Dueschen and City Of Stirling - [2008] WASAT 181

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: HEALTH ACT 1911 (WA)

CITATION: DUESCHEN and CITY OF STIRLING [2008] WASAT 181

MEMBER: DR B DE VILLIERS (MEMBER)
MS J HAWKINS (MEMBER)
MR P FAIGEN (SESSIONAL MEMBER)

HEARD: 11 MARCH 2008 (SITE INSPECTION), 22 APRIL 2008, 13 MAY 2008

DELIVERED : 20 AUGUST 2008

FILE NO/S: CC 1681 of 2007

BETWEEN: TATYANA DUESCHEN
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Unfit for human habitation - Notice to pull down - Public interest - Health - When is a house unfit for human habitation due to health reasons - When should a house be pulled down due to health reasons - Interaction between private and public interest - Obligation of local authority to exercise a statutory power - Duty of care of local authority - Possible role of the Public Advocate to undertake an investigation

Legislation:

Guardianship and Administration Act 1990 (WA), s 97(1)(c)
Health Act 1911 (WA), s 31, s 36, s 99, s 99(1), s 134, s 135, s 137, s 139, s 182, s 184(3)
Local Government Act 1995 (WA), s 3.25(1), Sch 3.1 Div 5A(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 29, s 39, s 48

Result:

The application is dismissed

The Tribunal proposes to make the following orders at a hearing to be held at 10 am on 22 September 2008. The parties are invited to submit to the Tribunal not later than 11 September 2008 any comments or submissions in regard to the appropriateness of the orders:
(a) The application for review of the decision of the City of Stirling to issue a notice pursuant so 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 to issue the notice is affirmed. The Tribunal directs that the said house shall not after 31 days from the date of this order be inhabited or occupied by the Dueschens or any other person.
(b) The application for review of the decision of the City of Stirling to issue a notice pursuant so 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 to issue the notice is affirmed. The Tribunal directs that the said house shall no later than 90 days from the date of this order be taken down and removed.
The Executive Officer of the State Administrative Tribunal is requested to make a referral within seven (7) days after the date of these orders, to the Public Advocate pursuant to s 97(1)(c) of the Guardian and Administration Act 1990 (WA) to investigate whether Mrs Ursula Dueschen and Ms Tatyana Dueschen may be in need of a guardian and/or administrator.

Category: A

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr D Nadebaum (Acting as Agent)

Solicitors:

Applicant: Self-represented
Respondent: City of Stirling

Cases referred to in decision:

Hampel v South Australian Housing Trust [2007] SADC 64
Pyrenees Shire Council v Day [1998] HCA 3
Sutherland Shire Council v Heyman [1985] HCA 41

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The City of Stirling issued two notices on 14 September 2007 pursuant to the Health Act 1911 (WA) regarding alleged health risks arising from the property of Mrs Ursula Dueschen. The first notice declared the premises and house unfit for human habitation due to health concerns and required that it had to be vacated. The second notice declared the house unfit for human habitation and directed that it had to be demolished and removed.
Ms Tatyana Dueschen, acting on behalf of her mother, sought a review of the notices and for both to be revoked. The City of Stirling opposed the application.
The City motivated the issuing of the notices on grounds that it (City) has made many attempts over a period of close to 20 years to convince the Dueschens to address and improve the conditions at the property; that the property continues to pose a serious health and fire danger to the Dueschens and their neighbours; and that the Dueschens have not made any effort to bring about improvements to the property or to submit plans to the City or to the Tribunal as to what they will do to bring the house to a habitable state.
Ms Dueschen sought the review on essentially two grounds: firstly, that she and her elderly mother have the right to their unique lifestyle and that the City is acting in a vindictive and self-serving manner by issuing the notices; secondly, she contended that the premises do not constitute a health risk and that the City exaggerates the condition of the house and the property.
The Dueschens did not give evidence in the proceedings although they made a written submission which accompanied the application. The Tribunal conducted a site inspection in which Ms Tatyana Dueschen participated. The City called several witnesses to give evidence. The witnesses were in agreement that the condition of the property is such that it is not suited for habitation, that the property is an ongoing nuisance to neighbours and that it poses serious health and fire risks to the Dueschens and the neighbours.
The Tribunal considered the extensive evidence presented to it and found that the City had properly discharged its duties by issuing the notices. The condition of the premises is shocking and words cannot describe the sad and pitiful conditions under which the Dueschens live. The fact that Ms Dueschen does not recognise the seriousness of their situation gives further cause for concern. The Tribunal is satisfied that public interest demands that the Dueschens should not only be required to vacate the premises, but they should also be directed to pull down and remove the building. The decision of the City to issue the notices should therefore be affirmed.
The Tribunal gave the parties further time to comment on the orders it intended to make to enable them to make submissions on the appropriateness of the orders.
Due to the Tribunal's concern about the general state of health and wellbeing of the Dueschens, it also ordered the Executive Officer of the State Administrative Tribunal to write to the Public Advocate of Western Australia to request that she investigate the situation in which the Dueschens find themselves to determine if a guardian and/or administrator should be appointed.
In order to allow the Dueschens a final opportunity to address the concerns raised by the City and also to enable the Public Advocate to consider the request for an investigation, the orders made by the Tribunal will, unless otherwise ordered, only take effect on 3 November 2008.

Background

The application concerns the review of a decision by the City of Stirling (City) to issue two notices under the Health Act 1911 (WA) (Health Act). The notices were both issued on 14 September 2007.
The one notice, to which these reasons refer as the "unfit for human habitation notice", declared the house situated in 146 Sixth Avenue, Inglewood unfit for human habitation for reasons set out in the notice. The house comprises two bedrooms, a sleepout, a dining room, lounge, kitchen, bathroom, verandah and outside toilet and laundry. The notice required and directed that no person may inhabit the house after 10 October 2007.
The other notice, to which these reasons refer as the "demolition notice", declared the same house as unfit for human habitation for reasons set out in the notice, and ordered that the house had to be taken down and removed within 90 days from the date of the notice.
According to the notices, failure to comply with the respective notices constitute an offense and could attract a penalty.
Due to the lodgement of an application for review, the City did not take enforcement proceedings.
Mrs Ursula Dueschen and her daughter Ms Tatyana Dueschen are the inhabitants of the house. According to the evidence before the State Administrative Tribunal (Tribunal), Mrs Ursula Dueschen is the co-owner of the house. The other co-owner, Mr Konstatin Dueschen, is deceased. Mr Dueschen died in December 1979 but the Certificate of Title record has not been amended. According to the information available to the Tribunal, Mrs Ursula Dueschen is in her eighties and Ms Tatyana Dueschen is in her sixties.
All references in these reasons to "Ms Dueschen" refer to Ms Tatyana Dueschen unless otherwise stated. References to the "Dueschens" refer to Mrs Ursula Dueschen and Ms Tatyana Dueschen jointly.
Ms Dueschen lodged the application on 11 October 2007 for review of the decision to issue the two notices. The first directions hearing took place on 1 November 2007.
Ms Dueschen explained to the Tribunal that she was authorised to act on behalf of her mother, Mrs Ursula Dueschen. Ms Dueschen also said she was directly affected by the notices since she lives on the premises.
Mrs Ursula Dueschen did not make any personal appearance at the Tribunal nor did she participate in the site inspection that took place on 11 March 2008. During the site inspection, Ms Dueschen explained that her mother was in the main bedroom, but she was not feeling well and, as a result, she could not participate in the proceedings nor could the door to the main bedroom be opened.
Pursuant to s 39 of the State Administrative Tribunal Act 2004 (WA) SAT Act, the Tribunal accepted the request of Ms Dueschen to bring the proceedings on behalf of her mother. The Tribunal also urged Ms Dueschen to seek legal advice to support the application.
In order to facilitate the reading of these reasons, the Tribunal will provide its overview and analysis under the following headings:
2)Orders sought
3)Alternative dispute resolution
4)Composition of the Tribunal
5)Section 48 of the SAT Act - Conduct of a proceeding causing a disadvantage
6)Hearing "de novo"
7)The notices and Ms Dueschen's response thereto
8)Contentions of the City
9)Evidence during the hearing
10)The City's closing submissions and chronology of events
11)Consideration
12)Summary of findings
13)Final opportunity to undertake rectification
14)Request to the Public Advocate
15)Orders

Orders sought

Ms Dueschen sought orders for the decision to issue the notice that declare the house unfit for human habitation pursuant to s 134 of the Health Act and the demolition notice pursuant to s 137 of the Health Act to be set aside and for both the notices to be revoked.
The City opposed the application and sought an order for the decision to issue the notices to be affirmed.

