KARINJA HOLDINGS PTY LTD and SHIRE OF NORTHAM - [2025] WASAT 12

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION:   KARINJA HOLDINGS PTY LTD and SHIRE OF NORTHAM [2025] WASAT 12
MEMBER:   MS N EAGLING, MEMBER
MR S BURNS, SESSIONAL MEMBER

HEARD:   5 AND 6 MARCH 2024, 9 AND 10 OCTOBER 2024 AND 14 NOVEMBER 2024
DELIVERED          :   12 FEBRUARY 2025
FILE NO/S:   DR 187 of 2022
BETWEEN:   KARINJA HOLDINGS PTY LTD
Applicant
AND
SHIRE OF NORTHAM
Respondent

Catchwords:

Review of decision to make a building order under s 110 of the Building Act 2011 (WA) - Building order to evacuate and remain unoccupied - Building order to demolish - Whether adequate notice of proposed building order given - Whether denial of procedural fairness - Whether buildings reasonably believed to be in a dangerous state - Whether buildings reasonably believed to be unfit for human occupation - Decision to make a building order varied - Application for review allowed in part

Legislation:

Building Act 2011 (WA), s 3, s 6(3), s 110, s 110(1), s 110(2), s 111, s 111(1), s 111(1)(a), s 112, s 112(1), s 112(2), s 112(2)(b), s 112(2)(g)(ii), s 112(2)(g)(vi), s 115, s 117(1), s 118(2)(a), s 118(2)(c), s 118(3), s 122, s 122(1)(a), s 122(1)(b), s 122(2)
Building Regulations 2012 (WA), reg 4
State Administrative Tribunal Act 2004 (WA), s 27, s 29

Result:

Application for review allowed in part

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr TL Beckett & Ms M Madvad

Solicitors:

Applicant	:	N/A
Respondent	:	McLeods

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

Hampel v South Australian Housing Trust [2007] SADC 64
Handler v Casey [2019] VSC 599
Jasinski and City of Mandurah [2020] WASAT 2,
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (2003) 77 ALJR 699
Sullivan and Shire of Carnarvon [2024] WASAT 58

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The property the subject of these proceedings is located at 39 Inkpen Street, Northam (property) which is located within the district of the Shire of Northam (respondent or shire). The property is comprised of numerous brick and tile buildings and incidental structures and is on a block size of 12,141m². The site was historically used as an educational establishment, hostel and boarding house. Before the applicants purchased the property it had stood empty for some years, was the target of vandalism and was in a state of disrepair. Further, in or around 2006, a fire occurred in a building known as the Recreation Hall which caused extensive damage.
Karinja Holdings Pty Ltd (applicant) of which Mrs Elizabeth Hoek (Mrs Hoek) is the sole director, purchased the property on 31 May 2016. Mrs Hoek had ambitious plans to renovate and restore the property as a retirement project for herself and her husband which have largely not been realised. Currently parts of the property are being used for accommodation for extended family members (either on a permanent or temporary basis) or for private rental accommodation.
On 10 October 2022, the respondent issued a building order under s 110 of the Building Act 2011 (WA) (Act) requiring the evacuation and non-occupation of all buildings (except one) on the property, and also requiring the demolition of three buildings or incidental structures (building order).
The building order was made on the basis that all buildings on the property (with one exception) were reasonably believed to be unfit for human occupation because they had been poorly maintained, fire damaged and abandoned for several years. The building order also stated that the swimming pool was dangerous as it constituted a dangerous excavation and falling hazard.
On 20 October 2022, the applicant commenced proceedings in the Tribunal pursuant to s 122(1)(a) of the Act seeking a review of the respondent's decision to make the building order.
For the reasons that follow, we have found that:
(a)the Recreation Hall is unfit for human occupation and must be demolished within 24 months;
(b)Rose Cottage may continue to be occupied subject to the maintenance of the fence around the building to prevent access to any other parts of the property;
(c)Units 1 and 3 may continue to be occupied subject to the applicant installing a fence in accordance with Annexure B to these reasons and subject to the applicant glazing or boarding over the windows on the side of the Recreation Hall adjacent to the main driveway;
(d)all of the remaining buildings, including the Family Residence, are unfit for human occupation and should be evacuated within 14 days and remain unoccupied; and
(e)the Swimming Pool is dangerous, however it does not have to be demolished if the applicants secure the area in the manner specified in Annexure C to these reasons.

Issues for determination by the Tribunal

The primary issue is whether the decision of the respondent to make the building order should be affirmed or varied or set aside?
The primary issue requires a consideration of the following questions:
(a)whether each of the buildings or incidental structures identified in the building order is reasonably believed to be either dangerous or unfit for human occupation?; and
(b)if so, whether and how the Tribunal should exercise its discretion in relation to each of the buildings?
During the hearing the applicant raised several issues relating to the validity of the building order and the relevance of the classification of each of the buildings under the relevant planning scheme or building codes to the issue of whether they are dangerous or unfit for human occupation. We will deal with these matters as preliminary issues.

Conduct of the proceedings

The hearing was held in the Tribunal on 5 and 6 March 2024 (the 6March hearing was held at the Shire of Northam offices), 9 and 10 October 2024 and 14 November 2024. The Tribunal also conducted a site inspection of the property in the presence of the parties and the parties' expert witnesses at the beginning of day two of the hearing on 6 March 2024 (Site Inspection).
The parties attended several mediation conferences but were unable to reach an agreement.
In accordance with the usual practice of the Tribunal, a hearing book was compiled of the various documents lodged with the Tribunal by the parties and taken into evidence on day one of the hearing (Exhibit 1). Due to the amount of new material which was filed before 9 October 2024, at the hearing on 9 October 2024, the Tribunal compiled a new Hearing Book (Exhibit 2).
The applicant was represented by solicitors for a short period of time, however at the hearing was self-represented. The respondent was legally represented throughout the hearing.
The Tribunal heard evidence for the applicant from Mrs Hoek and Mr Greg Verlinden, electrician. The Tribunal heard evidence for the respondent from Mr Gordon Tester, a level 1 building surveyor and authorised person under the Act and an environmental health officer employed by the respondent and Ms Jacky Jurmann, planning officer, also employed by the respondent.

