MOYES and SHIRE OF BRIDGETOWN-GREENBUSHES
[2006] WASAT 351
•30 NOVEMBER 2006
MOYES and SHIRE OF BRIDGETOWN-GREENBUSHES [2006] WASAT 351
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 351 | |
| LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) | |||
| Case No: | CC:2494/2005 | PART HEARD 17 MAY 2006 BALANCE DETERMINED ON THE PAPERS | |
| Coram: | MR M SPILLANE (MEMBER) | 30/11/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Notice affirmed and varied | ||
| B | |||
| PDF Version |
| Parties: | ANDREW CARLYLE MOYES SHIRE OF BRIDGETOWN-GREENBUSHES |
Catchwords: | Section 403 Notice Dangerous Building |
Legislation: | Health Act 1911 (WA) Local Government (Miscellaneous Provisions) Act 1960 (WA), s 403, s 403(1), s 403(2), s 403(3), s 403(4), s 403(6) |
Case References: | Nil Nil |
Orders | 1. The Notice dated 18 February 2005 did comply with s 403 of the Local Government (Miscellaneous Provisions) Act 1960 and is affirmed.,2. The Second Schedule of the Notice dated 18 February 2005 issued pursuant to s 403 of the Local Government (Miscellaneous Provisions) Act 1960 be varied to read as follows:, "In respect of the excavated areas of the building and the concrete slab:,(1) A load limit is placed on the slab. The initial load limit is to be 1 KPa or 100 kg/sqm, with any additional loading to be placed over the lower support walls, or any specific loads intended to be placed other than over the support walls, to be referred to a structural engineer for assessment prior to placing.,(2) The areas excavated will require additional confinement of the clayey sand soil to ensure long term adequacy. This may be accomplished by:,(a) replacement of the soil/sand properly compacted, or placing cement stabilised soil to provide the confinement or support of the existing soil block. That is, effectively, replace back to the original state of support, or ,(b) where not already adequately confined, to be confined according to the details of a sketch/plan to be prepared showing how such confinement will be achieved (such as placing a confining wall) which will provide confinement or support of the existing soil block, and such sketch/plan to be certified by a structural engineer and submitted to the Shire for approval." |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) CITATION : MOYES and SHIRE OF BRIDGETOWN-GREENBUSHES [2006] WASAT 351 MEMBER : MR M SPILLANE (MEMBER) HEARD : PART HEARD 17 MAY 2006
- BALANCE DETERMINED ON THE PAPERS
- Applicant
AND
SHIRE OF BRIDGETOWN-GREENBUSHES
Respondent
Catchwords:
Section 403 Notice - Dangerous Building
Legislation:
Health Act 1911 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 403, s 403(1), s 403(2), s 403(3), s 403(4), s 403(6)
(Page 2)
Result:
Notice affirmed and varied
Category: B
Representation:
Counsel:
Applicant : Mr G Smith (Acting as Agent)
Respondent : Mr T Clynch
Solicitors:
Applicant : N/A
Respondent : Shire of Bridgetown-Greenbushes
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant was seeking a review of the decision of the respondent to issue a Notice dated 18 February 2005 pursuant to s 403 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) in respect of premises owned by the applicant at 159 Roe Street, Bridgetown.
2 At a hearing before the Tribunal on 17 May 2006, the parties consented to vary the wording of the Notice and the only question the Tribunal was requested to determine was whether the Notice issued by the respondent complied with s 403 of the Local Government (Miscellaneous Provisions) Act 1960 and was valid. Both parties agreed to file written submissions on that issue and, on consideration of those submissions and the documents filed by the parties, the Tribunal was satisfied that the Notice did comply with s 403 and was valid.
3 In the circumstances, the Tribunal ordered that the Notice be affirmed and that the wording in the Second Schedule of the Notice be varied as agreed by the parties.
Background
4 This is an application by the owner of a building located at 159 Roe Street Bridgetown, Western Australia (the building) who is seeking a review of a decision of the Shire of Bridgetown-Greenbushes to issue a notice (Notice) under s 403 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) dated 18 February 2005.
5 Prior to the Notice being issued, the building had previously been the subject of inspections by the respondent in or about August 2004 pursuant to sections in the Health Act 1911 (WA) (Health Act). As a result of those inspections the respondent issued notices under the Health Act, requiring the applicant to obtain a certificate from an engineer that the sub-floor structure and the suspended floor of the building was sound. As a result, the following information became available to the respondent ("the relevant information"):
• Report of Mr Pateman, Engineer, dated 9 September 2004, entitled 'Structural Certification' - this certified that the sub-floor structure and the suspended slab of the premises were not in danger of collapse.
