FMG Pilbara Pty Ltd and Shire Of East Pilbara
[2008] WASAT 256
•3 NOVEMBER 2008
FMG PILBARA PTY LTD and SHIRE OF EAST PILBARA [2008] WASAT 256
| Link to Appeal : | [2009] WASC 110 |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 256 | |
| LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) | |||
| Case No: | CC:195/2008 | 1 SEPTEMBER 2008 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 2/11/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary issue determined in favour of applicant | ||
| B | |||
| PDF Version |
| Parties: | FMG PILBARA PTY LTD SHIRE OF EAST PILBARA |
Catchwords: | Notices to pull down structures erected without prior construction approval from local government Building plans subsequently submitted for consideration in exercise of discretion whether to set aside notices Preliminary issue raised Correct classification of structures |
Legislation: | Building Code of Australia, Part A1, Part A3, Part A3.1, Part A3.2, Table B1.2a, s D, Table D3.2, s DF1, Part F2 Building Regulations 1989 (WA), reg 5, reg 19 Interpretation Act 1984 (WA), s 17, s 18 Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401, s 401(3) |
Case References: | Bogiatzis and Minister for Urban Services [2002] ACTAAT 21 PR and RE Schmidt v DC Mount Barker NoERD01130 [2001] SAERDC 30 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 |
Orders | 1. For the purposes of the State Administrative Tribunal's determination of whether to affirm or set aside the respondent's decision to issue two notices to the applicant dated 16 January 2008 under s 401(3) of the Local Government (Miscellaneous Provisions) Act 1960 (WA), the State Administrative Tribunal determines, as a preliminary issue, that the correct classification of the two large sheds built for storage purposes on exploration licences E45/2709 and E45/2714 is Class 10a under Part A3 of the Building Code of Australia. |
Summary | The applicant applied for orders under the Local Government (Miscellaneous Provisions) Act 1960 (WA) for the review of the decision made by the respondent to issue two separate notices under s 401 of that legislation requiring certain structures to be pulled down.,The parties joined in requesting the Tribunal to determine a preliminary issue as to the correct classification of the buildings, because of the impact that classification made on whether or not the buildings, as constructed, met the requirements of the Building Code of Australia.,The Tribunal determined that on a proper construction of the Building Code of Australia, the buildings should be classified as Class 10a structures - being sheds constructed for storage purposes. The Tribunal rejected the respondent's submissions that the buildings should be classified as Class 7a storage buildings.,The Tribunal concluded that Class 10a structures were not restricted to small buildings used for private and not a commercial purpose as submitted by the respondent. The Building Code of Australia envisaged situations where Class 10a buildings might require disabled access or might provide a unique service or feature, such as a public shelter. There was nothing within the Building Code of Australia to preclude a building being used for a commercial purpose from being classified as a Class 10a building. The Tribunal held that the use, manner of operation and extent to which a building is designed to be occupied are the determinative factors in assessing the purpose for which a building is designed, and hence its correct classification. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) CITATION : FMG PILBARA PTY LTD and SHIRE OF EAST PILBARA [2008] WASAT 256 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 1 SEPTEMBER 2008 DELIVERED : 3 NOVEMBER 2008 FILE NO/S : CC 195 of 2008 BETWEEN : FMG PILBARA PTY LTD
- Applicant
AND
SHIRE OF EAST PILBARA
Respondent
Catchwords:
Notices to pull down structures erected without prior construction approval from local government - Building plans subsequently submitted for consideration in exercise of discretion whether to set aside notices - Preliminary issue raised - Correct classification of structures
Legislation:
Building Code of Australia, Part A1, Part A3, Part A3.1, Part A3.2, Table B1.2a, s D, Table D3.2, s DF1, Part F2
Building Regulations 1989 (WA), reg 5, reg 19
(Page 2)
Interpretation Act 1984 (WA), s 17, s 18
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401, s 401(3)
Result:
Preliminary issue determined in favour of applicant
Category: B
Representation:
Counsel:
Applicant : Mr C Wallace
Respondent : Mr I McLeod
Solicitors:
Applicant : Deacons
Respondent : McLeods
Case(s) referred to in decision(s):
Bogiatzis and Minister for Urban Services [2002] ACTAAT 21
PR and RE Schmidt v DC Mount Barker NoERD01130 [2001] SAERDC 30
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
(Page 3)
Summary of Tribunal's decision
1 The applicant applied for orders under the Local Government (Miscellaneous Provisions) Act 1960 (WA) for the review of the decision made by the respondent to issue two separate notices under s 401 of that legislation requiring certain structures to be pulled down.
