GARBIN and CITY OF COCKBURN - [2022] WASAT 54

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION:   GARBIN and CITY OF COCKBURN [2022] WASAT 54
MEMBER:   MS N OLDFIELD, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   23 JUNE 2022
FILE NO/S:   DR 254 of 2021
BETWEEN:   PETA LEEANNE GARBIN
Applicant
AND
CITY OF COCKBURN
Respondent

Catchwords:

Building Act - Review of building order - Application for extension of time where delay extensive - Principles applicable to extension of time - Merits of application

Legislation:

Building Act 2011 (WA), s 6(3), s 110, s 110(1)(c), s 110(2)(c), s 111, s 111(1), s 112, s 115, s 122(1)(b)
Health (Miscellaneous Provisions) Act 1911 (WA), s 135, s 139
State Administrative Tribunal Act 2004 (WA), s 9, s 27(1), s 27(2), s 29(1), s 29(3), Pt 3, Div 3
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	Moray & Agnew Lawyers

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

Bruce Construction Design Pty Ltd and Miklavs [2021] WASAT 166
CSBP Limited and City of Kwinana [2015] WASAT 42
Curlewis and City of Albany [2011] WASAT 85
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Hartwig and City of Canning [2008] WASAT 243
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
Mikhail and Qaqish [2018] WASAT 50
O'Connor and Town of Victoria Park [2005] WASAT 161
The Owners of Pinnacle South Perth Strata Plan 63919 and City of South Perth [2022] WASAT 25
Townrow and Commissioner of State Revenue [2019] WASAT 182
Van Oijen and City of Wanneroo [2019] WASAT 62
Wally and Commissioner of Police [2014] WASAT 98

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant is an owner of the property located at No 6 Luscombe Way, Coogee (property).
The respondent is the permit authority as defined in s 6(3) of the Building Act 2011 (WA) (Building Act).
This matter concerns an application for an extension of time in which to apply for review of the decision of the respondent to issue emergency building orders (Orders) on 15 October 2020 under s 122(1)(b) of the Building Act.

Issue for determination

The issue for determination is whether the Tribunal ought to grant an extension of time for the applicant to make the review application.