Alternative dispute resolution

At the first directions hearing that took place on 1 November 2007, the Tribunal explored with parties the possibility for the application to be referred for mediation to be dealt with by way of agreement rather than by a decision of the Tribunal.
It appeared at the directions hearing that the concerns raised by the City had been ongoing for some time and the Tribunal was therefore of the view that the parties could possibly benefit from a mediated outcome. It was particularly in light of the serious and far reaching consequences for the Dueschens if the application were not successful, that the Tribunal encouraged a mediated outcome.
The Tribunal explained to Ms Dueschen the seriousness and urgency of the matter and encouraged her to do her utmost endeavours to come to some form of agreement with the City to enable them to consent to the revocation of the notices.
The matter was therefore adjourned for mediation on site on 27 November 2007. The mediation was conducted by Member Carey, a fulltime member of the Tribunal and a trained mediator.
The dispute did not settle during mediation. The Dueschens did not seek any further opportunity for mediation. Member Carey therefore adjourned the proceedings for a directions hearing to finalise a schedule for the hearing.
During the subsequent direction hearings, the Tribunal repeatedly urged Ms Dueschen to make serious attempts to bring the property to a condition where the City would consent for the notices to be revoked or at least to make proposals to the City to address some of the concerns it had raised.
In orders made on 13 December 2007, the Tribunal adjourned proceedings:
To enable the applicant to put to the respondent a detailed proposal of what works she proposes to do to the property.
In its orders made on 31 January 2008 the Tribunal said the following:
The applicant is encouraged by the Tribunal to urgently seek further meetings with the respondent in order to reduce the dispute by agreement.
All efforts to resolve the dispute by agreement failed.
Ms Dueschen did not seek any further adjournment for mediation nor did she make any firm proposals to address any of the issues raised in the respective notices. The matter was therefore set down for hearing.
The Tribunal encouraged Ms Dueschen at several occasions to seek legal advice and/or to approach a legal aid body for assistance since the implications if the notices were not revoked would be far reaching for her and her mother.

Composition of the Tribunal

The Tribunal was originally constituted by Member De Villiers for purposes of the direction proceedings.
In light of the nature of the application, the gender of the applicants, the age and apparent frailty of the Dueschens, the President of the Tribunal decided to re-constitute the Tribunal for purposes of the hearing.
The Tribunal for the hearing comprised Member Bertus De Villiers (presiding member), Member Jennifer Hawkins and Sessional Member Phil Faigen. Sessional Member Fagan is on the Tribunal's panel of experts as a registered builder and architect. The President was of the view that such expertise as offered by Sessional Member Fagan would be valuable to these proceedings.

Section 48 SAT Act - Conduct of a proceeding causing a disadvantage

Ms Dueschen failed to participate in any of the hearings or to make submissions other than those in her original application. The Tribunal went to great lengths to secure Ms Dueschen's attendance and involvement in the proceedings but to no avail. She did assist the Tribunal during the site inspection, by guidance through the house.
Section 48 of the SAT Act enables the Tribunal to deal with an application if a party fails to comply with orders of the Tribunal or if it fails to attend any hearing of the Tribunal.
Section 48 provides as follows:
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -
(a)failing to comply with an order or direction of the Tribunal without a reasonable excuse;
…
(f)failing to attend any hearing in the proceeding.
(2)If this section applies, the Tribunal may -
(a)if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out;
…
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or at its own initiative.
In these proceedings, Ms Dueschen failed to play an active role in any of the hearings. As a result, hearings had to be rescheduled in an effort to secure her involvement, but she would then again fail to attend the newly scheduled hearing.
As a consequence of the conduct of Ms Dueschen, the question was raised during the proceedings if the application ought to be struck out or dismissed pursuant to s 48(2) of the SAT Act. It was, however, considered at the time more appropriate for the Tribunal to hear the evidence that gave rise to the issuing of the notices given the far reaching and serious consequences if the notices were affirmed.
The Tribunal arranged for the transcripts of proceedings to be mailed and hand-delivered to Ms Dueschen to enable her to make submissions or to give evidence in support of the application.
Ms Dueschen failed to comply with the following orders of the Tribunal:
a)Failure to make proposals: Ms Dueschen was ordered on 13 December 2007 to put to the City a "detailed proposal" of works she proposes to do to bring the house to a habitable state. No proposal was submitted.
b)Failure to file documents: Ms Dueschen was ordered on 31 January 2008 to reply to the statement of issues, facts and contentions of the City. She failed to submit any written or oral response. Ms Dueschen sought a postponement of the directions hearing due to her having been stung by seven bees on 30 January 2008 but no medical evidence or certificate was provided.
c)Failure to prepare for hearing: The hearing scheduled for 11 March 2008 commenced with a site inspection. At the site inspection, Ms Dueschen refused access to the site and as a result the proceedings had to be adjourned to the hearing room. In the hearing room Ms Dueschen indicated that she was also not ready to participate in the hearing and requested an adjournment. The City did not support an adjournment and urged the Tribunal to continue with the hearing. The Tribunal reluctantly decided to adjourn the proceedings to give Ms Dueschen maximum time and opportunity to prepare for the hearing. Ms Dueschen did however agree, at the request of the Tribunal, to allow a site inspection of the house during the same afternoon. She did not provide any coherent reason for her non-availability to participate in the hearing, for her failure to reply to the City's written submission or for her lack of preparation to participate in the hearing.
d)Failure to attend a hearing: The next hearing was scheduled for 22 April 2008. Ms Dueschen again failed to attend. She also did not apologise for her nonattendance nor did she make any submission. After the hearing had been in progress for approximately three hours, a person claiming to call on behalf of Ms Dueschen left a message with the registry of the Tribunal that she or somebody in her family had suffered a "medical condition" and as a result she could not attend the hearing. The Tribunal adjourned the proceedings against the objections of the City and ordered that a transcript of the evidence that was heard during the morning be provided to Ms Dueschen to enable her to cross-examine the witnesses at the next hearing. Arrangements were also made for the witnesses to again avail themselves at the next hearing to be crossexamined. The Tribunal also made an order on 22 April 2008 that Ms Dueschen is "urged to attend the proceedings, in person or, if possible, with a representative to ensure her application is properly presented to the Tribunal."
e)Failure to present medical certificate: The Tribunal made a further order on 30 April 2008 requiring that Ms Dueschen "must provide to the Tribunal written documentary evidence in the form of a medical certificate or other declaration by no later than 13 May 2008 in support of the message given to the Tribunal staff on 22 April 2008 that she could not attend a hearing of the Tribunal due to an illness in the family." Ms Dueschen failed to comply with the order and no medical certificate or other written or oral explanation has been given to the Tribunal.
f)Failure to attend hearing: Ms Dueschen again failed to attend the hearing of 13 May 2008 and did not tender an apology. She also did not make any submission. The witnesses who gave evidence at the previous hearing and who availed themselves for crossexamination were excused.
g)Failure to make submission: At the conclusion of the hearing on 13 May 2008, the Tribunal ordered that Ms Dueschen had to reply to the closing statement of the City by not later than 17 June 2008. The date was later extended to 27 June 2008. Ms Dueschen failed to comply with the order and did not make any submission to the Tribunal in reply to the submissions of the City.
h)Reminder by Tribunal administrative staff: In a reply to a telephone call from Ms Dueschen on 6 June 2008, Mrs Jean Mott, a member of the administrative staff of the Tribunal, sent a letter to Ms Dueschen to which the closing submissions of the City and other material were enclosed. Mrs Mott explained to Ms Dueschen in the letter that she (Ms Dueschen) had to file her final submissions by no later than 27 June 2008. Mrs Mott again drew to Ms Dueschen's attention the importance of seeking legal advice. Mrs Mott further suggested to Ms Dueschen that if she required additional time to prepare a response, she (Ms Dueschen) could request a directions hearing. Mrs Mott explained that during the directions hearing Ms Dueschen could motivate to Member De Villiers as to why additional time to reply to the City's submissions and evidence was sought. Ms Dueschen did pursue the suggestion.

The Tribunal is of the view that Ms Dueschen conducted the proceedings in a manner that caused unnecessary disadvantage to the City, the Tribunal, her neighbours and members of the public. Although she explained in her application why she sought the review of the decision and she attended the site inspection, Ms Dueschen failed to participate in any of the further proceedings, to examine evidence or to give any evidence. She further failed to comply with orders and directions of the Tribunal, and she prolonged proceedings and secured adjournments for no good reason.
The Tribunal has also not had sight of Mrs Ursula Dueschen and we have not received any medical certificate or any other evidence to explain why she could not attend or participate in the proceedings. Although the Tribunal did not during the site inspection enter the main bedroom out of respect for Ms Dueschen's request, there was no evidence before the Tribunal to support the contention that Mrs Ursula Dueschen was unwell or incapable of participating in the proceedings.
The Tribunal is satisfied that given the conduct of Ms Dueschen, the application could have been dismissed or struck out pursuant to s 48(2)(a) of the SAT Act.
The Tribunal nevertheless decided to deal with the matter on its merits.

