Dawson and Anor and City Of Fremantle

[2008] WASAT 125

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)

PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   DAWSON & ANOR and CITY OF FREMANTLE [2008] WASAT 125

MEMBER:   MR P McNAB (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   17 APRIL 2008

FILE NO/S:   CC 191 of 2008

CC 271 of 2008
DR 57 of 2008

BETWEEN:   MARTIN WILLIAM DAWSON

ANDREE DAWSON
Applicants

AND

CITY OF FREMANTLE
Respondent

Catchwords:

Local government - Building - Extension of building licence - Refusal by local authority to extend licence - Whether a reviewable decision - Notices - Demolition order - Statutory construction of provision requiring demolition - Extent of discretion when considering demolition - Comparative demolition provisions in planning matters - Significant delay by owner builder - Delays partly attributable to errors of judgment or misunderstandings - Actions or omissions done in good faith - Public interest in preventing tardy building construction - Balancing of interests - Application successful - Tribunal set aside notice

Legislation:

Building Regulations 1989 (WA), reg 16, reg 16(2)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 409A
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 27(1)

Result:

Review allowed and demolition order set aside

Category:    B

Representation:

Counsel:

Applicants:     Ms L Rowley

Respondent:     Mr A Roberts

Solicitors:

Applicants:     Deacons

Respondent:     McLeods Barristers & Solicitors

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

ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67

Barton v Orange City Council [2008] NSWLEC 104

Drake and City of South Perth [2005] WASAT 271

South Australia v Tanner (1989) 166 CLR 161

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. In this matter the Tribunal was principally concerned with reviewing a decision by the City of Fremantle to issue a demolition order in respect of some unfinished alterations to a residential building.  The question was whether the order was justified in the circumstances.

2. The applicants, Mr and Mrs Dawson, had made significant progress in building certain alterations and additions to their home in Fremantle.  They had planning approval for the alterations but time eventually expired on their building licence.  They had suffered very significant delays in building.  The City of Fremantle had previously extended the period for building, but had concluded that the reasons that were now being offered by the applicants for the delay were, viewed objectively, insufficient and unsatisfactory.  They sought demolition of the uncompleted structures.

3. The delays were described by the Tribunal as "unfortunate".  They included such matters as responding to neighbours' complaints, various regulatory delays and various misunderstandings on the applicants' part.  The Tribunal agreed that errors had been made, but found that, nevertheless, the transactions were made in good faith.

4. The Tribunal discussed the relevant test for the exercise of the discretion with respect to demolition orders and concluded that, on balance, the applicants' partly built additional structures should not be demolished.  Although there was a public interest in preventing tardy building construction this was outweighed in the applicants' favour having regard to all of the circumstances of the case.  In particular, the Tribunal held that such an end would be, in the circumstances, "achieved at a grossly disproportionate cost which would be fully borne by the applicants".

5. Thus, the application for review on the demolition order was allowed and the demolition order was set aside.

6. What follows is an edited, and formally revised, version of the reasons for decision of the Tribunal which has been taken from the transcript of proceedings.

Introduction

1. There are three related proceedings in this matter, as follows.  First, there is matter CC 191 of 2008, which has been characterised as, in effect, a review of a failure to obtain a building licence by Mr Martin Dawson and Mrs Andree Dawson (applicants); secondly, matter CC 271 of 2008 which is a review of a demolition order issued under the Local Government (Miscellaneous Provisions) Act1960 (WA) (LGMP Act); and thirdly, matter DR 57 2008, which relates to a refusal of development approval for some minor variations by the respondent City of Fremantle (respondent or City) on 23 January 2008.

2. For the applicants, all three matters have common cause and, in any event, to a considerable extent they are interrelated factually and legally.

3. They have been heard and determined together.

Subject land and works

1. The subject land is Lot 49 (No 30) Hale Street, Beaconsfield.  This is a survey strata development.  The proceedings arise out of works which have a long planning history, in fact back to 2000.  The works approved for the subject land were for alterations and a second storey rear addition on the subject land.

Planning approval

1. It is convenient to turn first to the question of planning approval.

2. The respondent properly concedes that, following an earlier decision of the City, from a land use perspective there is now no time limit upon the completion of the subject works, putting to one side certain minor variations sought to be approved by the applicants.

