JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING ACT 2011 (WA) CITATION : PAPADOPOULOS and CITY OF STIRLING [2015] WASAT 126 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 10 NOVEMBER 2015 FILE NO/S : CC 679 of 2015 BETWEEN : EVANGELOS PAPADOPOULOS First Applicant
TRIANDAFILLIA PAPADOPOULOS
Second Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
ZZZZZZ Building Act 2011 (WA) - Proceedings withdrawn subsequent to first directions hearing and prior to date set for mediation - Leave to withdraw granted subject to applicants' application for costs - Principles to be applied when no hearing on the merits
Legislation:
Building Act 2011 (WA), s 111(1)(a), s 122
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4) Result:
Application for costs refused
Summary of Tribunal's decision:
The applicants applied for the review of a building order issued by the respondent.
The building order related to the applicants' enclosure of a carport in a manner inconsistent with an order of the Tribunal granting the applicants a building licence (under the then applicable statutory regime) following mediation between the parties in earlier proceedings. The current proceedings were referred to mediation at the first directions hearing but the respondent withdrew the building order prior to the mediation. Leave to withdraw the application was granted subject to determination of the applicants' application for costs.The Tribunal referred to a previous decision, Frankowiak and Chambers [2012] WASAT 175 as establishing the principle that, subject to the Tribunal's usual considerations in relation to costs, in cases where there has been no determination of the merits, costs should not be awarded unless it can fairly be concluded that one or the other of the parties is clearly more likely to succeed. After examining all of the factual circumstances, the Tribunal held that it could not be fairly concluded that the applicants would have succeeded in having the building order set aside if the matter had proceeded to a determination on the merits.The application for costs was accordingly dismissed.Category: B
Representation:
Counsel:
First Applicant : N/A
Second Applicant : N/A
Respondent : N/A
Solicitors:
First Applicant : Rowley Legal
Second Applicant : Rowley Legal
Respondent : Kott Gunning Lawyers
Case(s) referred to in decision(s):Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53Drake and City of South Perth & Anor [2005] WASAT 271Frankowiak and Chambers [2012] WASAT 175Medical Board of Western Australia and Kyi [2009] WASAT 22Morea Architects and Town of Vincent [2006] WASAT 263Thomas and City of Stirling [2013] WASAT 110Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 7 May 2015, the applicants lodged an application with the Tribunal seeking a review under s 122 of the Building Act 2011 (WA) (Building Act) of a decision by the respondent, the City of Stirling (City or Council), to issue a building order on the applicants relating to a conversion by them of a carport into a garage.
2 At the first directions hearing, the matter was referred to mediation. Shortly prior to the mediation hearing, the respondent gave notice that it had withdrawn the building order. The applicants indicated that they wished to apply for costs and in the circumstances, leave to withdraw the proceeding was granted by the Tribunal subject to the applicants' application for costs. Directions were subsequently issued relating to that application and providing for the parties to file written submissions. The applicants' application incorporates a draft bill of costs reflecting a total amount claimed in respect of costs of $9,645.90.
Applicable principles in relation to costs
3 The applicants have referred to a number of decisions in the Tribunal relating to the principles which should guide a regulatory authority on enforcement action and in respect of costs, being Drake and City of South Perth & Anor [2005] WASAT 271; Medical Board of Western Australia and Kyi [2009] WASAT 22; Morea Architects and Town of Vincent [2006] WASAT 263; Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341; and Thomas and City of Stirling [2013] WASAT 110 (Thomas).
4 The decisions in relation to costs establish that, notwithstanding that the Tribunal is primarily a no costs jurisdiction; see s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), there is a broad discretion under s 87(2) of the SAT Act to award costs and that the Tribunal may make an order for costs against a regulatory authority which acts unreasonably. The applicants further refer to s 87(4) of the SAT Act which requires that the Tribunal, when considering an order for payment of costs relating to a matter that is the subject of review proceedings, to have regard to whether the decisionmaker genuinely attempted to make a decision on the merits.
