MURREY and CITY OF STIRLING - [2009] WASAT 156

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: MURREY and CITY OF STIRLING [2009] WASAT 156

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 11 MAY 2009

DELIVERED : 17 AUGUST 2009

FILE NO/S: DR 516 of 2008

BETWEEN: MICHAEL MURREY
HESTER MURREY
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Local Government Act - Notice - Encroaching on a public thoroughfare - Discretion

Legislation:

Land Administration Act 1997 (WA), s 144, s 144(1)
Local Government Act 1995 (WA), s 3.25
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 400, s 401
Local Government (Uniform Local Provisions) Regulations 1996 (WA)

Result:

Application for review successful

Category: B

Representation:

Counsel:

Applicants: Mr D Shaw
Respondent: Mr T Gillett

Solicitors:

Applicants: DLA Phillips Fox
Respondent: McLeods

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

Deuschen and the City of Stirling [2008] WASAT 181
Griffiths, Re; Ex parte Homestyle Pty Ltd (2005) 139 LGRA 178; [2005] WASCA 103
Stein and the Shire of Chapman Valley [2009] WASAT 113

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter concerned an application to set aside a decision of the City of Stirling to issue a Notice under the Local Government Act 1985 (WA) to remove a retaining wall which encroached upon a public thoroughfare.
The Tribunal considered the submissions of the parties and the facts of the matter, and noted in particular that the Department for Planning and Infrastructure was willing to grant an easement pursuant to s 144 of the Land Administration Act 1997 (WA) in respect of the offending encroachment.
Taking into account all the circumstances, the Tribunal set aside the City of Stirling's decision and revoked the Notice.