Hearing "de novo"

In exercising its review function, the Tribunal deals with the matter in accordance with s 17 of the SAT Act and s 36 and s 137(ii) of the Health Act. Section 17 of the SAT Act defines what comes within the review function of the Tribunal, while s 36 and s 137(ii) of the Health Act provides that a person who is aggrieved by a decision under the said Act, can seek a review from the Tribunal. Section 137(ii) of the Health Act allows an applicant an opportunity to review the decision for a structure to be demolished without the person being given an opportunity to undertake reparatory work.
The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the City as the original decision maker.
The Tribunal is not limited to the statement of reasons given by the City (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 City at the time when the decision was made (s 27(1) of the SAT Act).
The Tribunal made ongoing attempts to encourage Ms Dueschen to bring any relevant information into the proceedings, even if such information was not available to the City prior to it issuing the notices.
The review hearing is therefore de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the City at the time of the decision. 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 City (s 29(5) of the SAT Act).

The notices and Ms Dueschen's response thereto

In her application, Ms Dueschen provided reasons why she believes the application should succeed. The Tribunal took all of the reasons she raised into account.
The reasons Ms Dueschen advanced for seeking the setting aside of the unfit for human habitation notice can be summarised as follows:
•The City has for more than 14 years been victimising and harassing the Dueschens for no good reason. The house belongs to the Dueschens and the City has no right to interfere in the way they (Dueschens) are living their lives. Their lifestyle may not be acceptable to others in the society, but they do not put any person at risk nor are they at any danger.
•The house is not dilapidated as the City contends and the garden used to be flourishing. Before they ran out of money, the house was in a perfect condition. The house may do well with some cosmetic work but the structure is safe and solid.
•The main motivation of the City to issue the notices is to make the premises available to property developers. The City has been encouraged by real estate agents to have the property redeveloped. Officers acting on behalf of the City have repeatedly suggested that the Dueschens sell the property and to find alternative accommodation in a retirement village or somewhere appropriate.
•The Dueschens are living on their own with limited financial means and no other family to support them financially. They also do not have funds to retain a lawyer.
•The City has organised several purported cleanups of the property during which the Dueschens had lost valuable property, furniture had been damaged and photographs had been lost. Several household appliances had either been taken away or damaged during these cleanups. To add to their woes, the Dueschens have been required to pay for the costs to clean the premises.
•Although the City purports to have the welfare of the Dueschens in mind, this is nothing but pretence for a hidden agenda.
•The house remains "liveable" and it is not correct to say, as the notices do, that it is not fit for human habitation.
For purposes of convenience, the issues raised in the demolition notice and Ms Dueschen's response thereto in her application, can be summarised in tabular form:

Demolition Notice	Ms Dueschen's reply
No electric power available	Three light switches were damaged by City but the other switches work.
Gas supply has been disconnected	Nothing wrong with the gas pipes.

Demolition Notice	Ms Dueschen's reply
Water supply is restricted	The water supply is reduced but adequate.
No laundry facilities within house	There are plastic buckets and troughs inside which are used for washing.
Bathroom facilities unusable	The bathroom is used as a store but that does not make it unusable. The bathtub is old but it does not leak. Hot water is heated up by gas when and if it is needed.
Unsanitary conditions in house due to cat faeces and urine	Litter trays for the cats are cleaned and changed daily.
Restricted access to house due to combustible material and fire risk	The front door can be opened but the Dueschens chose not to use it. Many houses have combustible materials such as curtains, furniture and carpets.
Large amounts of disused material and rubbish in an around house	There are lots of disused materials but those do not constitute any harm or risk. The materials do not attract any vermin.
Passageway: walls are holed, stained	The house may not be pretty but the structure is sound, it does not pose a risk, and it is habitable although it may require cosmetic work. There are holes in some walls but no danger is caused by it.
Kitchen: plaster stained, stove not serviceable, window cannot open, cupboards dilapidated	The kitchen is tiny, the window can open, the doors may not be the right size but that can be fixed, the gas stove cannot be used since it has been disconnected, and there are no leakages. The stains on the plaster cannot be removed but it can be repainted although it does not constitute a risk to anybody.

Demolition Notice	Ms Dueschen's reply
Dining room: dirty and stained, floors badly contaminated with cat faeces, urine and pet food	The floor boards are sound, the cat litter trays are cleaned daily.
Lounge: plaster cracking, stained, dirty, floor contaminated, windows taped, front door cannot open	The ceiling is stained but that does not constitute any risk, the hardboard is used to cover the windows since the glass panes are no longer available. The City's actions have contributed to vandalism and stones being thrown at the house and windows.
Front bedroom: ceiling dirty and stained, wall cracked in places	Although the wall plaster has a few fractures nothing has fallen down.
Bathroom: ceiling dirty and stained, some parts of wall affected by moisture, bathroom window not serviceable, bath rusted and chipped	The only moisture is in the tub, there is no danger of ceiling plaster falling down, and the bathtub does not leak although the glazing is worn but not chipped.
Sleepout: plaster dirty and paint peeling, caneite walls are holed, window louvers are broken	All the claims are disputed. The room is solid and does not constitute any danger.
External: gutters and down pipes rusted or missing; fascia timber badly weathered or missing; verandah columns extensive rot; asbestos cladding missing and parts collapsing; floors rotting; sleep out show evidence of termites; and window frames badly weathered	Fascia timber is sound, the verandah columns are "holding out", nothing has collapsed. There is damage - some caused by the City. There is no evidence of termites and although parts of the external structures are weathered, it is safe for habitation.

Demolition Notice	Ms Dueschen's reply
Laundry: entire structure has collapsed, trough not accessible, brick chimney has collapsed	The ironclad roof collapsed due to the instability caused by the City's workers. Prior to their destabilization the structure was sound. The chimney was also intact although it was at a slight angle, but the City's interference destabilized it. It is possible that the structure was pulled down on purpose.

Contentions of the City

The City filed its statement of issues, facts and contentions on 14 February 2008.
The City contended in summary as follows:
i)The City has for many years made attempts to convince the Dueschens to remove rubbish from the property, to reduce the number of cats, to repair the house, to maintain adequate water, electrical and gas services to the house, and to remove overgrowth.
ii)Several prosecuting proceedings have been brought by the City and although convictions have been recorded the Dueschens failed to heed to it. The Dueschens remained in non-compliance; fines and costs have not been paid; and the house has over time become even more degraded.
iii)The City has on several occasions used its own resources under authority of the relevant legislation, to clean up the premises. The Dueschens have refused to refund the City for its expenses and they also failed to keep the property in a tidy state.
iv)The City concluded that the house is not fit for human habitation due to the lack of cleanliness, the state of disrepair and the lack of essential services.
v)The City further concluded that, given the track record of the Dueschens and their unwillingness to maintain and repair the premises, the necessary grounds exist for the house to be pulled down and removed.
The City has exhausted all avenues and its decision to issue the notices was a last resort. Further clean-ups would not address the health concerns since the condition of the house has gone beyond a state of repair.