2 The parties joined in requesting the Tribunal to determine a preliminary issue as to the correct classification of the buildings, because of the impact that classification made on whether or not the buildings, as constructed, met the requirements of the Building Code of Australia.
3 The Tribunal determined that on a proper construction of the Building Code of Australia, the buildings should be classified as Class 10a structures - being sheds constructed for storage purposes. The Tribunal rejected the respondent's submissions that the buildings should be classified as Class 7a storage buildings.
4 The Tribunal concluded that Class 10a structures were not restricted to small buildings used for private and not a commercial purpose as submitted by the respondent. The Building Code of Australia envisaged situations where Class 10a buildings might require disabled access or might provide a unique service or feature, such as a public shelter. There was nothing within the Building Code of Australia to preclude a building being used for a commercial purpose from being classified as a Class 10a building. The Tribunal held that the use, manner of operation and extent to which a building is designed to be occupied are the determinative factors in assessing the purpose for which a building is designed, and hence its correct classification.
The application and preliminary issue
5 On 15 February 2008, FMG Pilbara Pty Ltd (FMG) lodged an application under s 401(3) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act) for the review of the decision by the Shire of East Pilbara (Shire) to issue two separate notices under s 401 of the LG(MP) Act for the pulling down of two structures. The two structures have been erected by FMG on land described as Exploration Licence E45/2709 and Exploration Licence E45/2714, both within the Shire of East Pilbara. The structures had been constructed by the applicant without the required building licence from the Shire. The notices were issued on 16 January 2008. The orders sought by FMG are for the notices to be set aside and for an order extending the time (if required) for the application for review to be filed.
(Page 4)
6 Through a series of directions hearings, the parties have followed a process aimed at achieving a resolution of the matter, but which will allow the matter to be determined without undue delay, in the event that an agreement cannot be reached. As part of this process, FMG has submitted to the Shire a set of as constructed drawings in respect of the two structures together with a letter from FMG's engineers purporting to provide certification covering compliance with relevant Australian standards and the Building Code of Australia (BCA). The certification notes that there are minor works still to be completed to make both structures capable of resisting Terrain Category 2 and Region D winds, and is further premised upon the structures being classified as Class 10(a) buildings under the BCA.
7 The Shire contends that the correct classification for the buildings is Class 7b under the BCA, which under the deemed to comply provisions of the BCA will require alterations to the floor to enable disabled access and egress, the provision of toilet facilities, compliance with fire related requirements and possibly other requirements.
8 The parties have consented to a determination by way of a preliminary issue of the correct classification of the buildings. An order for that determination to be made was made on 24 July 2008. To that end, the parties have filed and served bundles containing all documents upon which they wished to rely, and have further filed and served written submissions. There are no disputed facts which required oral evidence. The background set out below has been extracted from the documents and submissions filed.
Background
9 FMG is the licence holder of the above exploration licences. In or about mid2007, FMG made application to the Shire for a building licence to construct two cyclone shelters, one on each of the exploration sites. FMG originally intended to build structures for storage with the dual subsidiary function of cyclone shelters. However, it quickly became clear from discussions between the parties that the Shire's requirements for cyclone shelters would make the project unviable. By letter dated 25 October 2007, the applications relating to the cyclone shelters were returned by the Shire to FMG. The letter recorded that Mr Anderson of FMG had informed the Shire that the proposals were to be redesigned as storage facilities and that a new building licence application would be submitted.