5 In Thomas, the Tribunal referred to a range of factors which will generally be relevant in the exercise of a discretion whether or not to issue a building order. Although the case was specifically addressing the encroachment of a boundary wall, the factors can clearly be adapted to cover other circumstances in which the decision to issue a building order is under consideration. The factors stated are:
1) the public interest in enforcement of building standards requires that there should be compliance with the Building Act and the conditions of any building permit issued thereunder, such that the person responsible for building work must ensure that no part of the building or an incidental structure is placed beyond the boundary of land upon which the work is being or has been carried out; 2) regard should be had to the nature and extent of any burden or other detrimental effect to land affected by the encroachment, or inconvenience to an owner or user of the affected land;
3) the factual circumstances in which the encroachment occurred;
4) the time which has elapsed since the encroachment occurred;
5) the expense and inconvenience which would be involved in removing the encroachment or any other proposed course of action; and
6) in applying the above factors, sound common sense should be used to avoid the unnecessary expenditure of public funds.
6 The respondent accepts the legal principles and authorities referred to by the applicants and those principles clearly have application in this matter. 7 There are, however, other principles, to which the parties' legal representatives have not referred, but which the Tribunal considers also have application to this matter.
8 As the facts outlined below disclose, there were previous proceedings between the parties concerning a dispute over the carport in question. Those proceedings were resolved in mediation by the Tribunal issuing an order granting the applicants a building licence (as applied under the then applicable statutory regime) in respect of the carport which was subject to certain conditions, including provisions that the carport be constructed with openings to specific measurements in the eastern and western walls of the carport. It is the applicants' case that they proceeded with all building works immediately thereafter and that no work has since been carried out. The respondent's building order refers to the conversion of the carport into a garage. A subsequent email from the respondent dated 9 April 2015 clarified that the respondent required the removal of the garage doors and the filling to the side openings. What is therefore understood to be in issue is whether the applicants complied with the above conditions. Consequently there is not only the public interest to be taken into account as stated in Thomas of ensuring compliance with the conditions of any building permit, but in this matter, there is the additional consideration of the effect of noncompliance with an order of the Tribunal as part of the factual circumstances in which the alleged work was carried out to enclose the carport.
9 Further, the consideration of any award of costs is complicated by there having been no decision made on the merits. In this circumstance, the Tribunal held in Frankowiak and Chambers [2012] WASAT 175 (Frankowiak) at [15] as follows:
Within the court system, where parties reach a settlement on all issues save as to costs, unless the circumstances are exceptional (as where the court can clearly see that the claim was hopeless or the defence was bound to fail), the appropriate order is that each party bears its own costs: see Gribbles Pathology Pty Ltd vs Health Insurance Commission (1997) 80 FCR 284 at [287], and the discussion in Civil Procedure Western Australia, Vol 1, by Kendall and Curthoys, LexisNexis, Butterworths, Australia 1990 at para 66.10.14. The Tribunal operates under very different procedures, which place significant emphasis on facilitative dispute resolution procedures with a view to settling matters. Depending on the nature of the type of dispute and area of jurisdiction, procedures are often very informal and simplified. Often, all relevant material is filed at an early stage. Consequently, the Tribunal should be prepared to endeavour to make an assessment of the likely outcome of the matter on the material which is before it, and to award costs where it can fairly be concluded that one or other of the parties is clearly more likely to succeed, although it might not be said that the opposing case is hopeless or bound to fail. This will help reduce the circumstances in which parties might be prepared to continue with the proceeding with the objective of obtaining a favourable costs order.
10 That statement was made in the context of an earlier reference to the applicable principles which might persuade the Tribunal to award costs and should not be taken to suggest that costs will necessarily follow a favourable assessment of the prospects of success.Factual background
11 There is not a great deal of information before the Tribunal and much of what has been provided is by way of the parties' submissions in relation to costs and by way of attachments to those submissions. In many cases, the nature of the attachments, such as a letter or email, is clear and the Tribunal can give full weight to the document and the information contained in it, if not challenged. In other circumstances, as will appear further below, the facts are left unclear. The Tribunal has had to do the best it can on the information before it. Accordingly, the facts stated below, either appear from uncontested submissions and their attachments, or the context will reflect material or information disputed by either of the parties.