The property and the building order

The buildings and incidental structures on the property are identified and referred to in a colour coded map (Annexure A to these reasons) as follows:
•Rose Cottage;
•Recreation Hall and attached Pergola;
•Shed (also referred to in some documents as the Pool House);
•Family Residence;
•The Dormitories (A, B and C) (also referred to in these reasons as 'Dorms');
•Storage (also known as Study);
•Units 1 and 3; and
•Swimming Pool.
It is not disputed by the applicant that at the time it purchased the property it was in a state of significant disrepair.
The building order was issued on 10 October 2022 and states in Parts 1 and 2 that the permit authority issuing the order is the respondent and that the building order is directed to the applicant.
Part 3 of the building order is entitled 'Building Order details'. In summary, the building order seeks the evacuation and non-occupation of all buildings on the site except for Rose Cottage and also seeks demolition of three buildings or structures: the Recreation Hall (with attached Pergola), the Shed and the Swimming Pool. Part 3 states, in full, as follows:
This building order is issued under section 110 of the Building Act 2011 in respect of the following:
1.All buildings on the Property, with the exception of Rose Cottage (Rose Cottage), as shown on the aerial photograph attached to this order (Aerial Photograph), are reasonably believed to be unfit for human occupation because the buildings have been poorly maintained and have been fire damaged and abandoned for several years.
2.The hostel swimming pool on the Property identified in the Aerial Photograph as 'Swimming Pool' (Swimming Pool) is dangerous, as it constitutes a dangerous excavation and a falling hazard.
In accordance with section 112 of the Building Act 2011, the permit authority directs the following:
1.Pursuant to section 112(2)(g)(ii) of the Act, you are required to cause all buildings, except the Rose Cottage, to be evacuated and to thereafter remain unoccupied within 14 days of the date of service of this Order.
2.Pursuant to section 112(2)(b) of the Act, you are required within 90 days of the date of service of this Order to:
(a)demolish and remove:
(i)the Recreation Hall and attached Pergola; and
(ii)the Pool House / Shed; and
(b)fill in the Swimming Pool by way of demolition of the Swimming Pool and filling with clean fill to natural ground level.
3.Pursuant to section 112(2)(g)(iv) of the Act, you are required within 14 days of the date of service this Order to fence the Rose Cottage so as to prevent access to any other parts of the Property by the general public.
4Pursuant to section 122(2)(h) of the Act, you are required to ensure that prior to any buildings or structures being demolished and removed a demolition permit is in effect for the demolition work.
As is evident from the terms of the building order above, the building order is issued under s 112(2)(g)(ii) of the Act in so far as it relates to ordering the buildings (except Rose Cottage) to be evacuated and remain unoccupied. However, the building order is issued under s 112(2)(b) of the Act in relation to those buildings the respondent is requiring to be demolished (namely the Recreation Hall and attached Pergola, the Shed and the Swimming Pool). This issue will be returned to later in these reasons.
At the hearing on 10 October 2024 the respondent handed up a draft building order (which was not formally issued to the applicant but provided for discussion purposes) which it says reflects its position after hearing all of the evidence and responses to issues raised by the Tribunal (draft building order).
The draft building order relaxes some of the requirements of the building order and states as follows:
This building order is issued under section 110 of the Building Act 2011 in respect of the following:
1.All buildings on the Property, with the exception of Rose Cottage (Rose Cottage), [note as the Tribunal understands the respondent's position, this will also include Units 1 and 3] as shown on the aerial photograph attached to this order as Annexure 1 (Aerial Photograph), are reasonably believed to be unfit for human occupation because the buildings have been poorly maintained and have been fire damaged and abandoned for several years.
2.The hostel swimming pool on the Property identified in the Aerial Photograph as 'Swimming Pool' (Swimming Pool) is dangerous, as it constitutes a dangerous excavation and a falling hazard.
In accordance with section 112 of the Building Act 2011, the permit authority directs the following:
1.Pursuant to section 112(2)(g)(ii) of the Act, you are required to cause all buildings, except the Rose Cottage, Unit 1 and Unit 3, to be evacuated and to thereafter remain unoccupied within 14 days of the date of this Order.
2.Pursuant to section 112(2)(g)(iv) of the Act, you are required within 14 days of the date of this Order to maintain a fence to enclose Rose Cottage so as to prevent access to any other parts of the Property by the general public.
3.Pursuant to section 112(2)(g)(vi) of the Act, you are required within 12 months of the date of this Order to demolish and remove the Recreation Hall and attached Pergola.
4.Pursuant to section 112(2)(g)(v) of the Act, you are required within 90 days of the date of this Order to:
(a)cause the Swimming Pool to be modified in accordance with the design specified in Annexure 2; and
(b)provide evidence to the Shire of Northam that the works in paragraph (a) have been completed.
5.If the requirements in paragraph 4 above are not satisfied within 90 days of the date of this Order, pursuant to section 112(2)(g)(ii) of the Act, you are required to fill in the Swimming Pool by way of demolition of the Swimming Pool and filling with clean fill to natural ground level within 180 days of the date of this Order.
6.Pursuant to section 112(2)(iv) of the Act, you are required within 30 days of the date of this Order to:
(a)install and thereafter maintain a fence to isolate Unit 1 and Unit 3 from other parts of the Property in accordance with the design specified in Annexure 3; and
(b)provide evidence to the Shire of Northam that the works in paragraph (a) have been completed.
7.If the requirements in paragraph 6 above are not satisfied within 30 days of the date of this Order, pursuant to section 112(2)(g)(ii) of the Act, you are required to cause Unit 1 and Unit 3 to be evacuated and to thereafter remain unoccupied within 37 days of the date of this Order.
8.Pursuant to section 112(2)(g)(vi) of the Act, you are required within 30 days of the date of this Order to demolish and remove the Pergola located in the Courtyard adjoining Dormitory A.
9.Pursuant to section 112(2)(h) of the Act, you are required to ensure that prior to any buildings or structures being demolished and removed a demolition permit is in effect for the demolition work.
The major changes in the draft building order are that the respondent is no longer seeking the evacuation and non-occupation of Units 1 and 3 (if they can be effectively isolated from the rest of the property) and is also now only seeking demolition of the Recreation Hall and attached Pergola but not the Shed or the Swimming Pool. The respondent instead proposes an alternative option for the Swimming Pool which involves it being fenced so as to prevent access. Additionally, the draft building order now relies on s 112(2)(g)(vi) of the Act in relation to the demolition of the Recreation Hall and attached Pergola.

Statutory framework

Building Act

The Act provides for the regulation of building work, including the construction, maintenance and use of buildings and other structures on land.
Under s 110(1) of the Act, a 'permit authority' has the power to make a building order. The relevant permit authority in this case is the respondent, being the local government in whose district the buildings are located: s 3 and s 6(3) of the Act.
A building order may be made in respect of 'a particular building or incidental structure'. Under s 3 of the Act, a building includes a part of a building and an incidental structure means a structure attached to or incidental to a building and includes a chimney, mast, swimming pool, fence, free-standing wall, retaining wall or permanent protection structure and a part of a structure.
Section 110(2) of the Act provides that a building order must be in an 'approved form' and must be directed to the appropriate person which includes in paragraph (d) 'a person who is the owner or occupier of the land upon which the particular building or demolition work is being, or has been, done'. In this matter it is not in dispute that the owner of the property is the applicant.
Section 3 of the Act defines 'approved' as follows:
approved, in relation to the manner or form of something, means approved —
(a)by a prescribed person; or
(b)in a prescribed way;
Regulation 4 of the Building Regulations 2012 (WA) states that '[f]or the purposes of paragraph (a) of the definition of approved in section 3 the Building Commissioner is a person who may approve the things set out in the Table' attached to reg 4 (which includes the form of a building order under s 110(2)). The building order issued to the applicant includes, at its foot, a notation which states 'Form approved by the Building Commissioner on 30 June 2016'.
Section 111 of the Act provides for notice to be given of a building order, other than of an emergency building order and states:
(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 proposed 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.
Section 112 of the Act prescribes the content of a building order and states:
(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.