(Page 4)
- • Report of Mr Pateman, undated but stamped received 17 September 2004 - this document stated that Mr Pateman visited the site on 5 September 2004 and that no remedial work was advised. It also suggested remedial work could be carried out without fear of sub-floor collapse.
• Report of Mr Pateman, dated 21 September 2004 - in this report Mr Pateman maintained that he did not consider there was any danger that the concrete floor would collapse.
• Minutes of a Council meeting of the Shire of Bridgetown-Greenbushes held on 25 November 2004 which noted that:
"By use of the photographs taken by the officers, further opinions were sought from a third structural engineer, and two registered builders, all of whom agreed that some remedial work should be carried out on the property and in their collective opinion it could not be classed as structurally sound."
• Report of Mr Suckling, Engineer, dated 11 February 2005 - Mr Suckling provided a report to the respondent on the condition of the premises and concluded:
"In conclusion the items of concern are:
- The lower wall foundations are inadequately supported and any external influence will result in failure.
- The lower wall foundations are currently failing resulting in minor settlements.
- The suspended slab should not be loaded heavily in the areas of the exposed reinforcing below.
The recommendations of this office would be:
- Place material to provide support of the foundation soils.
- Ensure slab is not heavily loaded."
(Page 5)
6 Following receipt of that relevant information the respondent issued the Notice to the applicant.
7 At the hearing on 17 May 2006, evidence was taken from Mr Pateman, on behalf of the applicant, and Mr Suckling, on behalf of the respondent, and following the filing of a joint statement by both engineers and considerable discussion and questioning by the parties, both engineers and the respective parties agreed that if the Tribunal found the Notice to be valid and affirmed the Notice then the wording of the Second Schedule of the Notice should be varied to read:
"In respect of the excavated areas of the building and the concrete slab:
(1) A load limit is placed on the slab. The initial load limit is to be 1 KPa or 100 kg/sqm, with any additional loading to be placed over the lower support walls, or any specific loads intended to be placed other than over the support walls, to be referred to a structural engineer for assessment prior to placing.
(2) The areas excavated will require additional confinement of the clayey sand soil to ensure long-term adequacy. This may be accomplished by:
(a) replacement of the soil/sand properly compacted, or placing cement stabilised soil to provide the confinement or support of the existing soil block. That is, effectively, replace back to the original state of support, or
(b) where not already adequately confined, to be confined according to the details of a sketch/plan to be prepared showing how such confinement will be achieved (such as placing a confining wall) which will provide confinement or support of the existing soil block, and such sketch/plan to be certified by a structural engineer and submitted to the Shire for approval."
(Page 6)
Relevant law
9 Section 403 of the LGMP Act allows a local government to require the repair of dangerous buildings. Section 403(4) of the LGMP Act allows a local government to issue a written notice to the owner or occupier of a building requiring him to take it down, secure or repair the building where it has received a certificate from a surveyor or competent person that the building is in a dangerous state.
10 Section 403(1) of the LGMP Act provides:
"Where a local government has reason to suspect that a building in its district is in a dangerous state, the local government may direct a survey of the building to be made by the building surveyor of the local government, or by another competent person."
11 Section 403(2) of the LGMP Act provides:
"Where the building surveyor receives information that a building is in a dangerous state, whether as the result of a survey mentioned in subsection (1) or otherwise, he shall report the information to the local government."
12 Section 403(3) of the LGMP Act provides:
"Upon the completion of his survey, the building surveyor, or other competent person, who carried out the survey, shall certify to the local government his opinion as to the state of the building."
13 Section 403(6) of the LGMP Act entitles a person who is dissatisfied with the requisition of the local government to apply to this Tribunal for a review of the decision to make the requisition.
Consideration
14 The applicant initially relies on s 403(1) of the LGMP Act. In particular, the applicant seeks to suggest that the Notice is invalid because at the time the Notice was issued the respondent had no reason to suspect that the building was in a dangerous state, and had no information post-dating the reports from Mr Pateman referred to earlier (dated 9, 17 and 24 September 2004 respectively) to form "a reason to suspect" that the building was in a dangerous state.
