LAURENT and CITY OF GREATER GERALDTON - [2013] WASAT 57

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)

CITATION: LAURENT and CITY OF GREATER GERALDTON [2013] WASAT 57

MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)

HEARD: 14 NOVEMBER 2012

DELIVERED : 10 DECEMBER 2012

PUBLISHED : 30 APRIL 2013

FILE NO/S: CC 185 of 2012
CC 1948 of 2011

BETWEEN: GERALD LAURENT
Applicant
AND
CITY OF GREATER GERALDTON
Respondent

Catchwords:

Who is the 'builder' for the purposes of s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) Whether masonry wall is a 'building' for the purposes of s 374(1) and s 401 of the Local Government (Miscellaneous Provisions) Act 1960 Whether building licence must be issued to authorise construction of boundary masonry wall Whether retaining wall is a 'building' for the purposes of s 374AA(2) of the Local Government (Miscellaneous Provisions) Act 1960 Who is the 'builder' for the purposes of notice issued pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960 Masonry wall constructed as boundary fence on top of retaining wall positioned wholly on neighbour's property without issue of building licence and without neighbour's consent Masonry wall incomplete and structurally deficient Application for building approval certificate not validly made Validity of notice to pull down masonry wall questioned

Legislation:

Building Act 2011 (WA), s 180(4), s 190(3)
Dividing Fences Act 1961 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 2, s 373(1), s 374, s 383(5), s 401, Div 6, Pt XV
Local Government Act 1960 (WA), s 6
Local Government Act 1995 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 24, s 27(1), s 27(2)
State Administrative Tribunal Rules 2004 (WA), r 24, r 25(2), r 25(4), r 31

Result:

Dismissed

Summary of Tribunal's decision:

Mr Laurent constructed a 30 metre masonry 'boundary' wall on his neighbour's property and, in particular, upon his neighbour's retaining wall. No building licence was granted by the City of Greater Geraldton pursuant to s 374 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) for the construction of the masonry wall. The neighbour objected to the masonry wall constructed on her retaining wall and on her property. The neighbour also complained that the masonry wall was incomplete and not rendered, was supported by piers constructed on the side of the masonry wall visible from her property and was not structurally sound. The masonry wall was the product of the unauthorised building work conducted on the neighbour's retaining wall. The Tribunal dismissed Mr Laurent's application for a review of the City of Geraldton's decision to refuse his application for a building approval certificate for the masonry wall made pursuant to s 374AA(2) of the Local Government (Miscellaneous Provisions) Act 1960. The Tribunal concluded that Mr Laurent was not entitled to make that application as he was not the owner of the building (the retaining wall) upon which the unauthorised building work (the construction of the masonry wall) was carried out. The Tribunal concluded and found that the neighbour was the owner of the retaining wall and only she had the right to make an application for a building approval certificate. The Tribunal further found that the application for a building approval certificate made by Mr Laurent was not consented to by the neighbour and was not made on behalf of the neighbour. The Tribunal concluded that Mr Laurent's application pursuant to s 374AA(2) of the Local Government (Miscellaneous Provisions) Act 1960 was not a valid application. Further, the Tribunal found that that application, even if valid, was properly refused on the basis of the deficiencies in the completion and construction of the masonry wall by Mr Laurent.
The Tribunal also dismissed Mr Laurent's application for a review of the City of Greater Geraldton's decision to issue to Mr Laurent, as the builder of the masonry wall, a notice to 'pull down' the masonry wall pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960. The Tribunal concluded that for the purposes of s 401 of the Local Government (Miscellaneous Provisions) Act 1960, Mr Laurent is the 'builder' of the masonry wall, and the notice issued to him was valid. Further, the Tribunal found that the decision to issue the notice to Mr Laurent to pull down the masonry wall was the correct and preferable decision on the basis of the deficiencies in the completion and construction of the masonry wall by Mr Laurent.
Mr Laurent's applications were dismissed in the consolidated proceeding.
Mr Laurent's applications were determined pursuant to s 374AA and s 401 of the Local Government (Miscellaneous Provisions) Act 1960 respectively, notwithstanding the repeal of those provisions by the Building Act 2011 (WA) on 2 April 2012. The Tribunal concluded that the transitional provisions of s 180(4) and s 190(3) of the Building Act 2011 preserved the operation of s 374AA and s 401 of the Local Government (Miscellaneous Provisions) Act 1960 respectively, for the purposes of any review that was commenced before the repeal of those provisions by the Building Act 2011 but not finalised by the date of the repeal by the Building Act 2011, being 2 April 2012.

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr P Gillett

Solicitors:

