MAXWELL and CITY OF WANNEROO
[2022] WASAT 93
•17 OCTOBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION: MAXWELL and CITY OF WANNEROO [2022] WASAT 93
MEMBER: MS KY LOH, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER
HEARD: 4 AUGUST 2022
DELIVERED : 17 OCTOBER 2022
FILE NO/S: DR 256 of 2021
BETWEEN: MATHEW and KIRSTEN MAXWELL
Applicants
AND
CITY OF WANNEROO
Respondent
Catchwords:
Local government - Building order - Where deck constructed without building permit - Whether deck has reduced internal height of boundary fence used as pool barrier - Where alternate position of deck reduces developable area
Legislation:
Building Act 2011 (WA), s 3, s 6(3), s 9, s 9(a), s 9(b), s 110, s 110(1)(c), s 112, s 112(2), s 112(2)(b), s 112(2)(c), s 112(2)(e), s 122(1), s 122(1)(a), s 122(1)(b), Pt 5
Building Regulations 2012 (WA), reg 3, reg 6, reg 49, reg 50, reg 50(1), reg 50(1A), reg 50(1A)(a), reg 50(1B), reg 51(5), Sch 4, cl 2, Sch 5
Interpretation Act 1984 (WA), s 46
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicants | : | In Person |
| Respondent | : | Mr TL Beckett |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The owners of a property in Butler, Mr Mathew Maxwell and Mrs Kristen Maxwell, built a deck against the side of their overground swimming pool and spa (pool) closest to their boundary fence.
They constructed the deck without seeking planning approval or a building permit from the City of Wanneroo (City).
The City considers that the presence of the deck is close enough to the boundary fence such as to reduce the fence's internal height, and prevent it from acting as an effective barrier under the relevant standard.
The owners say that the internal height should be measured from the actual ground.
Further, they do not think any child would actually climb the fence from the outside or such as to use the deck as a landing pad.
Finally, they say that the deck is safer for their younger children than the previous steps used to access the pool, and is optimally positioned to avoid encroaching into land for which they have development plans.
For reasons set out below, we agree with the City that the deck has compromised the integrity of the fence as a barrier, and will affirm the City's decision to issue the building order for the removal of the deck.
Issues for determination
The primary issue for determination is whether a building order should be made for the removal of the deck under ss 110 and 112(2) of the Building Act 2011 (WA) (the Act).
In considering the primary issue, the following secondary issues arise:
1)Was the deck an incidental structure built in contravention of a provision of the Act - that is, was it built without a building permit required under s 9 of the Act?
2)Alternatively, has the presence of the deck reduced the effective internal height of the boundary fence, in contravention of the Building Code pool barrier requirement under reg 50(1A) of the Building Regulations 2012 (WA) (the Regulations)?
3)Are there any other relevant considerations in assessing the application, such as the owners' personal circumstances affecting the location of the deck?
There is a suggestion raised by the City that the owners had also failed to seek planning approval for constructing the deck (presumably under the Planning and Development Act 2005 (WA) and deemed provisions under the City's local planning scheme), although it was not seriously pursued by the City in its case.
Given that the subject of this review application is the building order, which can only be issued where there is a suspected contravention of a provision of the Act, rather than any other planning law, the issue of whether the deck required planning approval is not relevant to this application.
Background
The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.
The property is located on the corner of Benenden Avenue and Randstone Parade in Butler, which is in the district of Wanneroo.
The property has a single detached dwelling located on it.
The owners installed the pool, which is about 1.5 metres in height, on the property sometime in October 2017.
The pool was originally accessible using 0.9 metre tall stairs, but sometime just before 7 July 2021, the owners installed a new deck against the pool measuring about 0.8 metres in height.
Based on photographs tendered by the parties, the pool is positioned, long-side, against the boundary fence bordering Glin Lane, and, shortside, against the carport fence.
Based on plans submitted by the owners, there is about a 50 millimetre gap between the carport fence and the short-side of the pool.
There is a gap between the new deck and the boundary fence, of a distance less than the size of a child's foot.
The owners did not apply for a building permit prior to constructing the deck.
On 7 July 2021, contracted inspectors for the City inspected the pool, and referred the matter back to the City.
