FREEMAN and CITY OF WANNEROO
[2005] WASAT 268
•3 OCTOBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
CITATION: FREEMAN and CITY OF WANNEROO [2005] WASAT 268
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 22 SEPTEMBER 2005
DELIVERED : 3 OCTOBER 2005
FILE NO/S: CC 2713 of 2005
BETWEEN: SANDRA PEARL FREEMAN
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Local government – Review of decision to refuse building licence - Retrospective issue of building licence – Unlawful structure – Can a council issue a building licence for works already completed
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374(1), s 374(1)(a), s 374(1)(b), s 374(2)(a), s 401(1)
State Administrative Tribunal Act 2004 (WA)
Result:
Orders made
Category: B
Representation:
Counsel:
Applicant: Mr T Thies
Respondent: Mr G Owen
Solicitors:
Applicant: Thies Barrister and Solicitor
Respondent: McLeod & Co
Case(s) referred to in decision(s):
Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
The applicants sought an order to set aside the refusal by the City of Wanneroo (the City) to issue a building licence for approval of improvements to their patio.
The City's reason for refusal is that the improvements had already been completed and that it cannot issue a building licence retrospectively.
The applicants noted that the alfresco patio had been completed before they acquired the property. Soon after they moved in they were told that the patio was unauthorised.
The City issued a notice for the patio to be pulled down.
The applicants subsequently made improvements to the patio, in consultation with the City, to a level that it complies with the Building Code of Australia. They sought a building licence to authorise the improvements.
The City acknowledged that the applicants undertook certain improvements to the patio under its guidance. According to the City, the improvements remedied deficiencies to the patio and no building licence was required as only minor works were required. As a result of the improvements, the City consented to the setting aside of the notice for the patio to be pulled down.
The City was therefore satisfied for the patio to remain, but neither the City nor the Tribunal is authorised to issue a building licence for the improvements after it had been completed.
The Tribunal found that it is not authorised to issue a building licence for the improvements to the patio retrospectively.
Orders: The application is dismissed and the decision of the City not to issue a building licence (BA04/5355) is affirmed. Parties have liberty to apply in respect of costs. At the hearing, orders were made for the time to lodge an application to be extended and for Ms Rothenbury to be joined as an applicant to the proceedings.
Background
The applicants were registered as proprietors of the property on 27 May 2004. The previous owner had constructed an alfresco patio with concrete floor, timber decking, limestone walls and a colourbond roof as well as a lean‑to that abutted the common wall with the neighbours. I will only refer to the structures as the "patio", as the lean‑to was removed prior to the hearing.
The patio was described in the advertisement of the property as an "Alfresco with timber decking".
The applicants only realised after they had moved in, that the patio had been erected without a building licence and that the lean‑to was also unlawful.
In evidence, Mr Neale who is the Co‑ordinator Building Approvals of the City, explained that the City had received complaints from a neighbour in regard to the unauthorised patio and the lean‑to against the common wall.
The City therefore issued a notice on 13 September 2004 pursuant to s 401(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the Act) for the illegal patio and lean‑to to be taken down.
The applicants commenced discussions with the City on what steps to take to improve the patio to a standard where it would be in compliance with building specifications. They were content to remove the lean‑to immediately.
Although the s 401(1) notice is not the subject of these proceedings, I note that the notice was revoked on 26 May 2005 by order of the State Administrative Tribunal by consent of the parties, after the applicants had completed improvements to the patio.
The applicants applied for a building licence on 18 October 2004. According to Mr Neale, the application sought were substantially for approval of the patio that had already been constructed and also for some minor alterations.
Mr Neale explained that the building licence application did not only refer to the proposed improvements, but referred to the entire patio under the marking "Application" and with the heading "entertainment area". The proposed structure was described on the building licence application as "patio". It was therefore apparent to the City that the application for building approval related not only to the minor improvements but to the entire patio.
The building licence application was refused on 22 November 2004 on grounds that since the patio had already been constructed and improvements had also been completed, s 374(1) of the Act does not authorise the issuing of a building licence retrospectively.
Counsel for the City referred the Tribunal to the matter of Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38 in which Wheeler J held that the Act does not allow a building licence to be issued retrospectively.
The applicants sought a review of the decision pursuant to s 374(2)(a) of the Act.
There seems to have been some misunderstanding between the applicants and the City in regard to the improvements the applicants undertook subsequent to the s 401(1) notice to remove.
