JASINSKI and CITY OF MANDURAH - [2020] WASAT 2

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
HEALTH (MISCELLANEOUS PROVISIONS) ACT 1911 (WA)

CITATION:   JASINSKI and CITY OF MANDURAH [2020] WASAT 2
MEMBER:   DR B DE VILLIERS, MEMBER
HEARD:   9 DECEMBER 2019
DELIVERED          :   2 JANUARY 2020
FILE NO/S:   CC 1636 of 2018
CC 1826 of 2018

BETWEEN: ANDRZEJ JASINSKI
Applicant
AND
CITY OF MANDURAH
Respondent

Catchwords:

Dwelling unfit for human habitation - Store not approved - Notice to pull down - When is a dwelling unfit for human habitation - Interaction between private and public interest - Obligation of local authority to exercise a statutory power - Duty of care of local authority - Unfit for human habitation does not necessarily equate to pulling down

Legislation:

Building Act 2011 (WA), s 16, s 110, s 112, s 112(2)(g)(ii), s 112(2)(g)(vi), s 122
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 16
Health (Miscellaneous Provisions) Act 1911 (WA), s 36, s 99(1), s 135, s 137, s 137(ii), s 138, s 139, s 182(4), s 184(3)
Local Government Act 1995 (WA), Sch 3.1, Div 5A(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(1), s 29(5)

Result:

Application for review dismissed
Decision to issue Notices for dwelling and storeroom to be pulled down and removed from property affirmed

Summary of Tribunal's decision:

The City of Mandurah (City) issued a building order (Order) pursuant to the Building Act 2011 (WA) as well as two Health Notices pursuant to the Health (Miscellaneous Provisions) Act 1911 (WA) on 1 August 2018 regarding the alleged dangerous state of the dwelling the subject of this proceeding as well as an unapproved storeroom the subject of the proceeding. The Order and Notices required the applicant to immediately vacate the dwelling, for the applicant to not reoccupy the dwelling and for the dwelling and storeroom to be demolished and removed from the property.

The applicant sought a review of the Order and Notices. The City contended for the Notices to be affirmed.

The City said that it had made several attempts to assist the applicant to remedy the shortcomings of the dwelling and store or in the alternative to demolish and remove the dwelling and store. The nature of the structural deficiencies of the dwelling are, however, so serious that there is no other financially viable or practical option but to pull down the entire dwelling. It is also noted that addons to the dwelling have been built without approval of the City and those must also be removed. The dwelling constitutes a serious risk to the health and wellbeing of the applicant since most of the rafters, walls and ceiling are impacted by termite activity. The applicant has not applied for a building licence to address the shortcomings or to erect a new structure.

The applicant said that he was being unfairly treated; that he was willing and capable of remedying the dwelling; that the risks as raised by the City were exaggerated; that he has now registered as an owner-builder and willing and capable of remedying the dwelling albeit that he has not yet secured funding. The applicant had not submitted a building plan to remedy the dwelling or to seek retrospective approval of the storeroom.

The Tribunal considered all the evidence, including expert reports, and concluded that the City had properly discharged its duties by issuing the Order and the Notices. The dwelling does indeed pose a risk to any occupier and there is no practical or financially feasible alternative but to pull it down due to the extent of termite damage. The storeroom has not been approved by the City. The Tribunal is satisfied that public interest also demands that the applicant should not only be required to vacate the dwelling, but that he should be directed to pull down and remove the dwelling, the associated add-ons and the storeroom. The decision of the City to issue the Order and the Notices should therefore be affirmed.