Evidence during the hearing

Several witnesses were called by the City to give evidence. A witness statement was filed for each witness. The respective statements were accepted by the Tribunal as the evidence in chief of each of the witnesses.
The following is a brief summary of the evidence heard by the Tribunal. Although Ms Dueschen did not participate in the proceedings to cross-examine the witnesses, the Tribunal asked many questions to which they responded.
Ms Hilary Gill: Ms Gill lived next to the Dueschens for nine years until July 2007. Ms Dueschen was generally referred to as the "cat lady". Ms Gill counted at least 13 cats on the property. According to a Channel 9 programme that was aired some time ago, Ms Gill recalls that up to 34 cats were counted. The smell of cat urine was often so strong she had to close her windows. Vermin was attracted to the large piles of rubbish kept by the Dueschens. The rats became such an infestation that they invaded her roof. The Dueschens also fed birds with raw meat and as a result crows, ravens and even ibis congregate in and around their lot. The odours arising from the Dueschens property were so strong that Ms Gill had to stop using the outdoor areas of her property. She had no choice but to sell her property since it seemed to her as if the City was not doing anything about the complaints.
Mr Mark Mackin: Mr Mackin is a Sergeant in the West Australian Police Force. He has been living in the house opposite the Dueschens for 16 years.
According to him there have often been large piles of rubble and rubbish on the property and the verandah of the house. At times when the rubbish reached the ceiling of the verandah, the City would arrange for a clean-up but soon thereafter the rubbish would pile up again. The rubbish constitutes a serious fire hazard to the occupants of the house and neighbours. He was concerned that if a fire were to break out, the Dueschens house and those of the neighbours would be "engulfed" in flames. He has counted up to a dozen cats outside the house. He described it as a "never ending stream of cats". With the cats followed noise, fighting and smell. The smell of cat urine is so strong that he often has to close the windows and doors facing the Dueschens house. Visitors to his house often enquire what causes such a stench. He had to erect a roller door and fence to prevent Ms Dueschen from dumping cat litter in his yard and scooping fresh soil from his garden. According to Mr Mackin, the state of the property provides as "excellent harbourage for rodents" as is evidence with the rat problem in the area.
The house is currently in the worst state it has ever been and it appears that no attempt is being made to repair anything. He has never seen lights in the house and it appears as if the Dueschens burn some materials for heating. That increases the risks of a fire.
So many crows and other birds are attracted for feeding to the premises, that he has seen birds incinerated on the electrical wires along the road. He described the noise of the birds as "tremendous". A problem with the birds is that their droppings are so severe that his wife has to hang their washing under cover to prevent it being fouled by bird droppings.
He expressed the view that there may be some mental health issues with the Dueschens but that was a matter for the appropriate authorities to pursue.
Ms Gina Brinsmead: Ms Brinsmead is also a neighbour of the Dueschens and lives in the property that belonged to Ms Gill.
She had not been made aware of the problem before she bought the property but soon realised that there was a problem when she smelled cat urine. She finds the odours "unbearable" and so offensive that she cannot for all practical purposes use her back garden. She describes the smell emanating from the Dueschens property as akin to a "rubbish tip". She must often close her windows and door to keep the smell out. She also burns incense inside her house to neutralise the stench. She described the smell as follows:
The smell is bad and on days when the wind blows towards us or on a wet day, it doesn't matter which way the wind is blowing, the smell is so bad that we have to keep the doors and windows on that side closed.
The birds that are attracted by the Dueschens with raw meat are so aggressive that she has been concerned for the welfare of her puppies. There is also a rat plague with rodents running on the fence, in her roof and on the ceiling.
Ms Irene Stephens: A witness statement for Ms Stephens was filed but she was not available to give oral evidence.
Ms Stephens is a neighbour of the Dueschens and shares a common boundary with them. In her statement she speaks of the overgrown garden of the Dueschens, her concern for fire, and the many rats that come from the Dueschens property. She has also counted at least six or seven cats and complains of the strong smell of cat urine. The smell is so strong that she had to close off the carport with sliding doors to keep the odours out.
According to Ms Stephens, the property has now fallen in greater disrepair than ever in the past. This is evident by the recent collapsing of an outbuilding and the chimney.
Mr Adrian Snape: Mr Snape is the building surveyor of the City. Mr Snape has 41 years' experience as a builder and in the building industry. He has been the City's building surveyor for two and a half years.
He has inspected the house, inside and outside, on more than one occasion and specifically for purposes of the decision whether the notices should be issued. His description of the experience when he visited the house is as follows:
The smell was really quite rank. We actually wore masks and I still felt sick entering the room. It was quite severe … Actually the shoes that I wore to site took six weeks for the smell to go from them. I actually felt I needed to throw them out at one time but - I've got a good stomach but at that time of the inspection I actually felt like I would have been sick.
The house is of double brick construction with a corrugated iron roof. The roof has been overlaid with sheet aluminium tiles. The laundry and toilet are external to the house. He describes the house as in an "extremely poor condition and unfit for human habitation". It is, according to him, "not feasible to repair or renovate" the house.
His view is that the cost of attempting to renovate the house would be "prohibitive" and such costs would likely be "greater than demolition of the building and construction of a new house". The only "viable" option is therefore for the house and outbuildings to be pulled down and removed.
When questioned by the Tribunal about the commercial viability to bring the house to a habitable state, Mr Snape responded that "it wouldn't be practical in a monetary sense to spend so much money on a building with so much work that's needed doing." Mr Snape observed that the masonry is quite stable.
Some of the concerns he raised in particular were:
•The external laundry is completely collapsed and unusable. Even before the structure collapsed it was not functional or usable as a laundry.
•The plaster façade to the gable roof has rotted away and as a result that part of the roof is not waterproof.
•All guttering and downpipes are rusted and "inoperative". As a result damage has been caused to the verandah.
•All the verandah posts are rotting.
•The balustrades of the verandah are failing due to water damage and age.
•All the verandah floor is rotting and all the posts have been dislodged. There is serious risk that the entire structure may collapse. The clean up of the verandah would be complicated due to the risks posed to workers that the structure may collapse.
•The sub-frame of the verandah is failing.
•The awning at the rear of the house is failing due to termite damage.
•The external toilet is in a poor condition and inaccessible. It appears from his site inspection that the "toilet hasn't been used in several years possibly."
•The back door provides the only access to the house with the front door inoperable.
•All internal doors need refitting.
•All floors and walls had been impregnated by cat urine, cat urine fumes and smoke. If the urine has impregnated the brick work, rectification would be "virtually impossible". All the floors need replacing. It appears that the floors have been so weakened by dampness or white ant activity that there is little support left in the substructure for the floors.
•The bathroom and kitchen require complete refurbishing. There was no evidence during his visits that the bath had been used or that it was usable. Mr Snape also explained that there was no evidence of a chemical toilet and the Dueschens would not show to him during inspections what ablution facilities they had available.
•There is no gas or operational electricity available, and cooking takes place on a primus which is balanced on newspapers and combustible material on the verandah.
•Electrical wiring for the entire house was likely to need replacement. The wiring that is visible was described by Mr Snape as "ancient", with the wires not being double - insulated and lying across the timbers.
•During his inspection he counted up to 19 cats. The smell inside the house was so overwhelming that he wore a face mask and nevertheless felt sick. His shoes smelt of cat urine for days after the inspection.
•It appears as if large parts of the floors inside the house do not have sufficient support. This could be as a result of dampness or that the supporting structures have fallen away.

