O'NEILL and ALLMARK [2006] WASAT 283

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 283
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:103/2006	Heard:	4 SEPTEMBER 2006
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	18/09/06
No of pages:	30	Judgment Part:	1 of 1
Result:	Subject to final order
Category:	B
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Parties:	SHEA O'NEILL SALLY ALLMARK
Catchwords:	Strata Titles Act 1985 (WA) – Application for final order that respondent refrain from building over property sewer subject of implied easement Jurisdiction to consider remedies other than order sought under s 83 of the Strata Titles Act.
Legislation:	Metropolitan Water Supply Sewerage and Drainage By-laws 1981(WA) State Administrative Tribunal Act 2004 (WA), s 9, s 99(a) Strata Titles Act 1985 (WA), s 9, s 11, s 11(2), s 11(2)(b), s 12, s 12(a), s 12(3), s 13, s 38, s 39, s 77B, s 81(1), s 81(3), s 83 Transfer of Land Act 1893 (WA), s 65, Sch 9A Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA), reg 47
Case References:	Goldfields Homes Pty Ltd v Blacker & Anor [1999] WADC 71 Grant and The Owners of Rosneath Farm – Strata Plan 35452 [2006] WASAT 162 Lyons & Anor v Jandon Constructions (Unreported, Supreme Court of WA; Library no 980394, 20 July 1998) O'Neill and Allmark [2006] WASAT 118 O'Neill and Allmark [2006] WASAT 139 Nil
Orders	On the application heard before Senior Member Clive Raymond on 4 September 2006, it is ordered that:,1. The applicant is granted leave to file and serve a minute of proposed orders seeking leave to amend the application in a manner consistent with the Tribunal's reasons for decision dated 18 September 2006.,2. If the applicant does not apply to amend the application in accordance with order 1 on or before 16 October 2006, the Tribunal will issue an order dismissing the proceedings.,3. The respondent is to advise the Tribunal in writing, with a copy to the applicant, on or before 2 October 2006 in the event that the respondent wishes to either:,(a) be heard on the minute of proposed orders should a minute be filed and served; or,(b) make any application for compensation pursuant to the undertaking as to damages by the applicant dated 4 May 2006, in which event the Tribunal will set the matter down for a directions hearing.,4. The parties have liberty to apply for the matter to be referred to mediation prior to any final order being made, provided that a joint written request for mediation is first filed with the Tribunal.,5. The leave granted to Mr Marlon Allmark to represent the applicant as her agent in the proceedings, including any mediation, is revoked.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : O'NEILL and ALLMARK [2006] WASAT 283 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 4 SEPTEMBER 2006 DELIVERED : 18 SEPTEMBER 2006 FILE NO/S : CC 103 of 2006 BETWEEN : SHEA O'NEILL

Applicant

AND

SALLY ALLMARK

Respondent

Catchwords:

Strata Titles Act 1985 (WA) – Application for final order that respondent refrain from building over property sewer subject of implied easement - Jurisdiction to consider remedies other than order sought under s 83 of the Strata Titles Act.

Legislation:

Metropolitan Water Supply Sewerage and Drainage By-laws 1981(WA)

State Administrative Tribunal Act 2004 (WA), s 9, s 99(a)
Strata Titles Act 1985 (WA), s 9, s 11, s 11(2), s 11(2)(b), s 12, s 12(a), s 12(3), s 13, s 38, s 39, s 77B, s 81(1), s 81(3), s 83
Transfer of Land Act 1893 (WA), s 65, Sch 9A
Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA), reg 47

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Result:

Subject to final order

Category: B

Representation:

Counsel:

Applicant : Mr C O'Neill (Acting as Agent)

Respondent : No appearance

Solicitors:

Applicant : N/A

Respondent : No appearance

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

Goldfields Homes Pty Ltd v Blacker & Anor [1999] WADC 71
Grant and The Owners of Rosneath Farm – Strata Plan 35452 [2006] WASAT 162
Lyons & Anor v Jandon Constructions (Unreported, Supreme Court of WA; Library no 980394, 20 July 1998)
O'Neill and Allmark [2006] WASAT 118
O'Neill and Allmark [2006] WASAT 139

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant applied for an order under the Strata Titles Act 1985 (WA) that the respondent, as proprietor of an adjoining strata lot, refrain from building or allowing building, over or immediately adjacent to a property sewer servicing the applicant's lot.

2 The owner of the land comprised in the strata parcel was not required at the time of subdivision to ensure that the sewer line was located outside the development envelope of the lot. At the time when the respondent, as a subsequent purchaser of the lot, applied for the approval of building plans, there had been a change in the statutory regime. The Metropolitan Water Supply Sewerage and Drainage By-laws 1981 (WA)required compliance with the provisions of an Australian Standard AS/NZS 3500.2.2:1996 to the effect that any drain located under or inside a building shall only serve fixtures within that building. The by-law in question was revoked on 28 June 2004. Until that date, any person wishing to erect a building was required to submit copies of plans to the Water Corporation for approval and the Water Corporation could enforce compliance with the by-law. Compliance with Australian Standard AS/NZS 3500.2.2:1996 is required through the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) which obliges any person carrying out plumbing work to comply with that standard. The respondent was therefore able to have plans approved, notwithstanding that there already existed a property sewer in a location which is contrary to the above Australian Standard.

3 The respondent failed to place any evidence before the Tribunal in accordance with the Tribunal's directions and made clear, through the agent representing her, that she did not intend to do so, or to attend the final hearing of the matter. The matter was accordingly determined on the evidence provided by the applicant.

4 The Tribunal concluded that construction in accordance with the approved plans was not in breach of the rights and obligations attaching to the easement implied in favour of the applicant pursuant to s 11 of the Strata Titles Act 1985. The evidence demonstrated that only a section of the piping would be entirely built over, but there was no evidence to establish any likelihood of damage to the sewer or, consequently, any likelihood that it might need to be replaced. There was no evidence suggesting that the pipe could not be maintained adequately in any other respects. The Tribunal also concluded that the construction of the

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dwelling was not contrary to law and that the Australian Standard was not mandatory and had no coercive effect. Although the evidence showed that it was not good practice to build over a sewer which serves another property, the Tribunal concluded that the applicant, nevertheless, had no right to relief. This was because, in the absence of evidence of any likelihood of a need to replace the piping and no evidence that maintenance could not be carried out, the respondent owed the applicant no general duty to construct the dwelling in accordance with any standard of good practice.

5 The Tribunal inferred from the evidence that the applicant had not endeavoured to establish that the sewer would be subject to any loading transmitted from the footings of the proposed dwelling, by reason of engineering drawings provided by the respondent which indicated that pilings would be placed below the footings. The applicant's expert witness had provided the applicant with a letter, which was used in proceedings for an interim order, in which concern was expressed about the load transmission and its effect on the sewer. But, at the final hearing, after referral to the engineering drawings, the expert witness asserted only that the piling in the vicinity of the property sewer would not achieve compliance with the requirement of the Australian Standard that any drain located under or inside a building serve only fixtures within that building.