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr P Reghenzani and Mr P Hudson

Solicitors:

Applicant	:	N/A
Respondent	:	City of Mandurah

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

Dueschen and City of Stirling [2008] WASAT 181
Hampel v South Australian Housing Trust [2007] SADC 64 (26 June 2007)
Pyrenees Shire Council v Day [1998] HCA 3
Sutherland Shire Council v Heyman [1985] HCA 41

REASONS FOR DECISION OF THE TRIBUNAL:

Background

The application concerns the review of a decision by the City of Mandurah (City) to issue a building order (Order) pursuant to the Building Act 2011 (WA) (Building Act) and two Health Notices (Notices) pursuant to s 135, s 137 and s 138 of the Health (Miscellaneous Provisions) Act 1911 (WA) (Health Act) for the dwelling situated at No 54 Kookaburra Drive, Greenfields (dwelling) to be evacuated immediately; thereafter to remain unoccupied (s 112(2)(g)(ii) of the Building Act) and for the dwelling and storeroom to be demolished and removed from the property within 60 days of service of the order (s 112(2)(g)(vi) of the Building Act). The Notices were issued on 1 August 2018.
Mr Andrzej Jasinski (applicant) seeks a review of the decision to issue the Order and the Notices and for the Order and Notices to be revoked. The applicant says he should be allowed to undertake remedial work to the dwelling (and the storeroom) in order to address any shortcomings that may have been identified in regard to the dwelling and the storeroom. The applicant says he has recently been certified as an owner-builder (date of approval 22 July 2019) and he is ready and willing to commence remedial work. The applicant filed an application for a building permit on 23 July 2019 with the City, but the application has not been considered or approved by the City because it was incomplete. The applicant sought an adjournment on 15 October 2019 for a complete building application to be lodged with the City. The hearing was adjourned to 6 December 2019 but it appeared at the hearing that no application had been lodged with the City and no substantial progress had otherwise been made to remove and replace the dwelling (and storeroom).
There are in effect two separate matters on which a review is sought, but by order dated 2 July 2018 the Tribunal determined that the proceedings be heard together and that evidence in the one proceeding is to be evidence in the other proceeding. Matter CC 1636 of 2018 concerns a review of the Order issued pursuant to the Building Act and matter CC 1826 of 2018 concerns a review of the Notices issued pursuant to the Health Act.
The proceedings have been complicated by the applicant being of Polish origin, with very limited English capability and seemingly limited understanding of the local government and building regulatory system. Although interpretation services were provided, it appeared as if the applicant had little insight into the seriousness of the matter, or even if he had, that he displayed an unwillingness to address the essential concerns of the City namely that the dwelling is at risk of collapsing and the storeroom had been built without approval. The Tribunal made several attempts to assist the applicant, including the provisions of pro bono assistance, but to no avail.

Facts

The applicant is the registered proprietor of the dwelling which is situated within the boundaries of the City.
There are several structures on the land, namely a dwelling consisting of a concrete floor, timber-framed walls, timber-framed roof and metal sheet covering. The dwelling includes a verandah on the western elevation that consists of an extension of the timber roof trusses and roof cover supported by timber beams and posts. The dwelling was approved in the form of a building licence on 8 December 1992, licence number 31725. A verandah on the eastern and western elevation comprise timber beams and posts. This verandah has not been approved by the City. A carport consists of timber roof framing and sheet metal roof cover. The carport has not been approved by the City. A storeroom consists of masonry walls and sheet metal roof. The storeroom has not been approved by the City.
On or around 18 April 2018 the City received a report from staff from the St John Ambulance that they had attended the property due to a medical emergency and that they had concerns about the stability of the ceiling of the dwelling. An inspection by the City took place on or around 19 July 2018. Staff of the City observed significant damage to the timber walls, roof framing, timber lining and roof framing of the dwelling as a result of termite activity. The City also became aware of the unapproved storeroom.
The City issued the Notices the subject of these proceedings on 1 August 2018. The applicant lodged an application for review on 2 August 2018.
The applicant commissioned an expert report by M.A. Lalli & Associates and the report dated 19 December 2018 confirmed that the dwelling was no longer fit for human habitation (December 2018 Lalli report). The applicant's own expert report therefore affirmed the opinion expressed by the inspectors of the City. The December 2018 Lalli report could not confirm that the roof of the storeroom had been tied down appropriately. In both the case of the dwelling and the storeroom the floor slab on which the structures had been erected remain adequate.
Three reports were filed for purposes of these proceedings:
(a)The City's Inspection Report, 19 July 2018 (City report);
(b)December 2018 Lalli report; and
(c)M.A. Lalli & Associates' Follow Up Inspection, 26 March 2019 (March 2019 Lalli report).