A person who is served with a copy of a building order must not, without reasonable excuse, fail to comply with that order (the penalty for a first offence is a fine of $50,000): s 115 of the Act.
A permit authority may revoke a building order at any time: s 117(1) of the Act.
If there is non-compliance with a building order, the permit authority that made the order may cause an authority to take any action specified in the order or, if any specified action was required by the order to cease, to take such steps as are reasonable in the circumstances to cause the action to cease and also recover the costs of doing so: s 118(2)(a), s 118(2)(c) and s 118(3) of the Act.
Section 122 provides for the review of building orders and states as follows:
(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.
Given that the building order was not served as an emergency order, it has been automatically stayed pending determination of this proceeding: s 122(2) of the Act.

Powers of the Tribunal upon review of the building order

As noted above, a person may apply for a review of a decision to make a building order or in relation to a requirement of the order: s 122 of the Building Act. In this case the application is for review of the decision to make the order under s 122(1)(a) of the Act.
This application falls within the review jurisdiction of the Tribunal and therefore the Tribunal is to review the decision by way of a hearing de novo for the purposes of making the correct and preferable decision based on the information and the evidence before the Tribunal at the time of review: s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
On review, the Tribunal may affirm, vary or set aside the reviewable decision and, in the latter case, may substitute its own decision to arrive at the correct and preferable decision: s 29 of the SAT Act.
As was explained by the Tribunal in the matter of Sullivan and Shire of Carnarvon [2024] WASAT 58 at [48] - [53] (Sullivan), because this application has been brought under s 122(1)(a) of the Act (in relation to the making of an order) rather than under s 122(1)(b) of the Act (in relation to a requirement of the order), the Tribunal has the power to vary the building order and, if it finds that any of the buildings are dangerous or unsafe for human occupation, exercise any of the powers under s 112(2)(g)(i) - (vi) of the Act.

Preliminary Issue 1 - Validity of building order

The Applicant raised concerns in relation to the validity of the building order which can be broadly considered under the two following issues:
(1)Whether the applicant was given adequate notice under s 111 of the Act both in form and in substance; and
(2)Whether, in this review proceeding, the respondent can rely on a different provision in s 112(2) of the Act when seeking demolition rather than the provision which was referred to in the building order (namely, s 112(2)(g)(vi) instead of s 112(2)(b)).

(i) Adequate Notice

On 25 July 2022 the respondent issued a 'Show Cause Notice' (Notice) and proposed building order to the applicant. The applicant raises issues with both the form of the Notice and the section of the Act which it is said to be issued under. The Notice states as follows:
SHOW CAUSE NOTICE - 39 Inkpen Street, Northam
In accordance with Part 8 Division 5 Section 112(1) of the Building Act 2011, the Shire of Northam hereby gives you notice that the Shire proposes to give you a building order under section [sic] of the Act on the terms and for the reasons specified in the attached proposed order (Building Order BA21).
You have 14 days from the date you receive this notice to make submissions to the Shire in relation to the Proposed Order[.]
The Notice incorrectly refers to s 112(1) of the Act instead of to s 111(1) of the Act. However, s 112(1) is the section under which a building order is issued. The Notice attached a building order with a 'draft' watermark which is in substantially the same terms as the building order, albeit, as the applicant points out, it refers only to Dormitories and does not mention the Storage/Study, Family Residence or Units 1 and 3. The applicant says, in effect that this means that it was not given proper notice.
The aerial photograph attached to the Notice does, however, identify all of these buildings as 'dormitory' - this is in fact acknowledged by Mrs Hoek in her response to the Notice where she states that 'all the roof areas are marked as dormitory'.
Further, notes of the subsequent meetings between the parties immediately following the issue of the Notice and proposed building order indicate that a discussion was held at the property in relation to all areas of the property covered by the building order including those areas marked on Annexure C as the Family Residence, Units 1 and 3 and the Storage/Study. For example, notes of a meeting on 18 August 2022 which occurred at the property include the notations that: 'Accommodation areas discussed and indicated on plans' and 'areas being rented out to finance renovations' (noting that the rental units are Rose Cottage, Units 1 and 3).
The Tribunal finds that the applicant was, for these reasons, aware of the scope of the Notice and attached proposed building order and the buildings it was intended to apply to. This is because the areas identified in the aerial photograph (which were marked as 'dormitories') correlate exactly to those areas now referred to by the applicant as the Storage/Study, Family Residence and Units 1 and 3.
As noted above, s 111(1)(a) of the Act provides for notice to be given of a proposed building order, other than of an emergency building order and states that before making a building order a permit authority must 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.
There is no prescribed form in which notice must be given under the Act. In our view, it is not fatal to the respondent that the Notice refers to s 112 rather than s 111 of the Act as the Notice clearly refers to the section under which a building order can be made. Further, the substance of the Notice is clearly to put the applicant on notice that the respondent intended to issue a building order. The Tribunal finds that the applicant could have been left in no doubt as to the course of action intended by the respondent. In our view, the respondent has complied with its obligation in s 111(1) of the Act.
The applicant also says the Notice and proposed building order provided insufficient details of the basis on which the order was being made as there were matters discussed at the hearing such as structural issues with the rafters, non-compliant stairs and electrical hazards which were not specifically referred to in the draft building order. It is not clear whether the applicant is submitting that this means the Notice did not comply with s 111(1) of the Act or whether this constitutes a denial of natural justice, or both. However, in the Tribunal's view, both submissions must fail.
We accept the respondent's submission that it does not have to detail an exhaustive list of every single reason upon which the respondent relies in a Notice and, as long as reasons have been given, a Notice does not restrict the reasons which can be relied upon either by the respondent or by the Tribunal in a review proceeding.
An aspect of natural justice is to ensure that parties are given a fair hearing before the Tribunal. Whether procedural fairness has been afforded in a particular case is a practical question. As was observed by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (2003) 77 ALJR 699 at [37] per Gleeson CJ:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
It is often said that procedural fairness is a matter of substance rather than of form. In this case we find that there is no suggestion that the applicant was substantively denied a reasonable opportunity to both know the case against it or to present its case and therefore we are satisfied that the applicant has been provided with procedural fairness.