Applicant: N/A
Respondent: McLeods Barristers & Solicitors

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

Kioa v West (1985) 159 CLR 550
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In 2008, the applicant, who is a part owner of No 2 Admiral Link, Wandina, Geraldton (2 Admiral Link), caused the construction of a masonry wall, approximately 30 metres in length and 1.5 metres in height (masonry wall), on top of a retaining wall situated on No 4 Admiral Link, Wandina, Geraldton (4 Admiral Link). At some time after the commencement of the construction of the masonry wall but before January 2011, 4 Admiral Link was sold by the then owner, known to the Tribunal only as 'Seacrest Joint Venture', to the present owner, Ms Cassandra Armstrong. As at the date of the final hearing in this proceeding the construction of the masonry wall was not complete.
By letter dated 18 January 2011 document 5 of the respondent's bundle of documents issued pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (Exhibit 4) the respondent informed the applicant that the respondent's records indicated that the respondent had not issued a building licence for the 'brick fence on your southern boundary', being the masonry wall.
It was common cause between the parties that no building licence had ever been issued by the respondent in respect of the construction of the masonry wall and none had been applied for by the applicant or any other person.
It was also common cause at the final hearing that, in fact, the masonry wall had not been constructed on the applicant's southern boundary or on the applicant's property at 2 Admiral Link, but, in fact, it had been constructed wholly inside the applicant's southern neighbour's parcel of property at 4 Admiral Link. Document 4 of the Exhibit 4 is a 'repeg sketch' in respect of Lot 1092 on DP 57276, being the site reference for 4 Admiral Link, now owned by Ms Armstrong. The repeg sketch undertaken by the respondent clearly shows a retaining wall wholly constructed on 4 Admiral Link and that the face of that retaining wall is a minimum of 0.03 metres (3 centimetres) within the boundary of 4 Admiral Link and off the line of junction between 2 Admiral Link and 4 Admiral Link. The masonry wall, 0.1 metres (10 centimetres) in width, is constructed on top of that retaining wall. The southern face of the masonry wall (that is, the face of the masonry wall visible from the applicant's property at 2 Admiral Link) is constructed between 0.16 metres (16 centimetres) and 0.17 metres (17 centimetres) from the southern face of the limestone wall. The masonry wall is therefore wholly constructed between 0.28 metres (28 centimetres) and 0.30 metres (30 centimetres) within the parcel of land of 4 Admiral Link.
The respondent's letter dated 18 January 2011 contained an invitation from the respondent to the applicant to apply to the respondent for 'retrospective approval' for the masonry wall. It was common cause between the parties at the final hearing that the respondent intended to refer to, and the applicant understood the respondent to refer to, an application for a building approval certificate pursuant to s 374AA of the Local Government (Miscellaneous Provisions) Act1960 (WA) (LGMP Act), so as to approve a structure which was constructed without the grant of any authority by the respondent and the issue of a building licence pursuant to s 374 of the LGMP Act.
On 8 February 2011, the respondent again wrote to the applicant noting that the respondent's agent had undertaken a site inspection and, in addition to the unauthorised masonry wall, all other 'boundary walls' were similarly unauthorised by the respondent. The letter again contained an invitation to the applicant to apply for a building approval certificate but on this occasion the invitation extended to all unauthorised structures. This letter warned the applicant that if he did not so make an application by 1 March 2011, the respondent would issue a notice to him requiring him to remove the masonry wall, amongst other structures. The respondent referred to s 401 of the LGMP Act as the source of its power to order and direct the removal of the masonry wall.
On 24 February 2011, Ms Armstrong wrote to the applicant (and had the same delivered by registered mail) to inform the applicant 'to remove the illegal brick structure off my property'. As at that date at least, the applicant was made aware that Ms Armstrong held the view (correctly) that the masonry wall was constructed on 4 Admiral Link.
Notwithstanding this fact, on 30 March 2011, the applicant made an application to the respondent as the 'owner' and as the 'builder' for a building approval certificate (BAC application), pursuant to s 374AA of the LGMP Act, so as to authorise the masonry wall and avoid the demolition of the same pursuant to the notice issued pursuant to s 401 of the LGMP Act. Document 7 of Exhibit 4 is a copy of the applicant's BAC application form. Exhibit 4 does not contain all of the documents that were either attached to that form or were subsequently submitted to the respondent in support of that application. The BAC application, in its terms, was not made on behalf of the owner of the retaining or masonry wall, being the present owner of 4 Admiral Link. The BAC application asserts that the application relates to the property at 2 Admiral Link. In fact, the application, insofar as it concerned the retaining and masonry walls, does not relate to 2 Admiral Link for the reasons referred to above. The Tribunal infers that there was a period of time during this dispute that the applicant believed that the masonry wall was positioned on 2 Admiral Link, or partly on 2 Admiral Link. However, at the final hearing, there was no doubt on the facts and it was common cause that the masonry wall was wholly constructed on 4 Admiral Link.
It is for this reason that during the course of the proceedings, and at the final hearing, the applicant sought to establish that his BAC application was made with Ms Armstrong's consent so as to be able to submit that the application was made by, or on behalf of, the owner of the retaining and masonry walls.
On 29 August 2011, the respondent wrote to the applicant to inform the applicant that his BAC application was refused upon the basis that the applicant had not provided the information requested by the respondent so as to permit the respondent to 'process your application'.
On 17 November 2011, the respondent issued a notice to the applicant to 'pull down' the masonry wall. The notice was issued pursuant to s 401 of the LGMP Act (s 401 Notice) to the respondent as the 'builder' of the masonry wall and not to the applicant as the 'owner' of the building in question, being the masonry wall.
On 30 January 2012, the applicant made application to the Tribunal for a review of the respondent's decision to refuse the applicant's BAC application. That application is the subject of CC 185 of 2012. On 8 December 2011, the applicant made application to the Tribunal for a review of the respondent's decision to issue to him the s 401 Notice. That application is the subject of CC 1948 of 2011.
At the final hearing of these applications (which were consolidated by a Tribunal order made on 28 May 2012):
a)The applicant asserted that he was not the 'builder' of the masonry wall and that for that reason alone, the s 401 Notice was defective, as it had been issued to him as the 'builder' when, in fact and law, he was not the 'builder' of the masonry wall.
b)The applicant asserted that, in fact, Ms Armstrong did consent to the applicant's BAC application as the builder and that therefore the BAC application was properly made. The application relied on this assertion in support of his application to set aside the respondent's refusal of the applicant's BAC application and substitute an order by the Tribunal granting the applicant's BAC application. The applicant also relied upon there being a validly made BAC application that had not been refused so as to submit that the s 401 Notice was invalid.
The applicant's position with respect to the structural integrity and the construction of the masonry wall itself was very confused. His position and submissions did not clearly deal with the various issues concerning the proper construction of the masonry wall, such as the need to increase the height of the masonry wall; the need to introduce additional piers to the masonry wall; the need to introduce additional and sufficient expansion joints to the masonry wall; the need to move all the piers from the side visible from 4 Admiral Link onto the side visible from 2 Admiral Link; and the need to render and finish the masonry wall. The applicant's focus at the final hearing remained on whether Ms Armstrong had agreed, in effect, to the encroachment of the masonry wall onto her property and to the BAC application. The applicant did not specifically deal with the structural integrity issues and other construction issues that the respondent was entitled to consider in making a decision to grant a building approval certificate pursuant to s 374AA of the LGMP Act, even if the application had been made on behalf of, or with the authority of, Ms Armstrong.
It should be noted that the applicant's BAC application also concerned all other boundary walls constructed by the applicant. The BAC application, to the extent that it concerned those other walls, although refused on 29 August 2011, was resolved between the parties prior to the final hearing. Therefore, the dispute as at the time of the final hearing and as referred to herein does not concern the other walls or any other unauthorised work included by the applicant in his BAC application.
Following the final hearing held on 14 November 2012, the Tribunal dismissed each of the applicant's applications for review of the respondent's refusal of his BAC application and the respondent's issue of the s 401 Notice insofar as those applications concerned the masonry wall. Insofar as those applications concerned other boundary walls and any other construction by the applicant, they were resolved by the parties without the need for a hearing, and there being no utility in the applications to that extent, those applications were dismissed. The reasons for the Tribunal's decision were to be provided in writing and the Tribunal indicated it would publish its reasons following the final decision made on 10 December 2012. These are those reasons.