Alternative dispute resolution

The Tribunal explored several options to facilitate the resolution of the dispute by way of an agreed outcome.
The Tribunal referred the matter for pro bono legal representation. Representation was ultimately terminated due to the increase in time and cost and the 'highly unusual' nature of the case and the difficulty to make progress (see letter of Squire Patton Boggs dated 8 November 2018). By letter of 28 November 2019, Squire Patton Boggs observed that the applicant 'has been unable to produce any documents to support his claim that the building can be repaired'.
A company with the name of Fixle became involved with the aim to undertake remedial works, but it also withdrew after some time.
An expert report prepared by M.A. Lalli and Associates was also filed by the applicant (see letter of Squire Patton Boggs dated 6 May 2019).
The pro bono representation was formally withdrawn on 15 July 2019 (see letter of Squire Patton Boggs dated 15 July 2019).
The matter had been the subject of nine directions hearings. At these directions hearings options to resolve the dispute were explored; opportunity was given for expert reports to be obtained; and time was allowed for the applicant to seek a building permit from the City. The applicant sought a stay of the Notices to enable him to remain occupying the dwelling. The Tribunal refused on 14 August 2019 the request to remain occupying the dwelling, but stayed the imposition of fines until the principal matter was finally determined.
The final hearing of the matter was adjourned to enable an application for the appointment of a guardian and/or administrator for the applicant to be properly considered. The Office of the Public Advocate was invited to investigate and prepare a report for consideration by the Tribunal in regard to the guardianship and administration proceeding. The application for the appointment of a guardian and/or administrator was dismissed since there was inadequate evidence to displace the presumption of capacity of the applicant.
A letter was received from Mr Ramdas Sankaran, the Chief Executive Officer of the Multicultural Service Centre of Western Australia Inc (5 September 2019) in which Mr Sankaran says that he has approached the Department of Communities to 'explore the possibility of their purchasing the property' or in the alternative to construct dwellings. At the time of the hearing no further submission had been received from Mr Sankaran. A further letter was received from Mr Sankaran on 6 December 2019 in which he says he was in the process of assisting the applicant in an insurance claim matter.
Although the matter was initially set down for a final determination on the documents, the Tribunal nevertheless set it down for a hearing to ensure compliance with the rules of natural justice and procedural fairness in light of the severe consequences if the application for review is dismissed. The hearing also gave the Tribunal an opportunity to explain to the applicant the seriousness of the situation and to encourage him to find suitable options.
The Tribunal is satisfied that extensive efforts were made to assist the applicant but that ultimately in the light of lack of progress, the matter must now be determined by the Tribunal.

The Order and the Notices

The building order states as follows:
1.A building, being a single-story dwelling with a timber-framed verandah extending along its southern and eastern sides and a timber-framed carport located to its northern side (Dwelling) located at 54 Kookaburra Drive, Greenfields (Property), is reasonably believed to be in a dangerous state with imminent and high risk to the occupant.
2.The Dwelling is believed to be in a dangerous state because:
(a)the construction of the Dwelling consists mainly of timber wall frames and timber roof trusses, which have suffered extensive termite damage;
(b)the extent of the termite damage to the walls, ceilings and roof of the Dwelling has rendered the Dwelling as structurally unsound and at risk of collapse; and
(c)the section of verandah along the southern side of the Dwelling does not appear to comply with the fire separation provisions of the Building Code of Australia (BCA).
The Notice issued pursuant to s 135 of the Health Act, declared the dwelling unfit for human habitation and directs that it be no longer inhabited or occupied. The rationale for the declaration is set out in the second schedule to the Notice as follows:
The house specified in the First Schedule is unfit for human habitation due to the house not having all required facilities to be used as a dwelling-house such as the bathroom and the absence of a laundry, kitchen, adequate room for sleeping purposes and an adequate supply of hot and cold water. The house has not been approved to be used as a dwelling house and does not comply with all habitable requirements of the Building Code of Australia.
The Notice issued pursuant to s 137 and s 138 of the Health Act, declared that the condemned house had to be amended or removed. The Notice in the third schedule determined that the applicant must
[r]emove the house from the property, with all rubbish and debris to be removed to an approved landfill facility, in a manner approved by the City. The property is to be left in a clean and tidy state to the satisfaction of the City's Environmental Health Officer.