(Page 5)
10 It is evident that construction of the buildings must have commenced during, or about, this period because FMG stated that a second application for the construction of storage facilities was dated 15 November 2007 and that was made 'following construction of the buildings'.
11 The second application was refused by the Shire on the basis that it did not then have power to grant retrospective approval of a building licence. As above stated, notices under s 401 of the LG(MP) Act were issued by the Shire dated 16 January 2008 and required FMG to pull down the two buildings which are described in the notices as cyclone shelters. Throughout the proceedings, FMG has referred to the buildings as two large sheds built for storage facilities. Notwithstanding that the Shire's description of the buildings in the notices and in its statement of issues, facts and contentions as 'cyclone shelters', it is evident that the Shire has accepted FMG's stated purpose of the buildings. The Shire contends that the buildings should be classified under the BCA as Class 7b buildings. A Class 7b building is 'for storage, or display of goods or produce for sale or wholesale' (Part A3.2 of the BCA). FMG contends that the buildings should be classified as Class 10a buildings. A Class 10a building is 'a nonhabitable building being a private garage, carport, shed, or the like' (Part A3.2 of the BCA).
12 The as constructed drawings provided by FMG to the Shire describe each of the buildings as storage sheds. They are large structures. One shed is 40.5 metres in length and 15 metres in width, the other is slightly smaller being 30.4 metres in length. Both buildings are 7.5 metres in height. The drawings and photographs which have been filed reflect that the end elevations are semicircular in shape and the outer face appears to be a ribbed or corrugated metal sheeting. There are two standard sized exit doors, one on each end elevation. There is a large sliding door for machinery access on the one end elevation and when that is open, it covers the exit door on that side. The external shape of the building therefore is similar to that of a metal drum cut vertically in half and placed on the ground with the cut section facing downwards.
13 The buildings have no internal divisions or facilities of any nature. The Tribunal was informed that the floor is packed earth. The Tribunal was further informed as follows.
(Page 6)
- 1) The buildings are located in a remote part of the East Pilbara. The nearest towns are Newman, which is approximately 150 kilometres away and Port Hedland, which is approximately 200 kilometres distant.
2) The buildings are to be used for what was referred to as 'passive storage'. This, it was explained, was intended to indicate that there would be only infrequent unloading or loading of materials. The materials to be stored would be that which is necessary for the maintenance and operation of FMG's railway service.
3) The only persons who would ever make use of the sheds would be employees of FMG or its contractors who would attend for the limited purpose of unloading or loading materials when required.
4) It was submitted that there was no need for toilet facilities to be provided because the only access to the buildings was through 2 FMG rail camps. The precise distance of the camps to each building could not be provided but it was between 1 and 2 kilometres in each case. The camps contained all appropriate facilities and any employee or contractor needing to load or offload equipment would be able to make use of those facilities either on arrival or departure.
14 Subsequent to the hearing of the preliminary issue, by letter dated 17 September 2008 the solicitors for the Shire provided further submissions to the Tribunal. The further submissions were purported to be made pursuant to leave granted by the Tribunal to make submissions with regard to an email which was tendered by FMG's counsel, apparently without prior notice to the Shire's representatives.
15 The solicitors for FMG have objected to the further submissions on the basis that its counsel was not aware of any request having been made for additional submissions to be filed or of any leave granted by the Tribunal. Further, it is contended that the submissions go further than the matter which they purport to address and which is said to have been the subject of the grant of leave to make further submissions.
