MOSTAMANDI and CITY OF JOONDALUP
[2011] WASAT 212
•21 DECEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
CITATION: MOSTAMANDI and CITY OF JOONDALUP [2011] WASAT 212
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 21 DECEMBER 2011
FILE NO/S: CC 493 of 2011
BETWEEN: ABDUL FATAH MOSTAMANDI
SOFIA MOSTAMANDI
ApplicantsAND
CITY OF JOONDALUP
Respondent
Catchwords:
Local government - Crown or State land - Encroachments - Notices - Building licence - Encroachment by front wall built under a building licence - Substantial encroachment by wall onto State land - Road reserve - Tear down notice - Conditions of licence requiring, in effect, accurate plans - Condition of licence requiring that there be no encroachment by built structure - Misleading plans supplied by applicant - Estoppel by alleged representations made by authority - Authority under no duty to check plans - Authority not found to have made any representation - Public interest in maintaining public land in hands of relevant public authorities - Public interest in preventing de facto alienation of such land - Effect of precedent created if Tribunal legitimised significant encroachment - Balancing of interests - Extent of discretion to set aside notice - Application unsuccessful - Tribunal affirmed notice
Legislation:
Building Regulations 1989 (WA)
Land Administration Act 1997 (WA), s 267(2)(b)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401, s 401(1)
Local Government (Uniform Local Provisions) Regulations 1996 (WA)
Planning and Development Act 2005 (WA)
Result:
Review dismissed and notice under review affirmed
Category: B
Representation:
Counsel:
Applicants: Self-represented
Respondent: Mr G Owen
Solicitors:
Applicants: Self-represented
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicants, Mr and Mrs Mostamandi, owned a house and land in Duncraig. Their land was located in a culdesac, namely, Sampson Court. They sought planning and building approval from the City of Joondalup for the erection of a substantial wall on the front boundary of their land.
They were issued with a building licence by the City. Unfortunately, the wall, as built, significantly encroached upon an adjacent road reserve. This adjacent land was Crown or State (public) land. No approval had been given for the encroachment onto the road reserve.
The plans submitted to the City showing the proposed location of the wall were drafted such that the wall appeared to be wholly contained within the land's certificate of title boundaries. This was misleading.
The building licence issued by the City stated that the builder was 'responsible for the accurate determination of the lot boundaries'. Further, it was a condition of the building licence that no part of the structure was to encroach over a lot boundary. An advice note with the building licence recommended that the lot boundaries be located by a licensed surveyor.
A notice under the Local Government (Miscellaneous Provisions) Act 1960 (WA) was issued by the City to the applicants, the effect of which, if valid and complied with, would be to lead to the tearing down of the wall.
The applicants put forward a number of arguments as to why the Tribunal should set aside the notice. These arguments included allegations that the City itself had somehow represented that the wall could be built on its current location.
The Tribunal rejected all of these arguments and affirmed the decision to issue the notice. The Tribunal said:
There is an overwhelming public interest in maintaining public land and the control of it in the hands of the relevant public authorities. There is also an overwhelming public interest in preventing de facto alienation of such land.
Further, the Tribunal said that a very poor precedent would be created if a significant encroachment on Crown or State (public) land were to be legitimised by the Tribunal.
The Tribunal also found that there was nothing in either the personal circumstances of the applicants or the conduct of the respondent's agents that would warrant the setting aside of the notice.
The application for review was therefore dismissed.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
Introduction
This is a review of a notice given to the applicants under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act). Section 401(1) of the LG(MP) Act provides as follows:
(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.
In short, the notice relates to an encroaching wall built partly on the applicants' land, but mostly built on certain Crown or State (public) land. If the notice is affirmed, the encroaching wall must come down.
The notice is dated 29 March 2011 and recites three material matters:
i)the location of the subject land owned by the applicants as No 14 (Lot 49) Samson Court, Duncraig in the local government area of the City of Joondalup (City);
ii)the adjoining road reserve, that is, the public land; and
iii)the description and precise location of the single leaf brick wall said to encroach on the public land.
Critically, the notice recites a failure to build without a building licence having first been obtained. The notice purports to give rise to an obligation under the LG(MP) Act to pull down and remove the wall.
The encroachment
The alleged encroachment is precisely identified by reference to a plan prepared by a licensed surveyor, certified as at 16 March 2011. The surveyor's plan (which is attached to the notice) shows that approximately 80% 90% of the wall is built on the specified public land.
Matters of common ground
The applicants do not challenge either the form of, or service of, the notice. Moreover, the applicants accept that if the notice is upheld in this review, then an obligation in law arises to carry out the removal of the wall in the terms provided for in the notice. The applicants also accept the basal facts recited in the notice and the certified plan.
It is also common ground that:
•in September 2008 professionally drafted plans for the wall were submitted to the respondent;
•in October 2008, but before both the issue of a building licence and the construction of the wall took place, the respondent's agent attended and took photographs of the site;
•the encroachment of the wall into the road reserve is 2,525 millimetres at the northeast corner and 745 millimetres at the northwest corner; and
•the wall, to the extent indicated, has been built on public land, the control of which, but not the ownership of, is vested in the respondent.