Background

This application concerns the review of a decision by the City of Stirling (respondent or City) to issue a notice dated 20 November 2008 pursuant to s 3.25(1)(b) of the Local Government Act 1985 (WA) in respect of a wall erected at 3 Duart Road, Trigg (property) owned by Michael Murrey and Hester Murrey (applicants) which encroached onto a public thoroughfare.
The applicants commenced renovations to the property in 2005 and part of those works included the erection of a new limestone wall on the Lynn Street and Duart Road frontages.
The applicants assumed, incorrectly as they now acknowledge, that there was no necessity to seek council approval for the new wall which they stated was partly replacing an old rough laterite rock wall with a fibro fence on top and was on what they believed to be the same alignment as the old wall.
Sometime later when the applicants were constructing a swimming pool which they had received approval for, a building inspector from the respondent noticed the constructed wall, as a result of which the applicants received a letter from the respondent dated 18 August 2006 which stated in part:
The investigation involved a search of City records, and it was determined that the unauthorised retaining walls at the above address appear to have been constructed without, Development Approval or a Building Licence Approval from the City.
The letter required the applicants within 30 days of the date of the letter to submit an application for approval to commence development together with a site survey plan certified by a licensed surveyor.
The applicants engaged a licensed surveyor to carry out the necessary survey as a result of which they discovered that the wall as built encroached onto the road reserve by between 150 millimetres and 230 millimetres on the Lynn Street boundary and between 70 millimetres and 100 millimetres on the Duart Road boundary.
The applicants, as requested, submitted the survey plans and report to the respondent and received a further letter dated 28 November 2006 which stated that in light of the encroachments shown on the survey, the City was not able to approve the unauthorised structures and two options were outlined.
Option 1 stated:
You can formally make application to the City of Stirling requesting permission to retain the unauthorised retaining walls and boundary walls that are encroaching on the verge areas.
This formal application must include submission of approval granted by all public utilities that may have any type of equipment or infrastructure within the various areas.
Also, this formal application must include submissions of approval granted from both the Department of Land Information and the Department of Planning and Infrastructure.
Please note should you be successful in your formal application to the City to retain the said walls in their current location you may be required to apply to the City for both an Approval to Commence Development (Planning) and a Building Licence Approval in the form of a 'Letter of Determination' (see enclosed information sheets).
Option 2 was essentially to remove the encroaching walls.
On 29 November 2009, the applicants wrote to the:
•The Department of Land Information;
•The Department of Planning and Infrastructure;
•The Water Corporation;
•Telstra;
•Alinta; and
•Western Power.
Letters confirming that there was no objection to the structure were received from Western Power, the Water Corporation and Alinta and a report was received from a cabling detection service company confirmed that the wall did not impact on any services including those belonging to Telstra.
By letter of 8 March 2007, the Department of Planning and Infrastructure wrote to the applicants confirming that although the Department would not approve the continued existence of the encroachment, the applicants had the option of initiating a road closure.
The respondent also wrote to the applicant by letter dated 8 March 2007 and confirmed that the documents submitted by the applicants had been reviewed and:
[T]hey have been found to be insufficient for a formal application to the City to retain the said encroaching retaining wall on the verge area.
The letter confirmed that the City was unable to approve the encroaching walls and they were to be removed within 60 days.
A meeting was held at the respondent's offices on 9 May 2007, following which a further letter dated 20 June 2007 was sent to the applicants which stated in part:
During this meeting Ray Barron and myself advised the following:
a)That the unauthorised retaining walls (constructed without both planning and building approval) are encroaching onto the verge area of the road reserve, an amount that is unacceptable to the City. ...
b)That Section 400 of a Local Government (Miscellaneous Provisions) Act 1960 (WA) does not allow for structures to encroach onto or over a road reserve, an encroachment can only be granted with the approval of the Minister (Copy enclosed).
c)That you could write to the Minister for Local Government to seek permission of the local government granted only with the approval of the Minister. Please note that as part of this process to grant permission the matter may require the full Stirling City Council to make a determination.
d)That there is no guarantee that the Stirling City would support the required permission from the Minister. …
By letter of 25 June 2007, the applicants wrote a detailed letter to the Minister for Local Government (Minister) seeking permission for the boundary wall to encroach onto the road reserve.
By letter of 30 July 2007, the respondent wrote to the applicants advising that the matter should in fact be dealt with by the Minister for Housing and Works, and apologised for the previous error.
By letter of 1 August 2007, the State Land Services branch of the Department for Planning and Infrastructure, wrote to the applicants stating:
I advise that State Land Services cannot approve the encroachment and the correspondence should be forwarded to the following address: Dumas House, 12th Floor, 2 Havelock Street, West Perth 6005.
Should you wish to exercise the option of initiating road closure action with the City of Stirling, the valuation of the encroachment has been set at $2000 plus 10% GST, valid for 12 months from the date of valuation being 26 July 2007.