The issue to be determined - Should the Order and the Notices issued by the City dated 1 August 2018 be affirmed or revoked?

Hearing 'de novo'

In the exercise of its review function, the Tribunal deals with the matter in accordance with the general principles set out in s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 17 of the SAT Act defines what comes within the review function of the Tribunal, whereas 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 remedial work. Section 122 of the Building Act also allows for a review of a building order.
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 the applicant to comply with the Order and the Notices, or in the alternative to submit an application for approval of a building licence to the City. The applicant did not make use of these opportunities.
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 its 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).

Relevant statutory provisions

The relevant statutory provisions pursuant to which the Order and the Notices were issued are as follows:

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.

…
137.Condemned building to be amended or removed
A notice may be served by the local government upon the owner of such house directing him, within a time limited by such notice, either to amend the same in some specified manner or take down and remove the same.
Provided that -
(i)the notice may direct the owner to take down and remove the house, without giving him the alternative of amending the same; and
(ii)any person aggrieved by any notice under this section may apply to the State Administrative Tribunal for a review of the decision.

138.Land to be cleaned up after removal of house or building therefrom
Any person who dismantles any house, building, or other structure, whether in pursuance of a notice from the local government or not, shall forthwith clean the land to the satisfaction of the local government, and remove all rubbish to a place appointed by the local government.

Building Act

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.

…
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 -
…
(g)if a building or incidental structure is reasonably believed to be in a dangerous state or unfit for human occupation -
…
(ii)to cause the building or incidental structure to be evacuated or remain unoccupied;
…
(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.

Contentions of the parties

The applicant said he wished to repair the dwelling to bring it to a state proper for human habitation. He said the dwelling is 'strong', but he accepted that some rafters may have to be replaced. The applicant said that he has registered as an owner-builder and he would like to be given the necessary opportunity to undertake work to bring the dwelling to a habitable state. At the day of the hearing on 9 December 2019, Mr Davis, who has been assisting the applicant, submitted a proposal of how the roof of the dwelling could be supported while funding is sought in the meantime to demolish the walls and then to reconstruct them again. The applicant did not in his submissions or letters, address the substance of concerns raised by the expert reports. The applicant with the assistance of Mr Davis proposed that the dwelling would be removed; that the slab would be retained; and that a steel structure or timber walls would be erected. At the time of hearing this had not occurred; funding had not been secured; and a building licence had not been sought.
The City said the dwelling is in a dangerous state due to extensive termite damage. The timber walls, roof framing and timber wall linings of the dwelling are significantly damaged by termites. Parts of the dwelling are so structurally unsound that the risk of collapse is high. The scope of repair would exceed the value of the dwelling and the financial means of the applicant. The remedial work that had been undertaken by the applicant did not address the fundamental concerns of structural instability; any remedial work would require the use of material and construction methods that would not be consistent with the original dwelling; and the applicant has not demonstrated insight into the serious deficiencies of the dwelling. The storeroom was built without approval and even if retrospective approval is sought, the applicant would have to demonstrate that the roof of the storeroom had been properly tied down. The building application lodged by the applicant was refused since it was an incomplete application. Information required under s 16 of the Building Act and reg 16 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) had not been provided to the City and the application could therefore not be processed. By letter of 31 July 2019 the City explained in detail to the applicant what is required for purposes of a Demolition Permit, a 'Building Permit Application - Certified and a Building Approval Certificate - Unauthorised'. At the time of the hearing, none of those applications had been received by the City. At the hearings held on 16 October 2019 and 9 December 2019 the Tribunal facilitated a discussion between the applicant, Mr Davis and representatives of the City. The process to submit a building application was explained to the applicant and to Mr Davis. The Tribunal explained that even if the Order and the Notices are affirmed, the applicant could still submit a building application to the City.

