DUESCHEN and CITY OF STIRLING
[2008] WASAT 181 (S)
•21 OCTOBER 2008
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | COMMERCIAL & CIVIL |
| ACT | : | HEALTH ACT 1911 (WA) |
| CITATION | : | DUESCHEN and CITY OF STIRLING [2008] WASAT 181 (S) |
| MEMBER | : | DR B DE VILLIERS (MEMBER) MS J HAWKINS (MEMBER) |
| HEARD | : | 9 OCTOBER 2008 |
| DELIVERED | : | 9 OCTOBER 2008 |
| SUPPLEMENTARY | ||
| DECISION | : | 21 OCTOBER 2008 |
| FILE NO/S | : | CC 1681 of 2007 |
| BETWEEN | : TATYANA DUESCHEN |
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Premises unfit for human habitation - Confirmation of notice to vacate the premises and for dwelling to be pulled down within the specified time in the order
Legislation:
Health Act 1911 (WA), s 135, s 137
[2008] WASAT 181 (S)
Result:
The application for review is dismissed
Category: A
Representation:
Counsel:
| Applicant | : | Self-represented |
| Respondent | : | Mr D Nadebaum (Acting as Agent) |
Solicitors:
| Applicant | : | Self-represented |
| Respondent | : | City of Stirling |
Case(s) referred to in decision(s):
Dueschen and City of Stirling [2008] WASAT 181
[2008] WASAT 181 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The Tribunal made a determination in earlier proceedings that the
application by Ms Dueschen for review of a decision by the City of Stirling be dismissed. The decision of the City of Stirling was to issue two notices: one notice was for the Dueschens' premises to be declared unfit for human habitation and for them to vacate the premises; the second notice was for the dwelling to be pulled down and removed due to it being unfit for human habitation. The Tribunal affirmed both of these notices but gave the parties an opportunity to comment on the draft orders and, in particular, on the time allowed for compliance with the orders. The Tribunal also referred the matter to the Public Advocate for investigation.
The Public Advocate informed the Tribunal that there was no reason for it to bring any application in regard to the matter.
The City of Stirling sought orders for the premises to be vacated with immediate effect and for the dwelling to be pulled down immediately.
4 Ms Dueschen agreed that the dwelling is currently not fit for human
habitation due to fire damage but sought time for it to be brought to a
proper state.5 The Tribunal made orders to give effect to the notices issued by the
City of Stirling. The first order was for the premises to be vacated with immediate effect since it is not fit for human habitation. The second order was for the dwelling to be pulled down and removed within 21 days from the date of the orders.
Background
6 The Tribunal handed down oral reasons in these proceedings on
9 October 2008. It undertook to provide the parties with a transcript of
the reasons. The following is an edited version of the oral reasons.
The Tribunal made a finding in this matter on 20 August 2008 (Dueschen and City of Stirling [2008] WASAT 181) (Dueschen decision).
8 The facts giving rise to the application and the consideration by the
Tribunal of all the evidence before it are set out in those reasons. To fully understand the issues in dispute, the Dueschen decision must be read
[2008] WASAT 181 (S)
together with these reasons. The Tribunal explained to the parties that the purpose of this hearing is not to revisit the previous findings of the Tribunal, but to set the dates upon which the orders made by the Tribunal must be complied with.
In essence, the Tribunal found in the Dueschen decision that the notices issued by the City of Stirling pursuant to the Health Act 1911 (WA) should be affirmed.
10 The consequence of the Dueschen decision is that the premises must
be vacated since it was found to be unfit for human habitation. The dwelling must also be pulled down since it was also found to be unfit for human habitation.
11 In the Dueschen decision, the Tribunal provided to the parties its
orders in draft form for them to comment on. The reason the Tribunal gave the opportunity to comment on the appropriateness of the orders was because it was cognisant of the far-reaching and traumatic consequences its decision held to the applicants. The Tribunal therefore invited the parties to comment on the appropriateness of the orders and in particular the time frames set for the orders to be complied with.
12 The Tribunal also referred the matter to the Public Advocate of
Western Australia for it to investigate. The Public Advocate sought an adjournment of proceedings that were scheduled for 22 September 2008 in order for it to complete its investigation.
13 The Public Advocate has now completed its investigation and
informed the Tribunal that there is no reason for it to seek any orders in
regard to these proceedings.14 The Tribunal noted that the house the subject of this application was
badly damaged by fire on the evening of 30 September 2008. The City of Stirling tendered photographs to illustrate the extent of that damage. Ms Dueschen confirmed in her evidence that the house was badly damaged and that in its present state it is not fit for human habitation. She contended, however, that it could be restored and made fit for habitation. She did not submit any plans or expert advice to that effect.