Review jurisdiction

Section 27(1) of the SAT Act provides that a review is to be by way of a hearing de novo, and by reason of s 27(2) of the SAT Act, the Tribunal's object must be to arrive at the correct and preferable decision on the facts and law as it stands as at the date of the review by the Tribunal. The Tribunal is not bound by the strict rules of evidence generally, but is obliged to 'act according to equity, good conscience and the substantial merits of the case'. The Tribunal is required to consider all credible, relevant and significant information before it (Kioa v West (1985) 159 CLR 550) and is to base its decision on the material which is probative of the matter to be proved, and the standard of proof to be applied is the ordinary civil standard of proof on the balance of probabilities (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. The applicant has, on occasions in his written submissions to the Tribunal, referred to the criminal standard of proof beyond reasonable doubt but that is not the relevant standard of proof in this Tribunal.

Statutory framework

The statutory framework altered on 2 April 2012. However, the statutory provisions in operation immediately prior to 2 April 2012 continue to have application where an application for review has been commenced but not concluded under those provisions; that is, where an application pursuant to s 401(3) of the LGMP Act is commenced but not completed before 2 April 2012 (see s 190(3) of the Building Act 2011 (WA)) and where an application for review is commenced pursuant to s 374AA(1)(c) or s 374AA(1)(d) of the LGMP Act that had been commenced but not completed before 2 April 2012 (see s 180(4) of the Building Act 2011 (WA)).
Section 373(1) of the LMPG Act relevantly provides:
Subject to subsections (2), (3) and (3a) the provisions of [Part XV] apply throughout each district in the State.
Sections 373(2), 373(3) and 373(3a) of the LMPG Act have no application in this proceeding.
Section 374(1) of the LMPG Act provides:
No person shall -
(a)lay out for building, or commence or proceed with a building on, land in a district; or
(b)in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension, or enlargement of the structure of the building,
until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence in the prescribed form and on payment of the prescribed fee, a copy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built, or the amendment … and the area of land to be occupied by each building … and unless he complies with the conditions, if any, that are specified in the licence.
The first question that arises is whether a boundary masonry wall is a 'building' for the purposes of s 374(1) of the LGMP Act. It should be noted that the term 'building' and 'builder' are not defined in the LGMP Act. However, s 2 of the LGMP Act provides:
The Local Government Act 1995 applies as if the provisions of the [LGMP Act] were in that Act but in construing the provisions of this Act account is to be taken of the meanings they had before the Local Government Act 1995 commenced.
The meaning of words that had effect prior to the Local Government Act 1995 (WA) is to be found in the now repealed Local Government Act 1960 (WA). Relevantly, s 6 of the now repealed Local Government Act 1960 (WA) provides a definition of 'building' as:
… a structure erected or placed on land, unless in the circumstances of a particular case, a court required to decide the case declared otherwise, but in any case, includes a fence erected in the district of a city or town or in a townsite[.]