16 No order was made at the conclusion of the hearing granting any leave to file further submissions. In any event, the submissions firstly address 'Alternative Solutions' under the BCA to support why the Shire had not been more
(Page 7)
- particular in providing information as to what would be required to satisfy the Shire if the buildings were classified as Class 7b buildings. In this respect, the submissions go no further than to expand on a point which was made orally during the hearing and which does not bear upon the Tribunal's determination of the correct classification. FMG's case does not rely upon it satisfying any Alternative Solution under the BCA although it would be open to FMG to attempt to do so if the preliminary issue were to be determined in favour of the Shire. There is then a reference to an exchange which took place with regard to the reference in Item 10a to a 'private garage'. Again, that matter was dealt with during oral submissions and did not really need any amplification. The matters raised in the letter were before the Tribunal as a result of the oral submissions made. In the circumstances it would be artificial for the Tribunal to rule that it would have no regard to the further submissions.
The BCA and its effect
17 Regulation 5 of the Building Regulations 1989 (WA) (Building Regulations) provides that the BCA applies to and in relation to any building that can be classified according to use under Part A3 of Volume One of the BCA.
18 Regulation 19 of the Building Regulations requires that every building shall be classified by the local government in accordance with Part A3 of Volume One of the BCA.
19 All references hereafter are to the BCA, unless the contrary is indicated.
20 The BCA is a uniform set of technical provisions for the design and construction of buildings and other structures throughout Australia whilst allowing for variations in climate and geological or geographic conditions (BCA Introduction).
21 The goal of the BCA is to enable the achievement of nationally consistent, minimum necessary standards of relevant health, safety (including structural safety and safety from fire), amenity and sustainability objectives efficiently (BCA - Introduction).
22 Part A3 provides that the classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used (Part A3.1). Part A3.2 sets out the various classifications. Only the Class 7 and 10 classifications are set out in full. It is not necessary to do so for the other classifications, but they are broadly as follows.
(Page 8)
23 Class 1a relates to single dwellings being a detached house or one of a group of two or more attached dwellings.
24 Class 1b relates to a boarding house, guest house, hostel or the like.
25 Class 2 applies to a building containing two or more soleoccupancy units, each being a separate dwelling.
26 Class 3 applies to a residential building, other than a Class 1 or Class 2 building, which is a common place of longterm or transient living for a number of unrelated persons.
27 Class 4 applies to a dwelling in a building that is Class 5, 6, 7, 8 or 9 if it is the only dwelling in the building.
28 Class 5 applies to an office building used for professional or commercial purposes, excluding buildings of Class 6, 7, 8 or 9.
29 Class 6 applies to a shop or other building for the sale of goods by retail or the supply of services direct to the public.
30 Class 7 applies to a building which is:
(a) Class 7a - a carpark; or
(b) Class 7b - for storage, or display of goods or produce for sale by wholesale.
31 Class 8 applies to a laboratory, or building in which a handicraft or process for the production, assembling, altering, repairing, packing, finishing, or cleaning of goods or produce is carried on for trade, sale or gain.
32 Class 9 relates to buildings of a public nature comprising three Classes; 9a, 9b and 9c, being a healthcare building, an assembly building or an aged care building respectively.
33 Class 10 is a nonhabitable building or structure being:
(a) Class 10a - a nonhabitable building being a private garage, carport, shed or the like; or
(b) Class 10b - a structure being a fence, mast antenna, retaining or freestanding wall, swimming pool, or the like.
(Page 9)
34 Section D deals with access and egress. The stated objective is to provide, as far as reasonable, people with such equitable and dignified access to a building, and to the services and facilities within a building, and to safeguard occupants from illness or injury while evacuating in an emergency. Section DF1 provides that a building is to provide, as far as is reasonable, safe, equitable and dignified access for people to services and facilities within. The requirement to provide equitable and dignified access is stated to only require special provisions in:
(a) a Class 3, 5, 6, 8 or 9 building; or
(b) a Class 7 building other than a Class 7 carpark associated with a Class 2 building; or
(c) a Class 10a building other than a Class 10a building associated with a Class 1 or 2 building or Class 4 part of a building.
35 Table D3.2 provides for requirements for access for people with disabilities. In relation to a Class 10a building, the access requirements are stated to be:
To and within [sic] building containing any of the following:
(i) Sanitary facilities, showers, handbasins, changeroom facilities or the like.