(Page 7)
15 The respondent argues that the "reason to suspect" required by s 430(1) of the LGMP Act arose as a result of inspections of the building undertaken by the Shire officers and analysis of photographs tabled at the Council meeting of the Shire of Bridgetown-Greenbushes on 25 November 2004.
16 The respondent included in its book of documents a copy of the minutes of the Council meeting held on that date. The minutes refer to an inspection by the respondent's officers of the relevant premises. The minutes went on to note that the respondent's officers were surprised following receipt of the reports from Mr Pateman that he recommended no remedial work be carried out to the building. In particular, the minutes state:
"By use of the photographs taken by the officers, further opinions were sought from a third structural engineer, and two registered builders, all of whom agreed that some remedial work should be carried out on the property and in their collective opinion it could not be classed as structurally sound."
17 The respondent submits that the relevant photographs and a report prepared by the Shire officers were tabled before Council.
18 The respondent argues therefore that there was evidence apart from the reports of Mr Pateman, upon which the respondent relied, to form the "reason to suspect" that the building was dangerous and the Tribunal is satisfied on the evidence produced that there was sufficient evidence to establish that the prerequisites of s 403(1) had been satisfied prior to the Notice being issued.
19 Further, and in any event, s 403(2) of the LGMP Act provides another avenue by which a s 403 Notice can issue. Namely, if a building surveyor receives information that a building is in a dangerous state, whether by survey or otherwise, a Notice can issue.
20 Prior to issuing the Notice, Mr Suckling had provided to the respondent a report dated 11 February 2005.
21 That report concluded in respect to the building that:
" - The lower wall foundations are inadequately supported and any external influence will result in failure.
(Page 8)
- - The lower wall foundations are currently failing resulting in minor settlements.
- - The suspended slab should not be loaded heavily in the areas of the exposed reinforcing below."
22 Although Mr Suckling's report of 11 February 2005 does not specifically state that the building was "in a dangerous state", the LGMP Act does not define what is meant by "a dangerous state".
23 The Macquarie Concise Dictionary Fourth Edition 2005 defines the word "dangerous" as "full of danger or risk; causing danger; perilous; hazardous; unsafe ..... ". Mr Suckling's report does set out several factors which indicate that the building was in a dangerous state as so defined.
24 Mr Suckling makes it clear that in his opinion the lower wall foundations of the building were inadequately supported and failing, and that any external influences would result in a failure of the wall. He also believed that as a result the slab should not be loaded heavily in the areas of the exposed reinforcing and that local failures of the foundations had occurred. He was also concerned that the bottom steel in the slab provided little or no support and made recommendations as to the loading of the slab. Mr Suckling's report went on to recommend that materials be provided to support the foundation soils and to avoid heavy loading of the slab.
25 In the circumstances, the Tribunal is satisfied that although Mr Suckling has not specifically stated that the building was dangerous it can properly be inferred from his report that he considered the building was in an unsafe condition and therefore "dangerous" and that action was needed to secure the building.
26 The Tribunal is satisfied that it could properly and safely be inferred from Mr Suckling's report that the building in question was in a "dangerous state" and that s 403(2) of the LGMP Act was satisfied, prior to the Notice being issued.
27 Section 403(3) of the LGMP Act provides that once the competent person has carried out the survey of the relevant premises, he shall certify to the local government as to the "state of the building". The LGMP Act does not define who is considered to be a "competent person". The applicant has not sought to suggest that Mr Suckling would not be considered a "competent person" under the LGMP Act. In any event, Mr Suckling is a qualified civil and structural engineer and would in the
(Page 9)
- Tribunal's opinion be competent to deal with assessing the structural integrity of a building and, in particular, whether it may, or may not be, in a "dangerous state".
28 The next question for determination is whether Mr Suckling's report certifies the state of the building as contemplated by s 403(3) of the LGMP Act. There is no requirement under the LGMP Act that the certification be in a particular format. Indeed the LGMP Act does not set out a form for the purposes of such certification.
29 The purpose of this subsection is to ensure that the local government be given the necessary information as to the state of the building in question. The LGMP Act does not set out the exact manner in which the information as to the state of the building is to be given.
30 The Tribunal considers that as long as the information is in a format that is clear and easily understood then this would be sufficient to satisfy the requirements of s 403(3) of the LGMP Act.