A 'structure' as defined by the Macquarie Dictionary Online (2013) is '… something built or constructed'[.] The relevant Oxford English Dictionary Online (2013) definition is 'that which is built or constructed'. The masonry wall that had been constructed was, and is, a structure, and as the definition of 'building' includes a fence, the Tribunal concludes that the masonry wall in this case is a 'building' for the purposes of s 374(1) of the LGMP Act.
As stated, it was agreed that the respondent had not issued a building licence pursuant to s 374(1) of the LGMP Act in respect of the masonry wall. The construction of the masonry wall in those circumstances constitutes a contravention of the LGMP Act for the purposes of s 401(1)(ba) of the LGMP Act.
Section 401 of the LGMP Act provides:
(1)A local government may, during or after the erection of a building in its district, give to the builder or owner of the building, written notice of anything, in the construction of the building -
(a)which tends to render the building unsafe or prejudicial to the public interest;
(b)which is not in compliance with, or is a departure from, the plans and specifications for the building, of which plans and specifications the approval of the local government has been obtained as required by this Act;
(ba)which is a contravention of this Act; or
(c)which, where permission of the local government is required for carrying it out, has been carried out without that permission;
and requiring him to pull down or so alter the building as to remove the cause of the objection and on being served with the notice the builder or owner shall comply with the requisition, unless he applies to the State Administrative Tribunal under subsection (3) for a review of the decision to make the requisition and the State Administrative Tribunal sets aside the decision.
The next question that arises in this matter is whether the applicant is the 'builder', because it is in that capacity that the respondent has issued the s 401 Notice to the applicant. The applicant relies on a definition of 'builder' that is referred to in s 401A(7) of the LGMP Act. However, that definition, which would exclude him because he was not employed to build or to execute work for the owner of a building, is applicable only '[i]n this section'. That is, it is applicable only to s 401A of the LGMP Act, not to the whole of the LGMP Act and not to s 401 of the LGMP Act. The applicant's submission on this issue that he therefore is not a 'builder' for the purposes of s 401 of the LGMP Act is incorrect and not accepted by the Tribunal.
The question then is: what or who is a 'builder' for the purposes of s 401 of the LGMP Act? The term 'builder' is not defined in the now repealed Local Government Act 1960 (WA); nor is it defined in the LGMP Act. The first Macquarie Dictionary Online (2013) definition of the word 'builder' is 'a person who builds', and the second is 'a person who contracts for the construction of buildings and supervises the workers who build them'. The second definition is more in keeping with the statutory definition of 'builder' for the purpose of s 401A of the LGMP Act alone. As that definition is limited to the operation of that section alone, the Tribunal concludes that, in the context of the LGMP Act, the narrower definition of 'builder' is not intended to have application for the purposes of s 401 of the LGMP Act. The Tribunal concludes that the first definition the wider of the two - is more in keeping with the purpose of s 374(1) and s 401 of the LGMP Act and the scheme of Part XV of the LGMP Act, as the obligation to obtain a grant of a building licence pursuant to s 374(1) of the LGMP Act is not limited to those who are in the business of building, but to any person who builds. The Oxford English Dictionary Online (2013) definition of the word 'builder' is also wide and is expressed as '[o]ne who builds; the erector of a building'. There is no reason for the Tribunal to determine that the term 'builder', as it appears in s 401 of the LGMP Act, has any other meaning other than its plain and ordinary English meaning and the wider meaning any person who builds or constructs.
The applicant, alternatively, says he is not the 'builder' because he engaged a bricklayer to undertake the physical construction of the masonry wall. In this respect, the applicant, in the Tribunal's view, has confused the role of the builder with the role of the tradesman (bricklayer) or labourer who physically lays the bricks. The Tribunal does not interpret the term 'builder' to be limited to the person who physically lays the bricks or otherwise undertakes the physical construction work. This alternative advocated by the applicant would mean that every tradesperson or labourer who contributed to the construction of any building could be issued a s 401 Notice even though they had been instructed by another to undertake the physical work. Plainly, that is not the intention of s 401(1) of the LGMP Act or the LGMP Act as a whole. The Tribunal concludes that the term 'builder' in s 401 of the LGMP Act is not confined to a person who physically laboured in the construction of a masonry wall. The Tribunal concludes that the term 'builder' means the person who coordinated the construction of a structure, organised the trade, labour and material, directed the construction in terms of dimensions and positioning, and took control of the construction. For this reason, the Tribunal concludes that the term 'builder' is not confined to the person who exerted their physical efforts in the construction of a structure, and includes the person who directed the construction.
The Tribunal must find, on the facts, whether the applicant was that person or not.
If a building has been constructed without the grant of a building licence in contravention of s 374(1) of the LGMP Act, a s 401 Notice 'must' not issue if a building approval certificate has been issued or one has been applied for and has not been refused (s 401(1a) of the LGMP Act). The applicant's BAC application was refused on 29 August 2011. The applicant seeks an order to set aside that refusal which, in turn, will have the effect, he asserts, of setting aside the s 401 Notice. The respondent asserts that the BAC application was not one authorised by the LGMP Act and was invalid, in any event, because insofar as the retaining and masonry walls are concerned, the BAC application was not made by, or with the authority of, Ms Armstrong the owner of the retaining wall.
Section 374AA of the LGMP Act provides for the grant of a building approval certificate for unauthorised building work. Section 374AA(2) provides:
The owner of a building on which unauthorised building work has been carried out may apply to the local government for the issue of a building approval certificate in respect of the unauthorised building work. (Tribunal's emphasis)
The question arises: who is the 'owner' of the building on which unauthorised building work was carried out; that is, who is the owner of the retaining wall on which the masonry wall was constructed? The Tribunal there refers to reasons concerning the definition of 'building' for the purposes of s 374(1) of the LGMP Act. That definition, for the reasons referred to above, includes a retaining wall, as it is a 'structure' as provided for in s 6 of the now repealed Local Government Act 1960 (WA). The Tribunal concludes, that for the purposes of s 374AA(2) of the LGMP Act, 'building' includes the retaining wall on which the unauthorised building work (that is, the construction of the masonry wall) has been carried out. The owner of that retaining wall is the person who may apply to the respondent for a building approval certificate for that unauthorised building work - and no one else. The owner of the retaining wall is Ms Armstrong, and there was not any debate about that as at the date of the final hearing.
The Tribunal notes that the provisions of the LGMP Act relating to the construction of party walls and rights in respect of any party walls have no application in this matter because there was no agreement between the parties that a party wall should be constructed on the line of junction between the two lots that is, No 2 Admiral Link and No 4 Admiral Link and because no wall was, in fact, constructed on that line of junction. Those provisions deal with rights in respect of the party wall at various stages of the process identified in Div 6 of Pt XV of the LGMP Act. Section 383(5) of the LGMP Act provides:
If the adjoining owner does not consent to the building partly on his land of a party wall, the building owner shall not build a party wall, but may build an external wall placed wholly on his own land.
A wall constructed wholly on one adjoining owner's land is not a party wall for the purposes of the LGMP Act. The masonry wall is not a party wall. Further, the provision of the Dividing Fences Act 1961 (WA) (DF Act) does not assist. The DF Act is exclusively concerned with the process by which adjoining blocks of land are physically divided by a 'sufficient' fence and the liability of the owners of the adjoining blocks of land to contribute to, or join in, the construction or cost of construction (and maintenance) of a 'sufficient' fence between those blocks of land. The DF Act is concerned with the owners of the adjoining parcels of land, not the owners of the fence as a structure.
The Tribunal concludes that in order for the BAC application to have been validly made, the Tribunal must conclude on the evidence that it was made on behalf of the owner of the retaining wall Ms Armstrong.

The issues

The issues identified by the respondent are:
1.Is the Applicant's application for a building approval certificate dated 30 March 2011 and refused by the respondent on 29 August 2011, [hereafter referred to as the] 'Application', a valid application under section 374AA(2) of the [Local Government (Miscellaneous Provisions) Act 1960 (WA)] insofar as the Application relates to the wall constructed on the property at [No] 4 Admiral Link, given that the Application is not made by the owner of the land upon which the wall is located?
2.If the answer to Issue 1 is 'No':
(a)does the Tribunal have jurisdiction to review any decision by the Respondent in relation to the Application insofar as the Application relates to the wall on the property at [No] 4 Admiral Link[, Wandina]; and
(b)[s]hould the Respondent's decision dated 17 November 2011 to issue a notice pursuant to section 401(1) of the [Local Government (Miscellaneous Provisions) Act 1960 (WA)] requiring the applicant to pull down a masonry wall erected along the northern boundary of the property at [No] 4 Admiral Link, Wandina … be affirmed or set aside?
The Tribunal does not disagree with this statement of the issues. However, even if the BAC application is not valid and the s 401 Notice is valid, the Tribunal must still review the decision to issue the s 401 Notice on the merits.