6 The Tribunal decided that it had jurisdiction to consider alternative solutions to the dispute between the parties, so that it could decline to grant the order sought by the applicant and could dismiss the application, if the applicant pressed for relief which the Tribunal considered was not appropriate. In such circumstances, it was concluded that the applicant should be given the opportunity to amend the application to seek an order in an appropriate form. The Tribunal examined the alternative solutions raised in evidence and found that the form of relief being sought by the applicant was reasonable, as it sought no more than would have resulted if the respondent had not applied for building approval at a time when a hiatus existed in the regulatory regime. Nevertheless, there was sufficient basis on the evidence for the Tribunal to conclude that the applicant would have succeeded if it had been demonstrated that the sewer was subjected to a load transmission from the footings of the proposed dwelling. As the applicant's expert witness had accepted that the proposed drawings would address his previous concern, the applicant was granted an opportunity to amend the application to seek an order consistent with the Tribunal's reasons for decision, but otherwise the Tribunal indicated that the application would be dismissed.

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7 The respondent had raised an intention to apply for compensation under an Undertaking as to Damages which had been provided to support an application for an interim order, and the Tribunal therefore provided a time limit within which the respondent was to advise whether she wished to be heard on any minute of proposed orders seeking leave to amend the application, or if she wished to make an application for compensation.

8 As the Tribunal considered that it would be prudent for the parties to reach a resolution of the matters in issue, it again offered the parties an opportunity to apply for the matter to be referred to mediation, which the respondent had previously declined, prior to any final order being made. Because the respondent's representative agent had conducted himself throughout the proceedings in an unacceptable manner, the Tribunal revoked the authority of Mr Marlon Allmark to represent the respondent as her agent in the proceedings, including any mediation.

9 The Tribunal also stated that the matter, including the Tribunal's reasons for decision, would be referred to the Executive Officer for consideration as to whether any steps should be taken against Mr Allmark.

Introduction

10 The applicant is the owner of survey strata Lot 2 on survey strata plan 39171, known as 53 Collins Street (corner Wellington Parade), Yokine, in the State of Western Australia.

11 The respondent is the owner of survey strata Lot 1 on survey strata plan 39171, known as 4 Wellington Parade, Yokine, in the State of Western Australia. The strata Scheme comprises only the two lots.

12 Lot 1 and Lot 2 share a common boundary, being the eastern boundary of Lot 1 and the western boundary of Lot 2. Lot 1 is unimproved although the respondent has carried out some siteworks preparatory to the construction of a dwelling thereon. Lot 2 is improved by an existing single storey dwelling. A sewer runs parallel with the southern boundary of Lot 1 and is connected to and serves Lot 2. An "As Constructed Plan" certified by the licensed plumber who installed the sewer appears to show that the sewer line is 0.4 metre from the southern boundary of Lot 2. The applicant informed the Tribunal that the respondent contends that the sewer is 0.6 metre from the boundary, but for reasons which will be apparent, it does not make any material difference as to whether the sewer is 0.4 metre or 0.6 metre from the boundary. The certified "As Constructed Plan" is dated 17 August 2001.

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13 The strata plan was registered on 4 December 2000. At that time, a sewer line was in a position, which the then owner of the land acknowledged, by a statement of undertaking provided to the Water Corporation, that the property sewer "crosses the proposed strata lot in such a way that it affects future use of the land. I/We Agree [sic] to advise the initial purchaser of the survey strata lot within the above proposal of this situation, and exonerate the Water Corporation from any liability in the future". The statement of undertaking is signed by AR Williams and is dated 13 April 2000. It was this sewer which was realigned in August 2001 so as to run parallel with the southern boundary of Lot 1 as described.

14 The respondent has obtained an approval to commence development of Lot 1, from the City of Stirling, by the construction of a single dwelling thereon. It is an express condition of that approval that it does not constitute an authority to ignore any constraint to development on the land, which may exist through statute, regulation, contract or on title, such as an easement or restrictive covenant.

15 Subsequently, the respondent had building plans approved for the construction of a double storey dwelling on Lot 1. Those plans show that the proposed dwelling would be constructed directly over the sewer for a portion of its length, and that a parapet wall would be built over a further portion of the boundary, with the remainder of the boundary abutting brickpaved areas. The applicant contends that, to build in this manner would "be in contravention of written law, in the alternative constitute an unacceptable practice and would be inconsistent and incompatible with an implied easement such that it would effectively prevent the applicant from inspecting, maintaining, repairing and if necessary replacing the property sewer, without risk of damage to the proposed building".

Order sought

16 It is in these circumstances that the applicant seeks an order:

"That the proprietor of survey strata Lot 1 on survey strata plan 39171, being the property identified as 4 Wellington Parade, Yokine, refrain from building or allowing building, over or immediately adjacent to the property sewer servicing survey strata Lot 2."

17 The applicant submits that if it is necessary to more precisely define the term "immediately adjacent", reference be made to the requirements of
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cl 3.8.2 of

Australian Standard AS/NZS 3500.2.2

(Australian Standard), to which further reference will be made below.

History of proceedings

18 It is necessary to set out a relevant history of the proceedings because that history has impacted upon the way in which the final hearing has been conducted and explains the procedure followed by the Tribunal because of the deplorable conduct of the respondent's husband who has acted as her agent in these proceedings. It is behaviour which the Tribunal has borne because the applicant, through Mr Allmark, steadfastly declined suggestions to obtain legal assistance, in the interests of bringing the manner to finality. The Tribunal did not foresee the extent to which Mr Allmark would persist with his behaviour. In the circumstances, the matter and the reasons for decision will be referred to the Executive Officer for consideration as to whether any steps should be taken against Mr Allmark.

19 On 30 January 2006, the applicant lodged a substantive and an interim application for orders to the above effect. A certificate as required under s 77B of the Strata Titles Act 1985 (WA) (ST Act) was filed on 3 February 2006. That non-compliance is not fatal to the application: see Grant and The Owners of Rosneath Farm – Strata Plan 35452 [2006] WASAT 162.

20 The interim application was set down for hearing on 13 February 2006. On the information then provided, the Tribunal declined to grant any interim order as no urgent circumstances were demonstrated and because the Tribunal considered that it would be necessary for expert evidence to be provided as to the effect of the proposed construction on the sewer. Orders were made adjourning the interim application pending the applicant obtaining expert reports. The applicant was required to file and serve any expert reports on which he intended to rely on or before 27 April 2006.

21 The Tribunal granted leave at that application for Mr C O'Neill to represent his son, the applicant, and for Mr M Allmark, to represent his wife, the respondent. The Tribunal recommended strongly to Mr Allmark that he remain in contact with Mr C O'Neill in relation to the matter and that the respondent not proceed without adequate notice with the construction works, because if the works commenced without notice, the applicant would only have to telephone the Tribunal to request that the application be relisted, and in such circumstances, there would be an

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appreciable risk that an interim order, in effect restraining the respondent from proceeding with the works, might be issued.

22 A directions hearing in respect of the substantive application was heard on 9 March 2006. Leave was then granted for an amended application, filed on 7 March 2006, to stand as the amended application and further service on the respondent was dispensed with. The time for the filing of any expert reports or evidence was further shortened to 23 March 2006, on the basis that any affidavit evidence stand as evidence in both the main and interim applications.