Factual background

The following factual background is agreed by the parties.
The applicant purchased the property with her former de facto partner as joint tenants on 1 April 2010 and both persons are joint registered proprietors. On 17 July 2012 the respondent issued a building permit for various building works to the property, including the addition of a second storey to the existing house. On 17 July 2014 the building permit expired. On 16 October 2015 the Family Court of Western Australia made final orders by consent which included an order that the applicant's ex de facto partner do all that was necessary to transfer his interest in the property to the applicant.
On 16 January 2017 officers of the respondent inspected the property and observed the building works the subject of the building permit had not been completed. The following day the respondent wrote to the applicant enquiring how the incomplete works were proposed to be addressed.
Officers of the respondent conducted a further inspection of the property on 28 June 2019. On 30 July 2019 the respondent wrote to the applicant stating the building at the property (premises) did not meet the requirements of a dwelling under the City of Cockburn Health Local Laws 2000 and issuing a schedule of remedial works it suggested be undertaken by the applicant. On 31 July 2019 the respondent wrote to the applicant noting the building works the subject of the building permit were incomplete, requesting a structural engineer's report addressing the then current state of the premises and advising any further building works would require another building permit.
On 23 September 2020 officers of the respondent and chartered structural engineer VTP Engineering inspected the premises, following which VTP Engineering issued a report dated 1 October 2020 raising concerns regarding the condition of the premises. One of the recommendations was that the living, dining, kitchen and alfresco areas be cordoned off to ensure that no one entered those areas until permanent works to support the roof structure were completed.
On 15 October 2020 the respondent issued and served upon the applicant Orders requiring the applicant to:
1)evacuate the premises, and the premises to remain unoccupied, so as to prevent or stop a suspected contravention of the Building Act and the risk of injury to persons;
2)cordon off the living, dining, kitchen and alfresco areas to minimise the risk of injury to persons whilst rectification works were completed;
3)bring structural elements of the alfresco area in accordance with the building permit;
4)without delay install more temporary props to support the roof over the living, dining, kitchen and alfresco areas; and
5)without delay reconstruct or modify the roof and ceiling over the living, dining, kitchen and alfresco areas so that they would be compliant with the Building Code of Australia and support downward and upwards loads with appropriate and approved supports.
On 15 October 2020 the respondent issued notices pursuant to the Health (Miscellaneous Provisions) Act 1911 (WA) (Health Act):
1)declaring the premises to be unfit for human habitation and directing they should not be inhabited or occupied after that date; and
2)requiring the premises to be repaired within 90 days of the date of the notice
(the Notices)
On 7 January 2021 officers of the respondent inspected the premises and formed the view the applicant had not complied with the Orders and the Notices. On 14 April 2021 the applicant was served with a prosecution and court hearing notice which alleged contravention by the applicant of s 115 of the Building Act in failing to comply with the Orders. The applicant initially entered a plea of not guilty, but on 1 October 2021 changed her plea to guilty and requested an adjournment of six to eight weeks to obtain material by way of explanation and mitigation. The respondent agreed and sentencing was scheduled for 3 December 2021.
On 2 December 2021 the applicant lodged the present application, seeking removal of the Orders, and the respondent be prevented from lodging any further building orders in relation to the premises. Also on 2 December 2021 the applicant lodged with the Tribunal an interim application seeking orders dismissing the hearing scheduled for 3 December 2021 in the Fremantle Magistrates Court.
On 3 December 2021 the applicant sought to withdraw her plea of guilty in contravention of s 115 of the Building Act. The Fremantle Magistrates Court advised the applicant she would need to make an application to withdraw her plea and the matter was adjourned to 28 January 2022. The proceedings before the Fremantle Magistrates Court continues to be adjourned pending the outcome of the application to review the Orders.
On 22 December 2021 the Tribunal dismissed the applicant's interim application as misconceived and made orders for the parties to file submissions regarding an extension of time. Documents were duly lodged by both parties and on 3 May 2022 the Tribunal made orders by consent that the exercise of discretion to extend time be determined entirely on the documents.

Statutory framework

SAT Act

The review jurisdiction of the Tribunal is contained within Pt 3 Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 29(1) of the SAT Act provides that when exercising the review jurisdiction, the Tribunal exercises the functions and discretions of the corresponding decision-maker.
The nature of review proceedings is by way of a fresh hearing, and accordingly the Tribunal may consider additional or new information not before the original decision-maker.[1] The purpose is to produce the correct and preferable decision, as at the time of the review.[2] The Tribunal has the power to affirm, vary or set aside the decision and in any case to make those orders it considers appropriate.[3]

SAT Rules

[1] SAT Act s 27(1).

[2] SAT Act s 27(2).

[3] SAT Act s 29(3).

Rule 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) provides an application to the Tribunal under its review jurisdiction must be made within 28 days of the day on which the decision-maker makes or gives notice of the decision.
Rule 10 provides the Tribunal may on application or upon its own initiative extend the time fixed for the commencement of proceedings and this is so even if time has expired before the application for extension is made or the exercise of initiative considered by the Tribunal.