The proceedings

On 8 December 2011, the applicant filed his application to set aside the respondent's s 401 Notice (CC 1948 of 2011) in the Tribunal. The applicant sought the following order:
Dismiss or discontinue or defer the City of Greater Geraldton's notice to pull down a building fence, so [as] to allow the procedure of the [Dividing Fences Act 1961 (WA)] or agreement of terms with [the] other party without Council interference or procurement.
The applicant provided 20 'grounds' in support of his application.
On 30 January 2012, the applicant filed his application for a review of the respondent's decision to refuse his BAC application (CC 185 of 2012) in the Tribunal. The applicant sought the following order:
I am seeking a review of the Greater City of Geraldton's (City) decision to refuse to approve a retrospective building application … for [No] 2 Admiral Link Wandina for the following reasons[.]
The applicant provided 17 'grounds' in support of his application.
The applicant's written and oral articulation of his position, including the written articulation of his grounds and the propositions he wished to advance, was difficult to understand. Many of the issues that the applicant raised were without any factual foundation or were nonsensical. The applicant referred to 'malicious Council act and omission', 'suffering detriments', 'want of prosecution', 'beyond reasonable doubts', 'element of the offence', actions causing the applicant 'shock and injury', 'forge', 'utter', 'procurement' and 'malicious behaviour', to mention a few phrases. These phrases and words, in all instances, hampered the applicant's articulation of his applications and made it very difficult for the Tribunal to ascertain what relevant information and submissions the applicant was able to rely upon to support his applications for review. The applicant's advancement of his applications was further hampered by the volume of written and oral submissions he made using words and phrases that were, at best, out of context and, at worst, amounted to incoherent legal jargon.
Both applications were listed for mediation before the same mediator. No resolution was achieved at mediation despite a number of adjournments between 26 March 2012 and 3 May 2012.
The matter was listed for further directions on 28 May 2012. At that directions hearing, the Tribunal made an order consolidating the applicant's two applications and made orders for service of plans and reports by the applicant on the respondent, which were required by the respondent concerning the construction of the masonry wall. These documents would be required by the Tribunal when reviewing the respondent's decisions to refuse the BAC application on the merits (assuming it was validly made) and the decision to issue the s 401 Notice (assuming it was validly issued). The parties at that stage were engaging in some direct negotiations and required additional time to ascertain whether a resolution could be reached. The consolidated proceeding was otherwise adjourned to a directions hearing on 28 August 2012. By 28 August 2012, all direct negotiations concerning the masonry wall had failed and the Tribunal made orders to advance the applications for final hearing. As stated, the dispute concerning all other structures of concern to the respondent were resolved by direct negotiations between the parties, and the Tribunal is not aware of the terms of the agreement reached.

The applicant

It is not in dispute that the applicant is a part owner of the property situated at 2 Admiral Link. At some stage prior to 2008, the respondent issued to the applicant an owner-builder's licence for him to construct a residential dwelling at 2 Admiral Link. It was common cause between the parties before the Tribunal that the issue of the ownerbuilder's licence did not authorise the applicant to construct any boundary masonry walls for the property at 2 Admiral Link. Neither party produced a complete set of approved plans and specifications of the residential dwelling which was the subject of the ownerbuilder's licence or the conditions of that licence. As at the date of the final hearing, the residential dwelling constructed by the applicant, as authorised by the ownerbuilder's licence, had not been inspected by the respondent to ascertain whether construction had been completed and was in compliance with the licence granted.

The owners of 4 Admiral Link in 2008

In 2008, 4 Admiral Link was owned by a group known to the Tribunal only as the 'Seacrest Joint Venture'. The applicant relied upon a letter dated 25 February 2011 from Humphrey Land Developments in the applicant's bundle of documents filed in the Tribunal on 17 February 2012 as proof of such consent. The statements contained in that letter are referred to below.

The former owner's consent to the masonry wall

In his application for a review of the respondent's decision to issue the s 401 Notice, at point 10, the applicant's grounds state:
I informed staff of previous owner of my intention to build a brick fence and attain a reply 'Ok', Council staff was aware that I intend [to] build a brick fence for a number of years.
At the final hearing, the applicant submitted that he held the belief that the respondent was aware that he had always intended to construct masonry boundary walls. At one stage of the dispute, the applicant believed that the ownerbuilder's licence granted to him to construct his dwelling included approval to construct the boundary masonry walls. However, it was conceded by the applicant that the ownerbuilder's licence did not include any authority to construct the boundary masonry walls. There was no evidence before the Tribunal that the Seacrest Joint Venture was 'aware' that the applicant intended to construct the boundary masonry walls. In the applicant's first statement of issues, facts and contentions filed on 13 February 2012 in CC 1948 of 2011, at paragraph 17, the applicant states:
I arranged to build a brick fence in part at my own cost … from information received and from the standard of the estate of Wandina. ([A]s per the definition of the Fence Act and Building Act) after attainment of consent from the staff of the owner of 4 Admiral Link Wandina at the time the Fence was built due to the extreme weather conditions that [were] causing debris to emanate from 4 Admiral Link Wandina.
At paragraph 28 of that document, the applicant again states:
The Fence was built … with the verbal consent of the owner at the time[.]
The 'owner' is a reference to the then owner of 4 Admiral Link, Seacrest Joint Venture. During the course of the final hearing, the applicant repeatedly asserted that Seacrest Joint Venture consented to the construction of the 'fence' in about 2008 and, from that, he implied that his BAC application was a valid application because the prior owner of 4 Admiral Link had agreed to the construction of a fence.
The Tribunal notes the following:
a)There is no reference in the applicant's assertion that Seacrest Joint Venture consented to a masonry wall inside the parcel of 4 Admiral Link (let alone 0.28 metres inside the parcel of the full length of 30 metres of 4 Admiral Link) or to the method of construction and finish to the masonry wall.
b)Any 'consent' from Seacrest Joint Venture is not relevant to a subsequent BAC application made at a time when Seacrest Joint Venture was not the owner of 4 Admiral Link.
c)Any 'consent' from Seacrest Joint Venture, allegedly given before the masonry wall was constructed, has no bearing on the masonry wall that was actually constructed, for the purposes of a BAC application.
For these reasons, the Tribunal has concluded that the conduct of Seacrest Joint Venture is irrelevant to these proceedings and, in particular, is irrelevant to the applicant's BAC application.
However, the Tribunal further finds that Seacrest Joint Venture gave no such consent as asserted by the applicant, or at all. In his original bundle of documents, filed pursuant to s 24 of the SAT Act (Exhibit 5), the applicant included a 'without prejudice' letter from Humfrey Land Developments, dated 25 February 2011 (document 3 of Exhibit 5). It is not known what the prejudice relates to, but as Humfrey Land Developments is not a party to these proceedings, the Tribunal has had regard to this letter. The letter dated 25 February 2011 is in response to a conversation between Mr Napier of Humfrey Land Developments and the applicant, and in response to an email from the applicant to Humfrey Land Developments. The applicant did not produce his earlier email. In his letter, Mr Napier for Humfrey Land Developments states:
… I advise that Humfrey Land Developments is the Project Manager for the Seacrest Joint Venture. Humfrey Land Developments is not the 'owner' of the Seacrest land development, as you assert in you letter, and therefore the functions, delegations and authorities of Humfrey Land Developments['] staff is strictly controlled by the Seacrest Board.
Further, I advise that Mrs Mary Humfrey is the Sales Manager for Humfrey Land Developments, as part of its function as project manager for the Seacrest Joint Venture. In her role as Sales Manager Mrs Humfrey has the delegated authority to conduct land sales and administrative functions attached to the sales process. Mrs Humfrey is aware of and operates within her remit as Sales Manager and nothing more.
Any implied or inferred consent you have drawn from a 'casual conversation' with Mrs Humfrey that Humfrey Land Developments has agreed to the construction of your boundary fence is and will be disputed.