23 On 23 March 2006, the applicant filed detailed submissions but no affidavit evidence.

24 The respondent was directed to file and serve any affidavit on which she wished to rely in opposition on or before 6 April 2006.

25 The respondent filed an affidavit deposed to by Mr Allmark on 18 April 2006 on that day. The affidavit ran into some 107 paragraphs, some of which had a number of subparagraphs as well and to which were annexed a number of annexures totalling some 54 pages.

26 On 28 April 2006, the applicant addressed an email direct to the presiding member at the Tribunal, requesting an urgent determination of the application for an interim order and advising that:

"Siteworks have already commenced, and it appears that building works could commence as early as today or over the weekend. Despite requests from Mr Allmark, he has not advised as to when building would commence and has not responded to our request to defer building pending resolution of the current situation.

I therefore request your urgent review of the application and seek an interim order in accordance with the application."

The email was copied to Mr Allmark.

27 The matter was listed for an urgent hearing that day of which notice was given to the respondent. Mr Allmark was not available at short notice and the respondent declined to attend herself.

28 At the commencement of the further hearing of the interim application, Mr C O'Neill was informed that it was inappropriate that he should attempt to communicate direct with the presiding member.

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Mr O'Neill apologised and advised that he had been able to deduce the presiding member's likely address from other communications which he had had with the Tribunal. This became a significant issue in the mind of Mr Allmark, because he assumed that the email had been improperly acted upon as an application, when all it served to do was to request a relisting of the interim application properly commenced before the Tribunal.

29 At the hearing on 28 April 2006, Mr O'Neill produced a photograph showing an earth-moving machine on Lot 1 and earthfill having been spread on the site. Mr O'Neill also relied upon a letter of advice which he had received dated 26 April 2006 from Philip J Wright, Managing Director and Principal Hydraulic Services Engineer of the firm, PJ Wright & Associates Pty Ltd, Hydraulic Services and Public Health Consultants. Mr Wright made reference to the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) and to the Australian Standard which respectively refer to requirements that a drain located under or inside a building only serve fixtures within that building and that footings not be placed over or adjacent to existing drains unless specified clearances could be achieved. He further advised that there was concern as to the adequacy of the existing drain to support the imposed load of the proposed building. He stated that the compaction of the pipe bedding and haunching (side of pipe barrel) at the time the drain was installed may not be adequate and failure of the pipe could result. Further, the fact that the pipe is almost directly under the footing of the proposed boundary wall, which will bear a substantial portion of the load of the building, was of particular concern.

30 The Tribunal gave oral reasons and issued an interim order that the respondent refrain, with immediate effect, from continuing with any building works of whatsoever nature, upon Lot 1 of strata plan 39171. The respondent was granted leave to file a response to the application, including the expert report, and to apply to set aside the order on not less than 48 hours notice.

31 By letter dated 1 May 2006, the applicant filed a submission to support an urgent hearing to set aside the interim order, to strike out the application and to order the installation of a new sewer line. In that letter, which was addressed to the presiding member, the respondent took issue with the way in which the matter had been listed for hearing and raised various questions relating to the purported failure to comply with s 77B of the ST Act. The applicant requested "written answers to questions in this letter and in my Submission in regard to the hastily listed hearing on the

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28th April 06 and the order to cease building works". The submission was 81 paragraphs in length. As requested, the interim application was relisted for hearing on 3 May 2006.

32 On 2 May 2006, Mr Allmark wrote a letter to Justice Barker complaining about the procedures which had been followed and to which he received a response dated 3 May 2006.

33 At the hearing on 3 May 2006, Mr Allmark was informed that Mr C O'Neill had been advised that it was not appropriate that he communicate direct with the presiding member, as he had done by email on 28 April 2006, but that he had been warned that the matter would be relisted on short notice if the respondent simply proceeded with the building works. From the exchanges with the parties, and in particular Mr Allmark during that hearing, it should have been plain to him that it was not appropriate for him to write to the presiding member and that any processes that he wished to have explained would need to be raised with the presiding member during the course of hearings of the Tribunal. In any event, the hearing proceeded with some difficulty. Mr Allmark was extremely assertive and argumentative. In the midst of attempts to explain Mr Allmark's misconceptions on a range of issues, the issue of compliance with s 77B was not raised and was therefore not dealt with.

34 The relevant considerations in the 3 May 2006 hearing are reflected in the written reasons for decision O'Neill and Allmark [2006]WASAT 118 to which the Tribunal refers. For the reasons set out therein, the interim order was effectively maintained, although in a slightly different form. During the course of the reasons, the Tribunal went to some length to give the parties guidance as to the matters which it considered relevant, particularly in relation to the contention put forward on behalf of the respondent that the application was being brought for an ulterior purpose and was an abuse of process, because the real aim was said to be to force the respondent to relocate the proposed dwelling away from the common boundary. The Tribunal indicated its view that it was open to it to decline to grant the relief sought if there was a manifestly reasonable alternative by which the dispute between the parties could be resolved. Directions were issued in the substantive application to permit the filing of further expert evidence addressing the risk of damage to the sewer line and/or addressing, in detail, the respondent's proposal for relocation of the sewer line. Leave was also given to the applicant to file further affidavits in response.

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35 Mr Allmark then resumed correspondence with the President of the Tribunal. Despite having been advised by Justice Barker that there was no reason to constitute a three member Tribunal, he continued to press that issue, and still insisted that the application for an interim order had been made by email and complained about it, and he proceeded to motivate why the orders made by the Tribunal were wrong and why the presiding member should not deal with the matter. By separate letter correctly addressed to the Tribunal, Mr Allmark sought that the interim application be relisted. No further material was filed to support the respondent.

36 On 23 May 2006, Justice Barker replied to Mr Allmark's letter dated 11 May 2006 and explained that the interim application had been brought on the proper form. He was again informed that it was appropriate that the presiding member hear the matter and that it was normal that applications of this nature be dealt with by a single member and the same member. Mr Allmark was expressly advised that any arguments which he might wish to raise concerning the validity of the proceedings must be properly raised before the Tribunal.

37 In the meantime, in accordance with Mr Allmark's request, the interim application was listed for hearing on 25 May 2006. On the day preceding the hearing, Mr Allmark addressed a letter to the President enclosing his submissions. Those submissions consisted of 16 pages of close type occupying 116 paragraphs, many of which comprised a number of subparagraphs. The submissions were repetitive, convoluted and emotive. Strong objection was raised to the presiding member continuing to sit on the matter based, it would seem, primarily on Mr Allmark's view that the orders made to that point were "undue, unwarranted, unsafe, unsound, unjust, unfair and unlawful". References were made as to whether "this is a fit and proper court of law or is it some kind of 'kangaroo court'? Suffice to say this is indeed the wild wild west". The criticisms are based on Mr Allmark's misconceptions as to the procedures applicable in the Tribunal and are dealt with in the reasons for decision of the Tribunal dated 31 May 2006 in O'Neill and Allmark [2006]WASAT 139. For the reasons there set out, the presiding member declined to recuse himself on the grounds of apprehension of bias, and in effect, the interim order was maintained, although again, subject to some variation. The hearing of that application on 25 May 2006 was even more difficult than that heard on 3 May 2006 because of Mr Allmark's conduct. It became necessary at one stage for the presiding member to draw his attention to s 99(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which makes it an offence for a person to insult a Tribunal

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member while that member is performing functions as a member. Mr Allmark responded to the effect "I take your point" and he endeavoured to curtail his extreme language, although that lasted for only a short while and he soon reverted to a pattern of abuse.

