JAXON GROUP and TOWN OF PORT HEDLAND
[2015] WASAT 119
•27 OCTOBER 2015
JAXON GROUP and TOWN OF PORT HEDLAND [2015] WASAT 119
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 119 | |
| BUILDING ACT 2011 (WA) | |||
| Case No: | CC:625/2015 | 29 JULY 2015 | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR D MOUCHEMORE (SESSIONAL MEMBER) | 27/10/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision under review affirmed | ||
| B | |||
| PDF Version |
| Parties: | JAXON GROUP TOWN OF PORT HEDLAND |
Catchwords: | Building Act 2011 Review of condition imposed on the grant of a building permit Effect of provisions of National Construction Code relating to access for people with a disability Meaning of 'common areas' |
Legislation: | Building Act 2011 (WA), s 119(b), s 16 s 20 Building Code of Australia, s CP2, s CP2.14, s DO1, s DP1, s D3.1, D3.4, Pt A3, Pt D3, Table D3.1 Building Regulations 1989 (WA) Building Regulations 2012 (WA), reg 7 National Construction Code 2014 Interpretation Act 1984 (WA), s 5, s 19 Interpretation Act 1987 (NSW), s 3 |
Case References: | Shire of East Pilbara v FMG Pilbara Pty Ltd [2009] WASC 110 The Owners Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244 |
Orders | 1. The application for review is dismissed.,2. The decision under review to impose condition 2(b) to the building permit granted to the applicant dated 31 March 2015 is affirmed. |
Summary | The respondent, the Town of Port Hedland, granted a building permit to the applicant for the construction of a mixed used development in South Hedland. One of the conditions imposed related to the provision of disabled access. The applicant applied pursuant to s 119(b) of the Building Act 2011 (WA) for the review of the decision to impose that condition.,The Tribunal rejected the applicant's submissions that the requirements of the National Construction Code and incorporated Building Code of Australia were met because disabled access was provided to soleoccupancy units on the ground floor of the building designed for office and cafe use. The Tribunal held that the relevant table of the Building Code of Australia requiring access to at least one floor containing soleoccupancy units referred to buildings or parts of buildings within Class 2 of the National Construction Code classifications and as the office and cafe areas did not fall within that classification it was irrelevant that access had been given to that part of the building.,The Tribunal also rejected the applicant's argument that the corridors on levels two and three of the building were not common areas. In doing so, the Tribunal accepted that the corridors fell within the definition of public corridors but held that common areas had a wider meaning including areas which were available to be shared alike by all residents in the building. Contrary to the applicant's submissions, the Tribunal also held that it was entitled to consider extrinsic evidence in the form of the relevant guide to the Building Code of Australia because the Building Code of Australia constituted subsidiary legislation by virtue of it having operation pursuant to the provisions of the Building Act 2011and the Building Act Regulations 2011 (WA).,The Tribunal dismissed the application for review and affirmed the decision of the respondent. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING ACT 2011 (WA) CITATION : JAXON GROUP and TOWN OF PORT HEDLAND [2015] WASAT 119 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)
- MR D MOUCHEMORE (SESSIONAL MEMBER)
- Applicant
AND
TOWN OF PORT HEDLAND
Respondent
Catchwords:
Building Act 2011 - Review of condition imposed on the grant of a building permit - Effect of provisions of National Construction Code relating to access for people with a disability - Meaning of 'common areas'
Legislation:
Building Act 2011 (WA), s 119(b), s 16 s 20
Building Code of Australia, s CP2, s CP2.14, s DO1, s DP1, s D3.1, D3.4, Pt A3, Pt D3, Table D3.1
Building Regulations 1989 (WA)
Building Regulations 2012 (WA), reg 7
National Construction Code 2014
Interpretation Act 1984 (WA), s 5, s 19
Interpretation Act 1987 (NSW), s 3
Result:
Application for review dismissed
Decision under review affirmed
Summary of Tribunal's decision:
The respondent, the Town of Port Hedland, granted a building permit to the applicant for the construction of a mixed used development in South Hedland. One of the conditions imposed related to the provision of disabled access. The applicant applied pursuant to s 119(b) of the Building Act 2011 (WA) for the review of the decision to impose that condition.