On 16 September 2021, an authorised officer of the City conducted an inspection of the barrier.
The City issued a building order on 2 December 2021 in respect of 'UNAUTHORISED WORK (RAISED DECKING)', relying on the prohibition under s 9(a) of the Act from doing any building work unless a building permit was in effect for the building work.
The building order required the owners to remove the deck within 30 days of the date of service of the order.
On the same day, the owners applied for a review under s 122(1)(a) of the Act of the City's decision to issue a building order.
City's case
The City submits that the decision to issue the building order for removal of the deck is the correct and preferable one as its installation was building work for which a building permit was required, but for which the permit was not issued at the time of construction.
The City says that an alternative basis for issuing a building order of a similar type is to prevent a suspected contravention of the Act, that being a pool barrier which no longer complies with AS 1926.1 as the presence of the deck has now reduced the effective height of the inside of the boundary fence to less than 1.8 metres.
Whilst the City accepts that AS 1926.1 does not require the deck to be 500 millimetres away from the boundary fence, it says that the deck is close enough to the boundary fence so as to be considered, as a matter of common sense, to be the 'finished ground level' from which the internal height of the boundary fence should be calculated.
In meeting the definition of 'finished ground level', the City submits that the deck can be considered to be a permanent structure (as it has been on the property for a long time) as well as a stable one (as Mrs Maxwell agrees with that characterisation in her oral evidence).
When taking into account the intent of the legislation, which is to prevent access by young children including through the use of landing pads inside properties, the City says that the correct and preferable decision is to confirm the decision to issue the building order (or a similar order issued for non-compliance with reg 50 of the Regulations).
Owners' case
The owners say that the inside of the boundary fence should be measured from the actual ground, not from the deck, as the actual ground can still be accessible through the gap between the deck and the boundary fence.
They accept that the 54 millimetre gap is so narrow as to preclude a foot from falling through that gap, but rely upon a precise interpretation of the requirement of AS 1926.1.
The owners also deny that the presence of the deck increases the risk of access by young children to the pool, as they do not consider that young children will be able to climb the 1.8 metre boundary fence from outside of the fence, nor that the deck would be used as a landing pad even if such children managed to climb the fence, or even be aware that there was a pool in the property.
The owners submit that any other configuration of the deck would result in a loss of developable land within the property, which would negatively impact on their house extension plans to accommodate their growing family.
Whilst they accept that they did not apply for a building permit before they installed their deck, it was always their intention to apply for retrospective approval just as they had done in respect of their pool.
Evidence
The City called one witness, Ms Melissa Dray, a senior compliance officer within the City's Health and Compliance Service Unit (HCS Unit), whilst the owners each gave oral testimony at the hearing.
The parties consented to the tender of the witness statement of another senior compliance officer in the City's HSC Unit, Ms Gemma Robinson, into evidence.
Ms Dray
Ms Dray has been working in local government for 18 years, and was a planning and building compliance officer for three of those years.
Her witness statement was tendered into evidence, which concerned the interactions between the City's officers and the owners (or their building certifier) following an inspection on 8 July 2021 by a swimming pool safety barrier inspections contractor, the Royal Life Saving Society of Western Australia (RLSSWA).
Ms Dray conducted a follow-up inspection on 16 September 2021 following issues raised by RLSSWA and formed the view that the installation of the deck had effectively reduced the boundary barrier height to approximately 1 metre, in contravention of the required 1.8 metre.
She advised the owners that they could move the deck from its current position and then apply for retrospective building approval for the deck, but the deck could not be retrospectively approved in its current position as it was affecting the compliance of the pool barrier.
She also conveyed her views to the owners' building certifier.
Following the issue of a warning letter to the owners, and a notice of intention to issue a building order to the owners, the City issued a building order on 2 December 2021.
Ms Robinson's witness statement
Ms Robinson's witness statement deals with the early interactions between the City and the owners when the matter was initially allocated to her before she was seconded to another department within the City.
Mrs Maxwell
Mrs Maxwell says that they have recently had their 6th child, and are keen to extend their dwelling.
Mrs Maxwell and her husband built the deck due to the breakdown of the original stairs, and they wanted to ensure safe access to the pool.