Building Act

Sections 110-112 provide for the making and content of building orders.
110.Building orders
(1)A permit authority may make an order (a building order) in respect of one or more of the following -
(a)particular building work;
(b)particular demolition work;
(c)a particular building or incidental structure, whether completed before or after commencement day.
(2)A building order must be in an approved form and must be directed to any one or more of the following persons as is appropriate in the case -
(a)if a building permit is in effect for the particular building work, the person named as the builder on the permit;
(b)if a demolition permit is in effect for the particular demolition work, the person named as the demolition contractor on the permit;
(c)a person who is an owner of the land on which the particular building or demolition work is being, or has been, done;
(d)a person who is an owner or occupier of the land on which the particular building or incidental structure is located.
111.Notice of proposed building order other than building order (emergency)
(1)Before making a building order a permit authority must -
(a)give each person to whom the order is proposed to be directed written notice of the terms of the proposed order and the reasons for it; and
(b)advise each person to whom the order is reposed to be directed that the person has 14 days from the day on which the notice is received in which to make submissions in relation to the proposed order; and
(c)consider each submission received within that period.
(2)Subsection (1) does not apply if there is an imminent and high risk to people, property or the environment arising from building or demolition work or from the dangerous state of a building or incidental structure.
112.Content of building order
(1)In this section -
specified means specified in the building order.
(2)A building order may require a person to whom the order is directed to do any one or more of the following within the specified time -
(a)to stop all or specified building or demolition work that is being done in suspected contravention of a provision of this Act;
(b)to demolish, dismantle or remove a building or incidental structure that has been, or is being, built or occupied in suspected contravention of a provision of this Act;
(c)to do specified building or demolition work, or alter a building or incidental structure in a specified way, so as to prevent or stop a suspected contravention of this Act;
(d)to cause a building or incidental structure to be evacuated, or remain unoccupied, so as to prevent or stop a suspected contravention of this Act;
(e)to take or not take specified action so as to prevent or stop a suspected contravention of this Act;
(f)to finish the outward facing side of a close wall in a way specified under section 88(3);
(g)if a building or incidental structure is reasonably believed to be in a dangerous state or unfit for human occupation -
(i)to conduct a survey of the building or incidental structure;
(ii)to cause the building or incidental structure to be evacuated or remain unoccupied;
(iii)to stop all or specified building or demolition work that is causing or contributing to the state or condition of the building or incidental structure;
(iv)to shore up, fence or otherwise secure the building or incidental structure in a specified way for the protection of persons, of other property or of the environment;
(v)to renovate or repair the building or incidental structure to a specified standard or in a specified way so as to prevent or stop the building or incidental structure from being a danger to persons, to other property or to the environment or to render it fit for human occupation;
(vi)to demolish, dismantle or remove the building or incidental structure;
(h)to take specified action that is reasonably incidental to doing a thing mentioned in any of paragraphs (a) to (g).
(3)A building order -
(a)that is to have effect for a limited period only must set out that period; and
(b)must set out the right of review under section 122; and
(c)must require a person to whom the order is directed to notify the permit authority in a specified manner when the person has done what the building order requires the person to do; and
(d)must contain each other thing that is prescribed to be in the order.
122.Building orders
(1)A person who is served with a copy of a building order may apply to the State Administrative Tribunal for a review of the decision of the permit authority -
(a)to make the building order; or
(b)in relation to a requirement of the order.
(2)The institution of a proceeding for the review of a decision under subsection (1) in relation to a building order other than a building order (emergency) stays the operation of the order pending the determination of the proceeding.

Health Act

The Notices referred to at [11] above were made pursuant to s 135 and s 139 of the Health Act:
135.Dwellings unfit for habitation
(1)Any local government may, of its own motion, and shall, when required by order of the Chief Health Officer 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.
(3)The notice shall be affixed to some conspicuous part of the house, and a copy of such notice shall be served upon the owner or occupier thereof.
139.Owner may be required to clean or repair house
In addition to the powers contained in the preceding sections of this Part, a local government may, if in its opinion any house is unfit for human habitation by reason of uncleanness or want of repair, require the owner of such house by a notice served on such owner to render clean or to repair such house within the time and in the manner specified in such notice.

Principles - extension of time

There are four principal factors relevant to an application for an extension of time[4]:
1)the length of the delay;
2)the reasons for the delay;
3)whether there is an arguable case for review; and
4)whether and to what extent an extension of time might cause prejudice.
[4] O'Connor and Town of Victoria Park [2005] WASAT 161 at [39] and [40] (O'Connor).
These factors are not exhaustive, and other considerations may be relevant in the context of the particular matter, the overall purpose being that strict compliance with a deadline does not become an instrument of injustice[5] in line with the objectives of the Tribunal[6] and in the overall context of the relevant proceedings and the circumstances of the parties.[7]
[5] O'Connor at [38].
[6] SAT Act s 9.
[7] CSBP Limited and City of Kwinana [2015] WASAT 42 at [55].
The onus is upon the applicant to satisfy the Tribunal it is appropriate to exercise its discretion to extend time.[8]

The applicant's contentions

[8] Curlewis and City of Albany [2011] WASAT 85 at [69].