Mr Snape referred to several photographs in the City's bundle of documents for purposes of illustration. For example:
•Attachment 3 illustrates the inside of the house, the accumulation of papers and books, and the lack of access. It also shows the windows that have been boarded up, some of the cats, the stained walls, the filth in the bathroom, the cooking plate on a pile of newspapers on the verandah, the hole in the external wall, and the dilapidated laundry. It is his opinion that it is quite possible that cat urine has penetrated the brickwork and the walls.
•Attachment 5 illustrates the broken doors of the kitchen, the pile up of rubbish on the verandah, numerous cats inside the house, the lack of electricity inside the house, the pile up of material in the bathroom, the collapsing roof of the verandah, the collapsing balustrades of the verandah, the dislocated verandah posts, and the collapsed laundry and chimney.
•Attachment 9 illustrates the partially collapsed laundry.
•Attachment 10 illustrates the evidence of white ant activity on the external structure, the failing of the gutters, the general state of the property and the damage to the plasterwork to the front of the house. This causes rain to get into the roof area, as well as for water to get into the cavity of the walls. The photograph of the front part of the house also shows that the electrical connection to the house has either failed or is in a precarious state. This is also illustrated by the photograph in Attachment 24.
•Attachment 12 illustrates the partially collapsed laundry structure, the wood rot in parts of the roof, and the extensive damage cause by white ants to the timber.
•Attachment 14 illustrates the hole in the brickwork, the rubbish on the verandah with the cooking plate, the collapsed roof, the absence of guttering, the white ant damage to the external structure, and the inaccessibility of the toilet.
•Attachment 16 illustrates the state of the interior of the house, the cracks in the walls, the stains on the walls, floors and ceiling, the stains of cat urine and marks of cat faeces, the state of disrepair of the light fittings, the many cats, the filth in the basin, the rubbish in the bathroom, in the bath and in the basin, the dilapidated state of the kitchen and stove which is inoperable, and the holes in the walls. The surfaces in the kitchen are in such a state that they could not be used safely or without health risks. During his first inspection, Mr Snape counted 19 cats.
•Attachment 25 illustrates the general state of disrepair and unhealthy conditions of the property and the house. In regard to the roof, it appears as if the roof tiles are lightweight aluminium tiles but these do not seem to be fixed to the original roof.
•Mr Snape submitted additional photographs on 8 April 2008 showing the interior of the roof space. The photographs show that the timber remains in a fairly good condition but that the electrical wiring is in a poor state and fails safety standards.
Mr Peter Jaggard: Mr Jaggard is the environmental health officer of the City. He has been in service of the City since 1974 and has carried out inspections of the Dueschens' property since 2000. The appointment of an environmental health officer is regulated by the Health Act. Pursuant to s 31 of the Health Act, such a person must either hold an appropriate qualification or be approved by the executive director of public health.
Mr Jaggard explained that the concerns set out in the notices reflect the statutory regime under which the City functions. The bylaws set out the minimum standards that residences must comply with. It is the responsibility of the health officer to ensure that those standards are complied with. If the standards are breached, the health officer has the authority to issue a notice.
Mr Jaggard described the building as "dilapidated". Since 1987 the City has been dealing with the Dueschens following complaints of neighbours. Mr Jaggard referred the Tribunal to the City's bundle of documents which contains several notices that have been sent to the Dueschens, as well as internal memoranda in which the state of affairs over the years are set out.
Several meetings have been held with the Dueschens to convince them to maintain their property and to address the concerns expressed by the neighbours and the City. Due to the failure of any action on the basis of the many informal requests, the City resorted to formal statutory notices and even prosecutions. None of these actions brought a change of heart on the part of the Dueschens. The property and the house were according to him always in a state of serious disrepair and neglect in a manner that is not consistent with modern day minimum health and living standards.
Mr Jaggard explained that the City had to use its own resources on several occasions to clean the property and bring it back to a habitable state. The City even fixed the toilet a few years ago but it was again allowed to fall in disrepair and access to it is impossible due to overgrowth and accumulation of rubble. The City has not been refunded for the costs it has incurred with the clean-ups. After each clean-up the property would soon again fall in a state of neglect. It seemed to him as if the Dueschens "just seem to accumulate all the materials".
It is Mr Jaggard's opinion that the building, which according to him was already "substandard" in 1987, has now become even more deteriorated. He formed the view, after his inspection in 2007, that the building was "clearly unfit for human habitation" and that it was "beyond the state where they could viably be renovated or repaired." The detailed reasons why he formed this opinion are set out in the deficiencies noted in the notices. He acknowledged that, strictly speaking, anything can be fixed "but somewhere down the line a good commercial judgement needs to be made as to what are you putting into something that bad".
Although the Dueschens have mentioned that they use chemical toilet facilities, Mr Jaggard has not seen any evidence of such a facility. The Dueschens have not, since the notice was sent to them, shown the City or the Tribunal what toilet facilities they use.
The basic health facilities that would be required in any modern day urban household are all absent from the house; for example accessible ablution facilities, electricity, bath or shower facilities, cooking facilities and laundry facilities. There is only restricted water available. Gas has been disconnected. He observed that the bath itself "was absolutely full to the brim, overflowing, with plastic buckets, dishes, pots, pans, pieces of clothing … So obviously it's not used for bathing purposes at all".
The house further lacks proper ventilation, natural light, and the storage of rubbish and paper inside and on the verandah makes it an extreme fire risk. Mr Jaggard once had access to the main bedroom where Mrs Ursula Dueschen purportedly lives, but she was not present. The room was dark and he had to use a torch to find his way. The only window was blackened out with paper. There was no evidence of a toilet, chemical or otherwise.
The smell emanating from the house is described by Mr Jaggard as "colossal". Mr Jaggard concedes that although in a strict sense any structure can be fixed, it is his opinion that the house cannot be repaired since the shortcomings are so severe that reparation or renovation would not be a viable option. Timbers are rotting, the verandah is at risk of collapsing, the electrical wiring would have to be redone, the floors would have to be replaced, the bricks may be affected by cat urine and so forth. According to him, the buildings are commercially incapable of being renovated and repaired. The Dueschens have also not made any proposal to the City or the Tribunal to renovate the house. Their evidence has been consistently that it is their choice to live the way they do.
According to Mr Jaggard, the premises constitutes an unacceptable health risk not only to the Dueschens but also to those in the locality of the premises. The house also constitutes a serious fire risk. The City would be in breach of its duty of care towards the Dueschens and community if it did not take the drastic action it had by issuing the notices.
Mr Jaggard referred to several documents contained in the City's bundle of documents to illustrate the efforts that have been made over the years to get the Dueschens to conform with health requirements. The following are some of the documents he referred to:
•Attachment 4 is an internal memorandum dated 14 April 2004 in which the health concerns are set out. The situation as described in the memorandum has not changed. It was apparent at that stage that some electrical wiring within the walls were broken, the house had no electricity or gas, no functioning toilet, and no laundry facilities. His recommendation was that the house be declared unfit for human habitation.
•Attachment 7 is an internal memorandum dated 2 May 2005 in which similar concerns were raised.
•Attachment 11 is an internal memorandum dated 9 November 2006 in regard to the external appearance of the house, the risk of combustible materials and dilapidated state of the fence, verandah and front fence.
•Attachment 18 is an internal memorandum dated 13 April 2007 which is concluded by a recommendation that the premises be declared unfit for human habitation "until brought to a standard required by Council".
•Attachment 19 is an internal memorandum dated 12 June 2007 in which further recommendations are made for the premises to be declared unfit for human habitation. This was the final memorandum which led to the issuing of the notices.
According to Mr Jaggard the City was, after years of unsuccessful attempts, therefore left with no other alternative but to issue the notices on 14 September 2007. According to him it is "sad" to see people living like this but "they just don't see anything wrong with the way they live".
Mr David Schwenke: Mr Schwenke is the Compliance Coordinator of the City and is also a qualified Environmental Health Officer. He has been in service of the City since May 2005.
Mr Schwenke explained to the Tribunal that his role as compliance officer requires him to make judgements on actions for public health. Sometimes he would act on the basis of reports submitted to him, but in this matter he made personal inspections to familiarise himself with the situation. After he had been satisfied that there were no further options available, he approved the issuing of the notices. There was no need for the notices to be referred to Council for approval since he is authorised under the Health Act to initiate such action.
Mr Schwenke has reviewed the City's files in regard to the property and has also personally inspected it. The files show that the City has been making efforts for approximately 20 years to bring the premises to a satisfactory state. Many oral and written requests have been made through the years and prosecutions have been instituted. The efforts have been to no avail. The City had to instruct contractors to clean the property on several occasions but the costs have not been refunded by the Dueschens.
Mr Schwenke concluded after all the efforts that have been made, that "we are at our final point now, where we need a decision made that will finalise this problem that has been going on since 1987, which has exhausted the city's resources and can't really justify expending any more of our ratepayers' money dealing with this problem".
The concerns and complaints of neighbours relate to various nuisances arising from the property such as extremely offensive odours, presence of vermin, many cats, and the extraordinary large amounts of rubbish and newspapers on the premises and on the verandah of the house.
The City decided to issue the notices on grounds that all the other efforts have come to nought and the property was deteriorating rapidly. The public health risks faced by the Dueschens and the neighbours necessitated such drastic notices.
Mr Schwenke commented that in accordance with his training and experience he was left in "no doubt that the house on the property was unfit for human habitation and incapable of viable renovation or repair in view of the advanced state of deterioration of the structure" (at [17] of his witness statement). He explained in his oral evidence that it is not merely a matter of cleaning the property to bring it back to a habitable state. His view was that "the property particularly internally, but externally as well of course, as we have seen on the site visit, has deteriorated to such a point where a clean-up does not resolve the problem and still I would consider the property unfit for habitation ... So yes, it's not just a matter of cleaning and removing rubbish. It's replacement". Mr Schwenke further commented that "my concerns in relation to the premises are not only for the well being of the residents in the area adversely affected by the public health problems arising from the premises, but also for the two occupants of the building on the property by reason of health risks apparent at the property, together with the substantial fire risk created by the large amounts of combustible material and debris within the house and around the house" (at [19] of his witness statement).
Mr Schwenke also referred to the attachment 15 of the City's bundle of documents in which the local member of Parliament, Ms Judy Edwards, expressed concern on 16 February 2007 on behalf of a neighbour of the Dueschens.
Mr Schwenke further explained that the City is not willing to conduct any further clean-ups since none of the previous expenses has been paid and the Dueschens have made it clear that they do not have the intention nor the funds to undertake cleaning. The amount of outstanding fines and charges adds to more than $100,000. The City can also not undertake renovations of the house to bring it to a habitable state.
He concluded as follows:
I mean, when you have got such a dirty environment and you're restricting water supply, it's my opinion that you're also increasing the potential for disease within the property; the lack of fresh air to the property, the results of broken windows and them boarded up and other materials placed over the windows, the lack of light. It's a combination of things that lead towards my decision on serving the notices and it's not just the clean-up material.
Mr Schwenke explained that the City has offered assistance to the Dueschens to find alternative temporary accommodation, to sell their property, to do financial planning and to find permanent accommodation.