They had intended to apply for retrospective approval of the deck through a building surveyor, having previously applied retrospectively for the installation of the pool in October 2017.
However, the surveyor did not go ahead with the paperwork after he spoke to the City about the application.
When asked whether the deck could have been constructed on another side of the pool, Mrs Maxwell says that it would not be possible as they intended to extend their dwelling in the future.
They have had plans over multiple years, but have not put in their development application for the extension yet.
They have had plans for a cubby house approved, but have not constructed it.
The boundary fence comprises brushwood fence over limestone retaining wall, and she has not seen anyone climb that fence.
She says that if they put the deck on the short-side of the pool, they will need to pass through the spa; if they put the deck on the other long-side of the pool, it will encroach into the backyard where the kids play as they will need to ensure the provision of an offset (and the deck being 0.9 metres in width).
In her view, the deck is stable but not permanent because it is not drilled into the ground.
The deck is sitting on the ground in such a way that it can be moved without breaking it apart.
Mr Maxwell
Mr Maxwell is qualified as a marine engineer.
In his view, he does not think a young child would climb the boundary fence as his oldest child, a 10-year-old, would not climb that fence, and he himself would struggle to climb that fence.
Even if a child were to climb up the boundary fence, the 1.5 metre spa would seem closer than the deck.
He says they own about 30 centimetres of the land outside the limestone wall.
He concedes that the road outside the boundary fence is used for rear access by residents.
He states that the gap between the deck and the boundary fence is 54 millimetres, and it was their intention not to put a big gap to avoid a child's foot being caught in the gap.
While Mr Maxwell accepts that the top part of his body is visible above the boundary fence in a photograph taken of him standing on the deck, he disputes that a child will look up at him from the other side of the fence.
Legal and regulatory framework
Tribunal jurisdiction
Under s 122(1) of the Act, the owners can apply to the Tribunal for a review of the City's decision to make the building order (s 122(1)(a)) or in relation to a requirement of the order (s 122(1)(b)).
The institution of the review proceedings under s 122(1) relevantly stays the operation of the building order pending the determination of the proceedings.
This application falls within the Tribunal's review jurisdiction as a matter that expressly involves a review of a decision: s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.
The review is not confined to matters that were before the City but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act.
Nor is the review limited to the reasons for decision or grounds for review set out in the application: s 27(3) of the SAT Act.
Building order
Under s 110(1)(c) of the Act, a permit authority has the power to make a building order in respect of a particular building or incidental structure.
The building order may, relevantly, require a person, pursuant to s 112 of the Act, to do any of following things within a specified time:
a)to demolish, dismantle or remove a incidental structure that has been, or is being, built or occupied in suspected contravention of a provision of 'this Act' (s 112(2)(b));
b)to alter a incidental structure in a specified way, so as to prevent or stop a suspected contravention of 'this Act' (s 112(2)(c)); and
c)to take or not take a specified action so as to prevent or stop a suspected contravention of 'this Act' (s 112(2)(e)).
Under s 46 of the Interpretation Act 1984 (WA), a reference in an Act to 'this Act' includes a reference to 'any subsidiary legislation made under the Act'.
As the Regulations are made under the Act, the building orders may be made under s 110(1)(c) of the Act to address the suspected contravention of the Regulations.
Under s 6(3) of the Act, the relevant permit authority in this case is the City, as the local government in whose district the incidental structure is located.
Requirement - building permit for building work
A person is relevantly prohibited from doing 'building work' unless a building permit is in effect for the building work, or the building work is exempt from the requirement for a building permit under Pt 5 of the Act or the Regulations: s 9(a) and (b) of the Act respectively.
'Building work' is relevantly defined under s 3 of the Act as 'the construction, erection, assembly or placement of … an incidental structure'.
An 'incidental structure' is defined in turn under s 3 of the Act to mean a structure attached to or incidental to a building and includes -
(a)a chimney, mast, swimming pool, fence, free-standing wall, retaining wall or permanent protection structure; and
(b)a part of a structure.
The ordinary meaning of 'structure' can be taken from its definition in the Macquarie Dictionary Online (as at 17 October 2022), which relevantly means '2. something built or constructed; a building, bridge, dam, framework, etc'.