12 A dispute arose between the parties relating to the applicants' carport at 215 Morely Drive, Dianella during 2004. This dispute was ultimately resolved in proceedings before the Tribunal which resulted in an order granting a building licence in respect of the carport, subject to certain conditions. A copy of the order dated 12 September 2005 and its attachments are included in the Tribunal file. It is not clear by whom they were filed. The respondent's submissions include consent orders bearing a date of 9 September 2005 and part of what appears to be an order issued by the Tribunal, but it for some unknown reason, has some words missing from virtually every line of the document. The annexures A and B attached to the respondent's submissions are not readable, but appear to correspond with annexures A and B attached to the clear copy of the order of the Tribunal dated 12 September 2005, to which reference has been made above. The parties' consent order dated 9 September 2005, although it also has some words missing from it, can be seen to be entirely consistent with the order issued by the Tribunal of 12 September 2005 which contained conditions that two openings were to be provided in the eastern wall of the carport and one opening in the western wall, in accordance with specific stated dimensions.
13 The applicants' submissions state, and the respondent is unable to challenge, that the applicants completed the works involving the carport immediately after the above proceedings had been finalised in the Tribunal.
14 The applicants' submissions refer to a representative of the applicant clarifying by an email dated 9 April 2015 that what the respondent wanted was the removal of the garage doors and removal of the filling to the openings on the side of the garage. The building order refers to a conversion back from a garage to a carport. The applicants do not dispute anywhere in their submissions or in any of the correspondence provided that the openings to the side walls were filled in and that a garage door had been fitted. The whole thrust of the applicants' approach to the matter from the outset, was to endeavour to find a means to obtain approval for the work carried out by the applicants and they obviously did not need any approval for the structure to the extent that it complied with the building licence and order issued by the Tribunal. The respondent states that a letter was sent to the applicants dated 14 January 2015 which attached to it a draft building order in compliance with s 111(1)(a) of the Building Act. In replying submissions, the applicants strongly dispute receiving the letter. A number of cogent submissions are made pointing to the improbability of that letter enclosing the order of the Tribunal including attached plans and therefore of the letter having been sent to the applicants. On the other hand, a subsequent letter from the respondent dated 19 February 2015, referred to its previous correspondence of 14 January 2015 and that was never queried by the applicants. The letter of 14 January 2015, although almost incomprehensible because of words missing from the copy, nevertheless does raise a number of questions about the circumstances leading to the conversion of the carport to a garage. That is specifically referred to again in the letter of 19 February 2015.
15 The letter of 19 February 2015, advised that in accordance with s 111(1)(a) of the Building Act, the applicants were advised of the respondent's intention to issue a building order, details of which, were said to be included on the attached draft order. The letter advised that the applicants had 14 days from the date of the letter to provide the respondent with any written submissions that they might wish to have considered in relation to the terms of the proposed building order.
16 No written submissions were provided within the 14 day period. However, on the 14th day, 5 March 2015, the applicants' solicitor telephoned the respondent and as the author of the letter of 19 February 2015 was not available, she was requested to write to the respondent, which she did on the same day.
17 According to the applicants' submissions, the letter of 5 March 2015, advised that the applicants were elderly, that the solicitor would need to visit them and view the works. Further, the letter advised that the intent was to resolve the difficulties and that the solicitor would get back to the respondent as soon as possible. The respondent was asked to take no further action until that occurred.
18 By letter dated 13 March 2015, the applicants' solicitor received a reply extending the deadline until 28 March 2015. The letter was posted and was received only on 17 March 2015.
19 The applicants' solicitor did not comply with the 28 March 2015 deadline. The solicitor sent an email on 6 April 2015 explaining the delay.
20 On 8 April 2015, the applicants came home to find a building order taped to the garage door, in full view of the public and their neighbours, which according to the submissions, they found a humiliating experience. A letter of the same date was received in the post indicating that it was the intention of the respondent to issue a building order. The respondent conceded that this had been sent in error.
21 The applicants' solicitor continued with attempts to engage with the respondent's representatives with a view to having the building order withdrawn. The respondent responded promptly to the email from the applicants' solicitor on 8 April 2015 but subsequent attempts to discuss the matter by telephone were unsuccessful and messages were left without response. There was some later communication by telephone but these discussions were not fruitful. The respondent insisted on an $80 fee to provide a copy of building plans requested by the applicants' solicitor. A representative of the respondent, Mr Spencer, gave reasons why no retrospective approval of the structure would be supported based on the Council's Streetscape Policy and advised that while the Council had a discretion, it had never supported the building of a garage on a boundary. The applicants were accordingly forced to apply to the Tribunal for a review of the decision to issue the building order.