(ii) Whether, in this review proceeding, the respondent can rely on a different part of s 112(2) when seeking demolition than was relied on in the building order

As noted above, the building order requires demolition of three buildings under s 112(2)(b) of the Act. This requires us to be satisfied that each building was built in suspected contravention of a provision of the Act. The alternative basis to order demolition is under s 112(2)(g)(vi) of the Act, which is a simpler mechanism as it only requires a reasonable belief that the building or structure is dangerous or unfit for human habitation.
This issue was identified by the Tribunal during opening submissions and the respondent confirmed that its position was that the order should have been issued under s 112(2)(g)(vi) and it was presenting its case on that basis.
As noted above, the draft building order, which sets out the respondent's position in relation to the review of the building order, now only orders the demolition of the Recreation Hall and attached Pergola, and not the Shed or Swimming Pool (and therefore this issue has become less significant).
The Tribunal notes that the building order relied on s 112(2)(g)(ii) of the Act in relation to all of the buildings and structures (except Rose Cottage but including the three buildings or structures that it was ordering to be demolished) in relation to the evacuation and nonoccupation of the buildings or structures. This provision only requires the Tribunal to consider whether each building or structure is dangerous or unfit for human occupation. As the Tribunal pointed out to the applicant during day one of the hearing, this means that the applicant was already on notice that the respondent's position was that all structures (except Rose Cottage) were dangerous and/or unfit for human occupation and, by now relying on s 112(2)(g)(vi) instead of s 112(2)(b), the respondent is effectively narrowing its case rather than expanding upon it. This is because the applicant was already on notice of the respondent's position that the structures that it was ordering to be demolished were also unfit for human occupation.
The Tribunal accepts the respondent's submission that given this is a review hearing the Tribunal is in any event entitled to vary the decision and substitute its decision for that of the respondent. It is therefore open for the Tribunal, when hearing the matter afresh, to vary the appropriate basis for the building order.
As noted above, the Tribunal in Sullivan held that the Tribunal has the power to vary a building order in relation to an application made under s 122(1)(a) of the Act. However, the Tribunal went on to say at [52]:
... in varying the respondent's decision in circumstances where we find that a shack is in a dangerous state, we are unable to make any of the orders referred to in s 122(2)(a)-(f) of the Building Act because they are not powers that may be exercised if a building is reasonably believed to be dangerous.
We agree with the views expressed in Sullivan. Therefore, if the Tribunal finds that a building is believed to be dangerous or unfit for human occupation then it is prevented from exercising the powers under s 112(2)(a) - (f) and it can only exercise powers under s 112(2)(g)(i) - (vi) of the Act.

Preliminary Issue 2 - Relevance of planning scheme and building classifications

The evidence of Ms Jurmann is that there are no planning approvals in place for the property, although planning approval is required in relation to the current use of the property. Ms Jurmann gave evidence that the respondent has been dealing with the applicant in relation to the issue of planning approval for the site for many years and although a development application was received, it could not be accepted due to lack of information, specifically, that it did not include plans drawn to scale that included current and proposed uses.
Ms Jurmann gave evidence that the applicant has not been granted planning approval in relation to the use of any of the buildings on the site and that the applicant must obtain planning approval before it can obtain any building permit. However, the applicant appears to dispute that it does in fact require planning approval, largely on the basis that the property is classified as a 'dwelling', and referred the Tribunal to the following definition:[1]
… a building or portion of a building being used, adapted or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family.
[1] ts 403, 10 October 2024.
The reason for this appears to be that the applicants are under the misapprehension that this definition means that they can have (an unspecified number of) family members reside in the property, together with up to six unrelated persons. In the Tribunal's view, this is clearly incorrect.
In addition to the evidence led about the planning scheme, the applicant sought to raise consistently the issue of the current classification of the buildings. Mr Tester's evidence on this issue is that building classifications are designated in the National Construction Code. Mr Tester also, at times, referred to building classifications in his evidence to justify, for example, the need for exit signs or smoke alarms.
It is clear to the Tribunal that much of the confusion around the classification of the buildings is because the applicant does not have a clear plan for how the buildings will be used. For example, in relation to the upper floor of Dormitory C, when the Tribunal asked Mrs Hoek what it was used for, she said:[2]
Nothing. We haven't done anything in there except vacuum it once or twice, and we've fixed some of the glass in there, but we haven't fixed all the glass because it may be used for something else later and we don't know what. So at the moment, there's no need to put glass in it.
[2] ts 55, 5 March 2024.
The Family Residence is another example of a building where the applicants have no clear plan for its use and so the building classification is not clear. One part of this building was previously used as a dining room for hostel residents; however, it is now being used as a lounge room for the family. As a dining room for a hostel, the building would require exit signs and fire extinguishers but as a residence these would not be required.
The respondent submits namely that planning approval is only relevant to show there are a number of hurdles that must be overcome (namely planning approval and a building permit) before the applicant can take action to bring the buildings up to standard which is relevant to the ultimate discretion which the Tribunal must exercise if it determines to make a building order.
The Tribunal in these reasons has avoided referring to evidence which justifies a building being unfit for human occupation based on its planning or building classification. Instead, the Tribunal has adopted the approach of assessing whether there is a reasonable basis to conclude that each building is in a dangerous state or unfit for human occupation based on all the evidence before the Tribunal, including evidence about how the premises are currently being used. In most cases, the Tribunal has found that the building is unfit for human occupation, irrespective of its classification.

Primary Issue: Are the Buildings dangerous or unfit for human habitation?

Are the buildings in a dangerous state and/or unfit for human occupation based on the evidence before the Tribunal at the time of the hearing? If so, what is the appropriate form of building order which should be made in relation to each building?

Meaning of 'dangerous state'

In Sullivan, the Tribunal considered the meaning of 'dangerous state', stating as follows:
55The building orders were issued to the applicants pursuant to s 112(2)(g) of the Building Act on the basis that the shacks were reasonably believed by the respondent to be in a 'dangerous state'.
56The expression 'dangerous state' is not defined in the Building Act. Notably, the expression 'dangerous situation' is defined in s 76 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) to mean 'a situation where there is an imminent and high risk to people, property or the environment from the carrying out of a building service'.
57Counsel for the respondent observed that the Building Act makes provision for emergency building orders where there is an imminent and high risk to people, property or the environment arising from the dangerous state of a building. We accept this contention, and we find, that that the expression 'dangerous state' in s 112(1)(g) of the Building Act should be afforded its ordinary meaning without a temporal element necessitating an imminent risk to persons or property.
58The expression 'dangerous' is defined in the Macquarie Dictionary Online as meaning:
adjective full of danger or risk; causing danger; perilous; hazardous; unsafe.
59Relevantly, the expression 'state' is defined in the Macquarie Dictionary Online as follows:
noun 1. the condition of a person or thing, as with respect to circumstances or attributes: a state of disrepair.
…
60The joint experts agreed, and we find, that a shack may be structurally sound but may still be dangerous if part of the shack, such as loose or corroded roof sheeting, poses a risk of harm to its occupants or other persons in the vicinity.
61Consequently, we will find that a shack is in a 'dangerous state' for the purposes of s 112(2)(g) of the Building Act if we reasonably believe, based on the evidence before us, that the condition of the shack presents a risk of harm to its occupants or to other persons or property in the vicinity, and/or the shack is structurally unsound.
This Tribunal respectfully agrees with and adopts the above construction and finds that a building is in a 'dangerous state' if we reasonably believe that the condition of the building presents a risk of harm to its occupants or to other persons in the vicinity and/or the building is structurally unsound.