According to the evidence of Mr Neale, the City provided guidance to the applicants on steps they could take for the patio to comply with the Performance Requirements of the Building Code of Australia. By doing so, Mr Neale explained, it enabled the City to consent to the revocation of the s 401(1) notice. The improvements recommended by the City did not require building approval as it merely improved water‑proofing and drainage of the patio.
As a result of the advice provided by the City, the applicants effected the improvements to the patio. These improvements enabled the City to consent for the notice to be revoked.
However, according to counsel acting for the applicants (the applicants did not give evidence at the hearing), they were of the view that the City would issue a building licence for the improvements in order for the record to show that the patio and improvements are lawful.
Counsel for the applicants contend that the City had acted negligently by not responding sooner to complaints by the neighbour about the unlawful patio; that the revocation of the s 401(1) notice does not in itself legalise the patio; that the applicants are "innocent purchasers" who fall outside the scope of s 374(1)(a) or (b); and that a building licence can be issued after completion of the improvements.
Consideration
The applicants are indeed in an unfortunate situation. Their attempts to seek compliance with the Act by taking steps to legalise an unauthorised patio, has led to an outcome and associated costs they probably did not anticipate.
Firstly, the s 401(1) notice to pull down the patio was revoked after the applicants had made improvements to the patio. However, the revocation does not, as far as they are concerned, provide them with the assurance that formal approval for the patio and alternations thereto had been given. Secondly, although they complied with the directives of the City by making the improvements, the City has refused to issue a building licence for the improvements.
The outcome is that, although according to the evidence of Mr Neale, the patio now complies with the Building Code of Australia, the unlawful action taken by a previous owner to erect the patio cannot be legalised by the issuing of a building licence retrospectively.
I note the comments made by counsel for the applicants regarding the purported negligence of the City in following up the complaint of the neighbour. If it is indeed the case, the Tribunal is not the appropriate forum to pursue the grievance. The same applies in regard to any civil action that according to counsel for the applicants may arise against the previous owner.
I can only deal with those matters that fall within the jurisdiction of the Tribunal pursuant to the Act.
I am satisfied with the explanation offered by Mr Neale that the advice the City offered to the applicants were to assist them to rectify shortcomings to the patio for it to comply with the Building Code of Australia. The improvements were of a minor nature and according to Mr Neale did not require a building licence as the works fell outside of the scope of s 374(1)(a).
The improvements undertaken by the applicants enabled the City to be satisfied that the patio complies with the Building Code of Australia. As a consequence, the City consented to the s 401(1) notice being revoked. Had the applicants not effected the improvements, the City would have had to enforce the notice.
In giving advice on what improvements ought to be made to the patio, the City was merely assisting the applicants to comply with the Building Code of Australia.
The building application dated October 2004, did not clearly distinguish between the completed patio and any new works that were intended. The entire patio area was highlighted in the application as being the subject of the building licence sought.
In regard to the question whether a building licence can be issued retrospectively, I concur with the submission by counsel for the City that the Tribunal is not authorised by the Act to issue a licence retrospectively. I do not accept the submission by counsel for the applicants, that they must be treated as "owner‑builders", or as an "innocent purchaser", and that a building licence can be issued.
There is no provision in the Act that places an "innocent purchaser" outside the ambit of s 374(1) of the Act. The applicants were not the builders of the patio and according to Mr Neale a building licence was not required for the type of improvements they made to enable the s 401(1) notice to be revoked.
Section 374(1) of the Act specifies that "no person shall" undertake building activities until plans are submitted, approved and a building licence is issued. This does not leave any scope for the City or the Tribunal to issue a building licence after works had been completed. This interpretation is consistent with the ratio of Wheeler, J in Mosman Park Town v Esther Investments Pty Ltd (at 41) that approval for a development cannot be obtained "subsequent to its completion".
I note the comments made by counsel for the City from the bar table that it is generally recognised in the industry that it is a shortcoming of the Act not to enable a council to issue a building licence retrospectively, and that some councils issue a "letter of comfort" to provide an owner with some degree of certainty. He also informed me that Parliament might in the near future consider legislation to rectify the situation.
However, I am constrained by the provisions of the Act.
Finding
I find that neither the City, nor the Tribunal in its review capacity is authorised by s 374(1) of the Act to issue a building licence retrospectively after completion of works specified in s 374(1)(b).
Orders
1.The decision of the City of Wanneroo not to issue a building licence (BA04/5355) is affirmed.
2.The application is dismissed.
3.The parties have liberty to apply in respect of costs within 30 days from the date of these orders.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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