38 In maintaining the interim order, the Tribunal also made orders having the effect that any further application to set aside the interim order could only be made if it was supported by affidavit evidence from an appropriate expert witness or witnesses deposing to whether there is any risk of damage to the sewer line in question in the event that construction of the proposed dwelling proceeded in accordance with the current approved building plans, and also deposing in detail to the proposal for relocation of the sewer line, and addressing how the works would be undertaken, with specific reference to any impact to the applicant's property. This was necessary because it was apparent that the hearing on 25 May 2006 had been used by Mr Allmark simply to reargue the same issues as had previously been dealt with, without any new evidence to support his position.

39 On 1 June 2006, Justice Barker replied once more to Mr Allmark and endeavoured to explain, yet again, that the procedures followed had been appropriate and that it was not necessary to constitute a three member panel to hear the matter. His Honour advised that if Mr Allmark remained dissatisfied, as had been previously mentioned, the respondent's remedy was to appeal to the Supreme Court. Mr Allmark was specifically advised that it was not appropriate that correspondence should be addressed to the President as a matter of course, such as the letter under cover of which the submissions for the hearing of 20 May 2006 had been provided. In those circumstances, Justice Barker advised Mr Allmark that future correspondence should be addressed to the Executive Officer, who, if he considered it appropriate, would draw any particular matter to his attention. On 29 June 2006, Mr Allmark addressed a letter to the Executive Officer attaching submissions which he requested be referred to Justice Barker. The submissions were some 20 pages in length comprising 73 paragraphs of detailed submissions, largely repetitive but principally attacking the reasons for decision of the Tribunal delivered on 31 May 2006. Buried within the meanderings of the submission, the Tribunal did note that the respondent contended that evidence could not be provided as to the impact which any relocation of the sewer might have on the applicant's property unless the applicant could provide access to his property. The tone of the submission is quite inappropriate as evidenced by statements such as:

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"If the member's reasons reflect the quality of legal advice expected to be obtained then thanks but no thanks, it's not worth two cents." (At par 37.)

"Don't disqualify yourself senior member, I know you are very honourable and give due respect to the office you hold, I know you will favour the applicant and grant a permanent order. Why waste time, you may as well issue the order forthwith as you will anyway." (At par 38.)

40 The submissions end:

MAKE A DECISION SENIOR MEMBER AND CEASE IMMEDIATELY THIS INSANE AND OBSESSIVE BIAS FOR THE APPLICANT OR JUST MAKE THE PERMANENT ORDER AND BE DONE WITH IT!!!!!!!!!

41 Notwithstanding the President's direction to address correspondence to the Executive Officer, a further letter was addressed by Mr Allmark to the President on 30 June 2006. Further correspondence was then entered into with the Executive Officer. As the presiding member was concerned that insufficient evidence was being placed before the Tribunal to enable it to deal with the matter properly, arrangements were made for a further directions hearing to be heard on 20 July 2006. On 18 July 2006, Mr Allmark wrote to the Tribunal advising that amended engineering drawings had been received incorporating piling on each side of the current sewer line and that, "there is now no reason whatsoever for any of the orders imposed to date by the Tribunal to remain".

42 Mr Allmark advised:

"The Tribunal has only two options: given the amended engineering drawings filed, forthwith remove all orders imposed to date and/or pursuant to the substantive expert evidence before the Tribunal order the redirection of the current sewer line in the manner advised by the Plumbers' Board and confirmed by TPC Hydraulics.

Unless and until the respondent is advised in writing which of the above two options the Tribunal is to exercise and for all of the above facts and reasons, the Tribunal is advised, the respondent shall not appear at the direction hearing listed on 20 July 06 or any further hearing in this matter. The Tribunal shall notify the respondent whatever directions or orders are

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made in the respondent's absence and the reasons. Please refer this letter to the President of SAT."

43 The engineering drawings referred to were attached to the letter of 18 July 2006. It must be noted that there was no suitable evidence before the Tribunal as to how the sewer line could be relocated and, indeed, the respondent had submitted, on 29 June 2006, that TPC Hydraulics needed access in order to address the issue of any impact on the applicant's property.

44 It will be seen by this long discourse that by the directions hearing on 20 July 2006, the Tribunal had been inundated with lengthy, repetitive submissions from the respondent and, in those circumstances, it would be extremely difficult to deal with the matter fairly, particularly fairly to the respondent, because there was every danger that a submission of some value was lost within the general morass of submissions.

45 Mr Allmark did not appear at the directions hearing on 20 July 2006 and the hearing proceeded in his absence. In summary, the Tribunal made directions covering the following matters.

46 Firstly, the applicant was directed to provide the respondent's expert witnesses with access to the applicant's property subject to reasonable notice.

47 The substantive application was set down for final oral hearing on 4 September 2006. For the purpose of the oral hearing, parties were directed:

(a) not less than seven days prior to the hearing to file and serve a bundle of documents containing all relevant documents on which they might wish to rely at the hearing;

(b) to cause summonses to witnesses to issue to ensure attendance of any witness required at the hearing;

(c) provided the parties agreed in writing, that a witness might give evidence by telephone, arrangements were to be made with the Tribunal not less than three days prior to the hearing for a telephone conference to be established;

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(d) that no regard would be had to any documents currently filed with the Tribunal, other than copies or originals thereof included in the bundle of documents referred to in (a); and

(e) that the only submissions to be taken into account would be the oral submissions made at the conclusion of the hearing.

48 As a result of Mr O'Neill informing the Tribunal that he was to meet the respondent that day to discuss alternative proposals to resolve the matter, the Tribunal acceded to Mr O'Neill's request to refer the matter to mediation. An order was made to that effect unless the respondent objected in writing within ten days of the date of the order for provision of access. The respondent did so object and the mediation hearing was vacated.

49 Mr Allmark thereafter wrote a series of letters to the Tribunal endeavouring to control procedures. In a letter dated 25 July 2006, he insisted that if the Tribunal was not intending to order the installation of a new sewer line, it should give reasons. On 27 July 2006, he filed a report from an expert witness, Mr Robert Wallis. He again insisted that if the Tribunal "is not intending to reorder redirection in the manner advised by the Plumbers' Board, confirmed by TPC Hydraulics and now the expert advice of Mr Wallis, please give written reasons asap".

50 This correspondence serves well to illustrate Mr Allmark's failure to appreciate that a Tribunal cannot finally determine a matter based on information contained in letters without witnesses being available to be tested by cross-examination or without the other side being given any opportunity for rebuttal in any form.