The phrase 'incidental to' is defined in the Macquarie Dictionary Online (as at 17 October 2022) as 'liable to happen in connection with; naturally appertaining to'.
Exemptions from the requirement for a building permit are contained in cl 2 of Sch 4 to the Regulations.
Such exemptions include the construction, erection, assembly or placement of a fence, screen or similar structure under specified conditions, but not if the fence forms part of a barrier to a private swimming pool: cl 2 item 4 of Sch 4 to the Regulations.
Requirement - barriers to swimming pool
Building Act and Building Regulations
Regulation 50(1) of the Regulations provides that it is an offence for an owner or occupier of premises on which there is a private swimming pool containing water that is more than 300 millimetres deep not to install or provide around the pool a barrier that restricts access by young children (that is, under 5 years of age) to the pool and its immediate surrounds.
Under reg 49 of the Regulations, reg 50 applies in relation to private swimming pools located in districts specified in Sch 5 to the Regulations, which includes the district of Wanneroo.
A barrier is relevantly to be taken to be suitable for the purposes of reg 50(1) of the Regulations if it complies with a 'Building Code pool barrier requirement' that was in effect at the time of construction of the pool (or at the time the application for a building permit to construct the pool was made): reg 50(1A)(a) of the Regulations.
'Building Code pool barrier requirements' are defined in reg 3 of the Regulations as, relevantly, in relation to a swimming pool associated with a Class 1 building, performance requirement P2.7.1 in the Building Code Volume Two Part 2.7.
In turn, classification of buildings or incidental structures are prescribed under reg 6 of the Regulations as holding the classification that it has under the Building Code of Australia Volumes 1 and 2 of the National Construction Code (NCC) series.
Building Code
Class 1 buildings include one or more buildings, which together form a single dwelling, including a detached house: A6.1 of Vol 1 of the Building Code of Australia (Building Code).
Performance requirement P2.7.1 of Vol 2 of the Building Code provides as follows:
P 2.7.1Swimming pool access
A barrier must be provided to a swimming pool and must -
(a)be continuous for the full extent of the hazard; and
(b)be of a strength and rigidity to withstand the foreseeable impact of people; and
(c)restrict the access of young children to the pool and the immediate pool surrounds; and
(d)have any gates and doors fitted with latching devices not readily operated by young children, and constructed to automatically close and latch.
The 'Objective' of Part 2.7 of Vol 2 of the Building Code relevantly includes to 'safeguard young children from drowning or injury in a swimming pool'.
Under cl 3.10.1.0 of Pt 3.10.1 of the Building Code, performance requirement P2.7.1 is satisfied for a swimming pool with a depth of water more than 300 millimetre and which is associated with a Class 1 building, if it has safety barriers installed in accordance with AS 1926.1 and AS 1926.2.
Under Vol 2, Pt A2 of the Building Code, possible methods of demonstrating compliance includes complying with the 'Performance Requirements', which themselves may be satisfied by complying with a Performance Solution or a Deemed-to-Satisfy Solution (or a combination of both).
However, under reg 50(1B) of the Regulations, a performance solution cannot be used to comply with a 'Building Code pool barrier requirement' for the purposes of reg 50(1A)(a) unless the performance solution is an 'approved barrier solution' under reg 51(5).
Regulation 51(5) of the Regulations empowers a permit authority to approve the performance solution if satisfied that it complies with the relevant performance requirement.
Australian Standard
AS 1926.1 is prepared by the Standards Australia Committee CS034, and its preface provides that:
… the objective of this Standard is to assist pool owners/users in avoiding pool-related drowning by providing design, construction and performance [requirements] of various barrier options, which are designed to restrict entry to the swimming pool area by young children.
AS 1926.1 also refers to statistical evidence which 'shows that the majority of drowning deaths in private swimming pools involve children under five years of age', and '[f]or this reason, the requirements established by this Standard are directed at achieving a barrier that will make it difficult for a young child to gain access to a pool area, whether under, over or through the barrier'.
Clause 1.1 of AS 1926.1 provides for the scope of the Standard, which is to 'specif[y] requirements for the design, construction and performance of barriers that will restrict access of young children to swimming pools'.