15 Ms Dueschen also referred in her evidence that she had not been
capable to fully participate in the earlier proceedings since her 'papers and witness statements' were destroyed by the fire. The Tribunal notes, however, that these proceedings were concluded by 20 August 2008 and that the fire only occurred on 30 September 2008. The failure
[2008] WASAT 181 (S)
by Ms Dueschen to participate in the previous proceedings can therefore
not be explained by the unfortunate events of 30 September 2008.
Consideration
16 The Tribunal is satisfied that on the basis of the photographs
tendered to it, and the submissions made both by Mr Nadebaum and Ms Dueschen, that the house is now in an even worse state than it was when the decision was handed down on 20 August 2008. The reasons that were given to the Tribunal in the Dueschen decision for the application for review to be dismissed are therefore even more valid after the fire.
That brings us to the question regarding the appropriate orders to make for the notices to be complied with.
18 Mr Nadebaum suggested that the order to vacate the premises should
have immediate effect, seeing that the house has burnt down and is entirely unfit for human habitation. He also observed that neither Ms Dueschen nor her mother is currently living in the premises. Ms Dueschen confirmed that they are not living in the premises and admitted that 'for once the [C]ity got it right' that the premises are not fit for human habitation.
19 The parties are therefore in agreement that the house is immediately
not fit for human habitation. Where the previous draft order in the Dueschen decision proposed a period of 31 days for the house to be vacated, it is therefore appropriate that the time frame should be with 'immediate effect'.
20 That brings us to the proposed order for the house to be pulled down
and removed. The Tribunal has already made a finding in the Dueschen decision that a notice of the City for the house to be pulled down and removed must be affirmed. The question in this hearing is what time should be allowed for the notice to be complied with.
21 Mr Nadebaum sought for the demolition notice to take immediate
effect. That would mean in essence that Ms Dueschen would be given no practical time to make any personal arrangements for the demolition and the City would effectively be able to arrange for the demolition through its own contractors.
22 Ms Dueschen said that, first of all, she would prefer no demolition
notice, but if there were a demolition notice, she would prefer the longest
possible time to comply with it.
[2008] WASAT 181 (S)
23 Mr Nadebaum and Ms Dueschen commented that the current state of
the premises is such that unauthorised persons may gain access to the property. On the photographs submitted to the Tribunal, it also appears as if there is just a form of plastic tape separating the front of the property from the street. It is therefore clear that any person can gain very easy access to the property.
24 The easy access may give rise to several problems. Ms Dueschen
expressed concern that valuables may be stolen while Mr Nadebaum expressed concern that members of the public, and particularly Ms Dueschen, may be injured if the remains of the dwelling collapse while they are inside it.
25 The Tribunal notes that the City has given Ms Dueschen the
assurance that if there were any valuable items on the premises, it would either give Ms Dueschen an opportunity to visit the site with the Tribunal, or otherwise the demolition contractor would be instructed to save whatever he can save.
Finding
26 The Tribunal is satisfied that on the basis of the evidence before it,
the notice that the premises is unfit for human habitation should be given immediate effect and the notice that the dwelling must be pulled down and removed must be complied with no later than 21 days from the date of these orders.
27 The Tribunal realises this is a very traumatic event for the
Dueschens. The Tribunal also realises the Dueschens have been living at the premises for a long period. In the Dueschen decision the Tribunal expressed, at various occasions, sincere sympathy and concern for the Dueschens. At the same time, however, the public interest and the interests of the Dueschens must also be taken into account by the Tribunal.
| Orders |
1. The application for review of the decision of the City of Stirling to issue a notice pursuant to s 135 of the Health Act 1911 (WA), that the house and premises situated at 143 Sixth Avenue, Inglewood, is unfit for human habitation, is dismissed. The decision of the City of Stirling to issue the notice is affirmed. The Tribunal directs that the said house shall,
[2008] WASAT 181 (S)
with immediate effect, not be inhabited or occupied by
the Dueschens or any other person.2. The application for review of the decision of the City of Stirling to issue a notice pursuant to s 137 of the Health Act 1911 (WA), that the house and premises situated at 143 Sixth Avenue, Inglewood, is unfit for human habitation, is dismissed. The decision of the City of Stirling to issue the notice is affirmed. The Tribunal directs that the said house shall, no later than 21 days from the date of this order, be taken down and removed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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