31 The report dated 11 February 2005 from Mr Suckling is a detailed report. It refers to his inspection of the building on 9 February 2005. It details his findings on inspection of the building, the works that had been carried out at the premises, the nature of the soil (given the issue concerning excavation), the references upon which his research was based and ultimately his conclusions as to the state of the building and recommendations. The report is logical and detailed.
32 In the circumstances, the Tribunal is satisfied that Mr Suckling's report of 11 February 2005 is in a form which certifies the state of the building in compliance with s 403(3) of the LGMP Act.
33 The applicant further contends that the report needed to state that the "building is in a dangerous state" as required under s 403(4) of the LGMP Act.
34 Section 403(4) of the LGMP Act states:
"If the certificate is to the effect that the building is not in a dangerous state, the local government shall not take further proceedings in respect of it; but if the certificate is to the effect that the building is in a dangerous state, the local government may cause it to be shored up or otherwise secured and a proper hoarding or fence to be put up for the protection of the public from danger, and shall cause written notice to be served on the
(Page 10)
- owner or occupier of the building requiring him forthwith to take it down, secure, or repair it as the requires."
35 The Tribunal has made clear, in the comments previously made, that Mr Suckling's report of 11 February 2005 did provide information from which it could properly and safely be inferred that the premises were in a "dangerous state".
36 As the Tribunal considers the report of Mr Suckling of 11 February 2005 did constitute a 'certificate', it finds that s 403(4) had also been complied with.
37 The final objection to the validity of the Notice raised by the applicant is that the actions required to be carried out were not the recommendations given by Mr Suckling in his report of 11 February 2005.
38 Section 403(4) does not state that the Notice that may be given by a local government must require the owner or occupier to carry out the recommendations of the competent person. Rather s 403(4) of the LGMP Act makes clear that the local government may require the owner/occupier to "take it down, secure, or repair" the building. There is no requirement that the actions required to be carried out by the owner/occupier be those solely recommended by the competent person (in this case Mr Suckling).
39 In any event, the requirements set out in the Notice issued by the respondent were in fact largely in accordance with Mr Suckling's recommendations. The Notice required:
"(1) The areas excavated adjacent to the base of the footings shall be backfilled with a mixture of sand and cement.
(2) The sections of the concrete slab which are affected by Concrete Cancer shall be shored up using either timber or steel props.
(3) The completed works shall be certified by a practicing structural engineer, and a copy of the certificate forwarded to Council."
40 Mr Suckling had recommended that material be provided to support the foundation soils. He also recommended that the slab not be heavily loaded. The work required to be undertaken in the Notice to a large extent
(Page 11)
- therefore related to ensuring the stability of the footings and surroundings of the building, and the Tribunal considers that, in any event, even if it needed to be, the work required to be undertaken in the Notice was in general to effect the recommendations of Mr Suckling and the Notice was for all purposes compliant with s 403(4) of the LGMP Act.
41 The Tribunal is satisfied therefore that the Notice issued by the respondent dated 18 February 2005 complied with s 403 of the LGMP Act and was a valid Notice.
42 In the circumstances, as the Tribunal finds that the Notice is valid and should be affirmed, it will order as consented to by the parties that the wording of the Second Schedule of the Notice be varied as agreed at the hearing on 17 May 2006.
Orders
1. The Notice dated 18 February 2005 did comply with s 403 of the Local Government (Miscellaneous Provisions) Act 1960 and is affirmed.
2. The Second Schedule of the Notice dated 18 February 2005 issued pursuant to s 403 of the Local Government (Miscellaneous Provisions) Act 1960 be varied by deleting the original wording and replacing it with the following:
"In respect of the excavated areas of the building and the concrete slab:
- (1) A load limit is placed on the slab. The initial load limit is to be 1 KPa or 100 kg/sqm, with any additional loading to be placed over the lower support walls, or any specific loads intended to be placed other than over the support walls, to be referred to a structural engineer for assessment prior to placing.
(2) The areas excavated will require additional confinement of the clayey sand soil to ensure long-term adequacy. This may be accomplished by:
(a) replacement of the soil/sand properly compacted, or placing cement stabilised soil to provide the confinement or support of the
- existing soil block. That is, effectively, replace back to the original state of support, or
- (b) where not already adequately confined, to be confined according to the details of a sketch/plan to be prepared showing how such confinement will be achieved (such as placing a confining wall) which will provide confinement or support of the existing soil block, and such sketch/plan to be certified by a structural engineer and submitted to the Shire for approval."
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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