By letter of 6 August 2007, the applicants furnished a copy of that letter to the respondent confirming their wish to initiate a road closure and that they would continue to seek the approval of the Minister.
By letter of 7 August 2007, the applicants wrote to the Minister for Housing and Works seeking the Minister's approval to the road closure.
By letter of 28 August 2007, the respondent again wrote to the applicants confirming they had received a copy of the letter from the Department of Planning and Infrastructure dated 1 August 2007. They also referred to previous correspondence, in particular to the invitation in the letter of 28 November 2006 to submit a formal application to the City for its permission to retain the walls on the verge area.
By letter of 2 September 2007, the applicants wrote to the respondent formally applying for a road closure and in reply, by letter of 10 September 2007, the respondent stated:
It appears in your letter that it is your intention to make a formal application to the City for a road 'closure'. For this application to the City, you would be required to present to the City full details to form this application for Approval to Commence Development.
Shortly thereafter the applicants received a letter dated 17 October 2007 from the Minister for Housing and Works which stated:
While I do not have the power to intervene in this matter, particularly in relation to formalising an action for a road closure, the Department has been in contact with the City of Stirling to determine whether the issue can be resolved.
The City has advised that it seeks to resolve this matter and I would encourage you to liaise with the compliance officer to ask the City to bring about a resolution.
Following this, the applicants again wrote to the City in respect of the issue of a road closure.
By letter of 31 October 2007, the City replied stating:
The matter is currently receiving attention and I will get back to you in due course. I note in your letter that you have obtained approval in principle from the various utilities, if you have any correspondence from these utilities it would be appreciated if you could send me copies.
The applicants furnished the requested information by letter of 3 December 2007.
The next correspondence in the matter was a letter of 12 May 2008 from the respondents to the applicants which stated in part:
I refer to an ongoing assessment by the City in relation to the matter of retaining walls at the above address encroaching onto the verge area on the northern and western elevation.
The City's Compliance Department through the advice of the Asset Management Business Unit confirms that given that the mentioned retaining walls do not have both Building approval and Approval to Commence Development and the amount of encroachment involved the City will not consider the said walls been [sic] left in their current position encroaching up to 230mm onto the verge area.
The letter went on to direct the applicants to remove the encroaching walls within 30 days.
There was further correspondence and meetings between the parties and by letter of 16 July 2008, the applicants wrote to Landgate stating:
The compliance officer at the City of Stirling, Mr Peter Morrison, has suggested that I write to Landgate to see if it is possible to obtain an easement to allow the encroachment of my boundary wall onto Lynn Street. The easement could be limited to the current wall only so that if in future the wall is demolished the easement would fall away. The extent of the encroachment is approximately 0.2m. I enclose some photographs of the wall indicating the encroachment.
By letter of 24 July 2008, the applicants received a reply from the State Land Services branch of the Department of Planning and Infrastructure explaining that the applicant's letter of 16 July 2007 to Landgate had been passed to them because '[t]he responsibility for the grant of easements over Crown Land rests with this Department' (emphasis added).
By letter of 25 July 2008, the applicants received a further letter from the State Land Services branch of the Department for Planning and Infrastructure which stated:
Further to my letter dated 24 July 2008, the situation has been reviewed in light of the stance taken by the City of Stirling (the City), that the City will not agree to a road closure to resolve the encroachment of the wall onto Lynn Street.
In this instance, an easement will be granted pursuant to s 144 of the Land Administration Act1997 (WA), subject to the written consent of the City. The Consideration for the proposed easement will be two thousand dollars ($2000) plus 10% GST. …
On 11 August 2008, the applicant confirmed by email to the respondent that:
We have been advised by letter dated 25 July 2008 from Ken Buchanan of DPI that subject to the written consent of the [C]ity DP will grant an easement to allow the encroachment of our boundary wall onto Lynn Street.
Please let me have the written consent so that I can proceed to register the easement with Land Gate [sic].
By letter of 28 August 2008, the respondent wrote to the applicant acknowledging receipt of the letter of 25 July 2008 from the Department of Planning and Infrastructure and stated:
The letter confirms the Department's position on the provision of an easement to resolve the above property matter.
I advise that the City has conducted a thorough review of this matter and has sought advice from the relevant section within the City. As a result of this review, it was determined that the unauthorised retaining wall should be removed.
I also refer to our discussion 27 August 2008 in relation to the issuing of a Notice or a Direction for a removal of the retaining wall. As discussed, you intend to exercise your appeal rights in the State Administrative Tribunal if a Notice or Direction is served.
A notice pursuant to s 3.25(1)(b) of the Local Government Act 1995 (WA) (LG Act) dated 20 November 2008 was subsequently served on the applicants which set out the work to be done under the Notice as:
Remove those parts of the limestone walls located on the northern and western boundaries of the land which encroach onto Lynn Street or Duart Road road reserve. The extent of the encroachment is shown on the attached 'Re-establishment Survey' plan.
The applicant then filed an application for review at this Tribunal on 19 December 2008 which is the matter under review.