(ii) A unique service or feature, such as a public shelter or the like, which is located in an accessible area.
36 Part A1.1 contains definitions, including a definition as follows:
Accessible means having features to permit use by people with disabilities.
37 Part F2 provides for sanitary and other facilities. In relation to Class 10a buildings, a number of requirements are stated relating to sanitary facilities, showers, the disposal of sanitary towels and the provision of a shelf in each unisex sanitary facility - 'In buildings required to be accessible'.
38 Depending on the ultimate classification of the buildings, there are other requirements of the BCA which may have application. But, for the purposes of determining the preliminary issue, it is not necessary to refer to those provisions.
39 The Australian Building Codes Board, which has responsibility for the publication of the BCA, also publishes a guide to the BCA (the BCA Guide). The BCA Guide is 'a companion manual' to the BCA, 'the comments in [the]
(Page 10)
- Guide should not be taken to override the BCA ... [u]nlike the BCA, which is adopted by legislation, [the] Guide is not called up into legislation ... it is for guidance only' (Introduction, Guide to the BCA 2008). It must therefore be treated as a guide and no more. Where the provisions of the BCA are clear, principles of statutory construction would not permit reference to the BCA Guide, except to confirm that construction. Section 18 of the Interpretation Act 1984 (WA) (Interpretation Act) permits reference to extrinsic material either to confirm the meaning of a provision which is clear and unambiguous, or to clarify the meaning of a term which is ambiguous.
40 The Shire has relied upon the explanatory guide to Part A3.2 insofar as it deals with Class 7 and Class 10a buildings.
41 The BCA Guide states:
Class 7
There are three basic types of Class 7 building. The first is a carpark as defined in the BCA. The second is a building used for storage, often referred to as 'warehouse'. The third is a building used for the display of goods or produce for sale by wholesale. 'Wholesale' means sale to people in the trades who are in the business of 'onselling' goods and services to another party (including the public).
Class 10a
Class 10a buildings are non-habitable buildings. ...
There is no requirement for Class 10 buildings to be appurtenant to a building of any other class. For example, a small shed standing on its own on an allotment and a toilet block in a park.
A habitable 'outbuilding' which is appurtenant to another building is generally part of that building. Again, habitable 'outbuildings' cannot be classified as Class 10 buildings.
Examples
• A sleepout on the same allotment as a Class 2 building is part of the Class 2 building.
• A detached entertainment room on the same allotment as a Class 2 building, perhaps associated with a swimming pool, is part of the Class 2 building.
• A small tool shed, used for trade related hobbies for noncommercial purposes or home repairs, on the same allotment as a Class 2 building, would be classified as a Class 10 building.
(Page 11)
42 While 'habitable' is not defined in the BCA, the Shire points to the definition of 'habitable room' in Part A1. Without setting out that definition, it is clear that it applies only to domestic use.
43 The BCA also does not define 'shed'. The Shorter Oxford English Dictionary (5th ed, 2002) includes the following definition:
Shed /noun.1. A single storey esp. wooden structure, erected separately or as a lean to, and serving for storage, shelter for animals etc., or use as a workshop
44 The contention of the Shire is that FMG's buildings must be regarded as clearly falling within Class 7 as being used for storage purposes. That is, it is not necessary, as FMG contend that for a Class 7 classification the storage must be for the wholesale sale or display of goods.
45 It is the Shire's case that a Class 10 structure is generally regarded as being of a relatively small scale and not used for commercial purposes, but rather for private purposes. The Shire also contend that significance should be attached to the provisions relating to Class 10 buildings being contained in Volume One of the BCA, the title of which is 'Housing Provisions'.
Consideration
The distinction between Class 7 and Class 10a buildings
46 The Shire placed emphasis on the manner in which Class 7b is set out 'for storage, or display of goods or produce for sale by wholesale' and in particular on the disjunctive 'or' between the reference to storage and display of goods or produce for sale by wholesale. In doing so, the Shire relies on s 17 of the Interpretation Act which provides that in respect of a written law passed or made after the commencement of the Interpretation Act 'or' must be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added. The BCA applies under the Building Regulations and is therefore subject to s 17 of the Interpretation Act.