The grounds on which the application of the applicant dated 2 December 2021 seeks removal of the Orders are as follows:
1)the notice was issued even though I was severely unwell and unable to work therefore without funds to be able to do so
2)the notice was issued even though I had recently paid for new engineering plans in order to obtain a new building licence
3)the notice was issued even though a comprehensive engineers report on the current state of the dwelling was produced at the Council's request paid for by myself
4)the notice was issued even though I have been trying to sell my property due to becoming unwell and having no funds to complete works
5)the notice is hindering the sale of my property
6)the staff that produced the notice has been turning potential buyers away
7)the notice was issued following an unnecessary and unannounced ambush from COC [City of Cockburn] causing embarrassment and stress to myself and my family
8)the notice was issued following all of the above following a 20 minute onsite inspection by a COC appointed 'Engineer' whom openly states there was no prior or post access to any other files or plans or reports
9)the notice has been non negotiable considering my personal circumstances
10)the notice has been non negotiable considering its hindrance to the sale of my home
11)the notice has been non negotiable even though there have been many attempts to do so. The COC have also recently sent me another letter stating they will be also presenting me with a Health notice again due to the renovation being incomplete.
NOTE: I have signed a contract with a Professional Building Surveyor to manage the project initiating with a structural audit on all works that have been completed to date and following up with ongoing support and professional services until completion. …
NOTE: The property in mention has been on the market for the past year and will continue to stay on the market until sold. Progression of works is to aid the sale only due to lack of funds and unable to work due to illness.
In supplementary submissions dated 7 April 2022 the applicant argues the Tribunal should exercise its discretion in favour of granting an extension of time for the following reasons:
1)The length of delay is not determinative in the circumstances of this case.
2)The applicant's delay was by reason of illness and lack of legal representation which is reasonable in the circumstances.
3)The applicant has an arguable case because:
a)the premises did not present an imminent and high risk to people;
b)for that reason, there was no basis on which to issue an emergency building order;
c)the respondent should therefore have gone through the consultation process outlined in s 111(1) of the Building Act before issuing a building order;
d)the respondent's failure to do so rendered the Orders invalid and denied the applicant procedural fairness; and
e)alternatively, the decision to issue the Orders ought to be set aside and replaced with a building order which corrects the erroneous reference to s 112(2)(v) of the Building Act.
4)Any prejudice which may be suffered by the respondent in granting the extension of time is outweighed by the prejudice which will be suffered by the applicant if the extension of time was not granted. The prejudice to be suffered by the applicant is said to be:
a)loss of the right to review the Orders;
b)the applicant will be subject to sentencing regarding the matter before the Fremantle Magistrates Court; and
c)the applicant will be required to evacuate the premises, which will leave her homeless.

The respondent's contentions

In submissions, responsive submissions and supplementary submissions dated 14 January 2022, 18 January 2022 and 27 April 2022 the respondent argues against the exercise of discretion to grant an extension of time for the following reasons:
1)the length of delay is unreasonable;
2)the applicant's reasons for delay are inadequate and the subject of insufficient evidence;
3)there is no arguable case the Orders should not have been issued because:
a)it was reasonable for the respondent to believe there was a high and imminent risk; and
b)the typographical error does not invalidate the Orders.
4)The respondent will be significantly prejudiced if the extension of time were granted because:
a)it has expended significant time and financial resources in relation to the enforcement of the Orders;
b)granting of an extension of time would further delay the prosecution before the Fremantle Magistrates Court; and
c)there could be jurisdictional or legal issues regarding the prosecution if the Tribunal were to ultimately amend or revoke the Orders.
5)The respondent argues the applicant has not established greater potential prejudice because:
a)loss of the right to review the Orders is of itself insufficient;
b)the applicant has been represented by two lawyers in relation to the prosecution and has not yet lodged any application to change her plea; and
c)it is appropriate the applicant comply with the terms of the Orders and cease living in unsafe premises.