3. These minor variations are referred to at par 31 of the respondent's written submissions, as follows:

   "(a)modification of the internal stairwell;

   (b)extension of the width of the bay window on the southern elevation from 2.0 m to 2.4 m;

   (c)extension of the width of the bay window on the northern elevation from 2.6 m to 3.2 m;

   (d)modification to the gable roof of the rear extension to extend the gable portion by 100 mm; and

   (e)minor alterations to the ground floor doors and windows."

4. The respondent properly concedes, at par 32, that these minor variations are, in themselves, unobjectionable on planning grounds.  The respondent says, however, that refusal of these minor variations is justified where confirmation of the demolition order would be the correct and preferable course.  Thus the reference to "futility" in the respondent's submissions.

5. If, however, a demolition order is not the correct and preferable decision in the related matters, then in the Tribunal's view planning approval should be given in respect of these variations.  I will return to this matter below.

Building licence

1. I turn to the central question of the building licence.  Although the planning history of this matter goes back, as mentioned, to 2000, it was only in February 2005 that the respondent first issued a building licence for the subject works.  It was expressed to be for a 12 month period and it would become void if there had not been "substantial commencement" of the works within 12 months.  The respondent properly concedes that in fact there has been such substantial commencement.

2. In April 2007, there was an extension granted to that building licence, of nine months, which extended its validity to November 2007.

3. On 19 November 2007, a further extension was sought by the applicants, but on 22 November 2007 the respondents took the first step towards a demolition order with a show cause notice issued under the LGMP Act.

4. The applicants attempted to persuade the respondent to the contrary in their written submissions of 30 November 2007 and 7 December 2007.  The respondent found these submissions unpersuasive, and on 23 January 2008 resolved to issue an order requiring demolition of the uncompleted alterations and additions.  That second notice (that is, the order) was a related step and occurred on 21 February 2008.

5. The applicants do not take any issue with these procedural steps and such steps appear to have been authorised under s 409A of the LGMP Act (see below).

Demolition order

1. Crucial to this review is reg 16 of the Building Regulations 1989 (WA). That provision provides as follows:

   "16.   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."

2. The respondent's case is that the respondent declined to consider such a further extension because it had determined, in effect, that no good and sufficient reason existed such that demolition ought not to take place. In any case, the respondent contends that a reg 16(2) "decision", if there be one, cannot be reviewed in this Tribunal.

3. The Tribunal generally agrees with the respondent. There is no enabling Act entitling a person to a review of a reg 16(2) "decision" and therefore this Tribunal has no jurisdiction in the matter. In due course I will make a formal order dismissing that application.

4. However, the relevant factual matrix, including the surrounding circumstances of the consideration by the respondent of the applicants' requests, are not, in my view, irrelevant to the Tribunal's review of the demolition order.

5. As can be seen, reg 16(2) is linked to s 409A of the LGMP Act. That provision is as follows:

   "409A. 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."

The construction of the demolition order provisions

1. The respondent argues, at par 62 of its written submissions, that as a review of a reviewable decision is by way of a hearing de novo - see s 27(1) of the State Administrative Tribunal Act 2004 (WA) - the issue for determination by the Tribunal is whether it, standing in the shoes of the City, is satisfied that there are good and sufficient reasons for the applicants' failure to complete the additions and alterations within the time approved by the City.

2. With respect, on a plain reading of s 409A, it seems that the review is confined to reviewing the exercise of the relevant discretion; hence the reference to " may … by order served on the owner require" demolition. In other words, even if the local government is not satisfied that there are good and sufficient reasons for the failure to build, nevertheless grounds might still exist, in a separate exercise of discretion, for demolition not to be the preferred course or outcome.

3. In my view, such a construction of the provisions, amongst other things, enhances or protects the important rights of the land owner by potentially widening the scope of factors that may be taken into account in the separate discretionary judgment that needs to be made on the question of demolition.  This position is generally consistent with related statutory interpretation principles concerning property rights: see, for example at par [5.17] - [5.19] of Pearce DC and Geddes RS, Statutory Interpretation in Australia (LexisNexis, Butterworths, 6th ed, 2006).

4. To be sure, the factual matrix surrounding good and sufficient reasons will be relevant to this related task as will, as I have already indicated, the treatment by the respondent of any request for an extension.

The applicants' delays and excuses

1. The applicants' answers to the respondent's concerns evidenced by the show cause notice suggest a number of unfortunate delays.