The Tribunal rejected the applicant's submissions that the requirements of the National Construction Code and incorporated Building Code of Australia were met because disabled access was provided to soleoccupancy units on the ground floor of the building designed for office and cafe use. The Tribunal held that the relevant table of the Building Code of Australia requiring access to at least one floor containing soleoccupancy units referred to buildings or parts of buildings within Class 2 of the National Construction Code classifications and as the office and cafe areas did not fall within that classification it was irrelevant that access had been given to that part of the building.
The Tribunal also rejected the applicant's argument that the corridors on levels two and three of the building were not common areas. In doing so, the Tribunal accepted that the corridors fell within the definition of public corridors but held that common areas had a wider meaning including areas which were available to be shared alike by all residents in the building. Contrary to the applicant's submissions, the Tribunal also held that it was entitled to consider extrinsic evidence in the form of the relevant guide to the Building Code of Australia because the Building Code of Australia constituted subsidiary legislation by virtue of it having operation pursuant to the provisions of the Building Act 2011and the Building Act Regulations 2011 (WA).
The Tribunal dismissed the application for review and affirmed the decision of the respondent.
Category: B
Representation:
Counsel:
Applicant : Mr S Ward (as Agent)
Respondent : Ms B Johnson (as Agent)
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Shire of East Pilbara v FMG Pilbara Pty Ltd [2009] WASC 110
The Owners Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244
Introduction
1 On 31 March 2015, the respondent, the Town of Port Hedland, granted a building permit to the applicant for the construction of a mixed use development Residential and Commercial, at No 1 Wise Terrace, South Hedland. A number of conditions were imposed and relevantly, condition 2(b) provides:
The Common areas of the Class 2 units of Block H are required to be accessible to at least 1 floor containing soleoccupancy units and to the entrance doorway of each soleoccupancy unit located on that level as per the requirements of NCC (BCA) Volume 1 2014 Part D3.1 Table D3.1
2 The applicant applies to the Tribunal pursuant to s 119(b) of the Building Act 2011 (WA) for the review of the respondent's decision to impose the above condition.
3 The application for review cited various grounds upon which the decision to impose the conditions should be set aside, but not all grounds are pursued. Consideration of the parties' respective statements of issues, facts and contentions reveal that the outcome of the application will be determined by resolution of the following issues.
Issues
1) Whether there is any requirement for disability access to be given to Level 1 and Level 2 of the building on the basis that the ground floor contains the office and café areas being 'soleoccupancy units' and that the requirements of the Building Code of Australia (BCA) are met by access to the ground floor.
2) Whether the area, or areas, between the pedestrian access ways to the soleoccupancy units on Level 1 and Level 2 of the building are common areas to which Table D3.1 of the BCA applies, having regard to:
a) the definition of 'public corridor' in the BCA; and
b) the lack of any definition of 'common areas' in the BCA.
Does provision of access to the office and café areas meet the access requirement in respect of soleoccupancy units on levels 1 and 2 of the building?
5 The National Construction Code (NCC) is a publication produced on the initiative of the Council of Australian Governments to incorporate all onsite construction requirements into a single code. The BCA is Volume 1 and Volume 2 of the NCC.
6 The significance of the NCC arises in the following circumstances.
7 The Building Act 2011 (WA) by s 16 to s 20 requires that any application for a building permit be supported by a certificate that the proposed building, if constructed in accordance with its design, will meet each applicable building standard. The term 'building standard' is defined under that legislation to mean a prescribed requirement in relation to the technical aspects of the construction or demolition of a building or incidental structure. Regulation 7 of the Building Regulations 2012 (WA) (Regulations) provides that for the purposes of the above definition of building standard, the requirements in relation to the technical aspects of the construction of a building or incidental structure of a particular classification are the requirements set out in the Building Code applicable to that classification of building or incidental structure. The Regulations define the 'Building Code' to mean the BCA which is Volumes 1 and 2, as amended time to time, of the National Construction Code series published by, or on behalf of the Australian Building Codes Board.
8 Part D3 of the BCA relates to access to people with a disability. Section D3.1 provides that 'Buildings and parts of buildings must be accessible as required by Table D3.1, unless exempted by D3.4'. None of the grounds of exemption set out in D3.4 are relevant.