The City's closing submissions and chronology of events

Mr Nadebaum provided, at the request of the Tribunal, a chronology of events leading to the issuing of the notices. The events are summarised in more than 30 paragraphs, of which the following are examples:
•21 May 1987 - first time complaints are received. The Environmental Health Officer does inspection and requests owners to clean the premises and repair the house;
•18 November 1987 - formal notice to owners to repair the house and remove disused material;
•February 1988 - August 1992 - several meetings and requests for owners to clean property;
•18 March 1993 - notices served under by-laws 524 - 526 of City declaring premises unfit for human habitation;
•11 May 1993 - City arranges for clean-up of the premises (cost $2,413.90);
•2 June 1993 - Executive Director Public Health rejects an appeal by the Dueschens against the City's notices;
•27 May 1994 - formal meeting with the Dueschens to discuss concerns and public health issues;
•3 June 1994 - September 1995 - ongoing inspections and efforts to convince Dueschens to take remedial action;
•23 November 1995 - Notice that City will undertake clean-up;
•27 November 1995 - City arranges for clean-up (cost $3,631);
•19 December 1995 - two prosecutions against Mrs Dueschen conclude with convictions on each charge. The charges related to Fly Eradication Regulations and the nuisance provisions under the Health Act. A fine of $2,000 was imposed as well as costs of $721. The Dueschens indicated they cannot pay the fine or costs;
•2 January 1996 - Ombudsman rejects complaint of Dueschens against the City;
• 27 March 1997 - 37 cats counted during inspection;
•November 1998 - City arranges for clean-up (cost $1,587);
•1 June 1999 - Mrs Dueschen convicted of breaching the nuisance provisions of the Health Act and fined the maximum fine of $5,000, together with costs of $1,326.70. In view of the ongoing nature of the offence, the court imposed a daily penalty of $250 for the 338 days in the prosecuting period. The daily penalty amounts to $84,500;
•November 2000 - the City is informed that costs and fines imposed on Ms Dueschen cannot be recovered by the sale of the property since the details on the Certificate of Title have not been changed to indicate her as sole proprietor after the death of Mr Dueschen;
•9 January 2002 - formal notice under s 3.25(1)(a) of the Local Government Act 1995 (WA) for the Dueschens to remove disused material from the premises;
•16 April 2002 - the Minister for Local Government dismisses an appeal of Ms Dueschen against the notice;
•July 2002 - April 2004 - numerous inspections and verbal requests for the Dueschens to clean up the property and to bring the house to a state of proper habitation;
•14 July 2004 - formal notice under s 184 of the Health Act requiring an abatement of nuisance at the premises;
•6 November 2004 - the City's contractors undertake plumbing works at the cost of $801.18 (not paid yet by Dueschens);
•July 2004 - March 2007 - no improvement to the situation. The City decides to issue the notices which are the subject of these proceedings.

Consideration

The Tribunal will now consider all the information, evidence and submissions made in these proceedings.
The application essentially revolves around three questions.
•Firstly, can the Dueschens rely on their "choice of lifestyle" in defence of practices that may be in breach of the Health Act and may offend neighbours and the public interest?
•Secondly, is the house unfit for human habitation?
•Thirdly, is the house so unfit for human habitation that the removal (demolition) of it is justified?
The Tribunal will address each of these questions.

11.1) Can the Dueschens rely on their choice of lifestyle in defence of practices that may be in breach of the Health Act and may offend neighbours and the public interest?

The response of the Dueschens to the notices is threefold.
They contend that they have chosen a certain lifestyle and the City does not have the right to interfere with it. They also do not accept the merit of the complaints raised by their neighbours. They finally reject the conclusion reached by the City that the house is unfit for human habitation. They contend that the City is vindictive; that the City is being driven by a hidden agenda to enable third parties to develop the premises; and that the description of the house and its alleged shortcomings is an exaggeration of the factual situation.
It appears, in short, as if the Dueschens do not recognise their duty to comply with the Health Act and the City's bylaws and they are dismissive of the obligations they have towards the public in general and their neighbours in particular.
Unfortunately the Dueschens did not avail themselves of the opportunity to make further oral and written submissions or to give evidence in these proceedings, to respond to questions, to expand on the basis of their reasoning or to cross-examine the witnesses called by the City. They also did not take up the opportunity offered by the Tribunal to submit a final reply to the evidence called by the City and the submissions made by the City. They also failed to submit a work proposal to the Tribunal as to how the house can be renovated to address the concerns of the City.

The extent to which the Dueschens can rely on their choice of personal lifestyle is not determined by their subjective decision but by the laws of the State and the rights of others - particularly their neighbours. The Health Act and by-laws of the City set a minimum framework to which all residents must comply. No person is exempt from it due to their personal lifestyle. The Dueschens are therefore obliged to comply with certain legal minimum requirements when they opt for a certain lifestyle.
The framework within which the Dueschens, and for that matter any other resident within the jurisdiction of the City, must exercise their rights to a unique lifestyle is found in the statutory regime to which private houses must comply. The Dueschens can, within the statutory regime, exercise personal choices but they must comply with the laws of the State and the City in doing so.
The Dueschens are aware of their obligation to comply with the statutory regime of the Health Act and local bylaws. The state of their land and house has for close to 20 years been the subject of inspections, complaints, informal requests to improve, formal notices, prosecutions and even convictions and fines. They have been found in breach of the statutory regime of the City on several occasions. Fines, penalties and other costs - all remaining unpaid - have accumulated to what is estimated to be in the range of $100,000. It has been pointed out on many occasions to the Dueschens by officials from the City and the Magistrates Court that their "lifestyle" has breached reasonable limits.
Officials from the City have gone to great lengths to encourage the Dueschens to bring their lifestyle to a standard that would not be a danger to themselves and offensive to others. Many notices have been given to the Dueschens to bring their property to a state of compliance with the Health Act. These notices have had no visible effect on their lifestyle. The property has been cleaned on several occasions by contractors at cost to ratepayers, and yet Ms Dueschen contends that they are entitled to their unique lifestyle.
It was apparent to the Tribunal during the site inspection that Ms Dueschen simply refuses to accept that the state of the property may be offensive to neighbours; that the conditions of and in the house may be very dangerous and unhealthy to her and her mother; or that serious private and public hygienic issues were at stake. In short, Ms Dueschen appeared to be in total denial of the circumstances in which they find themselves. She showed the Tribunal the different rooms, the kitchen, the bathroom and the backyard and explained the state of affairs as if everything was entirely normal - while in fact the Tribunal does not have words to describe the shocking and tragic state of the conditions and the house in which the Dueschens live.
The Tribunal is mindful that the City has a responsibility to exercise the authority granted to it under law in a diligent way. If it fails to act and enforce the laws of the State and its bylaws, it may be criticised for failing in its duty of care towards the public in general and the Dueschens in particular. This is consistent with the duty of local authorities as recognised by the courts to exercise their powers in a way that recognises their common law duty of care. In the matter of Sutherland Shire Council v Heyman[1985] HCA 41 it was found that:
... [S]tatutory powers are not general mere powers which the authority has an opinion to exercise or not according to its unfettered choice. They are powers conferred for the purpose of attaining the statutory objects, sometimes generating public expectation having regard to the purpose for which they are granted that they will be exercised. ...
The obligation of a council at common law to discharge its duty of care by exercising its statutory powers to prevent the damage caused by fire, was recently recognised by the High Court in the matter of Pyrenees Shire Council v Day[1998] HCA 3. In the matter, the council had the power to "direct" a person to alter a fireplace or chimney so as to make it safe for use. Although the council cautioned the owner against the risks posed by their fireplace, it failed to take any further steps. The High Court found that the council failed to properly discharge its duty of care. Justice Brennan CJ found as follows:
... the Council was under a public law duty to enforce compliance with the requirements in [the] letter. The risk of non-compliance was extreme for lives and property in the neighbourhood of the defective chimney and there was no reason which could have justified the Council's failure to follow up the letter ... ([28])
Justice Gummow J concluded as follows:
The Shire had a duty of care "to safeguard others from a grave danger of serious harm", in circumstances where it was "responsible for its continued existence and [was] aware of the likelihood of others coming into proximity of the danger and [had] the means of preventing it or of averting the danger or of bringing it to their knowledge". ([168])
and
The Shire failed to take steps in the further exercise of its powers which were required by the circumstances. ([172])
In these proceedings concerning the Dueschens, the City may stand at risk, if a fire broke out or if a disease spread to neighbouring properties, of being criticised that it had not exercised its powers in a manner required by the circumstances. The Tribunal accepts therefore that the City could not let the matter get further out of hand; neither can the Tribunal.
The unwillingness of the Dueschens to recognise the circumstances under which they live and the societal standards to which they must comply, raises possible general health and welfare questions about them that fall outside the jurisdiction of this Tribunal. The Tribunal will nevertheless, as is motivated later in these reasons, request the Executive Officer of the Tribunal to write to the Public Advocate of Western Australia to bring these concerns and the reasons for decision to its attention.
The Tribunal is satisfied that the City's participation in these proceedings has been in good faith, in a proper discharge of their statutory duties and motivated by a sincere care for the health and well being of the Dueschens. The Tribunal does not find any malice or undue haste on the part of the City in issuing the notices. In fact, the officials acting for the City displayed respect and sensitivity during the site visit and in their evidence. This is reflected in the many efforts over two decades to resolve the matter without drastic action, the evidence of officials that the City is willing to provide assistance to the Dueschens to plan for the future, to find alternative accommodation and the suggestion that the mental health authorities may have to be called upon to consider the situation in which the Dueschens find themselves.
The Tribunal share the view that the appropriate State authorities must be made aware of the situation in which the Dueschens find themselves to determine if any general health, psychological, welfare or other assistance could be given.
The record shows that this dispute has a background of close to two decades. If the City is to be criticised at all, neighbours would probably criticise it for having been too lenient over the years. In fact, if the Dueschens themselves were to become a victim of their circumstances, they may even direct criticism to the City for not having taken its duty of care more seriously. The Tribunal heard of four neighbours who testified about the way in which their quality of life has been negatively affected due to the lack of care by the Dueschens. One neighbour had no choice but to sell and two others had to bring about structural alterations to their property to deal with the odours emanating from the Dueschens property.
If any person or entity is to be criticised for its behaviour during the proceedings, it must be the Dueschens who, as explained above, did not participate in these proceedings in a constructive manner. Their disregard for orders made by the Tribunal and their unwillingness to participate in proceedings deprived them of an opportunity to challenge the evidence of the City's officials and also to provide the Tribunal with the benefit of their own perspective.
The Tribunal therefore concludes, in response to the first question, that the Dueschens cannot rely on their choice of lifestyle in defence of practices that offend neighbours, that put themselves at risk and that are in breach of the State's Health Act and the City's bylaws. The right of the Dueschens to lead their lives in a manner they choose is outweighed by the public interest and the legislative regime that applies to private households.
The Tribunal therefore rejects the contention of Ms Dueschen that the issuing of the notices was an attack on their lifestyle.