2. These delays are critically unpacked by Mr Roberts, counsel for the respondent, in his comprehensive written submissions.  He starts with the significant period of time that has elapsed, some 33 months, and the related fact that approximately 50% of that period has been consumed by various delays, and therefore no building activity.  Eighteen weeks suspension of activity is noted because of an ongoing dispute with adjoining strata owners.

3. A second matter of substance may be noticed: the question of occupational health and safety requirements in respect to the erection of certain tilt-up panels.  Three and half months is ascribed to the need for accreditation or related matters to do with the installation of those panels.

4. A cumulative period of five months is also noticed in respect of building licence extension matters.  These appear to include the "normal" delays in obtaining regulatory approvals in 2006 and 2007.

5. The respondent has also pointed out some factual and legal errors on the part of the applicants, and has submitted that there were misunderstandings or a lack of diligence in respect of the applicants' assumptions concerning the need to stop building work at various points.

6. I accept that, broadly speaking, a number of unfortunate factual or legal errors were made by the applicants during the relevant periods.

7. The respondent suggests an objective standard to judge these matters of delay.  That is, the Tribunal should not, in the respondent's submission, defer significantly to the applicants', in effect, frame of reference, especially where that frame of reference is based on flawed or incorrect premises.

8. However, here it is not suggested that even if such matters were to be fully accepted in favour of the respondent, the applicants were acting otherwise than in good faith.

9. Perhaps the applicants were mistaken in their view of certain regulatory procedures and consents; perhaps they unnecessarily allowed the dispute with their strata neighbours to interrupt their building work - I should observe at this point that the conduct of the other strata owners appears to have significantly distracted the applicants - perhaps overall the applicants were not as diligent as they ought to have been.  This is all said, however, with the benefit of hindsight, and such errors of judgment, if that is the correct label for them, were made, as I have said, in good faith, and were internally coherent although made upon some mistaken assumptions and beliefs.

Criteria for the exercise of discretion

1. The criteria for the exercise of discretion is not set out in the LGMP Act, and thus the discretion in relation to reviewing the demolition order will on ordinary principles be found in the scope and purposes of the Act.  Such an enquiry will determine the width of the discretion and what are the relevant and irrelevant considerations in the exercise of that discretion.

2. It seems to me that a primary - but, of course, not the sole - purpose of the power to order demolition is to clear away half built structures.  This is particularly the case where they have been abandoned.

3. I have already foreshadowed that the extant property rights and interests of the applicants are significant, albeit I also recognise that there is an opposing public interest in preventing tardy building construction with all its attendant problems, including possible abandonment.

4. The balancing required between these two sets of interests is the decision maker's and, on review, this Tribunal's task.  Broadly speaking, the exercise of such a balancing task is also a matter to be found in other jurisdictions.  Thus, I refer to the New South Wales position by reference to Barton v Orange City Council [2008] NSWLEC 104 (Barton), a decision of Biscoe J in the Land and Environment Court of New South Wales.  I should formally record that the Tribunal has had regard to [46] - [50] of Barton.

5. In that case, Biscoe J was concerned with a jurisdiction which, I hasten to add, is quite different in form to the jurisdiction of this Tribunal in the current matter.  The position in New South Wales is that, speaking generally, demolitions are to be authorised by the Court in terms of a mandatory injunction under statute.  Nevertheless, it is I think useful to compare the approach that the Courts take to the question of discretion in demolition cases with the situation here.

6. His Honour, at [45], sets out a quote from Kirby P, as he then was, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at pages 339 ­ 340, as follows (omitting citations):

   "It is undesirable to endeavour, by drawing upon decisions in differing fact situations which have presented in earlier cases, to attempt to catalogue or classify all of the circumstances which will enliven the exercise of the discretion in cases yet to come.  By the statute, the discretion is not fettered.  It is not limited either to particular classes of case or to limited or special cases ...  Nonetheless, keeping that salutary warning in mind, it can be instructive, and helpful in the achievement of the generally consistent application of the law (which the creation of a specialist Land and Environment Court facilitates) to consider the variety of circumstances in which the discretion conferred by the section has been exercised.  The Council [in that case] itself conceded that relevant factors would include the fact that the breach complained of was a purely technical breach which was unnoticeable other than to a person well versed in the relevant law ... or the fact that the local authority had delayed the bringing of its action … or the fact that, far from having an adverse effect on the environment or the amenity of the locality, the breach, in reality, had been shown to have a beneficial effect ..."