Issue

The principle issue for consideration may be shortly stated as:
•Should the respondent's decision to issue the notice under review be set aside, varied or affirmed.

The parties evidence

Mr Murrey filed a statement of evidence and also gave oral evidence at the hearing. Essentially, he confirmed the facts as outlined above and stated that the demolition of the wall would require the removal of the pool, pool filter, limestone paving, grass, plants, pool fencing and patio. He stated the estimated cost of those works would be approximately $50,000.
He also furnished a supplementary witness statement which referred to various photographs and other alleged encroachments he stated existed within the City's municipal area.
Essentially, the applicant made the case that there was a genuine mistake in relation to the location of the boundary at the time the walls were erected.
Mr David Schwenke, the coordinator of compliance at the City, gave evidence for the respondent and confirmed that he was the person who had made the decision to issue the Notice under review.
At para 8 of his statement of evidence, Mr Schwenke set out the reasons for his decision to issue the Notice as follows:
The City considers that the Walls should be removed to the extent that they encroach into the Lynn Street and Duart Road reserves for the following reasons:
(a)Public thoroughfares should be maintained at the dimensions shown on the relevant plan of survey or sketch plan registered under the Transfer of Land Act 1993 for appropriate public use in the relevant locality;
(b)The public should be entitled to assume that public thoroughfares are maintained at their designated dimensions and that unauthorised structures do not encroach upon public thoroughfares;
(c)The dimensions of a public thoroughfare should not be reduced for the benefit, economic or otherwise, for private property owner who is responsible for erecting an unauthorised encroaching structure;
(d)Land owners should have property boundaries surveyed prior to carrying out building works to ensure those works are located on their own land. Where that does not occur, and a building is constructed in a public thoroughfare, it is not appropriate for the boundaries of that public thoroughfare to be varied to accommodate the unlawfully erected structure to the extent it encroaches. Rather, the building should be removed to the extent it encroaches; and
(e)Where an encroaching structure is permitted to remain in the public thoroughfare, a local government may be liable for any injury or damage caused by the encroaching structure.
When questioned by his own counsel as to how the City deals with encroachments, Mr Schwenke stated:
We treat it as we normally treat encroachment. If there is an encroachment, we will investigate, ask for the survey, and if it is found to be in the road reserve, the City deems that to be unsatisfactory in a public thoroughfare and asks for it to be removed.
Counsel for the applicant asked Mr Schwenke:
What discretion do you see that you have as to whether to issue a notice when there is an encroachment onto a public thoroughfare?
Mr Schwenke replied:
Well, I don't believe that there is a discretion with an encroachment in the scenario that we have. It's an unauthorised structure.
The Tribunal referred Mr Schwenke to s 3.25 of the LG Act and enquired:
Is there a discretion whether to issue a notice under that section?
Mr Schwenke replied:
It is my understanding there is not, but I'd have to re-read the section again, ...
To assist Mr Schwenke, the Tribunal read the start of s 3.25 of the LG Act which states '[a] local government may give a person ...' (emphasis added). On checking again with Mr Schwenke, he confirmed that based on that there is a discretion.
On being queried further as to his reasons for exercising the discretion in the way he did in this case Mr Schwenke stated:
Well, … there is no criteria for what is acceptable, what is acceptable to the public in terms of you know, an encroachment. There are no guidelines in relation to the specifics of that reasoning, other than what is set out on my witness statement.
When asked whether he had the power to consent to a request for the grant of an easement Mr Schwenke stated:
That's why we sought information for our land assets department, because we believe that they are the people that would have that authority or at least know who would have that authority …
... the advice was that we weren't going to - they weren't going to allow the encroachment.
Later Mr Schwenke was asked:
You explained that you got advice or a decision from the asset management branch that they weren't going to grant the easement.
Did their decision have any relevance in you making your decision to issue the notice?
Mr Schwenke replied:
That's correct, yes. That added weight to it.
In his evidence, Mr Schwenke referred to an email he had received from the assets management branch in respect of the matter, however, the only email produced to the Tribunal referred to a road closure and not an easement.
Mr Schwenke also referred to discussions with the respondent's insurers that he said added weight to his decision. However, under questioning he confirmed that he may have been wrong in respect of the insurers as the discussions took place after he had issued the Notice.