Consideration

Length of delay

The respondent's decision the subject of this matter is dated 15 October 2020 and was served on the applicant on the same date. Under r 9 of the SAT Rules an application for review of that decision must be made within 28 days and accordingly the application ought to have been made on or before 12 November 2020.
The application was lodged on 2 December 2021, some 413 days after the date of the decision and 385 days late.
In the context of a review period of 28 days, a delay of five weeks was described as ‘borderline',[9] of 155 days as 'clearly significant',[10] and two years and six months as 'inordinate and tends to render the 28 day review period somewhat inutile'.[11] In the context of a 60 day review period, a delay of 261 days was described as 'extensive'.[12]
[9] O'Connor at [41].
[10] Hartwig and City of Canning [2008] WASAT 243 at [49]
[11] Van Oijen and City of Wanneroo [2019] WASAT 62 at [72].
[12] Townrow and Commissioner of State Revenue [2019] WASAT 182 at [25].
The delay of the applicant in this matter must be considered as significant and weighing against an extension of time.

Reasons for delay

The applicant states the reasons for her delay are that:
1)Her ability to comprehend and respond to the Orders was impacted by illness, specifically that she became unwell with pneumonia or COVID-19 as well as depression in January 2020 and was bedridden for six months.[13] Furthermore, the submissions of the applicant state she was diagnosed with depression and post-traumatic stress disorder in either December 2020[14] or January 2021.[15]
2)The applicant did not have the benefit of legal advice in relation to the Orders and she was therefore unaware of the need to commence proceedings in order to review that decision.

Illness

[13] Applicant's submissions filed 14 February 2022 at page 2 and Applicant's submissions dated 7 April 2022 at paras 28 and 30.

[14] Applicant's submissions dated 7 April 2022 at para 29.

[15] Applicant's witness statement dated 7 April 2022 at para 23.

On 10 May 2022 the applicant lodged a copy of a redacted letter from her treating general practitioner to Centrelink and Medicare in which it is stated the applicant was diagnosed with depression in September 2011 and in 2015 with depression, panic attacks and posttraumatic stress disorder.[16] Whilst not specifically stated in the letter it appears likely the applicant continued to suffer from those conditions from 2015 until the present.
[16] Letter from Dr Alison Stanning dated 3 May 2022.
The submissions of the applicant filed 14 February 2022 state that between 2018 and December 2021 the applicant:
1)engaged the professional services of Broadview Design to manage the renovations and obtain a new building permit (July 2018);
2)in relation to the renovation planning, took part in site visits and meetings (August - September 2018);
3)in relation to the renovation planning, engaged the services of Oracle Surveys, Sustainability WA and an engineering firm (October 2018 - January 2019);
4)engaged the services of MBSE Consultants Pty Ltd (MBSE) for completion of engineering drawings (September October 2021);
5)engaged in communications with the respondent to provide detail of progress in relation to the renovations and to discuss the lack of alignment between the schedule of works suggested by the respondent as opposed to the schedule of works proposed by the applicant's designer and engineers (July 2021);
6)in response to the correspondence from the respondent, engaged MBSE to provide a comprehensive structural report (November 2021);
7)engaged real estate agents to sell the property (firstly Acton Realty Spearwood, and when they were not successful, Multiply Group, then Semple Group) and then made the decision to sell herself with the assistance of an online marketing group No Agent Property (December 2020 - May 2021);
8)engaged a solicitor to assist with the contract of sale and conveyancing in the event of an acceptable offer to purchase the property (July 2021);
9)engaged a tradesperson to 'demolish the dangerous roof area through to wall needing to be rebuilt and extension to the rear of the house which wasn't built to code and to remove landscaping around the pool plus green waste pile' (October 2021);
10)visited the offices of the respondent to request the Orders and the Notices be removed on the basis the dangers had been removed (November 2021);
11)engaged the services of a building surveyor to again inspect the condition of the property (December 2021).
The applicant referred to the decision of Goedhart and Western Australian Planning Commission [2006] WASAT 49 (Goedhart) as authority for the principle that serious illness is a reasonable explanation for delay in commencing proceedings.[17] The circumstances of that case were that a gentleman then aged about 71 suffered hospitalisation, nursing, injuries and exacerbation of a preexisting depression as a result of an operation which went 'drastically wrong' and the most recent injury had involved concussion and broken bones.[18] The delay in Goedhart was 87 days.
[17] Applicant's submissions dated 7 April 2022 at para 27.
[18] Goedhart at [17] and [19].
I do not doubt the applicant suffers from serious mental illness and one can only imagine the difficulty that must present. However, her circumstances differ from those described in Goedhart in that the applicant's illness has not prevented her performance of other activities as set out in [34] above.
Regarding the applicant's six-month incapacitation involving pneumonia or COVID-19, no medical certificates or other documents were lodged. Whilst I am prepared to accept the applicant suffered pneumonia, COVID-19 or another illness with similar symptoms in December 2020 or January 2021 there is insufficient evidence to satisfy me that the applicant was incapacitated for six months and was therefore unable to respond to the Orders during that period.
Overall, I do not consider the applicant's submissions regarding illness to be a good reason for a delay of 385 days.