7. His Honour, at [46], also cites Kirby P in ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 at 82, as follows:

   "[The discretion] permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction."

8. I pause to observe here that the applicant expressly relies upon the principle of proportionality to defeat the order.

9. Finally, I should place on record the various discretionary considerations in Barton itself which give some further illustration of the position in New South Wales. There, the applicants were all considered by the Judge - this is at [50] - to be "innocent victims" of the Council's own conduct, and one of the parties acted honestly in accordance with a development consent, and "not without or in defiance of" such a consent.

10. The Judge had regard to the relative hardship to the applicants and to the other party if the orders were made or not made.  Other factors included: that certain notice was, in effect, given of the proceedings; the delay by the applicants in bringing proceedings; that although even if the Council did give proper, genuine and realistic consideration, no reasonable consent authority could have granted the consent; and that a certain undertaking had been given.

1. Those matters, as I said, relate to a specific statutory jurisdiction expressed in terms of the principles attaching to mandatory injunctions and the application of related equitable principles that follow from that.  But, in this Tribunal's view it would be a surprising result indeed if an analogous range of factors were also not relevant to the exercise of discretion in this case (cf Drake and City of South Perth [2005] WASAT 271 at [92] - [97]). This is particularly so, in my view, as regards the now widely accepted principle of proportionality (cf South Australia v Tanner (1989) 166 CLR 161), expressed, relevantly, in the passage that I have already referred to in the judgment of Kirby P which is set out above.

Application of these principles

1. Here, other factors, besides acting in good faith to which I have already referred, favour the applicants' case.  These include, firstly, that they were mostly unrepresented during the proceedings until recently (apart from some earlier advice given by Mr Kronberger, the well-known property solicitor).

2. Secondly, that they are not builders by profession.  They were described in the proceeding as owner builders.  That is as I understand it, although one of the parties might have been an engineer.

3. Another factor in their favour is that they are significantly advanced in their building work.  They are by no means finished, but in my opinion they are significantly advanced.

4. There has been no evidence led concerning hardship so the Tribunal has accordingly not addressed that issue, and it may be inferred that no hardship would flow from an order upholding demolition.  The other factor in their favour is that they were acting in pursuit of a valid, extant development approval.

5. In the Tribunal's view, the public interest would not be furthered by demolition in these circumstances.  It is true that demolition in a case like this would send a clear message to owner builders to stick to their timetables and that it might advance some other matters of public interest.  But such an end in this case would be, in the circumstances as I have found them, achieved at a grossly disproportionate cost which would be fully borne by the applicants.

Conclusions

1. In all of these circumstances, the correct and preferable decisions are as follows.

2. In relation to CC 191 of 2008 (as I have already indicated), as the Tribunal lacks jurisdiction, that matter will be dismissed.  Secondly, the Tribunal orders that the review in CC 271 of 2008 be allowed, and that the decision to issue a demolition order is to be set aside and substituted therefor will be a decision not to issue such a notice.  Thirdly, and consequently, the minor variations sought by way of development approval not yet considered by the City but refused (DR 57 of 2008), should be permitted, and that review should be allowed and planning consent given in respect of those matters.

3. Now, the effect of all of this is, presumably, that the applicants will have to apply again to the respondent City for a fresh building licence, and of course if that were refused they would have rights of review in this Tribunal.

Orders

1. For the reasons just given, the Tribunal makes the following orders:

DR 57 of 2008:  Dawson & Anor and City of Fremantle

1.For the reasons given ex tempore in this Tribunal on 17 April 2008, the review is allowed.

2.The decision under review is set aside and in its place there will be a decision that planning approval be given in the terms sought by the applicants in respect of the minor works or variations made or proposed to be made to the subject land.

CC 191 of 2008:         Dawson & Anor and City of Fremantle

1.For the reasons given ex tempore in this Tribunal on 17 April 2008, the proposed review in this matter (characterised as a review of the failure of the respondent City to grant an extension of a building licence) is dismissed for want of jurisdiction.

CC 271 of 2008:         Dawson & Anor and City of Fremantle

1.For the reasons given ex tempore in this Tribunal on 17 April 2008, the review is allowed.

2.The decision under review to issue a demolition notice is set aside and there is substituted in its place a decision not to issue such an order.

3.Consequently, the demolition notice ceases to have effect.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, MEMBER