51 Mr Allmark continued to insist that his correspondence be placed before the President of the Tribunal. Ultimately, on 26 July 2006, the Executive Officer wrote to him reminding him of the earlier correspondence in which Justice Barker had indicated that it was for the Executive Officer to decide what correspondence was appropriate to draw to His Honour's attention. The Executive Officer advised that he had not considered it necessary to draw any matters raised in particular correspondence to the President's attention despite the increasingly unrestrained commentary of the content of Mr Allmark's letters. Mr Allmark was advised that if he chose not to attend directions hearings, there was a risk that procedures might be followed with which he

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disagreed. He was advised to attend the final hearing on 4 September 2006. Mr Allmark replied on 28 July 2006 in much the same tone as previous correspondence. On 3 August, notwithstanding the previous directive from Justice Barker, Mr Allmark wrote direct to His Honour again.

52 The respondent, through Mr Allmark, disregarded the directions issued by the Tribunal on 25 July 2006 following the hearing on 20 July 2006. Notwithstanding the direction that the Tribunal would only take into account oral submissions made at the conclusion of the hearing, Mr Allmark filed a written submission on 31 August 2006 comprising 37 paragraphs of closely typed submissions. On 1 September 2006, Mr Allmark filed a further set of submissions and, in the covering letter addressed to the Executive Officer, requested that the submissions be referred for the attention of the President. Included in the submissions was an application for an award of compensatory damages pursuant to an undertaking as to damages provided by the applicant in relation to the interim order sought. On 4 September 2006, Mr Allmark filed a further set of submissions and again requested that they be referred for the attention of the President.

53 The tone of these last submissions is consistently poor insofar as the submissions refer to the presiding member, but insofar as they turn to criticise the applicant's agent, the abuse sinks to an even lower level. Statements are made which are vulgar, offensive and are aimed to denigrate Mr O'Neill. No purpose would be served by repeating them and further aggravating the offence caused to Mr O'Neill.

54 The applicant, in compliance with the Tribunal's directions, filed an affidavit of Chris O'Neill to which was annexed the documentary evidence on which the applicant relied, together with an affidavit of Mr Philip J Wright, a practising hydraulics engineer and a licensed plumbing contractor, to which there were annexed further documents on which the applicant relied.

55 The applicant also filed an application "to cancel order requiring access to property" which implicitly acknowledged that the applicant had not given the respondent access in accordance with the directions made on 25 July 2006.

56 It was in these circumstances that the final hearing of the substantive application was heard on 4 September 2006.

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The final hearing on 4 September 2006

57 It is appropriate to deal firstly with submissions which Mr O'Neill made concerning the status of the respondent's submissions filed on 31 August 2006, 1 September 2006 and 4 September 2006. Mr O'Neill expressed his concern at the abusive and insulting submissions made in regard to him personally and submitted that as the submissions had not been filed in accordance with the directions made by the Tribunal, they should be struck out or ignored.

58 The Tribunal indicated its concern at the escalating level of abusive criticism advanced by Mr Allmark and stated that it considered the submissions made in relation to Mr O'Neill to be quite unacceptable. Nevertheless, the Tribunal was obliged, by virtue of s 9 of the SAT Act, to determine matters fairly and according to the substantial merits of the case, so that it was difficult to ignore material if it could have any impact on arriving at a correct decision. Nevertheless, the Tribunal is now satisfied, having reviewed the applicant's submissions made at the hearing, affidavit evidence and supporting documents, that it is possible to decide the matter in accordance with its substantial merits without having regard to any of the documentation filed by the respondent. It is a measure of the inadequate representation which Mr Allmark has provided for the respondent that the Tribunal can come to this conclusion. It is also possible to follow this course due to the position adopted by the applicant, as explained further below, in not contesting that it would be practicable to reroute the sewer in the manner set out in the report commissioned by the respondent from the expert witness, Mr Robert Wallis. This report is properly before the Tribunal as Annexure I to Mr O'Neill's affidavit. Further, the applicant has made clear that it does not base its right to relief on establishing any risk of damage to the drain by reason of load bearing upon it from the proposed building and its footings.

59 At the commencement of the hearing, the applicant applied for an order cancelling the direction, made on 25 July 2006, that access to the applicant's property be provided to the respondent's expert witness to assess the impact on the applicant's property of, and the most appropriate means of achieving, any relocation of the sewer line. The applicant was admonished for making the application at such a late time, the application itself having been lodged on only 28 August 2006. Mr O'Neill explained that there had been no intent to deliberately not comply with the Tribunal's order, but that access was not necessary, because the applicant did not take issue with the basis upon which the respondent's expert witness, Mr Wallis, had concluded that a relocation of the sewer line

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could be achieved. Mr O'Neill confirmed that the applicant had no objection to the Tribunal acting upon the report provided by Mr Wallis. That report, which is Annexure I to Mr O'Neill's affidavit, demonstrates that it is practicable for the sewer line to be relocated commencing at a point under the existing garage floor on the applicant's Lot 2, which would involve breaking up and replacing a section of the existing garage floor. On that basis, the Tribunal declined to vary the direction order, but as there was no prejudice to the respondent, there was no need to address non-compliance with the order. Nevertheless, the applicant contends that relocation of the sewer should not be considered and that, in any event, the Tribunal did not have jurisdiction to make any such order, although, as the argument later developed, that latter part of the contention was maintained meekly, if not by implication, abandoned.

Summary of relevant evidence

60 The evidence provided by the applicant, through the affidavit of Mr O'Neill filed on 28 August 2006, establishes the background facts set out in the introduction. The following further facts are relevant, together with the facts and opinions expressed in Mr Wallis's report, which the Tribunal accepts. The Water Corporation has confirmed that it does not regard building over a property sewer as an acceptable practice and requires as a condition of strata subdivision that the property sewer be relocated to allow for a clear building envelope. It is not explained why the Water Corporation did not ensure that this condition was imposed at the time of the carrying out of the strata subdivision.

61 The Metropolitan Water Supply Sewerage and Drainage By-laws 1981, provided by By-law 16.1 to the effect that a person who carries out sanitary plumbing or drainage plumbing must ensure that the plumbing is carried out in accordance with the provisions of the Australian Standard. The Australian Standard provides, by cl 3.2(b), that any drain located under or inside a building shall only serve fixtures within that building.

62 Until 28 June 2004, when the above By-law 16.1 was revoked, any person wishing to erect a building was required to submit copies of plans to the Water Corporation for approval (By-law 27.6). Through that process, the Water Corporation was able to enforce compliance with Bylaw 16.1. Since 28 June 2004, compliance with the Australian Standard is required, through reg 47 of the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, which obliges any person carrying out plumbing work to comply therewith.

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63 In relation to the respondent's proposed development, it was not necessary for the approved plans to be submitted to the Water Corporation, although as reflected in the introduction, the development approval was in terms which expressly state that it is not authority to ignore any constraint to development on the land, which may exist through statute, regulation, contract or on title, such as an easement or restrictive covenant. Nevertheless, if the property sewer was to be installed as part of the proposed building works, the plumber carrying out the work would have to comply with the requirements of the Australian Standard. The dispute has arisen, in this case, because the property sewer was already in existence and falls within a hiatus in the regulatory controls.