The Tribunal enquired of Mr Schwenke as to the mischief the City was attempting to prevent or abate and put to Mr Schwenke:
In this case, it appears, from what you are saying, that all the mischief has been that it happens to be encroaching ... and for that reason they want it out?
Mr Schwenke replied, 'That's correct, sir'.

Consideration

The existence of a discretion in legislation where a section clearly states 'may' as in s 3.25(1)(b) of the LG Act under which the Notice in the present matter was issued, is clear.
In Griffiths, Re; Ex parte Homestyle Pty Ltd (2005) 139 LGRA 178; [2005] WASCA 103, McLure JA in discussing s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) stated:
It was conceded that on a proper construction of s 401(1) of the Act, a local government has a discretion to issue a notice if the matters in para (a), (b) or (c) are satisfied. In my opinion, the concession is correctly made for a number of reasons. Firstly, by virtue of s 56(1) of the Interpretation Act 1984 (WA) there is a presumption that the word 'may' imports a discretion. ...
Though not at first inclined to agree that such a discretion existed, Mr Schwenke, when brought to the actual wording of the section accepted that there was a discretion as to whether to issue a Notice.
As stated at [120] of Deuschen and the City of Stirling [2008] WASAT 181, '[t]he Tribunal is mindful that the City has a responsibility to exercise the authority granted to it under law in a diligent way' (emphasis added).
However, depending on the circumstances, the City must also decide whether to issue a Notice in all the circumstances is reasonable.
In Stein and the Shire of Chapman Valley [2009] WASAT 113 at [78] and [79], the Tribunal in reviewing the scope of discretions noted:
In England, it has been said that those exercising similar statutory discretions 'can use their common sense and are entitled to take into account all the circumstances, and thus avoid the expenditure of public money unnecessarily in a [relevant] case …'. See the discussion in R v Newham Justices, ex parte Hunt; R v Oxted Justices, ex parte Franklin [1976] 1 All ER 839, at 843.
Also in England, in reference to town planning enforcement notices, Halsbury's Laws of England, (4th ed, reissue), vol 46(2), carries the following annotation (at [561], n 5, emphasis added):
The power to issue an enforcement notice is discretionary and the decision by a local planning authority whether or not to issue a notice may not be challenged except on the ground that its issue was arbitrary or capricious: see Perry v Stanborough (Developments) Ltd (1977) 244 Estates Gazette 551 (authority's action in refusing to enforce a condition relating to construction of access roads from a development site to other sites, leaving the matter as one for negotiation between adjoining owners, upheld). 'I see no reason why the authority are not perfectly entitled in the exercise of the very wide discretion conferred upon them (and them alone) by the statute, to say simply that they do not propose to take enforcement action': Perry v Stanborough (Developments) Ltd supra at 555 per Fox J.
And later, at [82], stated:
There are some common threads running through all such exercises of discretion. It is, as I have said, a very wide discretion; it is limited by the scope of the statutory purpose or object authorising the issue of a notice; and the discretion is to be exercised having regard to all of the circumstances of the case.
The Tribunal recognises that the management of public thoroughfares and the need to keep them clear and unobstructed, particularly from unauthorised encroachments, is important for all of the reasons referred to by Mr Schwenke in his evidence and powers to deal with such encroachments are set out in both the LGMP Act and the LG Act under the Local Government (Uniform Local Provisions) Regulations 1996 (WA).
However, each case of encroachment needs to be considered on its merits and no set or fixed position can or should be adopted.
Indeed, if one looks at s 400 of the LGMP Act, which deals with encroachments over, on, or under 'streets', it is clear that the fact that encroachments occur is recognised and some leeway may be necessary. Section 400(1a) states:
(1a)For the purposes of subsection (1), a building that has thereon string courses, cornices, copings, eaves or window sills that project not more than 230 millimetres on or over a street way or public place in a district, shall be held not to encroach on or over the street way or public place by reason of that fact only.
It is somewhat ironic that the measurement of 230 millimetres in those circumstances is deemed not to be an encroachment while the exact same measurement is the maximum amount that the current wall encroaches at any point.
