather than to address the shortcomings.
•Secondly, the applicant has had ample opportunity to submit proposals and funding arrangements to demonstrate its intention to remedy the shortcomings. The proposals made by the applicant were, however, vague, qualified by caveats, permeated with uncertainty and based on promises without substance.
f)The Tribunal questions the credibility of undertakings provided to the respondent by the applicant's directors, Mr Stephen Lankford and Mr Colin Lankford. When all the information since the signing of the Contract and the issuing of the building licence is taken into account, the Tribunal is left with the distinct impression that both Mr Stephen Lankford and Mr Colin Lankford would give whatever undertakings are required, but then fail to honour those undertakings, or only comply with undertakings in part. Each of the extensions granted by the respondent and each of the adjournments ordered by the Tribunal was based on undertakings given by one or both of those gentlemen, and each time, the proceedings got further delayed as a result of unmet undertakings. The Tribunal notes that as far back as 19 February 2009, a solemn assurance was given to the respondent that the structure would be at lock up within six months from the March 2009 meeting with the respondent. The structure is not yet at lock-up. The excuse by the applicant that it was ordered to stop work is not accepted. First of all, no order to stop work was ever issued and even if it was, the applicant could have sought a review had such an order been issued.
g)The credibility of evidence given by Mr Stephen Lankford and Mr Colin Lankford is tarnished in the eyes of the Tribunal. The reasons for this observation are threefold:
•Firstly, both gentlemen made unsubstantiated allegations during the course of the proceedings against the respondent, and particularly against Mr Van der Ende. No evidence was provided to substantiate those allegations. Mr Stephen Lankford accused Mr Van der Ende of not returning his telephone calls, and yet, when Mr Lankford was invited by the respondent, in its letter of 31 October 2012, to provide records of telephone calls to the respondent, Mr Lankford's silence was audible. The Tribunal rejects the contention of the applicant that Mr Van der Ende had a hidden agenda for issuing the Order for Demolition. The evidence is clear; namely, that Mr van der Ende acted throughout the proceeding with integrity, sympathy and consistency.
•Secondly, Mrs Lankford, in her evidence, made brief mention that funding had been approved so as to complete the house. When the Tribunal invited Mr Stephen Lankford to give oral evidence, he declined. The veracity of the evidence of Mrs Lankford is questioned in light of the absence of corroborative evidence about approval of funding and the fact that the respondent had previously been informed that funding arrangements had been made. The hearing was the ideal opportunity for the applicant to provide to the respondent and the Tribunal the proof of the ability of the applicant to comply with its undertakings, but the applicant's Mr Stephen Lankford let the opportunity pass.
•Thirdly, Mr Stephen Lankford, in a submission for the applicant dated 13 November 2012, said that the applicant had been unaware of orders the Tribunal made on 20 September 2012. Mr Lankford said the content of those orders only came to the knowledge of the applicant on 31 October 2012 and as a result, the applicant was not able to comply with those orders within the timeframe therein specified. Mr Colin Lankford acknowledged, however, at the directions hearing that took place on 21 November 2012 that:
i)he had been in attendance at the directions hearing that took place on 20 September 2012 when those orders were made; and
ii)the applicant had sought from the Tribunal an extension of time to file submissions pursuant to the orders and prior to 31 October 2012.
This behaviour by the representatives of the applicant goes to the heart of the lack of credibility of their evidence.
h)In regard to the compliance by the applicant with the road map of 29 February 2012, there is some dispute between the parties as to if, and when, the requirements set out in the letter of the respondent to the applicant dated 4 April 2012 had been complied with. The Tribunal notes that the process the parties embarked on for consideration of a new building licence is not the subject of these proceedings, since the application concerns the Order for Demolition dated 18 August 2011. The Tribunal notes, however, that from the documents provided to the Tribunal and the evidence given by the parties, the same lack of compliance or partial compliance that had characterised the process since the expiry of the building licence persisted under the road map process.
In short, the decision of the respondent to issue the Order for Demolition was reasonable and justified.
The Tribunal comes to the same decision as the original decisionmaker after all the information that was before the original decisionmaker, and additional information and evidence that have been provided to the Tribunal, have been carefully considered. The public interest demands that the process be brought to finality. The timeframe specified in a building licence has the purpose of certainty as to when a project should be completed. The timeframe was not necessarily slavishly enforced, as has been shown in these proceedings. However, with more than two years having expired since the building had to be completed, the respondent is entirely justified to seek for the application to be dismissed. This outcome is to be distinguished from the decision of the Tribunal in the matter of Dawson & Anor and City of Fremantle [2008] WASAT 125, in which the completion of the building was far advanced; the delays were of a completely different nature compared to these proceedings; and it was found to be disproportionate for the demolition order to be affirmed.
In these proceedings, the balance of proportionality lies on the side of the respondent.
The application must be dismissed and the decision of the respondent to issue the Order for Demolition must be affirmed.
Since the respondent indicated that it would seek an order for costs, a directions hearing will be convened for submissions to be made.
Orders
1.The application for review of the decision of the Shire of Dumbleyung to issue the Order for Demolition and Removal of Structures dated 18 August 2010 is dismissed.
2.The Order for Demolition and Removal of Structures dated 18 August 2010 is affirmed.
3.The applicant must comply with the Order for Demolition and Removal of Structures within 60 days from the date of these orders.
4.If the applicant fails to comply with order 3, the respondent may cause the structure the subject of these orders to be removed, pursuant to paragraph 2 of the Order for Demolition and Removal of Structures.
5.The application for costs is set down for a directions hearing to take place at 3.30 pm on 7 February 2013.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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