64 The Australian Standard also prescribes, by subparagraph (d), that where a drain is to be laid parallel to a footing, the excavation shall comply, relevantly, with Figure 3.3. Figure 3.3 is a diagram which shows that the drain must be set at a depth and at a distance from the footings such that it falls on the far side, away from the proposed structure, of a line drawn at a 45 degree angle, from a line parallel to the ground level, to the closest corner of the underside of the footing.

65 The respondent's approved building plans included engineering drawings AS-0405-0572 dated January 2005. The relevant drawings are identified as being sheet nos S2 and S3 of seven. From sheet S2, the type of footing detail designed to be used on the boundary can be ascertained. The footing design is identified as being either the SF2 or SW1 design. Sheet S3 reflects that the SF2 footing is 300 millimetres wide at a depth of 350 millimetres and is to finish flush with the respondent's wall, that is, the footing is offset at the boundary so as not to encroach on the adjoining land. This is necessary because the proposed walls will abut the boundary. It is noted that the applicant had previously referred to these footings as being 450 millimetres wide, but that related to the SF1 design which is not to be used on the building in the areas which abut the boundary. In those portions of the boundary which are not abutted by the dwelling itself, the boundary wall or screen wall is in accordance with the design SW1 which has a footing 350 millimetres wide at a depth at either 400 millimetres or 450 millimetres, depending upon whether the footing is to be used at a pier or to support the wall itself.

66 The Tribunal sought clarification from Mr O'Neill as to the depth of the sewer line and was informed that the respondent contends that the sewer is at a depth of 0.9 metre whereas he advised that it had since been established that it fell to a depth of up to 1.0 metre. Surprisingly,

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the parties appear to have given little attention to this, and the respondent does not appear to have disputed that the sewer falls on the inner side of the 45 degree line drawn in the manner described above and therefore in breach of the requirements of the standard in question. It is noted that Mr Wallis, in his report, accepts that the foundations of the proposed building will transmit a load bearing on the sewer line which is consistent with the way in which the case has been conducted by the parties.

67 As already indicated, Mr Wallis' report establishes that the sewer line could be relocated by connecting a diversion at a point under the existing garage floor on Lot 2, such that the applicant's present objections would be met.

68 Mr Philip Wright swears that he has a diploma of engineering construction hydraulics and has in excess of 30 years experience as a practising hydraulics engineer as well as being a licensed plumbing contractor. Mr Wright refers to the relevant Regulations and Australian Standard referred to above. He refers to subsequent drawings prepared by Reed Engineering Pty Ltd being attached as Annexure B to his affidavit, and comments that, in his opinion, the piling in the vicinity of the property sewer reflected in the drawing would not achieve compliance with the requirements of cl 3.2(b) of the Australian Standards, to the effect that any drain located under or inside a building shall only serve fixtures within that building. Mr Wright expresses the view that if the building were to be constructed up to the rear boundary as proposed, the existing drainage line located under the proposed dwelling would not be accessible. He then states "it is my opinion that if future replacement of the existing drain were to be required, it could not be undertaken under the dwelling".

69 Because the Tribunal foreshadowed, in its earlier decision in O'Neill and Allmark [2006]WASAT 118, that it might decline to grant the relief sought if there was a more preferable solution open to the parties, the applicant has provided evidence aimed to show that the proposed dwelling could, with relatively minor amendments, be placed upon Lot 1 in a manner which would not result in any building over the sewer. The applicant has provided drawings of the proposed redesign, the only effect of which appears to be to reduce the floor area by approximately 5 square metres, that is a total floor area reduction, having regard to both floor levels, of 10 square metres. The Water Corporation and the Plumbers Licensing Board have indicated that the proposed redesign would meet their respective requirements. The City of Stirling has indicated general support for the proposal subject to submission of a formal application, and relevant consultation as required under its town

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planning scheme. Mr O'Neill testified that both parties had attended a meeting with the officers of the City of Stirling to discuss the proposal to change the design. The respondent has not attempted to put forward any evidence concerning this issue, although it is obvious that he opposes it and has endeavoured, although not in compliance with the Tribunal's directions, to put forward evidence to establish that relocation of the sewer in the manner suggested by Mr Wallis is the obvious solution.

The issues for determination

70 Based on the applicant's submissions made at the hearing in support of both the application to set aside the direction order relating to access and in relation to the merits of the substantive application, the Tribunal distils the following issues for determination:

(a) Does the Tribunal have jurisdiction to take into account alternative solutions beyond the terms of the order sought by the applicant?

(b) What rights and obligations are attached to any implied sewerage easement under the ST Act?

(i) be contrary to law, or in the alternative, constitute an unacceptable practice; or

(ii) be inconsistent and incompatible with the applicant's rights under an implied easement pursuant to the ST Act so as to effectively prevent the applicant from exercising his rights thereunder?

(d) If questions (a) and (c) above are answered in the affirmative, what consequences flow from considering solutions as an alternative to the order sought by the applicant?

71 It must be noted that the applicant has moved away from the very basis upon which the original interim order was granted. In O'Neill and Allmark [2006] WASAT 118, the Tribunal found that there was a serious issue to be determined on the basis of a letter report provided by Mr Wright in which, in addition to the matters which are still relied on, concern was expressed as to the adequacy of the existing drain to support the load of the proposed building. Mr Wright stated that "the fact that the
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pipe is almost directly under the footing of the proposed boundary wall, which will bear a substantial portion of the load of the building, is of particular concern in this regard". At the hearing, the applicant expressly disavowed reliance on establishing risk of damage based on the transmission of loads imposed by the proposed building. Why that is so was not explained. It may be inferred, notwithstanding Mr Wallis' expert opinion that the placing of concrete piles under the foundations was not necessarily a satisfactory solution, that Mr Wright is of a different view. His evidence, as quoted above, is now focused on building over the drain, and that is the basic issue on which the merits of the applicant's case are founded.

72 The Tribunal therefore turns to address the above issues in the order most convenient for it.

Jurisdiction to consider alternative solutions

73 The applicant's substantive application has been brought under s 83 of the ST Act, which empowers the Tribunal to make an order on the application of a proprietor, amongst others, for the settlement of a dispute, or the rectification of a complaint against another proprietor, amongst others, who with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the ST Act or the by-laws in connection with the particular scheme. Section 81(3) grants the Tribunal a specific power to make an order against a category of persons, including a proprietor, to refrain from doing a specified act with respect to a parcel.

74 Subsection 81(1) of the ST Act further specifically empowers the Tribunal to make an order in terms different from the order sought, so long as it does not differ in substance from the order sought. It is in reliance on that provision that the applicant contends that it is not open to the Tribunal to consider and impose any alternative solution on the applicant.

75 This contention is not accepted. It may be that an applicant seeks an order which is entirely inappropriate and goes beyond the terms of an order which the Tribunal considers would be sufficient to settle a dispute between the parties. In such a circumstance, the Tribunal would be entitled to decline to grant the relief sought. In discharge of its obligations under s 9 of the ST Act to act fairly, one would expect that in most cases, the applicant would be invited to amend its application to seek an order in terms which the Tribunal considered appropriate. Of course,

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if the applicant in such a situation chose not to do so, the result would simply be that the application would be dismissed.