The meaning of unfit for human occupation

There has been no judicial consideration of the meaning of the phrase 'unfit for human occupation' under the Act. However, some guidance can be obtained from judicial consideration of the meaning of 'unfit for human habitation' under different legislation.
The authorities establish that premises will be 'unfit for human habitation' where there is a danger posed to occupants which would naturally flow from the person's ordinary use: see the decision of the Victorian Supreme Court in Handler v Casey [2019] VSC 599 and the authorities discussed at [74] to [87] therein.
In the matter of Hampel v South Australian Housing Trust [2007] SADC 64 (26 June 2007) 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 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 lack of facilities such as provision of adequate water, light, ventilation and so on.

In Jasinski and City of Mandurah [2020] WASAT 2, Member De Villiers held at [44] that '[t]he mere fact that a dwelling is not 'fit for human habitation' is not in itself a sufficient reason for it to be pulled down and removed' as a dwelling may be capable of being remedied to bring it to an adequate standard. At [45] Member De Villiers stated:
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.
At times, reference was made by the applicant as to whether the premises were fit for human habitation. However, the Tribunal accepts the submission of the respondent that habitation typically means for a longer-term use whereas occupation includes temporary use, including by guests, children or for work. In the Tribunal's view, there is no reason for a different test to apply to whether premises are unfit for human occupation than the test which applies to unfit for human habitation. The Tribunal notes that implicit in the test is that each case will ultimately turn on its own particular facts and circumstances.

Whether the buildings are dangerous or unfit for human occupation and the exercise of discretion

The respondent called Mr Tester to give evidence about this issue. During his evidence he referred to numerous photographs taken on two occasions which, in the Tribunal's view, supported the evidence he gave. The applicants called Mr Verlinden, an electrician, and also tendered a report by a registered builder Mr Evan Turner from Watershed Building Company (however the applicant did not call Mr Turner to give evidence at the final hearing).
At the conclusion of the second day of the hearing, on 6 March 2024, the Tribunal gave leave for the parties to file expert reports in relation to the presence and risks of asbestos at the property. Both parties subsequently filed reports by experts in asbestos contamination. Both reports concur that there is not a high risk posed by the asbestos, but there were some areas of medium risk. This was not explored by the parties in their evidence and the authors of the reports were not called for cross-examination. The respondent confirmed that its position was that it was not relying on the presence of asbestos as a separate ground for making the building order. Given these factors, the Tribunal does not make any findings in relation to the asbestos and it has determined this issue on the basis of other evidence.
Should the Tribunal find that a building is either dangerous or unfit for human occupation (or both) then it still must exercise its discretion in relation to each building. This follows from the word 'may' in s 112 of the Act. The Tribunal must therefore determine whether to make a building order and, if so, what sort of order. In the Tribunal's view it is important to have regard to the following principles and factors when exercising this discretion:
(a)An order to demolish within a certain period means that the applicant will still have that period of time to apply to the respondent to seek to revoke the building order if remedial works are progressed, as a building order can be revoked at any time;
(b)An order to evacuate and remain unoccupied does not mean that the building has to be demolished or can never be occupied again. As noted above, a building order can be revoked at any time - however such a building order places the onus on the applicant to satisfy the respondent that the building is now fit for human occupation;
(c)If there is an order for a building to remain unoccupied without an end date then that building must remain unoccupied indefinitely. However, the applicant is not prevented from engaging a properly qualified contractor to complete remedial works as this would fall within the definition of reasonable excuse in s 115 of the Act. However, the applicant would not be permitted to otherwise access those buildings, including for hobbies or to access tools or storage items;
(d)The length of time that the buildings have been in a state which are dangerous and/or unfit for human occupation; and
(e)The likely costs of any remediation works and whether the applicant is likely to be able to meet those costs.

Rose Cottage

The original building order sought the fencing of Rose Cottage to prevent access from it to the other parts of the property. The evidence at the hearing was that this had been completed to a satisfactory standard. The amended building order refers to maintaining that fence. The applicant did not seek to challenge this requirement at the hearing. The Tribunal finds that the maintenance of the fence around Rose Cottage is appropriate in all of the circumstances of the case and will make a building order to that effect.

Recreation Hall and attached Pergola

The respondent's position, both in the building order and the draft building order, is that the Recreational Hall and attached Pergola are unfit for human occupation and should be demolished. Mr Tester referred to them in his evidence as being 'the worst buildings on the site'. His unchallenged evidence was that the Pergola is attached to the Recreation Hall and therefore if the Recreation Hall is ordered to be demolished then the Pergola must also be demolished. These reasons will therefore focus on the evidence in relation to the Recreation Hall.
The building order sought an order for demolition within 90 days which was extended in the draft building order to an order for demolition within 12 months.
The respondent led evidence that the Recreation Hall has been in a state of advanced disrepair for some time and that the cost of remediating the building is significant. The respondent relies on the evidence of Mr Tester that:
•the building is completely fire and weather damaged;
•the parquet floor is completely rotted;
•there are timbers which are fire damaged and are no longer structurally sound - these timbers are at risk of collapse which could seriously injure or kill a person;
•there are broken windows and glass;
•input from a structural engineer will be required before any remedial works can be attempted; and
•the building is beyond repair without a substantial amount of financial input (which he quantified in the hundreds of thousands of dollars).
The applicant did not challenge this evidence with the exception of the costs of remediating the damage. It accepts that the Recreation Hall is unfit for human occupation. However, it says that it intends to restore the Recreation Hall within 18 months and disputes that it should be demolished. It relies on the report of Mr Turner that:[3]
The Recreation Hall, a particular area of concern, experienced a fire during the dereliction period. Despite aesthetic challenges, our professional evaluation suggests that demolition is unnecessary. Restoration to a functional capacity is feasible through collaborative efforts with stakeholders[.]
[3] Report of Mr Turner dated 24 June 2024.
Mr Turner was not called to give evidence and therefore there is no evidence before the Tribunal about what works would be required to restore the building to functional capacity and what collaborative efforts with which stakeholders might be involved.
The Tribunal finds that both the Recreation Hall and attached Pergola are unfit for human occupation based on the unchallenged evidence of Mr Tester. It is also likely that they are dangerous. However, given the respondent is not relying on this as a ground for the order and that an order may be made on either basis, there is no need for us to make a finding in relation to this ground.
The Tribunal finds that the appropriate exercise of discretion in this case is to order the Recreation Hall and attached Pergola to be evacuated and remain unoccupied and that they must be demolished within 24 months. The reasons for these findings are as follows:
(a)The Tribunal prefers the evidence of the respondent as to the likely costs of the repairs, as compared to that of Mr Turner. The evidence of Mr Tester was consistent with the Tribunal's own specialist knowledge as to the likely cost of remedial works being between $200,000 to $250,000. Sessional Member Burns is an experienced registered builder and s 9(c) of the SAT Act provides that one of the main objectives of the Tribunal is to make appropriate use of the knowledge and experience of Tribunal members;
(b)Mr Turner is a registered building practitioner and Mr Tester is a registered building surveyor. Mr Tester gave uncontested evidence that a registered building practitioner obtains plans and from those creates the buildings that are indicated on those plans and that a registered building surveyor is presented with plans prior to them being approved for building to assess whether or not they are in compliance with the relevant sections of the regulations and the National Construction Code. The Tribunal therefore finds that Mr Tester's evidence about the cost of the repairs is more reliable;
(c)The Tribunal accepts the respondent's submission that the applicant has had ample time to progress this matter and yet has not done so. The evidence of Mrs Hoek herself at the hearing was that the applicant still has not formally engaged anyone in relation to the repairs, despite indicating at a meeting in September 2022 that it would engage a builder by December 2022 to compile a report on immediate remedial works. When she was asked during cross-examination why the applicant had never had a structural engineer assess the building, despite the applicant's original intention being to repair the building within 12 months of owning the property, she said 'it's a matter of just timing';[4]
(d)The Tribunal has concerns about the applicant's ability to finance the repairs, particularly given the decision it has reached below about the evacuation of the Family Residence (and potential impact on the rental income if Rose Cottage and Units 1 and 3 are instead used to house family members). These concerns are based on the applicant's own statement at the meeting between the applicant and respondent in September 2022 that they may need a partner to finance the remedial works; and
(e)This decision gives the applicant a period of two years to make progress in relation to the remedial works and the evidence of Ms Hoek at the hearing was that these works would be completed within 18 months to two years.