Legal advice

The submissions of the applicant claim that although the applicant had secured the services of solicitors, she was not provided legal advice in relation to the Orders and was unaware of the need to commence proceedings to review the order.[19]
[19] Applicant's submissions dated 7 April 2022 at para 31.
The Orders were issued on the form approved by the Building Commissioner on 30 June 2016 and clearly provide information on a recipient's right to apply to the Tribunal for a review within 28 days. Various documents lodged by the parties suggest the applicant is intelligent and literate and there is no basis upon which to conclude the applicant would be unable to understand the information contained in the Orders regarding her rights of review nor follow the suggestion on the form to seek further information from the Tribunal.
The applicant refers to Bruce Construction Design Pty Ltd and Miklavs [2021] WASAT 166 (Bruce Construction) and Wally and Commissioner of Police [2014] WASAT 98 (Wally) as authorities for the proposition that the absence of legal representation is a satisfactory reason for delay. However, the decision in Bruce Construction involved a delay of 10 days in circumstances where Ms Miklavs accepted the explanation of Bruce Construction Design Pty Ltd. The decision in Wally involved a 45-day delay on the part of a gentleman with limited literacy in a remote region with limited services and who initially made the application for review in the wrong jurisdiction.
A failure on the part of a party's solicitor has been observed to be a relevant factor in relation to delay,[20] however it has also been said the failure of a solicitor to correctly advise their client is a matter between the client and the solicitor and should not support the exercise of discretion by the Tribunal to extend time.[21]
[20] O'Connor at [44].
[21] Mikhail and Qaqish [2018] WASAT 50 at [26].
The applicant obtained legal representation in relation to the proposed sale of the property (including the preparation of a deed for the sale of immovable property). He advised her to seek separate legal advice regarding the Orders.[22] The applicant engaged another solicitor after service of the prosecution documents alleging a breach of s 115 of the Building Act. The date on which that solicitor was engaged and ambit of his instructions are unclear. There is nothing which leads me to conclude either solicitor failed in his obligations to the applicant.
[22] Applicant's witness statement dated 7 April 2022 at paras 36-37.
The applicant states she unsuccessfully sought pro bono legal assistance, and her witness statement is suggestive of that taking place after the retainer of the second solicitor was terminated. The extent of the applicant's efforts in seeking pro bono assistance is unclear.
On the whole the evidence of the applicant's interactions with legal practitioners appears a slim justification for a delay of 385 days.