76 The Tribunal holds that it does have jurisdiction to consider alternative solutions to the dispute.

Rights and obligations associated with implied easement

77 Section 11 of the ST Act provides that, in respect of each lot, there shall be implied, relevantly, an easement for the passage of sewerage through or by means of any pipes for the time being existing in the land, comprising the parcel to the extent to which those pipes are capable of being used in connection with the enjoyment of that lot. It is further correspondingly implied, as against the proprietor and to which his lot shall be subject, an easement for the passage of sewerage through pipes for the time being existing within that lot, as appurtenant to the common property and also to every other lot capable of enjoying such easements.

78 Subsection 11(2) provides that a proprietor, mortgagee in possession or occupier of a lot shall not do anything or permit anything to be done on or in relation to that lot so that, relevantly, the passage of sewerage through or by means of any pipes for the time being in the lot is interfered with.

79 The applicant submits that guidance is to be found from the rights which are spelled out in Sch 9A of the Transfer of Land Act 1893 (WA) (TL Act) in order to determine the rights and obligations attaching to the implied easement. Schedule 9A sets out the long form description of an easement, which pursuant to s 65 of the TL Act applies where the applicable document (it is not relevant to describe more fully) contains "a short form of easement". Column 1 of Sch 9A sets out a short form of easement, and Column 2 the corresponding long form description of easement. Thus, in the short form "an easement for sewerage purposes" conveys, by reference to the long form description, a detailed statement which encompasses:

"the right of that person and the person's employees and agents, at any time, to break the surface of, dig, open up and use that part of the land within the servient tenement … for the purpose of laying down, fixing, taking up, repairing, re-laying, replacing or examining pipes and of using and maintaining those pipes for sewerage purposes and to enter that land at any time (if necessary with vehicles and equipment) for any of those purposes."

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80 Section 12 of the ST Act creates an easement in terms of which every proprietor of a lot is entitled to have his lot sheltered by all such parts of the building as are capable of affording shelter. Subsection 12(3) specifically provides the right of the proprietor of the dominant tenement to enter on the servient tenement to replace, renew or restore any shelter. Section 12(a) creates a right of easement in respect of permitted boundary deviations or in respect of a lot or part of a lot which is the external surface of part of a building and is on the boundary with another lot and specifically provides that the proprietor of the lot may inspect, alter, repair and replace the part (constituting a boundary deviation or which is on the boundary) and may enter onto the lot, if necessary, with vehicles and equipment for the purpose of doing so.

81 Section 13 of the ST Act provides that "[A]ll ancillary rights and obligations reasonably necessary to make them effective belong to easements implied or created by this Act".

82 Sections 38 and 39 of the ST Act specify a number of circumstances in which a strata company is entitled to carry out work, including where it is necessary to remedy a breach by a proprietor of the duty imposed on him by s 11(2) and which enable the strata company, by its agents, servants or contractors to enter upon any part of the parcel for the purpose of carrying out work, including work necessary to repair or renew any pipes, wires, cables or ducts referred to in s 11(2)(b).

83 There is clearly room, within s 13 of the ST Act, to find that specific ancillary rights and obligations exist in order to make the easement effective. It would not be prudent to attempt to define the extent of such ancillary rights and obligations because the extent to which they are reasonably necessary will depend on the factual circumstances in each case. The ability of the strata company to carry out work necessarily implies that all acts can be undertaken which are necessary to carry out the work such as, as expressly stated in Sch 9A referred to above, to break the surface of, dig, open up and use that part of the land subject to the easement for the purposes described therein. Insofar as s 39 provides that a strata company has power to enter any part of the parcel for the purpose of carrying out the work specified, in the case of an emergency, at any time, it may be possible to rely on s 13 to find, in the case of a two lot scheme, such as this scheme, that the dominant owner has similar rights to those provided to the strata company. Arguably, this might also be said in relation to many small strata schemes in which the strata company is inoperative.

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84 It is clear that under s 11, the applicant is entitled to the benefit of an implied sewerage easement, and at this stage, as no particular repair works are contemplated, it is academic as to whether the applicant has rights to go onto the land and carry out repairs, or whether the strata company created on registration of the strata plan alone may do so. The crux of the applicant's arguments is that, once rights of the nature described are recognised, there must be a corresponding obligation not to build over the easement and thereby frustrate the exercise of the rights attaching to the easement. The applicant contends that the development of the proposed dwelling over the easement would be inconsistent with his rights which he asserts include inspection, maintenance, repair and, if necessary, replacement of the sewer line.

85 It must always be a question of fact and degree as to the extent to which the servient proprietor may carry out works above or in the proximity of a sewer line subject to either an express, or as in this case, an implied easement. There could be no reasonable quarrel about a proprietor choosing to pave his land, because in the event of a blockage of the sewer, or some other reason making maintenance necessary, the removal of the brick paving and its replacement after works had been completed is a relatively simple matter. Similarly, the construction of some piers or columns above a sewer may not be regarded as creating any difficulty, if access from other positions is achievable. In this particular case, the Tribunal does not consider that there is any significant problem in accessing the sewer line in all locations, other than the portion which will effectively be under the dwelling itself. That is a length of approximately 5.0 metres as against the total length of the boundary of approximately 17.0 metres. This is because the drain is not directly under the footings along the boundary wall in all other areas. Whether the drain is 0.4 metre or 0.6 metre from the boundary, it is outside the footings. It may well be dangerous, in those circumstances, to endeavour to excavate any substantial length of the pipe at one stage, because it may affect the stability of the proposed boundary wall, but there is nothing to suggest that any such excavation could not be carried out in relatively small stages, so that the stability is not affected.

86 In these circumstances, the real issue is whether the location of the section of the proposed dwelling, right against the boundary and over the sewer for the extent of approximately 5.0 metres, would result in a frustration of the applicant's rights under the implied easement.

87 The construction of the house itself will not interfere with the express right granted which is for the passage of sewerage. There is

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therefore no present or immediately apprehended breach of the respondent's obligations, under s 11(2) of the ST Act, not to do anything or permit anything to be done on or in relation to the lot so as to interfere with the passage of sewerage. There is no evidence that any general maintenance could not be carried out. The only evidence from Mr Wright is that "

future replacement of the existing drain were to be required, it could not be undertaken under the dwelling". (Emphasis added.)

88 What is the risk that the drain, or that particular section of it, may need to be replaced? It was partly because there was no evidence of any risk of damage that the initial application for an interim order was declined, and it was precisely because some risk of damage was established that the interim order was first granted on 28 April 2006. It must be assumed that the respondent's proposal to carry out underpinning in accordance with the drawings reviewed by Mr Wright has alleviated that risk. If the loading surcharge from the dwelling and its footings is no longer a concern, which the Tribunal holds to be so, there is no basis upon which the Tribunal can determine that there is any likelihood of a need to replace this particular section of pipe. It is not subject to any load transfer which might damage it, and there is no evidence as to how a pipe underneath a building may otherwise be damaged and need to be replaced.

89 The Tribunal concludes that, in these circumstances, it is not established that the building over the sewer is inconsistent or incompatible with the applicant's rights under the imposed easement or that it prevents the applicant from enjoying the benefit of her rights thereunder.