47 Nevertheless, the task of the Tribunal is to find the true construction having regard to the context of the words, the consequences of the literal or grammatical construction, the purpose of the statute and where necessary, cannons of construction: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky Inc) at 384.
(Page 12)
48 The various classes of buildings are based upon the purpose for which the building is designed, constructed or adopted to be used. In the Tribunal's view, the purpose and classification also reflect the manner in which the building will be occupied. So, there is occupation in dwellings, or sole occupancy units, and residential buildings consistent with a building being inhabited or dwelled in - Shorter Oxford Dictionary (5th ed, 2002), above:
inhabit 1.verb trans. Dwell in, occupy as an abode; live permanently or habitually in ...
49 There are then buildings that are used for professional or commercial purposes, buildings for the sale of goods by retail or the supply of services direct to the public, and in that context there are some Class 7 buildings, which relevantly, in relation to Class 7b, are for the display of goods or produce for sale by wholesale. This reflects the commercial use to which Class 7b buildings are designed to be put, but relevantly, also, the extent to which people will occupy or have access to and be in the buildings. That must be relevant to any assessment of risk and it is selfevident that the requirements of the BCA differ depending upon that risk. See for example: Table B1.2a - 'Importance Levels of Buildings and Structures', which incorporates as part of the design criteria the extent to which there is hazard to life and the number of people likely to be within a building.
50 Class 8 buildings include a range of categories, but which are on the face of it for an industrial or commercial purpose and will require a degree of occupancy relevant to the occupation carried out. Class 9 buildings relate to buildings of a public nature which on the face of it involve occupation by numerous people.
51 In that context, Class 10a buildings are described as nonhabitable buildings or structures and by their nature (private garage, carport, shed) would generally involve a limited degree of occupation. However, as Table D3.2 demonstrates, a Class 10a building may include a building to which disabled persons have access, or which include a unique service or feature, such as a public shelter. Such buildings may therefore not be of an entirely private nature. A Class 10b structure includes a swimming pool and there is nothing to exclude a public swimming pool from that Class. It is therefore evident that a Class 10 building is not restricted to a private purpose. A fee may be charged for entry to a public swimming pool which might be regarded as constituting a commercial use. There is nothing within the wording of the BCA itself to exclude a shed being used for a commercial purpose or to indicate any size restriction.
(Page 13)
52 On what basis then is a Class 10a shed to be distinguished from a Class 7b storage building? In the Tribunal's view, the distinction is that, as above stated, the full context in which the Class 7 definition appears, reflects that the buildings would be designed for a commercial use and that in turn reflects some indication of the extent to which people occupy or have access to and be in the buildings. Commercial use in this sense must be taken to mean storage of goods either for wholesale or retail purposes or even as a commercial operation in which goods are stored for others. In the case of a Class 10a shed, while it can be used for a commercial purpose, if that requires people to occupy or have access to and be in the building to an extent which is comparable to a Class 7b use, that would raise a direct classification issue to be determined having regard to the facts and circumstances of each case. That classification must be made by the local government pursuant to reg 19 of the Building Regulations. There is no express right of review of the classification granted to the Tribunal but that does not appear be relevant in the context of a review of a decision to issue a notice under s 401 of the LG(MP) Act and neither of the parties submitted otherwise.
53 It was submitted for the Shire, relying on Bogiatzis and Minister for Urban Services [2002] ACTAAT 21 (Bogiatzis) that in making the classification the more stringent requirements of Class 7b were more appropriate than the requirements of Class 10a. In Bogiatzis, the Administrative Appeals Tribunal (AAT) regarded the BCA Guide as being part of the BCA which, with respect, it is not. The AAT relied upon a statement in the BCA Guide that parts of a building may have more than one classification and that if there is any conflict between the requirements the part should comply with the more stringent requirements (Part A3.2). The AAT was there dealing with the different use of parts of a building, and in the absence of any provision in the BCA specifying how to make the classification in such a situation, it appears likely that as a matter of construction, the same result is open.