Expert reports

The expert reports were, in essence, in agreement.
The December 2018 Lalli report explained the nature and extent of termite damage to the dwelling and the reasons why the dwelling is considered to be unsafe 'as there is a risk of collapse of the roof and framed walls' (December 2018 Lalli report at page 3). December 2018 Lalli report at page 4 recommended that the dwelling be restricted to trades people only so as to mitigate the risk to the applicant and other possible persons. The March 2019 Lalli report observed in regard to the storeroom that the walls and ground slab appeared to be performing adequately, but that it could not be ascertained whether the roof had been properly tied down.
The City report says the extent of termite damage had increased since the previous visit to the dwelling. The wall between the laundry and kitchen area had almost completely been damaged (City report at page 2). The ceiling panels in the lounge area were at the time of inspection being propped up by broomsticks (City report at pages 4-7). Part of a ceiling panel had been removed entirely. The roof trusses displayed termite damage (City report at pages 9 and 10). Similar damage was observed in the second bedroom (City report at pages 11-12). Damage was also observed inside the roof (City report at page 15) and on the verandah (City report at page 17). The City says that the storeroom was constructed without approval and that no retrospective building approval has been sought.

Consideration

The Tribunal accepts that dwellings within the state of Western Australia in general, and within urban areas in particular, may be of different standards of construction and maintenance. In the matter of Dueschen and City of Stirling [2008] WASAT 181 the Tribunal emphasised that the decision of a person to allow a dwelling to fall into disrepair must be assessed within the minimum norms and standards prescribed by legislation. The Health Act and Building Act are examples of a minimum framework to which all residential dwellings must comply. No person is exempt from minimum standards on the basis of his or her personal lifestyle or his or her failure to properly maintain a dwelling for it to be safe for human habitation. The applicant is therefore obliged to comply with certain legal minimum requirements in regard to the maintenance and upkeep of his dwelling. Within those general minimum standards, individuals may opt for different standards of care and maintenance. Structures such as the storeroom must be approved by the City and in the absence of approval the structure must be removed.
The answer to the question what is the meaning of 'unfit for human habitation', is by its nature discretionary. The Tribunal must take into account all relevant evidence and particular expert reports, before a finding can be made as to whether a particular dwelling is no longer 'fit for human habitation'.
The Tribunal, as decision-maker, is under an obligation to exercise the authority granted to it under law in a diligent way. If the Tribunal fails to act and enforce the laws of the State and its bylaws - particularly in the event where the personal safety of a person may be at risk - the Tribunal may be criticised for failing in its responsibilities towards the public in general and the applicant 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 in general mere powers which the authority has an option to exercise or not according to its unfettered choice. They are powers conferred for the purpose of attaining the statutory objects, sometimes generating a public expectation having regard to the purpose for which they are granted that they will be exercised[.]
The obligation of a local council at common law to discharge its duty of care by exercising its statutory powers to prevent the damage caused by fire, was recognised by the High Court in the matter of Pyrenees Shire Council v Day [1998] HCA 3. In that 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 his 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 at [28]:
... 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[.]
Justice Gummow J concluded as follows at [168]:
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'.
and at [172]:
The Shire failed to take steps in the further exercise of its powers which were required by the circumstances[.]
Neither the Building Act nor the Health Act defines what is meant by 'unfit for human habitation'. There is not much gained by case law research in regard to a definition of what is meant by 'unfit for human habitation'. The effect of the words in their ordinary and natural meaning within the context of the relevant legislation should guide the Tribunal.
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' at [63]:
... 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 so 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 a lack of facilities such as provision of adequate water, light, ventilation and so on[.]
and at [65]:
… The question of 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
The mere fact that a dwelling is not 'fit for human habitation' is not in itself sufficient reason for it to be pulled down and removed. A dwelling may be capable of being remedied to bring it to an adequate standard. A dwelling may therefore be declared 'unfit for human habitation' but it may hypothetically be possible for the dwelling to be restored so as to become 'fit for human habitation'. The Tribunal must also take into account the efforts made by a proprietor to bring a dwelling to the appropriate standard. The Tribunal also accepts the assurance received from the City that they are not treating the applicant differentially to any other owner of a building that constitutes a risk.
The Tribunal must therefore not only consider the current condition of the dwelling, but also the likelihood of it being capable of restoration; the costs of potential restoration; and proposals for restoration that may have been submitted by the applicant; and the practicality for restoration.
In summary: The Health Act does not define when a house can be regarded as so 'unfit for human habitation' that it must by necessity be removed. The answer to the question whether a dwelling should be demolished lies in the facts and circumstance of each matter.
The following are further examples of minimum standards provided for in the statutory framework:
•Ensure that disused material is removed from land (Sch 3.1 Div 5A(1) of the Local Government Act 1995 (WA)).
•A house must provide for proper sanitary conveniences (s 99(1) of the Health Act).
•A house must provide for proper bathroom, laundry and cooking facilities (s 99(1) of the Health Act).
•If a house is declared to be unfit for human habitation the owner must clean and repair such house within the timeframe set down by the City (s 139 of the Health Act).
•A nuisance is defined as any house or premises that is in such a state as to be injurious or dangerous to health (s 182(4) of the Health Act).