Shed

[4] ts 473, 10 October 2024.

The building order originally sought the demolition of this building, however, the draft building order now only includes an order for nonoccupation of the building.
The evidence at the hearing is that the Shed is not used as overnight accommodation but is accessed by some family members for storage or hobbies.
Mr Tester gave evidence that:
•it has been heavily vandalised and glass panes are missing;
•the ceiling has been dislodged;
•the outer cladding of the building has shrunk, there are no watertight flashings present down the side of the weatherboards and the weatherboards are rotten, so the building is no longer watertight; and
•it is a missing a gable end (as a result of which a strong wind could take the roof off).
This evidence was not challenged by the applicant in crossexamination.
Based on the above evidence, the Tribunal accepts the respondent's submission that it cannot realistically be in dispute that the Shed is unfit for human occupation and finds that it is not fit for human occupation. The Tribunal will make a building order that this building should be evacuated and remain unoccupied.

Storage/Study

The Tribunal also accepts the respondent's submission that it cannot be realistically in dispute that the building which is interchangeably called the Storage/Study is unfit for human occupation. The unchallenged evidence of Mr Tester was that this building:
•has been heavily vandalised and has a dislodged ceiling with the risk of collapse which has the potential to injure an occupant; and
•there is no power in the building and no facilities for artificial lighting which is problematic for nighttime occupation.
Again, the applicant did not challenge this evidence in crossexamination. The Tribunal finds that this building is unfit for human occupation and will exercise its discretion to make an order that it be evacuated and remain unoccupied.

Family Residence

The term 'Family Residence' is adopted in this decision as it is the term used by the applicant and reflects the current use of the building. This building was originally constructed to be a commercial kitchen and dining room. The evidence at the hearing is that it is now used by various members of the family to live in. The building includes what is referred to as the 'main entrance' which is attached to the Family Residence.
The evidence given by Mrs Hoek at the hearing was that various family members sleep in the Family Residence, namely: Mr and Mrs Hoek sleep in the 'main bedroom', Mrs Hoek's daughter and granddaughter (11 years old) sleep in a converted bedroom in the laundry wing and a grandson resides in a bedroom which is near the cooks' quarters. These bedrooms were all inspected during the Site Inspection. However, between the Site Inspection and the later dates of the hearing another bedroom was created which is located near the main entrance and which is used on occasion by Mrs Hoek's sister and her brotherinlaw.
Therefore, the evidence of Mrs Hoek establishes that there are between five and seven relatives (including an 11 year old child) at any given time who are sleeping overnight in the Family Residence.
The evidence of Mr Tester was that:
•the ceiling in the entire blue area in Annexure C of itself makes the building unfit for human occupation. The ceiling has almost completely gone, the remaining insulation materials are exposed, delaminating and floating in the air. He gave evidence that inhaling insulation fibres is a hazard to human health. He confirmed that this would be the case regardless of the classification of the building;
•the lack of a ceiling also means that the building cannot be maintained in a clean and hygienic manner as there is nothing to stop dust, dirt and vermin coming under the tiles and creating an unhealthy atmosphere;
•daylight can be seen coming in from the junction between the main entrance and the Recreation Hall which means that the area is not waterproof, which is not conducive to sound public health. Exposed electrical wires in this area create the risk of electrification of an entire area and also the risk of fire should water come into contact with these wires. Further, the gap in the junction means that there is not an effective firewall between the Recreation Hall and the Family Residence;
•the building has staircases which are designed for industrial areas and which do not prevent children falling between the treads or through the handrails. Further, the staircase closest to the junction of the Recreation Hall is unsafe and Mrs Hoek has informed him that she has tripped and fallen on those stairs. His evidence was that these stairs were unsafe due to the lack of handrails on each side and a lack of contrasting colour on the nosings;
•there is evidence of suspected structural damage to the brickwork which is particularly concerning given that Northam is in an earthquake zone and therefore an engineering assessment should be conducted;
•the part of the ceiling near the family laundry is damaged;
•there is flaking paint on the kitchen ceiling which can drop into food and there are also cobwebs and dirt and grease on the walls which will attract vermin; and
•it is possible to access the Family Residence through the Dormitories. Therefore, if the Dormitories are ordered to be evacuated the Family Residence must also be evacuated (and vice versa).
The respondent also relies on electrical issues both in the Family Residence and the Dormitories. Mr Tester gave evidence that the missing ceiling exposes electrical wires and he said this was a concern, giving the example of a person using a ladder to change a light and inadvertently becoming involved with the wiring. The other concern raised by the respondent from an electrical point of view was that there are electrical cords running through windows and the use of multiple extension cords which, in some cases, go between rooms and downstairs.
The applicant called Mr Verlinden to give evidence about the electrical issues. He gave evidence that his company has completed electrical work at the property and that none of the cables and wirings which are hanging down in these areas currently have power to them. He stated that they have been deliberately left as they are as the materials may be able to be reused when power is restored to those areas. He also expressed the view that the use of extension cords, even to the extent which the applicant is using them, is not of itself unsafe.
The Tribunal asked Mr Verlinden about Mr Tester's evidence about the risk of electrification and fire in the area near the new bedroom due to the roof not being waterproof and live electrical wires in the area. Mr Verlinden stated that he had not seen that area, but he agreed that it may be a concern if parts of the roof were not waterproof and there were live wires in the area.[5]
[5] ts 430, 10 March 2024.
The Tribunal accepts the evidence of Mr Verlinden that the electrical issues do not of themselves make the Family Residence unfit for human occupation. However, the Tribunal finds that the Family Residence is unfit for human occupation on the basis of the following evidence by Mr Tester:
(a)the lack of ceiling in most of the area makes it unfit for human occupation due to the risk of inhaling insulation fibres and because the area cannot be maintained in a hygienic manner;
(b)the risks of electrification and fire caused by the combination of water and electrical wires in the area of the Family Residence adjoining the main entrance;
(c)the structural damage to the brickwork. The Tribunal agrees with Mr Tester that there is structural damage to at least one area of brickwork and finds that the brickwork is starting to deteriorate and may further deteriorate if the issue is not addressed. The Tribunal finds that it is appropriate that an engineer assess the structure prior to any remedial or renovation works being conducted; and
(d)the issues with the ceiling in the family laundry and the kitchen which may cause paint to drop on food and attract vermin.
For these reasons, the Tribunal finds that the Family Residence is unfit for human occupation and will make an order that it must be evacuated within 14 days of the date of the order and thereafter remain unoccupied.

