MIDDLETON and SHIRE OF CHITTERING
[2007] WASAT 227
•4 SEPTEMBER 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
CITATION: MIDDLETON and SHIRE OF CHITTERING [2007] WASAT 227
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 4 SEPTEMBER 2007
FILE NO/S: CC 1873 of 2006
BETWEEN: MURRAY MIDDLETON
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Local government – Building regulation – Review of notice requiring demolition of "entry statement" – Whether town planning considerations are relevant in exercise of discretion to give notice
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374(1), s 401(1), s 401A, s 401(3)
Shire of Chittering Town Planning Scheme No 6
State Administrative Tribunal Act 2004 (WA), s 27(3)
Town Planning and Development Act 1928 (WA), s 10(2)
Result:
Notice varied to require removal only of the part of the structure not on Lot 77 Maddern South Road, Chittering
Category: A
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr MJ Hardy
Solicitors:
Applicant: Self-represented
Respondent: Hardy Bowen
Case(s) referred to in decision(s):
Maraldi and City of Rockingham [2007] WASAT 225
Re Griffiths; Ex parte Homestyle Pty Ltd (2005) 139 LGERA 178
Stock v Anning [2006] WASC 275
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Middleton sought review of a notice under s 401(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) which required him to pull down an entry statement consisting of two 8.0 metre long walls adjoining his driveway which he had constructed without obtaining a development approval or a building licence.
The Tribunal determined that the failure to obtain a development approval, where required under planning law, and planning considerations generally, are not relevant in the exercise of discretion to give a s 401(1) notice. This section deals with building regulation, not planning regulation.
The Tribunal determined that, although Mr Middleton had not obtained a building licence, he should not be required to pull down the whole of the entry statement, because it is structurally sound and safe and of a limited size. However, Mr Middleton was required to pull down a small section of the entry statement which encroaches onto the road reserve, because it is contrary to the public interest in terms of building regulation for a building to be constructed without a building licence on the public domain.
Introduction
Mr Murray Middleton has applied for review, in accordance with s 401(3) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (MP Act), of the decision of the Shire of Chittering (Shire or Council) to give Mr Middleton a notice under s 401(1) of the MP Act requiring him to "pull down" a "building" which he has constructed on his property at Lot 77 Maddern South Road, Chittering (Lot 77) and which protrudes onto the adjoining road reserve. The s 401(1) notice describes the "building" as "a solid reconstituted lime stone side entry statement access to the property" (entry statement). The s 401(1) notice describes the cause of the objection as a contravention of s 374(1) of the MP Act by having failed to obtain a building licence for the entry statement.
Background
On 27 February 2006 Mr Middleton made telephone enquiries with the Shire's consultant town planner about construction of the entry statement on Lot 77. By letter dated 28 February 2006 Mr Middleton was advised that the construction of the entry statement would require planning and building approval from the Shire.
In March 2006 Mr Middleton commenced construction of the entry statement without having obtained development approval under the Shire of Chittering Town Planning Scheme No 6 (TPS 6), which regulates development in the locality, or a building licence under s 374(1) of the MP Act. Following a site inspection, the Shire gave Mr Middleton a direction under s 10(2) of the Town Planning and Development Act 1928 (WA) and a notice under s 401A of the MP Act requiring him to stop work.
On 11 April 2006 Mr Middleton lodged an application for a building licence for the entry statement with the Shire. However, the Shire did not proceed to consider the building licence application on the basis that Mr Middleton had not lodged a development application under TPS 6.
A further site inspection on 25 July 2006 revealed that Mr Middleton had resumed construction of the entry statement. On 27 July 2006 the Shire gave Mr Middleton a notice under the MP Act directing him to remove the entry statement. However, because the notice was considered to be defective, it appears that it was, in effect, withdrawn.
Mr Middleton completed the entry statement at some point during the period July to October 2006 without having obtained either development approval or a building licence for it.
The entry statement consists of an 8.0 metre long by 1.8 metre high limestone block wall with 2.4 metre high pillars at the ends located on each side of the driveway of Lot 77 from Maddern South Road, a short distance to the east of the intersection of Maddern South Road with Great Northern Highway. There is a metal vehicular gate with an open appearance between the two sections of wall. A portion of the entry statement extends onto the Madden South Road road reserve. The Shire estimates that this portion is 2.71 metres long, whereas Mr Middleton estimates that it is approximately 2.2 metres long.
On 31 October 2006 the Shire gave Mr Middleton the notice under s 401(1) of the MP Act which is now the subject of these proceedings. On 21 November 2006 Mr Middleton commenced the proceedings for review of the decision to give him the notice.