9 It is common cause that levels 1 and 2 of the proposed building are properly to be regarded as parts of a building within Class 2. Table D3.1 states as follows in relation to Class 2 buildings:
Class 2
|
To and within not less than 1 of each type of room or space for use in common by the residents including a cooking facility, sauna, gymnasium, swimming pool, common laundry, games room, individual shop, eating area or the like[.] |
10 The applicant contends that while the first and second levels of the proposed building will contain soleoccupancy units, there is no need to provide disabled access to those levels because access has already been provided to the soleoccupancy units comprising the ground floor café and office area, thereby meeting the requirements of the BCA.
11 Part A3 of the BCA sets out the various classifications of buildings and structures. It provides that the classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used. There are ten classes of classification. Class 2 relates to a building (or part of a building) containing two or more soleoccupancy units each being a separate dwelling. Relevantly, Class 5 relates to an office building used for professional or commercial purposes (excluding certain purposes not currently relevant) and Class 6 relates to a shop or other building for the sale of goods by retail or the supply of services direct to the public, including relevantly a café.
12 Table D3.1 as referred to above, applies in respect of the common areas within Class 2 buildings (or parts of a building). It governs the access required within the common areas constituted within the Class 2 building. It is, with respect to the applicant's submission, irrelevant that access is given to part of a building falling within a different class. Accordingly, the provision of access to the office and café areas, cannot meet any obligation which might exist to provide access to a Class 2 part of the building.
Do the areas between pedestrian accessways and each separate dwelling on the first and second levels of the proposed building constitute common areas?
13 The plans submitted with the application for the building permit show that there are staircases providing pedestrian access at each end of the building which lead to what is described on the plans as a corridor at each level. Each of the units leads off from the corridor on each level.
14 The applicant contends that the area from the pedestrian access point at the stairway to the entrance doorway of each dwelling (which both parties accept are soleoccupancy units as defined) is not a common area but a public corridor as defined under the BCA.
15 There is no definition of what constitutes a common area.
16 The definition of public corridor is:
Public corridor means an enclosed corridor, hallway or the like which -
(a) services as a means of egress from two or more soleoccupancy units to a required exit from the storey concerned; or
(b) is required to be provided as a means of egress from any part of the storey to a required exit.
17 The corridors as shown on the plan in respect of levels one and two clearly fall within the definition of public corridor. That, however, is not a complete answer as to whether or not the areas concerned also constitute common areas.
18 The respondent asserts that in the absence of a definition, the ordinary meaning of the term should apply and reference is made to the definition of 'common' in the Macquarie Dictionary Online (2013) which includes the following meaning:
1. belonging equally to, or shared alike by, two or more or all in question: common property.
…
3. relating or belonging to the whole community; public: common council[.]
19 Both the Macquarie Dictionary (6th edition) and the Shorter Oxford English Dictionary (5th edition, Oxford University Press) give similar meanings.
20 The respondent submits that the term 'common area' would encompass any area within a building used by or for the use of residents in common which would include a hallway or corridor that might be accessed by all residents.
21 In the respondent's written submissions reference is made to the NCC 2015 - Guide to Volume 1. The Tribunal was informed that this reference was intended to be a reference to the 2014 Guide.
22 The written submissions contain a reference to page 44, which properly understood is not a reference to page 44 of the Guide, but to page 44 of the documents filed by the respondent. At page 44 is a letter from the respondent to the applicant in which an extract is set out and is attributed to the NCC 2014 Guide to Volume 1. The Tribunal does not have a copy of this Guide available to it but the accuracy of the extract has not been challenged by the applicant.
23 Contrary to the applicant's submissions, I consider that the Tribunal is entitled under s 19 of the Interpretation Act 1984 (WA) (Interpretation Act) to have regard to extrinsic material, either to confirm the meaning of the provision is the ordinary meaning conveyed by the text, or to determine the meaning of the provision where it is ambiguous or obscure. Section 19 of the Interpretation Act permits this use in the interpretation of the provision of a written law and because the standards set by the NCC and BCA are incorporated under the Building Act 2011 (WA) and Regulations, their provisions constitute subsidiary legislation falling within the definition of 'written law' under s 5 of the Interpretation Act: see Shire of East Pilbara v FMG Pilbara Pty Ltd [2009] WASC 110 (FMG ). In FMG, Templeman J came to a similar conclusion in relation to the BCA which at that time was incorporated under the Building Regulations 1989 (WA).