The Dormitories

The Dorms are comprised of the following: Dormitory A (one storey, also known as the 'Fix it dorm'), Dormitory B (two storey) and Dormitory C (two storey which is also known as the sewing dorm). These areas were historically used as dormitories but are now mainly used as storage or for sewing or for casual accommodation for family members.
The use of these buildings and therefore their correct classification was not clear at the hearing. Mr Tester stated that one of the Dorms is being used as a sewing area where 'significant amounts' of people are invited to enter which would therefore mean that life safety devices such as fire extinguishers and exit signs would be expected (as would be the case if they were used as dormitories). Mrs Hoek disputed that members of the public used the Dorms as a sewing room, stating that it was usually just herself and one or two family members.

However, there was also evidence that the Dorms were in effect being used as an extension of the Family Residence. The Tribunal finds that the evidence establishes that people have been sleeping in the Dormitories. The Tribunal observed a bed set up in Dormitory B during the Site Inspection and the evidence of Ms Hoek was that:
•her grandson Oakley had been occasionally staying in the dormitory for Dorm B and he 'was staying for a few weeks';
•another grandson Ryder was previously staying in Dormitory B and at that time there was a fridge there and he stayed for 8 weeks; and
•her son Michael comes two or three times a year and stays in either the reception office or in the 'bottom dorm.'
The Tribunal finds that the following, uncontested evidence from Mr Tester establishes that the buildings are unfit for human occupation:
• there are heavily moulded ceilings in parts of the Dorms and missing ceilings (with exposed insulation fibres) which both can cause harm to human health (in the Tribunal's view this factor alone would be sufficient to make a finding that the Dorms are unfit for human occupation);
•all the Dorms have staircases which do not comply with today's requirements and have the effect that people can fall through the gaps;
•Dormitory C has smoke damage to the ceiling (which Sessional Member Burns identified could have a potential impact on the safety of the electrical wiring due to carbon buildup and with which observation Mr Tester agreed);
•Dormitory A has damaged ceilings and there is the potential for the rest of the ceiling to come down; and
•there is evidence of people residing in the dorms with no smoke detectors.
Mrs Hoek's own evidence was that Dormitory A and Dormitory C do not have glass in the windows.[6] However, later in the hearing Mr O'Reilly stated that it was only Dormitory A which now does not have glass in it. The lack of glass is also another basis on which the Tribunal makes a finding that Dormitory A is unfit for human occupation.
[6] ts 55, 5 March 2024.
The Tribunal is particularly concerned by the evidence from Mrs Hoek that various people are using Dormitory B as overnight accommodation. During the Site Inspection the Tribunal observed that the Dorms were large, cluttered buildings, some parts of the buildings do not have power and there are no smoke alarms. The Tribunal finds that this poses a potentially significant risk to the safety of persons who sleep in the Dorms overnight given that if a fire occurs, they may not be able to safely exit the buildings due to the lack of smoke alarms, the lack of available lighting and potentially, the clutter.
For these reasons, the Tribunal finds that all the Dormitories are unfit for human occupation and must be evacuated within 14 days and thereafter remain unoccupied.
The Tribunal notes that this order is consistent with its order in relation to the Family Residence which is appropriate given that the buildings are accessible from each other.

Units 1 and 3 (including Pergola in the courtyard)

The evidence of Mrs Hoek is that Units 1 and 3 are privately rented by the applicant, including to families with children. The original building order included an order that these units not be occupied. The draft building order appropriately varied the respondent's position to reflect the evidence at the hearing from Mr Tester that if these units could be isolated from the rest of the buildings on site, then they of themselves were capable of human occupation. The exception to this was the Pergola in the courtyard of these units which Mr Tester stated is structurally unsafe. The applicant agrees that the Pergola is unsafe and that it should be dismantled.
The issue in relation to Units 1 and 3 at the hearing was therefore focused on the extent to which, and how, these units should be isolated from the rest of the buildings on the property. The evidence of Mr Tester was that if the units were not effectively isolated 'it's like having children on a building site'.
The respondent's position was that the outcome for Units 1 and 3 is related to some extent to the outcome in relation to the Family Residence, with the respondent claiming that that if the Family Residence is declared unfit for human occupation then most likely the family will take up residence in Units 1 and 3 (and also perhaps Rose Cottage) rather than making those premises available for rent privately. The respondent has been quite open in its position that it is one thing for the applicant and their relatives to reside on the property where they are fully aware of the risks and yet choose to accept them in any event, and quite another thing for parts of the property to be commercially tenanted by vulnerable members of the public.
There were extensive discussions between the parties and with the Tribunal during the hearing about the most effective and appropriate way to build a fence isolating the units. There was also a discussion about the extent to which the Recreation Hall was accessible from the rest of the site (and therefore whether a fence was required). Further, in accordance with orders made by the Tribunal, the applicant filed further submissions after the hearing in relation to these issues.
The submission filed by the applicant in relation to the ability to access the Recreation Hall showed that the broken windows were at a height not easily accessible. However, the photographs also showed large amounts of climbable clutter and objects against the walls of the building. The Tribunal notes the applicant's preference (should the Tribunal find that the Recreation Hall is accessible) is to glaze the windows rather than install a fence in the area near the Recreation Hall. The applicant did not dispute the proposal of the respondent that a fence should be erected around the sub steel floor structure to the rear of the property.
The Tribunal finds that Units 1 and 3 should be isolated as follows and will order that this must done within 30 days from the date of the order:
(a)The applicants must glaze or otherwise board up the windows on the side of the Recreation Hall closest to the main driveway; and
(b)The applicants must erect a fence around the Steel Sub Floor Structure as indicated on Annexure B to these reasons. The fence must be at least 1500 millimetres in height, be structurally sound and mechanically fixed to the building marked 'Storage'. The fence must be constituted of a construction type material such as ring lock fencing.

The Tribunal will also include an order that if this is not done within 30 days then Units 1 and 3 must be evacuated within 37 days of this order and thereafter remain unoccupied.