11.2) Is the house unfit for human habitation?

The unfit for human habitation-notice sets out in the Second Schedule the reasons why, according to the City, the house is unfit for human habitation. Witnesses called by the City gave evidence in support of the notice and also tendered photographs in support of their evidence. Officers also used the site inspection to point their concerns out to the Tribunal and to Ms Dueschen.
Section 135 of the Health Act provides as follows:
(1)Any local government may, of its own motion, and shall, when required by order of the Executive Director, Public Health by notice in writing, declare that any house, or any specified part thereof, is unfit for human habitation.
(2)The notice may direct that such house or part thereof shall not, after a time to be specified in the notice, be inhabited or occupied by any person.
The Tribunal has considered the information provided by the Dueschens in their application and the evidence given by several witnesses called by the City. The Tribunal was also greatly assisted by the site inspection which enabled it to experience the situation first hand.
The Health Act does not define what is meant by "unfit for human habitation". The Tribunal has done an extensive search of jurisprudence in Australia to find examples of judicial interpretation that has been given to the same or similar phrases. The search was not of great assistance.
There is no reason why the words should not be construed in their ordinary and natural meaning and of course within the context that they appear in the statute.
In the matter of Hampel v South Australian Housing Trust [2007] SADC 64 (26 June 2007) the Court took into account the extensive efforts that were made by the applicant to bring the house into compliance with the relevant legislation. The Court commented as follows on the meaning of "unfit for human habitation":
... In my opinion a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the ordinary use of the premises. It may be unfit for any reason. The risk to health or safety may arise because the premises are in a state of disrepair or dilapidation or because of lack of facilities such as provision of adequate water, light, ventilation and so on. ...
… The question whether a house is undesirable for habitation must be answered by reference to the circumstances as a whole including the age, character and locality of the house, the standards required under the Regulations and the effect of any defect on the state or condition of the house as a whole. ([63])
It is therefore left for the City and on review to the Tribunal, to determine when the factual circumstances of a house are such that it is regarded unfit for human habitation.
In making a decision, the Tribunal has the benefit of the expert evidence of the City's compliance coordinator Mr Schwenke and the environmental health officer Mr Jaggard.
The Health Act and bylaws of the City must guide the Tribunal in giving content to the words "unfit for human habitation" since those instruments set out the minimum standards to which all houses must comply. The Tribunal's discretion to determine if the conditions meet the statutory requirement for notices to be issued is, however, not limited to those provisions.
In addition to the Health Act, the Tribunal must have regard to the City of Stirling Local Law 525, Local Law 3.2 and the Model Local Laws Series "A" adopted by the City.
A few examples of minimum standards provided for in the statutory framework are:
•A house must provide for proper sanitary conveniences (s 99 of the Health Act).
•A nuisance is defined as a situation where a sanitary convenience is in such a state where it is offensive or dangerous to health (s 182(1) of the Health Act).
•A nuisance is defined to be created when there exists an accumulation of material that is offensive or dangerous to health (s 182(3) of the Health Act).
•A nuisance is defined to be created where any house or premises is in such a state as to harbour rats (s 182(8) of the Health Act).
•Bylaw 3 requires from an owner to maintain all works, services, fixtures, fittings and mechanisms related to sanitary conveniences, bathroom, laundry or cooking facilities in good condition and available for use.
•Bylaw 35 requires that a house must have open ventilation.
•Bylaw 35A requires that a house must be maintained in a sound condition, in particular all guttering and downpipes, replacement of ant-eaten timber, repair ant damage, maintain all ventilators, maintain all ceilings, walls and skirtings, maintain all doors and windows in good working order, and retain natural lighting free from obstruction.
•Bylaw 37 obliges a person not to store material in a manner that may be a nuisance, injurious or dangerous to health.
•Bylaw 22 requires that no owner shall dispose of waste in a manner that may attract or harbour rats.
•Bylaw 525 obliges an owner to remove rubbish or disused material that is likely to adversely affect neighbours.
As already mentioned, the Tribunal had the benefit of attending a site inspection to familiarise itself with the state of the property. The Tribunal is satisfied that the condition of the property and the house is accurately reflected in the photographs tendered by the City during evidence. No improvements have been done since the photographs were taken. In fact, the actual situation seems to be even worse than what the photographs indicate.
The Tribunal is satisfied that the City has shown more than convincingly that the reasons set out in the notice for the house to be declared unfit for human habitation were justified and that the notice should be affirmed.
The evidence before the Tribunal, supported by the photographs and the Tribunal's own observations during the site inspection, clearly confirm the following:
•There is no functioning electrical power available in the house and the electrical wiring is substandard and requires replacing.
•The gas supply to the house has been disconnected.
•Water supply to the house has been reduced to the bare minimum required by health standards.
•There is no warm water system available except for the basic heating of water on a primus gas stove. The stove is placed on highly combustible newspapers on the verandah.
•There are no or inadequate laundry facilities.
•The bathroom cannot be used and is in a state of disrepair.
•There is no evidence of a functional sanitary system that complies with the City's bylaws.
•Although it was contended by Ms Dueschen that a chemical toilet was available, neither the Tribunal during the site inspection nor the officials of the City during their many inspections were shown the toilet. No evidence was tendered by Ms Dueschen of the cleaning of the toilet by appropriate authorities. The evidence of the City was also that if indeed a chemical toilet was available, it would be a breach of the bylaws since such a toilet does not comply with the minimum sanitary requirements of the City.
•The house is in an extremely poor sanitary and health condition as is evident in the traces of cat faeces and urine in all the rooms and the overpowering odours. The odour is overwhelming and is noticeable from the street and neighbouring properties. The stench has caused one neighbour to sell her property and two others had to made structural alterations in an attempt to keep the smell out of their houses. Four neighbours explained that for all practical purposes they cannot use and enjoy the parts of their land that face the Dueschens property due to the stench arising from the property.
•An accumulation of papers and disused material fill at least two rooms to the brim, as well as part of the bathroom, the bathtub, the working area of the kitchen and the entire verandah. The structure resembles as rubbish tip. The danger of fire is exacerbated by the practice of the Dueschens to light a fire in the fireplace and to do their cooking on the gas stove placed on top of newspapers on the verandah. Neighbours expressed concern that if the Dueschens house were to catch fire, their properties would also be in danger due to the proximity of the houses.
•Access to the house is restricted to the back door which only opens very slightly. The alleyway leading into the house is congested with papers, books and newspapers. It is not possible to walk inside the house without a torch or candle. The front door cannot open and none of the windows are operable. Some of the windows are broken or cracked and covered with paper and cardboard. There is practically no natural lighting inside the house which necessitated the Tribunal to use torches during the site inspection.
•The inside of the house is dirty to the extreme. All walking and working surfaces are covered with disused material, stains, and the residue of cats. The kitchen is practically unusable due to the accumulation of materials. There are no safe and functional cooking facilities, no clean washing facility and the presence of cats and their waste everywhere adds to an extremely unhygienic state of affairs. The bathroom is also unusable due to the presence of disused material in the bath and on the floor. Two of the rooms were not accessible to the City or the Tribunal during inspection due to the accumulation of paper and other waste material. The doors to the rooms could open slightly and it appeared that both rooms were completely filled up to the ceiling with paper and waste. The main bedroom was not opened to the Tribunal.
•The external verandah and laundry are in a state of disrepair. The laundry has already collapsed and the verandah is at risk of collapsing. The toilet, which is located underneath the rubble and overgrowth, is not accessible.
•Due to the massive accumulation of papers and other waste material in the house and outside on the verandah, the fire risk to the Dueschens and to neighbours is extreme. The only cooking facility available to the Dueschens is a gas primus stove which is placed outside on top of newspapers and surrounded by disused materials, rubbish and papers. The Dueschens also use an open fire for heating. All of this contributes to a very dangerous situation - to the Dueschens and their neighbours.
•There is ample evidence by neighbours of rats being harboured on the property. The rats are visible as they run on the dividing fence and have infested neighbouring properties. The problem is exacerbated by the Dueschens' practice of feeding birds raw meat on a daily basis. There is no evidence, other than the large number of cats, that the Dueschens are implementing measures to combat the rats. The bird feeding also affects the quality of life of neighbours. Mr Mackin gave evidence of how they cannot dry their washing outside due to bird droppings.
•The gutter and rainwater disposal system is in a complete state of breakdown and entirely dysfunctional.
•There is ample evidence of ant damage to timber on the outside of the house and on the verandah frame which remains unattended.