The general requirement for barriers are set out in cl 2.1 of AS 1926.1, which provides that a barrier shall be designed and constructed so that it will restrict access by young children (that is, under the age of 5 years old), shall be a permanent structure, and where it is within a property it shall have a height of not less than 1200 millimetres on the 'outside of the barrier'.
The phrase 'outside of the barrier' is defined in AS 1926.1 as meaning '[t]hat side of a barrier facing away from the pool area'.
Further, the term 'barrier height' is defined in AS 1926.1 as '[t]he height of the barrier perpendicular to the finished ground level'.
'Finished ground level' is in turn defined in AS 1926.1 as 'ground level or other permanent stable surface'.
The terms 'permanent' and 'stable' are relevantly and respectively defined in the Macquarie Dictionary Online (as at 17 October 2022) as:
•'lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding'; and
•'not likely to fall or give way, as a structure, support, foundation, etc; firm; steady'.
Clause 2.2.4 of AS 1926.1 addresses boundary barriers, and relevantly provides that where a boundary fence acts as a barrier to a pool, 'it shall have a height not less than 1800 mm on the inside'.
Figure 2.2(a) illustrates the required barrier height for boundary barriers, and is reproduced below:
Figure 2.2(a) relates to boundary barriers (with the required height indicated at 1800 millimetres), and illustrates that the barrier height is to be calculated on the side of the barrier inside the property, not outside the property.
Clause 2.3.1 of AS1926.1 deals with features and objects near a barrier, and provides as follows:
In addition to the provisions of cl 2.2, steps, retaining walls, objects or level changes that would otherwise reduce the height of a barrier within a property shall not be located within 500 mm of the barrier (see Figure 2.1(a)).
Figure 2.1(a) is reproduced below:
Figure 2.1(a) relates to barriers other than boundary barriers (with the required height indicated at 1200 millimetres), and illustrates that the 500 millimetre 'clearance' buffer for any feature or object near a barrier is to be calculated from the outside (that is, the side of the barrier facing away from the pool).
That cl 2.3.1 is not intended to apply to boundary barriers is further clarified in the definition of 'within a property', that being '[o]n a property other than on a property boundary'.
Publications
Two publications, 'Swimming Pool and Safety Barrier Control Decision Paper' (April 2021) (Decision Paper) and 'Rules for Pools and Spas' (May 2016) were issued by the Building and Energy directorate of the Department of Mines, Industry, Regulation and Safety, which comment on the regulatory framework for swimming pools and safety barriers.
Both documents recognise that where a boundary barrier is relied upon by a pool owner, the owner has little or no control over what happens on the side of the barrier facing away from pool (page 88 of the Decision Paper, and page 12 of 'Rules for Pools and Spas' in the discussion about pre-May 2016 pools).
The Decision Paper also addresses the ambiguity in whether cl 2.3.1 applies to boundary barriers, and if not, how the purpose of the height requirement for boundary fences can be undermined by objects placed close to but not abutting the boundary fence that might provide a landing pad for a child trying to access the pool area (page 88).
Consideration
Secondary Issue 1 - was the deck built in contravention of s 9 of the Act requiring a building permit?
Whilst not specifically identified as an 'incidental structure' under s 3 of the Act, we are satisfied that a deck comes within the ordinary meaning of the term 'structure', and that it is 'incidental to' a building.
Firstly, a deck satisfies the meaning of 'structure' as it is an object built or constructed.
Secondly, the meaning and context of the phrase 'incidental to' connotes a connection that a structure naturally has to a particular building and its purpose (in this case, a residential dwelling), but is expressly not required to be attached to that building.
Express examples of such incidental structures (and which are not physically attached to residential dwellings) are swimming pools and retaining walls, which is consistent with a finding that a deck is an incidental structure connected to a dwelling.
As such, the construction of the deck was 'building work' under s 3 of the Act.
As none of the exemptions apply to the requirement for a building permit, the owners were required to obtain a building permit under s 9(a) and (b) of the Act, the contravention of which formed a basis to issue a building order for the removal of the deck under ss 110 and 112 of the Act.
Secondary Issue 2 - does the current configuration of the deck with the boundary fence and pool contravene reg 50(1A) of the Regulations?