•Failure to deal with a nuisance in a manner directed by the City is an offence (s 184(3) of the Health Act).
It is therefore incumbent on the Tribunal to determine when the factual circumstances of the dwelling the subject of these proceedings is such that it is regarded as (a) unfit for human habitation and if so, (b) that it must be demolished.
The Tribunal is satisfied that the condition of the dwelling and storeroom is accurately reflected in the photographs tendered by the City and the expert reports during evidence (December 2018 Lalli report at pages 5-7). No improvements or alternations of any substance have been done to the dwelling since the photographs were taken and the City has not received nor approved any building plan to bring the dwelling to a habitable state. The City has also not received a retrospective building approval for the storeroom and the issue of tiedown of the roof remains unresolved.
The Tribunal will first make known its decision and then provide an explanation for reaching the decision.
The Tribunal finds that the dwelling the subject of these proceedings is unfit for human habitation; that the application for review should be dismissed; and that the decision to issue the Order and the Notices the subject of these proceedings should be affirmed. The dwelling is 'unfit for human habitation' and it should be demolished and removed from the property. The slab whereupon the dwelling is situated is not affected by this finding since it is of fair and good condition. The Tribunal also finds that the storeroom has not been approved by the City and that a retrospective building approval has not been sought. The Notice for the storeroom to be removed must be affirmed. The slab whereupon the storeroom is situated is not affected by this finding since it is of fair and good condition.
The reasons for this finding are as follows.
The Tribunal accepted the opinions expressed in the expert reports that the dwelling is 'unfit for human habitation' and that the storeroom has not been approved.
The timber stud frames are constructed of untreated pine and are severely deteriorated by termite damage (December 2018 Lalli report at page 3; City report at pages 3-5). This includes the wall forming the internal leaf and internal walls. The studs are no longer serviceable.
The roof trusses also comprise untreated pine and are severely affected by termite damage. Parts of the roof battens, top cords and some webs of the trusses are in fair condition, but overall the trusses are severely damaged (December 2018 Lalli report at page 3; City report at pages 3-5 and 8-16). It is also noted that the undamaged, untreated pine should be replaced since it constitutes a long-term danger for ongoing termite activity (December 2018 Lalli report at page 4).
Although the verandah frame does not reveal signs of termite damage (December 2018 Lalli report at page 4; City report at page 18) it is not practical nor feasible for the verandah to remain while the structure to which it is connected is pulled down.
The stud wall frames must be completely removed and reconstructed (December 2018 Lalli report at page 4).
The entire dwelling is unsafe and at risk of the roof and walls collapsing (December 2018 Lalli report at page 44; City report at page 21). The December 2018 Lalli report at page 45 concludes that with the exception of the concrete ground slab and the perimeter external leaf of masonry, the only 'viable option' is reconstruction. The City report concurs and says that up to 50% of the visible timber has been damaged by termites. Both reports relied on a visual inspection and it is reasonable to assume that invasive tests would expose greater damage to all untreated timber. The external walls of the dwelling had been enclosed with masonry due to termite damage (City report at page 21), and although the extent of the damage is not visible without an invasive test, it is reasonable to that concerns in regard to the remainder of the dwelling also apply to the walls.
The storeroom (March 2019 Lalli report) is not structurally unsound but it has not been built according to a valid building permit and the applicant has not made any indication that he would seek retrospective approval for it. It is not apparent whether the roof had been properly tied down since no building plan has been filed or approved by the City. The storeroom must therefore also be pulled down and removed.
The Tribunal has gone to great lengths to facilitate an outcome whereby the dwelling could either be restored or removed in a manner that would involve the least cost and trauma to the applicant. The Tribunal has also encouraged the applicant to submit to the City a retrospective building application for the storeroom. An administration and guardianship proceeding found inadequate evidence to rebut the presumption of capacity of the applicant. The pro bono legal assistance facilitated by the Tribunal failed to make any progress of substance. Officials of the City have attempted to assist the applicant, but to no avail. 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 wellbeing of the applicant. In fact, the officials acting for the City displayed utmost respect and sensitivity to the applicant. The Tribunal is satisfied that the City has shown more than convincingly that the reasons set out in the Order and the Notices for the dwelling to be declared unfit for human habitation and that the dwelling and the storeroom should be pulled down were justified and that the Order and the Notices should be affirmed.
The interim arrangement proposed by Mr Davis on 9 December 2019 is not only inadequate to address the fundamental unfitness of the dwelling; it is unfunded. It seeks to retain materials that ultimately would have to be replaced; it is not accompanied by a building application; and it did not seem as if the applicant had comprehension of what was being proposed. Mr Davis had gone to great lengths to assist the applicant, but ultimately it is the applicant who must commit to a certain outcome as necessitated by the Order and the Notices, and the applicant failed to commit.
The only option available now to the Tribunal is to conclude the proceedings on the basis of the merits of the case. In doing so the Tribunal finds that:
(a)the dwelling is unfit for human habitation;
(b)the storeroom was built without approval;
(c)the only practical and financially feasible option is for the dwelling and storeroom to be demolished and removed from the property, albeit that the slab upon which the structures are located may remain; and
(d)the applicant has had ample, fair and reasonable opportunity to propose remedial action but he has failed to do so and, essentially, he fails to demonstrate insight into the dangerous state of the dwelling or into the remedial action and cost required to bring it to a habitable state or into the importance to seek approval for the storeroom.