The evidence shows that the premises are in breach of all of these above statutory provisions.
The Tribunal has already made a finding that the house is unfit for human habitation. The issue that remains is whether the notice calling for the demolition of the house is justified.
Two questions arise from the finding that the house is unfit for human occupation and the notice that it must be pulled down.
•Firstly, whether the City has, in light of the serious consequences if a private house is demolished, exhausted all other avenues to bring to the attention of the Dueschens the urgency of them undertaking proper remedial work to the property.
•Secondly, whether the breaches of the statutory regime are so serious that such drastic action is required.
The Tribunal will address each of these questions.
In response to the first question, the Tribunal is satisfied that the City has over a period of close to 20 years made it abundantly clear to the Dueschens that the condition of the property was deteriorating to such an extent that unless urgent remedial work is undertaken, serious consequences would follow.
The actions by the City can be summarised in the following categories:
•Many informal discussions, inspections and encouragements to clean the premises, to rectify the houses and to bring the house to a habitable state.
•Formal prosecutions for breaches of the Health Act and the City's bylaws have been initiated by the City. These prosecutions have led to convictions and substantial penalties being imposed by the courts. The penalties and costs remain unpaid. The defence raised by the Dueschens has repeatedly been rejected by the court - including the State's Ombudsman.
•Several clean-ups and rectification work by the City at cost of ratepayers. The costs of these works remain unpaid by the Dueschens.
•Willingness by the City during the course of these proceedings to participate in mediation and to consider proposals for rectification to be done. The Dueschens failed to submit any proposals to the City or to the Tribunal.
•In addition to the actions taken by the City, the Tribunal also went to great length to encourage the Dueschens to improve the property, to do cleanups, to participate in mediation and to submit proposals to the City for remedial work to be done. The Dueschens did not respond to any of these encouragements.
The Tribunal is satisfied that all possible avenues and options have been exhausted to bring the seriousness and urgency of the health concerns to the attention of the Dueschens. The issuing of the demolition notice was indeed a last resort and the City acted reasonably when it decided to issue the notice for the house to be pulled down and removed.
In response to the second question, the Tribunal is satisfied that the situation is so serious that the drastic action to pull down the house is justified. The reasons for this conclusion are clearly set out in the foregoing analysis of evidence. In summary:
•The house is unfit for human habitation for the reasons set out above.
•The Dueschens have made no attempt over a period of close to 20 years to heed to requests and formal notices of the City.
•The Dueschens have ignored orders of the courts and have refused to pay fines and costs.
•The Dueschens have made no proposal to the City or to the Tribunal to address the shortcomings listed in the notice. In fact, Ms Dueschen is in complete denial that there are shortcomings.
•The expert evidence shows that the house constitutes a serious health and fire risk to the Dueschens and to their neighbours.
•The evidence shows that although the house may be repaired, it would not be commercially viable since the cost of reparation would probably far outstrip the cost of building a new house. The Dueschens have in any event not made any proposal to fix the house.
•The City has committed extensive resources to cleanups of the premises and it cannot be expected to do further work at the cost of ratepayers and at risk of not being reimbursed. The nature of the health risk is in any case so serious that a mere cleanup of the premises would not deal with the health issues.
The Tribunal has a sincere concern for the wellbeing of the Dueschens and their neighbours and has come to its decision after deep thought and consideration. The Tribunal, however, has a duty towards the Dueschens and to the public to ensure that proper health and sanitary standards are upheld. In balancing the interests of the Dueschens to their way of life with the statutory regime and the interests of the public, the Tribunal is satisfied that urgent action to demolish the house is justified and that such action must be undertaken speedily.
The Tribunal is therefore satisfied that the drastic action to require that the house must be pulled down is justified. The order should therefore be affirmed.

Summary of findings

The findings of the Tribunal can be summarised as follows:
1)The Tribunal is satisfied that given the failure of the applicants to participate constructively in these proceedings and their failure to comply with orders of the Tribunal, the application may be dismissed or stuck out pursuant to s 48(2)(a) of the SAT Act.
2)The Tribunal rejects the contention by the Dueschens that the City has unduly interfered with their choice of lifestyle. The right of the Dueschens to live their life in a manner they choose is outweighed by the public interest, public policy considerations and the legislative regime that applies to private households.
3)The Tribunal finds that the decision of the City to issue the notice dated 14 September 2007 pursuant to s 135 of the Health Act declaring the entire premises unfit for human habitation, should be affirmed.
4)The Tribunal finds that the drastic action to require that the house must be demolished pursuant to s 137 of the Health Act is justified. The decision of the City to issue the notice dated 14 September 2007 declaring that the house must be pulled down and removed due to its being unfit for human habitation, should be affirmed.
The Tribunal will in due course make orders to give effect to these findings.

Final opportunity to undertake rectification

The Tribunal has repeatedly during the proceedings and in these reasons expressed concern for the health and wellbeing of the Dueschens. The consequences of the affirmation of the notices will have serious implications to them. The Tribunal is therefore of the view that, now their application for review has been dismissed, the Dueschens may realise the seriousness of the situation and embark on some action. The Tribunal will therefore allow the parties a final opportunity to make submissions on the appropriateness of the orders the Tribunal intends to make. The orders will therefore be made in draft form and only finalised at the next hearing.
This additional time may have a twofold benefit.
Firstly, it will allow the Dueschens a final opportunity to submit plans and proposals to the City and to the Tribunal to bring the premises to a habitable state.
Secondly, it will allow the Public Advocate an opportunity to consider the request by the Tribunal and to embark on action, if any, it may seem justified.
The Tribunal recognises that even if the decision to issue the notices is affirmed, the City may, in the event that new information or proposals are put to it in due course by the Dueschens, allow them time to bring the premises to a habitable state.

Request to the Public Advocate

In light of the lack of active participation in these proceedings by the Dueschens, as well as the possible health and other concerns raised by the City, the Tribunal will request the Executive Officer of the Tribunal to write to the Public Advocate of Western Australia to request that the situation in which the Dueschens find themselves be investigated. The Tribunal may, as any member of the community, direct such a request to the Office of the Public Advocate pursuant to s 97(1)(c) of the Guardianship and Administration Act 1990 (WA).
Although the Tribunal cannot order the Office of the Public Protector to report to it, the Tribunal would encourage the Office to provide it with an outcome of its decision as to whether to bring an application for guardianship and/or administration to the Tribunal or not to pursue the matter.
The Tribunal urges the Dueschens to make use of this further opportunity to do their utmost endeavours to bring the house to a state where the revocation of the notice to demolish could be justified.

Orders
1.The Tribunal proposes to make the following orders at a hearing to be held at 10 am on 22 September 2008. The parties are invited to submit to the Tribunal not later than 11 September 2008 any comments or submissions in regard to the appropriateness of the orders:
a)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 to issue the notice is affirmed. The Tribunal directs that the said house shall not after 31 days from the date of this order be inhabited or occupied by the Dueschens or any other person.
b)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 to issue the notice is affirmed. The Tribunal directs that the said house shall no later than 90 days from the date of this order be taken down and removed.
2.The Executive Officer of the State Administrative Tribunal is requested to make a referral within seven (7) days after the date of these orders, to the Public Advocate pursuant to s 97(1)(c) of the Guardian and Administration Act 1990 (WA) to investigate whether Mrs Ursula Dueschen and Ms Tatyana Dueschen may be in need of a guardian and/or administrator.
I certify that this and the preceding [187] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER

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

Result:

The application for review is dismissed

Category: A

Representation:

Counsel:

Applicant: Selfrepresented
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

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

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.
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.
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

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).
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 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.
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.
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.
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.
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.
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.
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 by Ms Dueschen to participate in the previous proceedings can therefore not be explained by the unfortunate events of 30 September 2008.

Consideration

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.
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.
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'.
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.
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.
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.
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.
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.
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

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.
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, 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.
___________________________________
DR B DE VILLIERS, MEMBER