The Tribunal concludes that this letter is an emphatic denial that Seacrest Joint Venture, or Humfrey Land Developments as agent for Seacrest Joint Venture, implicitly, inferentially or expressly consented to the construction of a boundary masonry wall by the applicant of the kind actually constructed, or to the position in which the masonry wall has been constructed, or at all. The Tribunal is satisfied that whatever transpired between the representative of the agent of Seacrest Joint Venture and the applicant on site (sometime in 2008) did not amount to an agreement that the applicant was entitled to build the masonry wall that he has constructed; that the masonry wall was to be constructed inside the parcel of 4 Admiral Link; that Seacrest Joint Venture was to contribute to the cost of the masonry wall; or that Seacrest Joint Venture was to authorise any future BAC application by the applicant. The Tribunal finds that the former owner of 4 Admiral Link did not consent to the construction of the masonry wall or to the BAC application.

The current owner of 4 Admiral Link

As stated, the owner of 4 Admiral Link is, and was at all times from at least February 2011, Ms Armstrong. Ms Armstrong did not give evidence at the hearing. On 26 October 2012, the Tribunal issued a summons to witness prepared by the applicant at the applicant's request, addressed to Ms Armstrong. As required by r 24 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), the applicant identified the witness and provided the witness' details including the witness' address. The applicant stated at the final hearing on 14 November 2012 that the address he provided to the Tribunal and to which he posted the witness summons for Ms Armstrong was, to his knowledge, not her address. It was her mother's address a person with whom the applicant does not reside. The applicant conceded that he knew Ms Armstrong lived in the metropolitan area of Perth.
The Tribunal found that the summons had not been served on Ms Armstrong in accordance with r 25(2) and r 31 of the SAT Rules which, in any event, require personal service of the witness summons on the proposed witness. In this proceeding, there was no personal service of the witness summons upon Ms Armstrong and it was not brought to her attention by sending the witness summons by post to an address that the applicant knew was not hers. Although Ms Armstrong's correspondence with the applicant (see below) refers to an address at Sander Street in Geraldton, in her letter to the Magistrates Court in Geraldton, dated 31 July 2012 (see below), she stated that she resides and works in Perth. This is a fact that the applicant confirmed to the Tribunal at the commencement of the hearing on 14 November 2012. As a consequence of this admission, the Tribunal found that the summons to witness directed to Ms Armstrong had not been served and her nonattendance was explained by the applicant's knowing failure to personally serve her with the witness summons or give her notice of the same by posting the summons to her actual address. Accordingly, the summons to witness was discharged.
It was also conceded by the applicant, in the course of that hearing, that the applicant had not provided any conduct money to any witnesses on whom a summons to witness had been served by him. The provision of conduct money to the summonsed witness is required by r 25(4) of the SAT Rules.
At the final hearing, the applicant stated that he had posted the summons to witness to Ms Armstrong at the address in Geraldton, along with a letter indicating that he would provide conduct money should she ask for the same. The applicant did not produce to the Tribunal a copy of that letter. However, even if the applicant had been able to establish that he did, in fact, provide such a letter, that letter is not a substitution for actual payment of conduct money.
This explains why Ms Armstrong did not give evidence at the final hearing.

Did the current owner of 4 Admiral Link consent to the masonry wall or to the BAC application?