Will the development constitute a breach of law, or alternatively, constitute an unacceptable practice?

90 It is clear that if the respondent had submitted her building plans for approval prior to 28 June 2004, it is unlikely that the building plans would have been approved. The respondent, nevertheless, contends that she is lawfully entitled to proceed.

91 The relevant provisions of the Australian Standard and the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 continue to have application, but they do not, by their terms, prevent the respondent from proceeding with the building works in accordance with the approved plans. To do so will constitute a breach of the relevant Australian Standard and, in particular, cl 3.2(b) to the effect that a drain located under or inside a building shall only serve fixtures within that building. But an Australian Standard is not mandatory and has no coercive effect: Lyons & Anor v Jandon Constructions

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(Unreported, Supreme Court of WA; Library no 980394, 20 July 1998);

Goldfields Homes Pty Ltd v Blacker & Anor

[1999] WADC 71 dated 16 September 1999.

92 The Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 and in particular reg 47, places an obligation only upon the person who is carrying out the plumbing work.

93 It is an unsatisfactory state of affairs that the respondent is able to take advantage of an unintended consequence in the change to the regulatory scheme, as referred to above. But, to do so is not a breach of any law directed at or applicable to the respondent.

94 The evidence reflects that the Water Corporation does not regard it as a good practice to build over a sewer which serves another property. The Tribunal accepts that to be the case. The Australian Standard referred to above reflects that to be the case, and the respondent has, from an early stage in the proceedings, accepted this position. But the fact that something would not constitute a good practice does not establish a right to relief when there is no evidence of any likelihood of the need to replace the piping, and no evidence, or even suggestion that maintenance cannot be carried out. The respondent owes the applicant no general duty to construct the proposed dwelling in accordance with any standard of good practice.

Alternative solutions

95 Notwithstanding the above findings, the Tribunal considers that it is relevant to make findings in relation to the alternative solutions canvassed in the evidence and the applicant's submissions.

96 The Tribunal so concludes because it finds that, but for the provision of further engineering drawings, which have the effect of increasing the depth of the footings by additional piling, it is probable that the applicant would have succeeded in obtaining relief, subject to a consideration of the alternative solutions, on the same grounds as set out in the Tribunal's reasons for decision in O'Neill and Allmark [2006] WASAT 118. It is apparent that Mr Wright concluded that an adjustment to the depth of the footings would facilitate a commensurate reduction on the setback of the building from the drain. The effect of that was to address the concern which he expressed by way of a letter which was relied upon as the basis for the grant of an interim order. It can be inferred from the provision of those drawings that the respondent's engineering advice was that it was necessary to provide the piling in order to comply with the

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Australian Standard requirement for the drain to be outside the 45 degree line from the outer corner of the footing.

97 In these circumstances, it may be appropriate to issue a final order in terms which require the respondent to refrain from carrying out any building work until such time as she has applied for, and had approved, an amendment to the building plans so as to incorporate alterations to the footings in a manner consistent with the drawings in question. For the reasons given above, that course could only be followed if the applicant applied for an appropriate amendment to the application but, in any event, whether the Tribunal would make such an order becomes dependent on its conclusions in relation to the alternative solutions.

98 This requires a consideration of the respondent's proposal that the sewer be relocated in the manner described by Mr Wallis, as opposed to the case put forward on behalf of the applicant that the respondent should be expected to alter the design of the dwelling so as to accommodate the present sewer.

99 The evidence has been summarised above, and there is no real factual dispute about what would be required in relation to the relocation of the sewer. In relation to the redesign of the dwelling, the respondent has not attempted to put any evidence before the Tribunal as to why the proposal itself, as opposed to the objection in principle of having to carry out any redesign, would be unacceptable. In effect, the redesign, or something similar to it, is all that the respondent could have expected but for the quite fortuitous hiatus in the necessary controls at the time when the application for approval of the building plans was made. Although it can be achieved, the relocation of the sewer line requires an interference with the applicant's property, and in the absence of there being some obvious reason as to why it is unreasonable for the applicant to seek an outcome, which would have occurred but for the hiatus referred to, the Tribunal is not prepared to refuse any order to which the applicant is otherwise entitled.

General considerations and orders

100 It is clear that it is not good practice to build over sewer lines servicing other properties. While the applicant will not be breaking any law identified to the Tribunal should she proceed with the building works so as to build over the sewer line, it is, in reality, she who is taking the risk should anything occur in the future, of being subjected to the upheaval of any necessary maintenance or repair operations. If it should turn out, notwithstanding the complete absence of any evidence before the

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Tribunal, that damage occurs because of load bearing upon the sewer, or any damage occurred to it during building operations, issues will be raised as to whether or not the respondent has breached her obligations under s 11(2)(b) of the ST Act, and if so, that will have cost implications. It remains prudent for the parties to work out a solution. The Tribunal offered mediation, which the respondent rejected, and upon the issue of a final order, the Tribunal's processes will be exhausted. The applicant will be granted leave to file a minute of proposed orders seeking leave to amend the application in terms consistent with the above reasons. If a minute of proposed orders is not filed within 28 days of the date of the order, the Tribunal will assume that the applicant does not seek orders in the terms proposed, for whatever reason, and in those circumstances, the application for the order sought will be dismissed.

101 The Tribunal is conscious that the respondent attempted to have the Tribunal deal with an application for the assessment of compensation, in terms of the undertaking as to damages, which the applicant provided in support of the application for an interim order. That application was premature in any event. The respondent will need to give consideration to these reasons for decision in order to assess whether it is open to her to make such an application. If the respondent wishes to play any further part in the procedures, either because she wishes to be heard on the minute of proposed orders, or because she wishes to make an application for compensation based on the undertaking as to damages, the Tribunal will require her attendance in person, or that some person other than Mr Allmark apply for leave to represent her. In view of Mr Allmark's conduct outlined above, the Tribunal will make an order revoking his leave to represent the respondent any further in the proceedings.

102 The Tribunal remains willing to offer the parties the opportunity to attend a mediation prior to any final order being made, provided both parties request in writing that a mediation be convened.

Orders

1. The applicant is granted leave to file and serve a minute of proposed orders seeking leave to amend the application in a manner consistent with the Tribunal's reasons for decision dated 18 September 2006.

2. If the applicant does not apply to amend the application in accordance with order 1 on or before 16 October 2006, the Tribunal will issue an order dismissing the proceedings.

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3. The respondent is to advise the Tribunal in writing, with a copy to the applicant, on or before 2 October 2006 in the event that the respondent wishes to either:

(a) be heard on the minute of proposed orders should a minute be filed and served; or

(b) make any application for compensation pursuant to the undertaking as to damages by the applicant dated 4 May 2006, in which event the Tribunal will set the matter down for a directions hearing.

4. The parties have liberty to apply for the matter to be referred to mediation prior to any final order being made, provided that a joint written request for mediation is first filed with the Tribunal.

5. The leave granted to Mr Marlon Allmark to represent the respondent as her agent in the proceedings, including any mediation, is revoked.

I certify that this and the preceding [102] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR C RAYMOND, SENIOR MEMBER