Arguable case for review

The applicant submits the Orders are invalid due to the failure to follow the consultative process in circumstances where there was no imminent and high risk to people. Alternatively the applicant argues the Orders ought to be set aside and replaced with orders which corrects an incorrect reference to the Building Act.
The respondent in turn submits there were reasonable grounds on which to issue the Orders and that the error in referencing a section of the Building Act as identified by the applicant does not invalidate the Orders.
In seeking an extension of time, the onus is upon the applicant to establish her case has some merit and is not 'hopeless, unarguable or bound to fail' and usually at this stage the assessment of merit is made in a broad sense due to the limited materials and evidence before the Tribunal.[23]
[23] Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 540; Goedhart at [21].
In The Owners of Pinnacle South Perth Strata Plan 63919 and City of South Perth [2022] WASAT 25 at [54] the Tribunal observed 'an emergency building order is simply a building order issued without a period of consultation' and there 'is nothing in the Building Act that suggests a failure to consult for 14 days invalidates a building order'. In that decision, as in the present case, the applicant did not seek to challenge the Orders until after the consultation period would have expired.
The evidence of the condition of the premises at the time of the issuing of the Orders includes various photographs taken by the respondent and the reports of VTP Engineering and MBSE. The report of VTP Engineering dated 1 October 2020 states the roof frame over the kitchen, living and dining areas 'has no adequate support'. The temporary props which had been installed were assessed as being insufficient and further props were recommended and that permanent works be undertaken 'as soon as practicable to provide support to the roof frame'. The report further states:
Based on my observations on site I believe there is a medium to high risk of damage occurring if the works are left unfinished for much longer … Based on the potential risk of damage … I believe that until the permanent works are built - which in my opinion should be undertaken as soon as possible - this area should be cordoned off. It will be important to cordon off Living, Dining, Kitchen and Alfresco area where this work is to be provided, to ensure that no person under no circumstances enter the area until a permanent solution has been implemented.
On 6 November 2019 MBSE reported on the structural integrity of the premises at the request of the applicant. They found 'no major structural defects' and 'a number of minor structural defects' and recommended the placing of a stud framed wall to support a portion of the roof that was 'significantly overstressed', demolishing and rebuilding an existing masonry wall and replacing a temporary prop with a timber framed wall to support timber framing on the first floor. It is unclear from the photographs included in the report of MBSE whether that portion of the roof identified as overstressed was the same portion of the roof identified by VTP Engineering as requiring immediate support.
The report of VTP Engineering supports the conclusion of the respondent the premises presented an imminent and high risk. The report of MBSE in stating a portion of the roof was 'significantly overstressed' may be considered to be in agreement. I am satisfied there is evidence on which to determine the premises did pose an imminent and high risk at the time of the issuing of the Orders.
The submissions of the applicant suggest that the erroneous reference in the Orders to 's 112(2)(v)' invalidates the Orders because the error caused the applicant to be unaware of the basis on which the Orders were made. This proposition is not accepted. There is nothing in the Act which suggests an obligation upon a permit authority to specify each relevant subsection and there appears adequate information in the Orders to allow the applicant to understand the basis upon which the Orders were issued.
If an extension of time were granted to the applicant, a review of the Orders would be by way of a fresh hearing.[24] Therefore correctness or otherwise of the decision of the respondent in issuing the Orders on 15 October 2020 would be less relevant than the question of what would be the correct and preferable decision at the time of the review.[25]
[24] SAT Act s 27(1).
[25] SAT Act s 27(2).
A permit authority may make a building order in respect of a particular building[26] and which is directed to a person who is an owner of the land on which the particular building is located.[27] It is not in dispute the respondent may issue a building order directed to the applicant in respect of the premises.
[26] Building Act s 110(1)(c).
[27] Building Act s 110(2)(c).
A building order may require a person to whom the order is directed to take action within a specified time to prevent or stop a suspected contravention of the Building Act, including altering a building in a specified way, take or not take specified work and cause a building to be evacuated.[28] If the building is reasonably believed to be in a dangerous state or unfit for human occupation, the building order may require evacuation of the building, shoring up of the building for the protection of people, property and the environment and renovation or repairs to the building so as to prevent or stop the building from being a danger.[29]
[28] Building Act s 112(2)(c), (d), (e).
[29] Building Act s112(2)(g).
It is not in dispute the action required of the applicant by the Orders is within the ambit of the respondent's authority to order. It is also not in dispute remedial work to the premises is necessary:
1)The submissions of the applicant do not dispute work is required or that the current condition of the premises is in contravention of the Building Act, but simply that the condition of the premises is not such as to constitute an imminent and high risk to persons, property or the environment.
2)The applicant has not challenged the decision of the respondent to issue the Notices. The notice issued pursuant to s 135 of the Health Act provides 18 reasons the premises are unfit for human habitation and required evacuation by 15 October 2020. The notice issued pursuant to s 139 of the Health Act listed 22 repairs to be carried out on or before 13 January 2021. Penalties apply for non-compliance with either notice.
3)As observed at [51] above, MBSE reported on the structural integrity of the premises at the request of the applicant, identified 'a number of minor structural defects', and recommended remedial works. A letter dated 14 January 2022 from Hendry Group Pty Ltd (Hendry) to the applicant reports that following an inspection of the premises they agreed with the report of MBSE dated 6 November 2019 and amongst other actions, Hendry would 'liaise with a structural engineer [to] assist with the development of a new set of structural plans for the purpose of obtaining a building permit and the construction of a compliant building'. This suggests as at 14 January 2022 the repairs recommended by MBSE had not been undertaken and the premises were not then compliant with the Building Act.
There is little information as to the current state of the premises. In her submissions lodged on 15 February 2022, the applicant states 'the dangerous roof area has been demolished'. In her witness statement dated 7 April 2022 the applicant states:
1)When she was sent a schedule of works by the respondent on 30 July 2019, she did not agree because she felt the sequence of works necessary to complete the renovation were not in line with the respondent's schedule of works.
2)When the Orders were served upon the applicant on 15 October 2020, she agreed the renovation was incomplete but disagreed the premises were dangerous. She informed the respondent she could not proceed with any of the works stipulated in the Orders and instead was trying to sell the property.
3)She has removed part of the roof and the back extension.
4)She does not have the means to pay for the works stipulated in the Orders and does not agree the works are required at this stage of the renovation.
The applicant does not claim to have complied with the Orders and does not claim the premises are compliant with the Building Act. Upon a consideration of the parties' evidence it appears likely the concerns raised in the Orders have not been addressed. Even if those concerns had been addressed, it appears likely the premises remain significantly noncompliant with the Building Act. I see no reasonable likelihood the Tribunal would conclude the correct and preferable decision at the date of review would be that no building order be in place. This conclusion is not diminished by the evidence the applicant is noncompliant with the Notices and wishes to sell the property without the 'hindrance' of the Orders 'turning potential buyers away'.[30]