The applicant maintained that Ms Armstrong, as the owner of the masonry wall, had consented and agreed to his BAC application. The applicant stated to the Tribunal that he had expected to adduce proof of that assertion through the questioning of Ms Armstrong. However, the applicant also wished to ask Ms Armstrong questions about her relationship with the respondent, why she refused to pay for half the cost of the masonry wall, and matters going to what the applicant referred to as some form of collusion with the respondent against him that was in some way unlawful. None of those topics are relevant to this proceeding. In any event, the applicant failed to validly execute the service of a witness summons for Ms Armstrong and was unable to question her about her alleged consent to his BAC application.
The applicant also sought and was issued with a summons to witness directed to Mrs Barbara Armstrong. That summons to witness was apparently addressed to the correct address for that witness but the summons to witness was not personally served on Mrs Armstrong. Mrs Armstrong was not in attendance at the final hearing. Further, the applicant conceded that he had not provided any conduct money to Mrs Armstrong in accordance with the SAT Rules. Accordingly, the Tribunal discharged the summons to witness directed to Mrs Armstrong. The relevance of the questions the applicant proposed to ask Mrs Armstrong was not at all made clear.
What was left in the way of evidence was the collection of letters written and signed by Ms Armstrong, referred to in Exhibit 1 and referred to below.
In his original application, the applicant stated at point 12 of his grounds:
Council refused to request my neighbour to progress or apply for an application to complete the fence. I was informed by other party that the brick fence is a dispute between the Council and me, as per information received, I informed the Council, due to the procurement of other party that the onus on them to seek to mediate with the other party, as I refused to be subjected to detriments from all concern[ed].
The Tribunal infers that the reference in that statement to 'other party' is a reference to Ms Armstrong. The applicant also states at point 15 of his grounds:
I was instructed to incur cost by the Council so to attempt to satisfy the procedure of the Building Act and to seek consent of other party approval without knowledge of Council involvement to procure other party.
Again, the Tribunal infers that the reference to 'other party' is a reference to Ms Armstrong.
In paragraph 8 of his first statement of issues, facts and contentions, filed on 10 February 2012 in CC 1948 of 2011, the applicant states:
My neighbour's correspondence sought that I complete the Fence to her liking; moreover, it appears due to the City's actions and omissions re involvement refused to forward me consent to progress the Fence.
At the following paragraphs, the applicant made the following further statements:
10.The Respondent invited me to apply for a retrospective application that involved that I pay for the application that included the Fence on 4 Admiral Link Wandina between 2 Admiral Link Wandina to remedy the Building Act and Council's procedures.
…
20.I was informed by a relative of my neighbour at 4 Admiral Link Wandina that the owner did not want to contribute financially towards the brick Fence.
…
22.I called the relative of the owner and was advised that it was fair to pay metal Fence rate that I requested primarily and that was agreed upon.
23.The Fence location on the limestone wall was identified by the new owner as being on her property.
24.I was aware that the new owner and relatives had a meeting with the Respondent and as a result I received notification to satisfy the entire new owner's request or else.
25.I was aware that the new owner sought incorrectly to demonstrate that I built the Fence and refused to give consent to progress the Fence. I sought to progress the Fence and my neighbour checked for work done that I was not legally able to do.
26.I was aware that the new owner wanted me to work on the Fence to satisfy the procedure 'as a builder' for want of prosecution and that is evident upon demands were accepted with payment of the procedure of Fence Act.
27.I was aware the Respondent sought that I attain consent from the neighbour to progress the application.
…
31.I could not legally progress the Fence until I attained consent from my neighbour.
…
35.I am seeking the Tribunal to assist me to alleviate the facts in dispute where the Respondent did not adequately manage conflict of interest issues that lead [sic] to facts in dispute with the public that lead [sic] me to seek an application to the Tribunal to attempt to resolve or seek determination of the issues of matter on hand before the Tribunal that involves financial loss to all parties due [to] Respondent's acts and omissions.
…
37.It is not clear of the intention of the Neighbour from correspondence received, moreover, appears to be influenced by the Respondent, that seems she will suffer financial loss contrary to want of prosecution the Respondent.
The applicant's assertions in support of his application for review of his BAC application are in similar vein. None of those statements tends to suggest that the applicant obtained Ms Armstrong's consent to the BAC application.
The applicant produced to the Tribunal, with the consent of the respondent, a bundle of documents which he stated established that Ms Armstrong had consented to his BAC application (Exhibit 1). The applicant sought to include an additional document that was not signed by any person, addressed 'to whom it may concern' and purported to be from Ms Armstrong. This document was not received as part of Exhibit 1. The respondent objected to the undated letter and the Tribunal accepted the respondent's submissions that there was no proof that the letter was written by Ms Armstrong, which rendered the document weightless.
The first letter in Exhibit 1 in point of time by Ms Armstrong to the applicant is dated 15 February 2011. Relevantly, the letter provides:
…
I would like to advise that I do not have to [con]tribute [to] a fence until my house has been built.
Could you please send a copy of your agreement with the previous owners for the building of the fence[?]
After meeting with the City of GeraldtonGreenough[,] I am of the opinion that you have built your fence on my property. Therefore could you please advise me how we are going to resolve this situation? I am seeking a written response to this letter within 21 days.
The second letter in Exhibit 1 purports to be signed by Ms Armstrong, and is dated and addressed to the applicant. Relevantly, the second letter dated 18 February 2011 provides:
I am fully aware that you have constructed a fence illegally on my block[,] being [L]ot 1092. I am prepared for you to leave the fence on my property once these 3 issues listed below have been resolved.
1/Engineer[']s certification for the design of brick wall on top of the retaining wall.
2/Supply certification that the wall has been constructed in accordance with structural engineer[']s plans.
3/Complete the rendering of the outside of the brick wall with using a tradesperson agreed on by both parties.
The above need to be done to enable me to lodge a Building Licence as the brick wall is on my property.
You have 21 days to comply with the above.
Once my house has been constructed, I will then reimburse you 50% of a substantial fence according to the [Dividing Fences Act 1961 (WA)].
If you fail to agree to this, we will send you a formal notification to remove the brick wall from my property.
The third letter in Exhibit 1, dated 24 February 2011, relevantly provides:
Unfortunately we cannot come to an agreement. I am now giving you formal notice in writing to remove the illegal brick structure off my property[,] being Lot 1092 Admiral Link, Wandina, Geraldton[,] within 21 days of the date of this letter.
As you confirmed in the conversation held with my parents, John [and] Barbara Armstrong on Sunday the 20th February 2011 at 3:00pm, that [sic] the survey peg has been moved whilst you were constructing the brick fence. I may require you to have the block resurveyed.
The fourth letter in Exhibit 1, dated 28 February 2011, relevantly provides:
I am in receipt of your letter that you handed to John Armstrong[,] my husband[,] [at] 5.30pm on the 24th February, 2011. I refer to No 3 of your letter.
I wish to advise that I have no objection to you entering onto my block[,] being Lot 1092[,] to either to put right the brick wall that you erected on my block or to remove it.
The fifth letter in Exhibit 1 is dated 8 March 2011 and provides:
… The resolution and your obligations of the illegal brick wall is between you and the City of GeraldtonGreenough this is not to do with me.
Therefore please direct all your future correspondence to the [a]ttention of Andy White, City of GeraldtonGreenough, Cathedral [Avenue], Geraldton.
The sixth letter in Exhibit 1, dated 21 March 2011, relevantly provides:
…
I am fully aware that you have constructed a fence illegally on my block[,] being Lot 1092. I am prepared for you to leave the fence on my property once these 4 issues listed below have been resolved[.]
1/Engineer[']s certification for design of brick wall on top of the retaining wall.
2/Supply certification that the wall has been constructed in accordance with structural engineer[']s plans.
3/Complete the rendering of the outside of the brick wall with using a tradesperson agreed on by both parties.
4/You must obtain a valid building approval from the City of GeraldtonGreenough for the wall.
I will sign the application for building approval for the wall.
Once my house has been constructed, I will then reimburse you 50% of a substantial fence according to the [Dividing Fences Act 1961 (WA)].
Also you are to accept full responsibility and liability of your side of the fence and in the event you happen to sell your property you must make aware to the purchaser that they take full responsibility and liability of their side of the fence.
None of these conditions has been met. The masonry wall has not been rendered. No tradesperson has been agreed by both parties to complete the masonry wall or to undertake the rendering. There has not been any certification that the masonry wall has been constructed in accordance with a structural engineer's detail. In this letter, Ms Armstrong has changed her position from being prepared to make an application for a 'Building Licence' (which the Tribunal infers is actually a reference to a building approval certificate application) if all the conditions are met by the applicant, to being agreeable to the applicant applying for a building approval certificate in the event that all of the other conditions are met by the applicant. Unless the applicant agreed all of these matters with her, including that she would be liable for only 50% of the cost of a 'sufficient' fence as provided for by the DF Act, she did not consent to the masonry wall being positioned on her property and would not consent to any building approval certificate application by the applicant.
Throughout the proceedings, the applicant appeared unable to focus on any aspect other than the fact that Ms Armstrong refused to pay 50% of the cost of the masonry wall (asserted by the applicant to be $4,000 and higher than the cost of a 'sufficient' Colorbond fence). The Tribunal finds that the applicant did not agree to that condition and the Tribunal further finds that he did not actually agree to any of the other conditions specified by Ms Armstrong.
The seventh letter in Exhibit 1, dated 9 August 2011, does not indicate any agreement by Ms Armstrong as asserted by the applicant.
The eighth letter in Exhibit 1 is dated '6 January 2011' but it was agreed by the parties that it was intended to be dated '6 January 2012. In this letter to the applicant, Ms Armstrong refers to her earlier correspondence and states:
I am now formally advising you to remove the brick wall from my property as soon as possible and I will organise a [Colorbond] fence to be erected within 21 days. Your obligation is to reimburse half of the [Colorbond] fence, the same as I would have to reimburse you for half of a [Colorbond] fence, if you filled your obligations associated with the brick wall.
Please advise the date of the removal of the brick wall no later than the 30th January 2012 [a]s the fencing contractor is waiting to be informed.
It should also be borne in mind that from Ms Armstrong's block, the fence is not 1.8 metres high, but is only 1.5 metres high. From the applicant's side of the fence, the wall is on top of Ms Armstrong's 0.5 metre retaining wall, and so measures approximately 2 metres. The failure of the masonry wall to give Ms Armstrong the privacy that a boundary wall is intended to provide, and usually provides, is another factor the applicant has failed to focus on. The masonry wall's encroachment onto Ms Armstrong's land, the failure to construct the masonry wall to the respondent's structural requirements, and to finish the masonry wall as required by the respondent were not dealt with by the applicant. Further, the engineering details and impact of increasing the height of the masonry wall so that Ms Armstrong could use the same as a privacy screen (as required by the respondent) was not the subject of any oral evidence by the applicant, and no engineering details about how that could be achieved were ever canvassed by the applicant in his case, save that he relied on plans and details prepared by Structerre (Exhibit 3) to establish what work was required to raise the height of the masonry wall and provide for the structural stability of the masonry wall. The applicant gave no evidence of when, how or who would remediate the structural and height deficiencies of the masonry wall. He repeatedly informed the Tribunal that he had no funds, and the Tribunal infers there that he was unable to execute that structural remediation. The applicant remained focussed at all times on the benefits to him of the masonry wall, and not the dangers presented by the same, the wrongdoing by him of constructing the same on 2 Admiral Link, and the failure to finish the wall as required by the respondent.
In the ninth letter in Exhibit 1, dated 22 March 2012, Ms Armstrong again wrote to the applicant. The contents of this letter refer to a mediation that was conducted by a member of the Tribunal in this proceeding. The letter concerns issues to be considered such as the cost of the construction of a Colorbond fence on top of Ms Armstrong's limestone wall, so that the parties could obtain several quotations with a view to agreeing a sum. It refers to the question of whether the applicant intends to structurally improve the masonry wall in accordance with the respondent's requirements, or, alternatively, whether the applicant will remove the masonry wall from Ms Armstrong's property and 'relocate', or rebuild, a new wall on the applicant's property. It also refers to whether the wall is to remain (presumably on the basis that the applicant will undertake the structural improvements required by the respondent, and had agreed to Ms Armstrong's other requirements as to rendering and finishing the masonry wall). Ms Armstrong sought details of the applicant's tradesman, Mr Bruiz, and his Australian Business Number (ABN), with a view to assessing him herself. There is no evidence that these details were provided to Ms Armstrong or that the applicant answered any of these questions. Whilst there might have been a possibility of compromise around this time, nothing came of it, and the letter clearly anticipates the demolition of the masonry wall in the event that all of Ms Armstrong's requirements were not met.