54 In this matter, the Tribunal is not concerned with the use of part of a building. That said it would be open to a local government to take a view as to what it considered to be the correct classification having regard to the risks associated with the use of the building. In this case, given the low occupancy applying to the buildings and the infrequent occasions on which access will be required, on the information provided to the Tribunal, the buildings lie very much on the side of the scale favouring their classification as Class 10a sheds.
(Page 14)
Inclusion within the Housing Provisions
55 The BCA has been incorporated into legislation, as referred to above. As such, and as stated by the High Court in Project Blue Sky Inc at 384:
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
56 There is no apparent reason why the BCA is published in two volumes, Volume One under the title 'Class 2 - Class 9 Buildings' and Volume Two 'Class 1 and Class 10 Buildings - Housing Provisions'. It may be, as submitted by the Shire, that in context this indicates that Class 10 buildings will generally be associated with residential dwellings falling within Class 1. However, by definition, a private garage, which is a Class 10a building is not only a garage associated with a Class 1 building, but may also be a garage contained within any single storey of a building of another class capable of accommodating not more than three vehicles, if there is only one such storey in the building, or any separate single storey garage associated with another building where such garage is capable of accommodating not more than three vehicles. Further, it is clear that there are provisions in Volume One which apply to Class 10 buildings.
57 It is accordingly concluded, that the inclusion of Class 10 buildings within Volume Two of the BCA is of no particular significance in determining the preliminary issue. It is probably so located because most structures falling within Class 10 are associated with Class 1 buildings and most buildings which might be described as sheds and which are also used for a commercial purpose would be classified as Class 7 buildings because of the level of occupation, the number of people likely to be in the building and the manner of operation for which it was designed.
Application of the BCA Guide
58 The above conclusions are based on principles of statutory construction. To the extent that regard can be had to the BCA Guide, it is noted that under Part A3.2 - 'Classifications', it is stated that in some states or territories, appropriate authorities may classify farm buildings as Class 10a. The BCA Guide continues that this decision would be made only if classification of Class 7 or Class 8 would not be more appropriate and that when making the
(Page 15)
- decision consideration must be given to the building's size, purpose, operations and the extent to which people are employed in the building. If that is correct, it is a clear indication that a Class 10a shed can be used for a commercial purpose. If the above criteria were applied, while the size of the buildings is a negative factor, the purpose, operations and extent to which people are employed in the buildings favour the Class 10a classification. Reference to the BCA Guide therefore supports and confirms the Tribunal's construction of the BCA.
59 It is also to be noted that in PR and RE Schmidt v DC Mount Barker NoERD01130 [2001] SAERDC 30, the Court had regard to the frequency of regular visits to a shed, used as a chicken growing enterprise, in order to conclude that the building should be classified as a Class 8 rather than a Class 10a building. The fact that the building was used for a commercial purpose did not raise any comment from the Court.
Conclusion and order
60 Having regard to the use and intended manner of operation for which the buildings have been designed including the infrequent occasions on which limited numbers of persons will have access to, occupy or be in the buildings, and for all the above reasons, the Tribunal determines that the correct classification of the buildings under the BCA is Class 10a.
61 The Tribunal will accordingly issue an order as follows:
1. For the purposes of the State Administrative Tribunal's determination of whether to affirm or set aside the respondent's decision to issue two notices to the applicant dated 16 January 2008 under s 401(3) of the Local Government (Miscellaneous Provisions) Act 1960 (WA), the State Administrative Tribunal determines, as a preliminary issue, that the correct classification of the two large sheds built for storage purposes on exploration licences E45/2709 and E45/2714 is Class 10a under Part A3 of the Building Code of Australia.
(Page 16)
- I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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