In light of the assessment above, the decision by the City to issue the Order and the Notices the subject of these proceedings should be affirmed and the Order and the Notices should remain in effect.

Orders

1.The application for review of the building order (CRM 202302-1) issued by the City of Mandurah on 1 August 2018 is dismissed. The building order is affirmed. The dwelling located at 54 Kookaburra Drive, Greenfields is to remain unoccupied and shall be demolished and removed by the applicant within 60 days from the date of these orders.
2.The application for review of the Health Notice issued by the City of Mandurah on 1 August 2018 pursuant to s 135 of the Health (Miscellaneous Provisions) Act 1911 (WA), is dismissed. The Health Notice is affirmed. The dwelling the subject of the Health Notice is unfit for human habitation and shall not be inhabited or occupied by any person.
3.The application for review of the Health Notice issued by the City of Mandurah on 1 August 2018 pursuant to s 136 and s 138 of the Health (Miscellaneous Provisions) Act 1911 (WA), is dismissed. The Health Notice is affirmed. The dwelling the subject of the Health Notice is to remain unoccupied and shall be demolished and removed by the applicant within 60 days from the date of these orders in a manner that complies with the Third Schedule of the Health Notice.
4.The stay order dated 2 October 2018 is removed. This means that a penalty may apply if the applicant fails to comply with these orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DEVILLIERS, MEMBER
2 JANUARY 2020