The proceedings were adjourned to enable Mr Middleton to lodge a development application for retrospective development approval of the entry statement. On 6 March 2007 Mr Middleton lodged a development application for retrospective development approval. On 21 March 2007 the Shire refused to grant development approval for the following six reasons:
"(a)the gateway has been constructed outside the defined building envelope specified on the title for the land;
(b)the gateway has been constructed within the setback distances specified in clause 5.15 of Town Planning [Scheme] No 6;
(c)the gateway presents a safety hazard, being too close to the junction of Great Northern Highway and Maddern Road, and located on the inside of a curve on Maddern Road;
(d)the gateway is out of character with the rural locality, in conflict with the conservation values expressed in the Shire's Local Planning Strategy and contrary to the amenities of the area;
(e)the gateway will restrict the servicing of public utility lines;
(f)portion of the gateway has been constructed within the Maddern Road reserve."
The parties' arguments
The Shire contends that its decision to give the notice to Mr Middleton should be affirmed for the following reasons:
"(a)[Mr Middleton] was advised in writing of the requirement to obtain prior planning approval from the respondent for the construction of the Entry Statement.
(b)[Mr Middleton] failed to procure this approval and proceeded to construct and complete the Entry Statement despite being issued with two prior stop work directions.
(c)It is in the public interest of the proper and orderly development and use of land within the Scheme area that the Scheme and [Shire of Chittering Local Planning Policy No 22 (LPP 22)] should be generally complied with.
(d)The respondent has a reasonable expectation that those persons, including [Mr Middleton], who carry out development or subdivision activities or use land within the Scheme area, should comply with relevant planning legislation, including the Scheme and Local Planning Policies.
(e)[Mr Middleton's] disregard for the Scheme and LPP 22 is a flagrant breach of its requirements.
(f)The Respondent's grounds of refusal [in relation to the development application set out at [12] above]."
Mr Middleton contends that he should not have to pull down the entry statement for the following reasons:
"(a)The Entrance Statement has been certified by Reed Engineering Pty Ltd as being '… structurally sound and capable of sustaining the necessary applied loads as specified in the relevant Australian Standards' …
(b)Main Roads WA, Telstra and Western Power have no objection to the location of the Entrance Statement …"
However, Mr Middleton is prepared to remove the part of the entry statement which extends onto the Maddern South Road road reserve, if the Tribunal considers this to be necessary.
Are planning considerations relevant?
A preliminary issue that arises in this review is whether the failure to obtain development approval for the construction of a building and town planning considerations generally in relation to a building are relevant matters for consideration in the exercise of the discretion to give a notice under s 401(1) of the MP Act requiring the builder or owner to pull down or alter the building. For reasons which follow, in my opinion, the failure to obtain development approval, where required under planning legislation, and planning considerations generally, are not relevant in the exercise of discretion as to whether to give a notice under s 401(1) of the MP Act.
Section 401(1) of the MP Act is in the following terms:
"(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, a written notice of anything, in the construction of the building -
(a)which tends to render the building unsafe or prejudicial for 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, or 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 s 401(1) notice that is the subject of these proceedings states that it is issued under par (c) of s 401(1) and that the specific permission of the local government, which was required but had not been obtained for the construction of the entry statement, was a building licence under s 374(1) of the MP Act. The notice did not identify the failure to obtain development approval under planning legislation or planning considerations generally as a basis for its issue.
In Re Griffiths; Ex parte Homestyle Pty Ltd(2005) 139 LGERA 178, McLure JA, with whom Roberts-Smith and Pullin JJA agreed, held at [22] that s 401(1) of the MP Act confers a discretion on the relevant local government to issue a notice to a builder or owner of a building. At [25] her Honour held as follows:
"A local government's discretion [to give a notice under s 401(1) of the MP Act] is enlivened by matters of safety, prejudice to the public interest, and non‑compliance with the Act. Securing compliance with the Act would ordinarily be a very weighty consideration in the exercise of the discretion and may itself justify the exercise of the power."
It is implicit in her Honour's statement, and apparent also from the terms of s 401(1) itself, that the failure to obtain development approval, where required under planning law, and planning considerations generally, are not relevant in the exercise of discretion to give a notice under s 401(1). The section is premised on there being something "in the construction of the building" that causes an objection in terms of par (a), par (b) or par (c). The cause of objection must be able to be removed by pulling down or altering the building. The section falls within Pt XV of the MP Act which is entitled and concerned with "buildings". Moreover, as Johnson J recognised in Stock v Anning [2006] WASC 275 at [48], "the requirements for planning approval and for building approval are separate and independent statutory regimes". The Tribunal has also recently accepted that "as a general proposition there is a dichotomy between planning and building approval regimes": Maraldi and City of Rockingham [2007] WASAT 225 at [30]. While the Tribunal also referred to "some practical interrelationship or overlap between planning matters and building licences", such as the "obvious" "need to avoid inconsistency in the approvals regime" (at [34]), such practical matters in relation to approvals do not relevantly expand the scope of s 401(1) to include town planning considerations.
It is, therefore, apparent that s 401(1) is concerned with building regulation under the MP Act, not planning regulation under other legislation. It is in the context of building regulation that the scope of the words "prejudicial to the public interest" in par (a) and "permission of the local government" in par (c) is to be understood. The failure to obtain development approval, where required under planning legislation, and planning considerations generally, are not relevant in the exercise of discretion as to whether to give a notice under s 401(1) of the MP Act. The Tribunal does not, therefore, express any views in this case as to whether development approval is required under TPS 6 for the construction of the entry statement.