Prejudice

[30] Application dated 2 December 2021, page 6.

The applicant contends the respondent will suffer no prejudice if leave to extend time were granted. The respondent contends it would be significantly prejudiced by an extension of time due to the time and financial resources expended in relation to the enforcement of the Orders, including the proceedings before the Fremantle Magistrates Court, which would be potentially thrown away. The applicant contends greater prejudice to her if the Orders were to stand, including facing sentencing in the Fremantle Magistrates Court and being required to vacate the premises without having alternative accommodation.
I accept there would be some prejudice to the respondent if an extension of time were granted and the applicant was successful in securing a removal of the Orders. I also accept the applicant could be considerably prejudiced if she were not successful in securing removal of the Orders due to the penalties in s 115 of the Building Act, the potential costs and inconveniences of securing alternative accommodation and other consequences which may flow from the continuance of the Orders. However, the applicant is also required to vacate and repair the premises pursuant to the Notices, which she has not challenged and will remain in effect regardless of the decision in this matter and in relation to which penalties also apply for breach.

Conclusion

The Tribunal must weigh the evidence and above considerations in an overall exercise of discretion, bearing in mind the interests of justice and the objectives of the Tribunal. The delay of 385 days is significant and the reasons provided by the applicant for her delay are not entirely satisfactory. On the evidence provided, I am not satisfied the applicant has an arguable case. There cannot be said to be no prejudice likely to be suffered by the respondent and the prejudice which may occasioned to the applicant is not such as to outweigh my decision on all other factors.
For these reasons the application for an extension of time under r 10 of the SAT Rules is refused.

Orders

The Tribunal orders:
1.The application seeking an extension of time pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
23 JUNE 2022