Swimming Pool

The original building order sought the demolition of the Swimming Pool on the basis that it is dangerous as it constitutes a dangerous excavation and a falling hazard. The Swimming Pool is 25 metres long and is currently empty (with the exception of some seasonal rains entering the pool) and it has not been used as a swimming pool for many years. Mrs Hoek stated during her evidence that the applicant has no intention of using the structure as a pool in the future and intends to use the structure for water storage for the property.
The respondent's concern is that given the height of the pool when empty exceeds 1 metre, it poses a risk to anyone who may fall into it. The evidence of Mr Tester to the Tribunal was that there is currently not a compliant swimming pool fence (this is disputed by the applicant). However, even if there is such a fence, the evidence before the Tribunal from Mrs Hoek is that the area around the pool has recently been used by members of the family for activities such as growing vegetables and lighting fires in winter. Therefore, a fall hazard remains even with a compliant swimming pool fence.
The draft building order responded to questions asked of Mr Tester by the Tribunal at the hearing which pointed out that demolition of the Swimming Pool would be very expensive for the applicants. The draft building order seeks the Swimming Pool to be modified in accordance with 'a design in Annexure 2' (which was unspecified).
The respondent made it clear at the hearing that its position is that this structure is not a priority for the respondent, it would abide by any decision made by the Tribunal and it wanted a final resolution to this issue which would result in the Swimming Pool not being occupied and being secured by a particular deadline (180 days). The respondent also seeks an order that if the Swimming Pool is not modified as specified within the required timeframe, then the position should default to that in the original building order and the Swimming Pool must be decommissioned.
The applicant disputed the need for any further securing of the Swimming Pool, however, it provided the Tribunal with its preferences should the Tribunal find that works are necessary. The applicant's first preference is the design depicted in Annexure C to these reasons.
The Tribunal finds that the swimming pool in its current state is dangerous given that it is empty and represents a falling hazard. The Tribunal finds that the pool should be secured in the following manner within 90 days of this order as follows:
(a)The Swimming Pool is to be fenced with the fence placed in accordance with the red markings showed in the diagram in Annexure C to these reasons; and
(b)The fence is to be a minimum of 1 metre in height, be of a solid material and mechanically fixed in order to make it sturdy and durable.
The Tribunal will also include an order that if this is not done within 90 days then the Swimming Pool is to be demolished within 180 days of the date of the order.

Conclusion

In relation to each of the buildings and incidental structures which the Tribunal has found to be unfit for human occupation (which is all the buildings and incidental structures on the site except for Rose Cottage, Unit 1 and Unit 3), the Tribunal has ordered that they should be evacuated so they are not occupied. Although there is a discretion for the Tribunal to require repair or remediation work to be carried out, the Tribunal accepts the respondent's submission that remediation orders would be difficult to prescribe and difficult to enforce. As noted above, the option remains for the applicant to remediate the buildings and to follow the appropriate process (including following proper planning and building processes) so that the buildings can, in the future, be occupied.
The applicant initially had ambitious plans for the property. These are outlined in a letter sent by Mrs Hoek to the respondent in 2016. During her evidence Ms Hoek conceded that most of the intended works outlined in that letter had not been done and stated '[a]ll I can say is that was an ambitious statement at that time - that I made at that time and then reality set in'.[7]
[7] ts 470, 10 October 2024.
The evidence of Mrs Hoek was to the effect that they wish to be left alone and carry on as they are. As the respondent stated in its closing submissions, the applicant has effectively accepted the status quo, namely renting out accommodation privately in order to pay for repairs or development which might occur (the nature of which the applicant has been unable to specify or substantially progress for 8 years).
The Tribunal accepts the submission of the respondent that it has now been 8 years since the applicants purchased the property, yet it has failed to progress the repairs in this time despite efforts by the respondent to provide it with advice and guidance.
In the Tribunal's view, to allow the current state of affairs to continue is unsatisfactory. The Tribunal has found that to repair some of the buildings will require expert input (from planners and engineers) and a large financial commitment. The Tribunal has also found that it is unlikely that these extensive repairs will occur in the near future, given the lack of action over the past 8 years.
The Tribunal accepts that the approach of the respondent in its draft building order (which has largely been adopted by the Tribunal in these reasons) is a reasonable approach which will allow the applicant the opportunity and time to pursue any plans they wish for the property, yet not use the site in a way that places anyone at risk in the meantime. Further, given that Units 1 and 3 and Rose Cottage are not subject to an order for nonoccupation, the result of this decision will not deprive Mrs Hoek and her family of all accommodation options within the property.

Orders

The Tribunal orders:
1.The application for review is allowed in part.
2.The decision of the respondent to make the building orders dated 10 October 2022 in respect of the buildings shown on Annexure A located at 39 Inkpen Street, Northam is varied as follows:
(a)Pursuant to s 112(2)(g)(ii) of the Building Act 2011 (WA) the applicant must cause all buildings on the property, with the exception of Rose Cottage, Units 1 and 3 as shown in Annexure A to these Reasons, to be evacuated within 14 days of the date of this Order and to thereafter remain unoccupied.
(b)Pursuant to s 112(2)(g)(iv) of the Building Act 2011 (WA) the applicant must within 14 days of the date of this Order maintain a fence to enclose Rose Cottage so as to prevent access to any other parts of the property by the general public.
(c)Pursuant to s 112(2)(g)(vi) of the Building Act 2011 (WA) the applicant must, within 24 months of the date of this Order, demolish and remove the Recreation Hall and attached Pergola.
(d)Pursuant to s 112(2)(g)(v) of the Building Act 2011 (WA), the applicant:
(i)must, within 90 days of the date of this Order, fence the Swimming Pool in accordance with the red markings showed in the diagram in Annexure C to these reasons;
(ii)the fence is to be a minimum of 1 metre in height, be of a solid material and mechanically fixed in order to make it sturdy and durable: and
(iii)provide evidence to the Shire of Northam that the works have been completed.

(e)If the requirements in paragraph (d) above are not satisfied within 90 days of the date of this Order, pursuant to s 112(2)(g)(vi) of the Act, the applicant is required to fill in the Swimming Pool by way of demolition of the Swimming Pool and filling with clean fill to natural ground level within 180 days of the date of this Order.
(f)Pursuant to s 112(2)(iv) of the Building Act 2011 (WA), the applicant is required within 30 days of the date of this order to:
(i)glaze or otherwise board up the windows on the side of the Recreation Hall closest to the main driveway;
(ii)erect a fence around the Steel Sub Floor Structure as indicated on Annexure B to these reasons. The fence must be at least 1500 millimetres in height, be structurally sound and mechanically fixed to the building marked 'Storage.' The fence must be constituted of a construction type material such as ringlock fencing; and
(iii)provide evidence to the Shire of Northam that the works in (i) and (ii) have been completed.

(g)If the requirements in paragraph (f) above are not satisfied within 30 days of the date of this Order, pursuant to s 112(2)(g)(ii) of the Act, the applicant is required to cause Unit 1 and Unit 3 to be evacuated within 37 days of the date of this Order and to thereafter remain unoccupied.
(h)Pursuant to s 112(2)(g)(vi) of the Building Act 2011 (WA), the applicant is required within 30 days of the date of this Order to demolish and remove the Pergola located outside Units 1 and 3 in the Courtyard adjoining Dormitory A.
(i)Pursuant to s 112(2)(h) of the Building Act 2011 (WA), the applicant is required to ensure that prior to any buildings or structures being demolished and removed a demolition permit is in effect for the demolition work.

ANNEXURE A

ANNEXURE B

ANNEXURE C

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
12 FEBRUARY 2025