What is the correct and preferable decision in relation to the review?
As noted earlier, the s 401(1) notice was issued on the basis that Mr Middleton had failed to comply with the obligation to obtain a building licence for the entry statement under s 374(1) of the MP Act. As McLure JA observed in Re Griffiths; Ex parte Homestyle Pty Ltd at [25], securing compliance with the MP Act "would ordinarily be a very weighty consideration in the exercise of the discretion and may itself justify the exercise of the power".
While planning considerations are not relevant in the exercise of discretion under s 401(1) of the MP Act, three of the six reasons for refusal of the development application - which are relied on by the Shire in this review - involve matters of safety and public interest which also fall within the scope of building regulation. These three reasons are:
"the gateway presents a safety hazard, being too close to the junction of Great Northern Highway and Maddern Road, and located on the inside of a curve in Maddern Road" (Reason (c));
"the gateway will restrict the servicing of public utility lines" (Reason (e)); and
"portion of the gateway has been constructed within the Maddern Road reserve" (Reason (f)).
Each of these three reasons for refusal of the development application also involves something "in the construction of the [entry statement] which tends to render the building unsafe or prejudicial to the public interest" for the purposes of par (a) of s 401(1) of the MP Act. Although the Shire did not rely on par (a) in issuing the notice, it may raise issues of safety and public interest in the review. In this regard, s 27(3) of the State Administrative Tribunal Act 2004 (WA) states that the reasons for decision provided by the decision‑maker do not limit the Tribunal in conducting a proceeding for the review of a decision.
However, the Shire has not presented any evidence to support its contention that "the gateway presents a safety hazard". Mr Middleton relies on a letter from Main Roads Western Australia (Main Roads) dated 7 May 2007 confirming that it "does not consider the driveway or entry gates onto Maddern Road will impact on the Great Northern Highway". Main Roads has no objection to the construction or location of the building in question. The Tribunal, therefore, finds that the entry statement does not present a safety hazard.
The Shire has not presented any evidence to support its contention that "the gateway will restrict the servicing of public utility lines". Mr Middleton relies on a letter from Telstra Ltd dated 4 May 2007 stating that the optic fibre cable in the area has not been affected by the entry statement and that it has no objection to the works that have been carried out. Mr Middleton also relies on a letter from Western Power dated 13 April 2007 confirming that it has no objection to the entry statement, provided that no extra height is added and current clearances are maintained. The Tribunal, therefore, finds that the entry statement will not restrict the servicing of public utility lines.
Mr Middleton also relies on a certificate given by Mr Brian Reed, who is a civil engineer, to the Shire. Mr Reed states as follows in relation to the entry statement:
"The walls have been constructed in accordance with the supplied details and are of a good standard.
We certify the walls are structurally sound and capable of sustaining the necessary applied loads as specified in the relevant Australian Standards."
The Shire did not present any contrary evidence or cast any doubt on the correctness of Mr Reed's certification of the structural stability of the entry statement. The Tribunal finds that the building in question is structurally sound and that there is nothing in the construction of the building which tends to render it unsafe.
Mr Middleton's failure to obtain a building licence under s 374(1) of the MP Act is a material consideration in the exercise of discretion under s 401(1) as to whether to give a notice to pull down the entry statement. However, the Tribunal's finding that the entry statement is structurally sound and that there is nothing in the construction of the building which tends to render it unsafe is also a material consideration. A fundamental purpose of building regulation is to ensure the structural stability and safety of buildings. A further material consideration in the circumstances of this case is the limited size of the building in question.
Taking each of these considerations into account in the exercise of discretion, the Tribunal considers that Mr Middleton should not be required to pull down the whole of the entry statement. It is true that Mr Middleton contravened the MP Act by failing to obtain a building licence before he constructed the entry statement. However, he can be appropriately dealt with elsewhere for that contravention of the law. The Tribunal considers that, in exercising the discretion under s 401(1) of the MP Act, the fact that the entry statement is structurally sound and safe and is of a limited size means that, in the circumstances of this case, the whole of the structure should not be required to be pulled down.
However, the Tribunal considers that the protrusion of a small section of the entry statement into the road reserve involves something in the construction of the building, namely its location, which tends to render the building prejudicial to the public interest. It is contrary to the public interest in terms of building regulation for a building to be constructed without a building licence in the public domain and thereby to, in effect, convert public land into private land. The location of the building should be corrected by removing the section which protrudes onto the road reserve.
Orders
The Tribunal, therefore, makes the following orders:
1.The application for review is allowed in part.
2.The notice given by the respondent to the applicant under s 401(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) on 31 October 2006 is varied as follows:
a)Paragraph 1 is deleted and replaced with the following paragraph -
"1.You are hereby required to pull down the part of the Building which is not located on Lot 77 Maddern South Road, Chittering to remove the cause of the objection."
b)In paragraph 2, the words "the date on which the Notice is served upon him" are deleted and replaced with the words "4 September 2007".
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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