24 The applicant referred to an unreported decision, The Owners Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244 to support its submission. However, in that case, Lindsay J declined to determine one way or the other where the BCA constituted an 'instrument' within the meaning of s 3 of the Interpretation Act 1987 (NSW) which would enable regard to be had to extrinsic material. The case is therefore not authority for the proposition for which the applicant contends, and in any event, the Tribunal is bound by the reasoning in FMG to hold that it is open to have regard to the Guide for the purposes outlined above.
25 This notwithstanding, we consider that the meaning of common areas is sufficiently clear having regard to its context and the ordinary meaning referred to above. The objective of the provisions relating to access and egress are set out in section DO1 of the BCA. The stated objective of the section is to provide as far as is reasonable, people with safe equitable and dignified access to a building and the services and facilities within a building and safeguard occupants from illness or injury while evacuating in an emergency. The performance requirements set out in DP1 of the BCA include that access must be provided, to the degree necessary, to enable people to access, relevantly, accommodation.
26 In our view, the concept of common area is wider than and may include a public corridor.
27 The term 'public corridor' is used in a number of different contexts within the BCA. Section C2.14 relates to public corridors in Class 2 and 3 buildings and sets out the need for divisions with smoke proof walls if the corridor is more than a particular length. Reference is made to a public corridor within the definition of an evacuation route and in addressing safe means of egress in emergency circumstances. Section CP2 sets out the performance requirements for building elements, to the degree necessary, to avoid the spread of fires to exits and to soleoccupancy units in public corridors. These are examples of circumstances where there is a specific purpose in setting out requirements for public corridors. But the access between a pedestrian entrance and the doorway of a soleoccupancy unit may include areas other than a corridor, such as a landing area on a stairway or a walkway over a section which is not enclosed.
28 The reference in the second part of the access requirements to Class 2 common areas relates to access to and within particular types of rooms or space for use in common by residents and deals with a type of common area quite different to that described as being between a pedestrian entrance and the entrance doorway of a sole occupancy unit.
29 Accordingly, in our view, it is not necessary to have regard to the Guide in order to determine the meaning of the relevant part of BCA Table D3.1, but regard may be had to it to confirm its ordinary meaning of including any area between an accessible pedestrian entrance and the entrance doorway of each soleoccupancy unit which may be shared alike by all residents in the building. The extract which as we have said is not challenged, is in the following terms:
Areas that do not comprise a sole occupancy unit area those intended and available for the use of more than one owner or occupier (what is often called a 'common area'). Examples applying to residential type buildings include a laundry; tearoom; entertainment room; and a kitchen in a boarding house.
…
For commercial building, buildings, space is generally referred to as 'common areas' may include corridors, kitchenettes, lift lobbies and sanitary facilities.
30 Although the Guide refers to a corridor, in the context of a commercial building, as constituting a common area, there is no logical reason as to why that would not be true also in respect of a Class 2 residential building. We consider that the extract supports the above interpretation based on the text and context.
31 The parties also joined issue as to the extent to which it might be permissible to have regard to the Australian Human Rights Commission, Guideline on the application of the Premises Standards, Version 2 2013. The history of the BCA adoption reflects that the BCA 2011 edition was amended to align the BCA with the access code in the disability (access to premises buildings) standards. The applicant submits that the premises standards apply only to dwellings used for shortterm holiday accommodation. The Guide included within the respondent's documents suggests that this is the case. The Guide however predates the 2014 BCA and in all these circumstances we do not consider it would be appropriate to have regard to it. It is to be noted that Table D3.1 of the BCA in referring to Class 1b buildings, specifically refers to dwellings used for shortterm holiday accommodation. As there is no specific reference to shortterm use in respect of Class 2 buildings, it is clear that no such restriction applies in respect to Class 2 buildings.
Conclusion
32 For the above reasons, the correct and preferable decision is that the proposed building works should make provision for disabled access in compliance with condition 2(b) attaching to the grant of the relevant permit.
Order
33 An order will accordingly issue in the following terms:
1. The application for review is dismissed.
2. The decision under review to impose condition 2(b) on the building permit granted to the applicant dated 31 March 2015 is affirmed.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR SESSIONAL MEMBER
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