For these reasons, the Tribunal is of the view that the decision to issue the s 401 Notice is the correct and preferred decision.

Conclusion

For the reasons referred to above, the Tribunal concludes that the applicant's BAC application was not a valid application pursuant to s 374AA of the LGMP Act and was properly refused by the respondent upon that basis. Further, even if the BAC application was made by or on behalf of the owner of the retaining wall and was a valid application pursuant to s 374AA of the LGMP Act, the same was properly refused on account of the defects in the construction of the masonry wall detailed in the review of the issue of the s 401 Notice. Accordingly, the Tribunal dismissed the applicant's application for review of the respondent's refusal of its BAC application.
For the reasons referred to above, the Tribunal concludes that the s 401 Notice was validly issued to the applicant as the 'builder' of the masonry wall. Accordingly, the applicant's application for review of the respondent's decision to issue the s 401 Notice to him as the 'builder' is dismissed. Further, the Tribunal is satisfied that the respondent did correctly issue the s 401 Notice and that the masonry wall should be 'pulled down'.

Other matters

The final hearing concluded on 14 November 2012. The Tribunal adjourned the proceeding to provide its decision and oral reasons the next morning on 15 November 2012. The respondent's counsel indicated he was not available but would instruct another practitioner to attend. The applicant indicated he would attend. The following morning, the applicant informed the Tribunal that he would not attend and the Tribunal reserved its decision. The Tribunal dismissed the applicant's applications on 10 December 2012 and provided that the reasons for the decision would later be published. The applicant summonsed one further witness Mr Shields, an employee of the respondent. Mr Shields explained to the applicant that the reason the respondent had invited him to make an application for a building approval certificate was because that was the only practical way that the respondent could investigate the structural integrity of the wall and, if satisfied, to avoid the issue of a notice to demolish the same pursuant to s 401 of the LGMP Act. Mr Shields explained that the invitation did not mean that the respondent would inevitably grant the building approval certificate in respect of the masonry wall. The Tribunal accepted that evidence. However, it was not determinative of the issues before the Tribunal. The balance of questions put to Mr Shields were not relevant to the issues before the Tribunal.

Order

It is for these reasons that the Tribunal made the following order on 10 December 2012 in this consolidated proceeding:
1.The applicant's applications are dismissed.

I certify that this and the preceding [103] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS NATASHA OWEN-CONWAY, MEMBER