Other facts not challenged by the applicants are that:
•the corresponding development (planning) approval, approved by the respondent on 13 October 2008, shows, relevantly, in relation to the plans submitted for approval, the impugned wall in relation to what appears to be the Samson Court kerbline;
•these plans, prepared by a professional draftsperson, trading as Zul's Drafting Service, do not show either the property boundary line or the road reserve. Importantly, the plan does show a total dimension of 33.7 metres, including the wall, as the eastern boundary for the lot. This is consistent with the certificate of title plan boundary lot size;
•the relevant building licence, corresponding to the development approval and using the same plans, was approved by the respondent on 11 November 2008;
•critically, the conditions imposed by the building licence include the following: 'The builder … is responsible for the accurate determination of the lot boundaries'; and '[n]o part of any structure (including footings) shall encroach over a lot boundary': see page 3 of the building licence;
•the advice note on page 4 of the building licence says: 'Before any building works are carried out, it is recommended that the lot boundaries be located by a licensed Land Surveyor'; and
•the team leader of the State Lands Metropolitan Division of the Department of Regional Development and Lands advised the applicants on 15 December 2010 to the effect that neither the City, the Department nor the Minister supported any approval being given for this public land to be either encroached or built upon.
It may therefore be taken that this lastmentioned communication of 15 December 2010 represents the unequivocal refusal of all relevant public authorities and officials, to the extent applicable, to countenance any approval, prospective or retrospective, as regards the encroachment.
Applicants' case
The applicants' case, in summary, is as follows:
1)Plans submitted in September 2008 by the applicants to the respondent showed the location of the wall in relation to Samson Court.
2)The respondent's agent 'inspected' the site in October 2008 (a reference already made to the taking of photographs).
3)The Water Corporation 'approved' the plans; that is, it was an affected utility or service provider.
4)The fence is not obtrusive and is consistent with the fenceline of the other houses in the street.
5)No relevant complaints have been made about the wall.
6)Any of the respondent's arguments concerning its jurisdiction to approve any development in the road reserve are irrelevant to the review of the notice issued under the LG(MP) Act, as the matter relates to a failure to have a building licence.
7)A building licence was issued by the respondent.
8)The applicants acted at all times in good faith.
9)The cost of removing the wall would be significant to the applicants (exceeding the cost of its erection) and, in effect, disproportionate to the purpose of the notice.
10)The issuing of the builders' licence and other conduct of the respondent gave rise to an estoppel or relevant representation relied upon by the applicants to their detriment, sufficient to warrant the setting aside of the notice, either in law or as an exercise of discretion.
11)No precedent adverse to the respondent's interest would be created by setting aside the notice in these circumstances.
12)The applicants would be prepared to indemnify the respondent by way of an appropriate insurance policy.
13)The Tribunal can give appropriate relief by setting aside the notice.
The applicants also seek costs in the vicinity of $6,000 (including $3,000 in legal costs), and damages in the sum of $4,000.
Respondent's case
In reply, the respondent relies principally on the instruments referred to above, particularly as to the express, clear conditions and advice therein contained. The respondent also draws attention to the, in effect, misleading plans prepared by the applicants' draftsperson. The failure of the plans to correctly specify the lot boundary, and their use of the lot boundary on the east with the same lengths shown on the certificate of title plan, are relevant in this regard.
The respondent argues that:
1)If the notice were to be set aside, then the public use by utilities and other State officials or other service providers may be compromised.
2)The setting aside of the notice would amount to a de facto alienation of public land, and in this case, there is no small encroachment involved.
3)The respondent's duties, speaking generally, for the care and maintenance of public land, would be compromised.
4)Any insurance, if any, would be personal only to the applicants (that is, the current owners).
The respondent points to considerations of precedent and public policy. Also, the respondent submits that the construction might well have been an offence under s 267(2)(b) of the Land Administration Act 1997 (WA), if not the Planning and Development Act 2005 (WA). The respondent submits that there is no provision of the LG(MP) Act, the Building Regulations 1989 (WA), or the Local Government (Uniform Local Provisions) Regulations 1996 (WA) which assists the applicants in any relevant or material way.
The respondent also denies that there was any representation or other act that could be said to give rise to an estoppel, or otherwise bind the respondent in relation to the exercise of its statutory powers and duties.
Discussion of the case
I have carefully considered the applicants' arguments and, while I have considerable sympathy for them and can understand why they might have assumed that the curve of Samson Court's culdesac did not affect the title boundary, and that they might have relied upon others (such as the actual builder or the draftsperson) or assumed that these boundary matters would be checked by the local authority, the plain fact is that the respondent in this case did not make any representations to this effect, and is under no duty to do so.
Rather, the respondent clearly warned the applicants in the building licence that they were responsible for building within their lot. The applicants are under no disability or disadvantage with respect to the English language. The male applicant is a structural engineer and is presumably familiar with reading plans and the like, including specifications and conditions.
Conclusion
The Tribunal finds that the building licence, on its true construction, does not purport to authorise the building of the wall on public land. Clearly, such an encroachment is not contemplated by its terms or any instrument or accurate plan related thereto. There is an overwhelming public interest in maintaining public land and the control of it in the hands of the relevant public authorities. There is also an overwhelming public interest in preventing de facto alienation of such land.
Further, a very poor precedent would be created if a significant encroachment on public land were to be legitimised by the Tribunal.
To the extent relevant, there is nothing in the personal circumstances of the applicants, or the conduct of the respondent's agents, that would warrant setting aside the notice. If, indeed, any third party is responsible for this unfortunate state of affairs, then the applicants must look elsewhere than this Tribunal for a remedy in this regard.
The Tribunal will affirm the decision under review but, in effect, will suspend the operation of the notice for a period of 28 days, allowing for the time of the year.
Orders
On the application heard before Senior Member Peter McNab on 21 December 2011, it is ordered that:
1.The application for review is dismissed subject to paragraph 3 of these orders.
2.The decision under review is affirmed.
3.The decision of the Tribunal comes into effect 28 days from the making of these orders.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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