Whilst the determination of Secondary Issue 1 is sufficient basis for the issue of the building order, given that the City has the power to retrospectively grant a building permit for the construction of the deck, the correct and preferable decision must take into account the City's substantive objection to the construction of the deck - which is, that its presence has reduced the effective internal height of the boundary fence, such that there is a failure to comply with the pool barrier requirement under reg 50(1A) of the Regulations.
In this case, the 'finished ground level' must be calculated from a point that could be considered a landing pad for young children, which is, logically, the prime consideration for the safety requirement of a 1.8 metre boundary height from inside the property.
The fact that the actual ground of the property between the pool and the boundary fence cannot practically be accessed by any person, given how narrow the gap is between the deck and the boundary fence, indicates that the alternate definition of 'finished ground level' applies that is, a permanent stable surface.
We are satisfied that the surface of the deck satisfies the definition of a permanent stable surface.
Mrs Maxwell concedes that the deck is stable, which is consistent with her testimony that the purpose of the deck is to ensure safe access to the pool for their children.
Whilst we accept her evidence that the deck is not drilled to the ground, and can be moved without taking it apart, the meaning of 'permanent' is not confined to the enduring nature of a structure in a physical manner, but extends to that which endures over time.
Given Mrs Maxwell's testimony that the purpose of the deck is to provide safe access to the pool, we infer that the owners have no plans to move the deck (unless required to by law), which connotes a permanency to its placement on the land.
Being satisfied that the 'finished ground level' is the surface of the deck, this has reduced the boundary barrier height, as measured from inside the property, from 1.8 metres to around 1 metre, which contravenes cl 2.2.4 of AS 1926.1.
As the owners' pool is associated with a Class 1 building (that is, a dwelling), the relevant Building Code pool barrier requirement is performance requirement P2.7.1, which requires barriers to be installed in accordance with AS 1926.1.
Having failed to comply with AS 1926.1, and thus performance requirement P2.7.1, the owners' pool barrier (the boundary fence) cannot be taken to be suitable for the purpose of reg 50(1) of the Regulations.
As there is otherwise no performance solution that has been approved by the City as an 'approved barrier solution', there are grounds for the issue of a building order to alter an incidental structure in a specified way, or take specified action, so as to prevent or stop a contravention of the Regulations.
Neither party submits that the pool or the boundary fence is capable of being moved so as to ensure compliance with cl 2.2.4 of AS 1926.1 as such, the only action that can be taken to prevent or stop a contravention of reg 50(1) of the Regulations is to move the deck, which is consistent with the action required under the building order issued by the City.
Secondary Issue 3 - are there any other relevant considerations?
We appreciate that moving the deck to another side of the pool may very well reduce developable area which the owners would like to use to extend their dwelling, or cause some inconvenience by having to go through the spa area.
However, given the very clear objectives of the barrier requirements under the Building Code and AS 1926.1 - that is, to safeguard young children from drowning or injury in a swimming pool, including by achieving a barrier that will make it difficult for a young child to gain access to a pool area, whether under, over or through the barrier - we must give primacy to such safety considerations in determining whether a building order should issue in the circumstances.
Whilst the owners challenge the presumption that young children would climb the 1.8 metre boundary fence, or use the deck as a landing pad, or even be aware a pool was in the property, these may have been part of a matrix of variables which were considered in the formulation of the requirements for the design, construction and performance of barriers in AS 1926.1; however, without receiving any evidence from witnesses qualified to comment on such variables, we are not prepared to accept the anecdotal challenges by the owners.
Finally, while we accept the owners' evidence that the deck is an improvement from the failing stairs previously providing access to the pool, any replacement still needs to comply with the barrier requirements under AS 1926.1.
We are therefore not satisfied that any personal circumstances of the owners justify a departure from the barrier requirements under AS 1926.1.
Conclusion
Primary Issue - should a building order for the removal of the deck be made?
For reasons set out above, we are satisfied that a building order should be issued for the removal of the deck and affirm the City's decision to issue the building order.
Orders
The Tribunal makes the following order:
1.The applicants' application is dismissed.
2.The respondent's decision of 2 December 2021 to issue a building order for the removal of the raised decking is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
17 OCTOBER 2022
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