Furthermore, s 144(1) of the Land Administration Act 1997 (WA) (LA Act) clearly allows the minister to grant an easement 'for a special purpose or any other purpose the minister thinks fit,' and such easement can be the subject of specified conditions.
It is relevant, in the present case, that a decision appears to have been made to grant such an easement and in considering the matter, it is important that the decision‑maker should take that fact into account.
Mr Schwenke, on behalf of the respondent, confirmed that when deciding to issue the Notice, his primary motivation was that there was an unauthorised encroachment, although he was also mindful that a decision had been made by the respondent's Asset Management Business Unit not to consent to that easement. However, no evidence was put before the Tribunal that a decision not to consent to the easement was actually made or, if it was, the reasons for that decision, or that it was made by a person who had the authority to make it.
In review matters such as the present one, the Tribunal sits in the shoes of the decisionmaker and deals with the matter as a de novo hearing. In the circumstances of the present case, the Tribunal considers that a number of matters are relevant in making a decision whether to affirm, vary or set aside the Notice in question, which are.
1)There was no evidence that the encroachment occurred other than by way of a genuine mistake;
2)The extent of the encroachment at its worst point is 230 millimetres which happens to be the same distance which is deemed not to be an encroachment in respect of to s 400(1a) of the LGMP Act;
3)Between the point of encroachment and the actual bitumised street there are 6 metres of grass verge which are part of the public thoroughfare;
4)None of the relevant service providers such as gas, water or electricity object to the encroachment remaining;
5)Other than the actual fact of encroachment, there is no mischief pointed to by the respondent and certainly no danger or even inconvenience to the public was referred to;
6)The owner of the land is prepared to grant an easement under s 144 of the LA Act to allow the applicant to regularise the situation; and
7)The cost of removing the encroachment appears on any calculation to be a reasonably costly exercise.
Furthermore, it is highly likely that the present case is not an isolated event in the municipality. Indeed, Mr Murrey gave a number of examples in his own street of properties which may well encroach into the public thoroughfare.
In the circumstances, if an inflexible rule is applied, the City may well be faced with having to apply the same rigorous test in every case and it could well be asked if that was a sensible expenditure of public monies.
The Tribunal also notes that although the City in correspondence appeared to offer the applicants various options to rectify the situation it must be questioned if any of these were ever genuinely on the table in view of MrִSchwenke's view that the very fact of encroachment was the primary reason the Notice was issued and that fact had not changed since the matter began.
It is also noted that the applicant in an effort to take advantage of those options spent a period of approximately two years writing to various authorities, attending meetings and complying with various requests.
Each case must be judged on its own merits, and in the present circumstances the Tribunal is of the view that for the reasons outlined above, the correct and preferable decision is to set aside the decision to issue the Notice in question and revoke the Notice.
Further, based on all of the factors set out above, it would not, in the Tribunal's view, be unreasonable to consider consenting to an easement if it could be conditioned to ensure that, if necessary, in the future it could be reviewed or removed, but that is not a decision for this Tribunal to make.
It must also be stated that if the facts were different, for example if the State Land Services branch of the Department for Planning and Infrastructure was not prepared to grant an easement, or if there was a particular mischief or danger involved, or the applicant had knowingly encroached or some other reasonable reason existed, then the Tribunal could see why a notice such as the one under review might be issued.
Finally, although the Notice in this review will be set aside, it will not be an end of the matter as, in order to regularise the position, other steps will need to be taken.

Orders

1.The decision to issue the Notice pursuant to s 3.25(1)(b) of the Local Government Act 1985 (WA) is set aside; and
2.The Notice is revoked.

I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER