PATTULA and CITY OF COCKBURN
[2022] WASAT 92
•12 OCTOBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION: PATTULA and CITY OF COCKBURN [2022] WASAT 92
MEMBER: MS N OLDFIELD, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER
HEARD: 7 JUNE AND 13 JUNE 2022
DELIVERED : 12 OCTOBER 2022
FILE NO/S: DR 206 of 2021
BETWEEN: YODI PATTULA
Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Building Act 2011 (WA) - Review of building order - Building order requiring demolition of buildings, parts of buildings and incidental structures - Terms of original building licences - Whether building permits required
Building Act 2011 (WA) - Building Code of Australia - Classification of buildings - Class 10a buildings - Effect of non-compliant use on classification
Legislation:
Building Act 2011 (WA), s 3, s 9, s 66, s 110, s 111, s 111(1)(c), s 112, s 122(1)(a)
Building Regulations 2012 (WA), reg 3, reg 6, reg 41, reg 41(3), reg 43, reg 43(a), reg 48, reg 49, Sch 4, cl 2, Div 1
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 32, Pt 3, Div 3
Result:
Application successful in part
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr P Gillett |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Yodi Pattula made application to the Tribunal for review of the decision of the City of Cockburn (City) to issue a building order (Building Order) for the demolition, dismantling and removal of various structures on his property located at No 18 Hybrid Court, Treeby (Property). The City opposed the review application on the basis there were unapproved structures or materials and unapproved changes of use on the Property. The City sought orders approving the Building Order.
Issues for Determination
In relation to each of the structures identified in the Building Order the principal issues for determination are:
a)Has building work been carried out in relation to which a building licence was required?
b)Does the structure otherwise contravene the Building Act 2011 (WA) (Building Act)?
c)If the answer to a) or b) is in the affirmative, should there be a building order and if so, what should be the terms of the building order?
Proceedings in the Tribunal
The Tribunal conducted a site inspection of the Property in the presence of the parties on 3 June 2022 (Site Inspection) and a final hearing of the application was held on 7 June 2022. In accordance with the usual practice of the Tribunal, a hearing book was compiled of the various documents lodged with the Tribunal by the parties and taken into evidence. The Tribunal heard oral evidence from Mr Pattula and Mr John West, Manager of Building Services for the City.
A further hearing was held on 13 June 2022 to raise with the parties two issues which had not been fully addressed in the hearing and in relation to which the parties were given leave to lodge further submissions. The parties lodged email messages on 14 and 22 June 2022 which were accepted as submissions, and the City lodged further submissions on 27 June 2022. On that date, the City also lodged a witness statement of Mr Lorenzo Santoriello, Head of Development, Assessment and Compliance for the City.
On both days of the hearing, we had the benefit of oral submissions by Mr Pattula and counsel for the City.
Statutory framework
SAT Act
The review jurisdiction of the Tribunal is contained within Pt 3 Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 29(1) of the SAT Act provides that when exercising the review jurisdiction, the Tribunal exercises the functions and discretions of the corresponding decision-maker.
The nature of review proceedings is by way of a fresh hearing, and accordingly the Tribunal may consider additional or new information not before the original decision-maker.[1] The purpose is to produce the correct and preferable decision, as at the time of the review.[2] The Tribunal has the power to affirm, vary or set aside the decision and in any case to make those orders it considers appropriate[3].
Building Act
[1] SAT Act, s 27(1).
[2] SAT Act, s 27(2).
[3] SAT Act, s 29(3).
The Building Act provides for the regulation of building work, including the construction, maintenance and use of buildings and other structures on land.
Stipulations regarding the obligation to obtain a building permit (previously called a building licence) are relevantly contained in s 9 and s 66:
9.No building work without a building permit
A person must not do building work unless -
(a)a building permit is in effect for the building work; or
(b)a building permit is not required for the building work under Part 5 or regulations or an order mentioned in Part 5 Division 1; or
(c)the work is done in accordance with a building order; or
(d)the work is done in the course of taking action under section 118(2).
Penalty:
(a)for a first offence, a fine of $50 000;
(b)for a second offence, a fine of $75 000;
(c)for a third or subsequent offence, a fine of $100 000 and imprisonment for 12 months.
66.Regulations
(1)The regulations may provide that a building permit is not required for building work of a kind specified by the regulations.
(2)Without limiting subsection (1), the regulations may provide that a building permit is not required for building work -
(a)that is low in value; or
(b)that has a low level of risk in relation to the safety of users of the building or members of the public; or
(c)that does not require monitoring by a permit authority; or
(d)in a rural or remote area.
(3)The regulations may -
(a)for the purposes of subsection (2)(a), specify a monetary amount or other criteria for the assessment of whether particular building work is low in value; or
(b)for the purposes of subsection (2)(b), specify the criteria for the assessment of risk levels.
(4)The regulations may provide that a demolition permit is not required for demolition work of a kind specified by the regulations.
(5)The regulations may provide that an occupancy permit is not required for a building of a kind specified by the regulations.
Sections 110 to 112 of the Building Act provide for the making and content of building orders by a relevant authority:
110.Building orders
(1)A permit authority may make an order (a building order) in respect of one or more of the following –
(a)particular building work;
(b)particular demolition work;
(c)a particular building or incidental structure, whether completed before or after commencement day.
(2)A building order must be in an approved form and must be directed to any one or more of the following persons as is appropriate in the case -
(a)if a building permit is in effect for the particular building work, the person named as the builder on the permit;
(b)if a demolition permit is in effect for the particular demolition work, the person named as the demolition contractor on the permit; (c) a person who is an owner of the land on which the particular building or demolition work is being, or has been, done; (d) a person who is an owner or occupier of the land on which the particular building or incidental structure is located.
111.Notice of proposed building order other than building order (emergency)
(1)Before making a building order a permit authority must -
(a)give each person to whom the order is proposed to be directed written notice of the terms of the proposed order and the reasons for it; and
(b)advise each person to whom the order is proposed to be directed that the person has 14 days from the day on which the notice is received in which to make submissions in relation to the proposed order; and
(c)consider each submission received within that period.
(2)Subsection (1) does not apply if there is an imminent and high risk to people, property or the environment arising from building or demolition work or from the dangerous state of a building or incidental structure.
112.Content of building order
(1)In this section - specified means specified in the building order.
(2)A building order may require a person to whom the order is directed to do any one or more of the following within the specified time -
(a)to stop all or specified building or demolition work that is being done in suspected contravention of a provision of this Act;
(b)to demolish, dismantle or remove a building or incidental structure that has been, or is being, built or occupied in suspected contravention of a provision of this Act;
(c)to do specified building or demolition work, or alter a building or incidental structure in a specified way, so as to prevent or stop a suspected contravention of this Act;
(d)to cause a building or incidental structure to be evacuated, or remain unoccupied, so as to prevent or stop a suspected contravention of this Act;
(e)to take or not take specified action so as to prevent or stop a suspected contravention of this Act;
(f)to finish the outward facing side of a close wall in a way specified under section 88(3);
(g)if a building or incidental structure is reasonably believed to be in a dangerous state or unfit for human occupation –
(i)to conduct a survey of the building or incidental structure;
(ii)to cause the building or incidental structure to be evacuated or remain unoccupied;
(iii)to stop all or specified building or demolition work that is causing or contributing to the state or condition of the building or incidental structure;
(iv)to shore up, fence or otherwise secure the building or incidental structure in a specified way for the protection of persons, of other property or of the environment;
(v)to renovate or repair the building or incidental structure to a specified standard or in a specified way so as to prevent or stop the building or incidental structure from being a danger to persons, to other property or to the environment or to render it fit for human occupation;
(vi)to demolish, dismantle or remove the building or incidental structure;
(h)to take specified action that is reasonably incidental to doing a thing mentioned in any of paragraphs (a) to (g).
(3)A building order -
(a)that is to have effect for a limited period only must set out that period; and
(b)must set out the right of review under section 122; and
(c)must require a person to whom the order is directed to notify the permit authority in a specified manner when the person has done what the building order requires the person to do; and
(d)must contain each other thing that is prescribed to be in the order.
Important terms are defined in s 3:
building work means -
(a)the construction, erection, assembly or placement of a building or an incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or
(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or
(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in –
(i)paragraph (a), (b), (c) or (d); or
(ii)paragraph (a) or (b) of the definition of demolition work;
or
(f)other prescribed work[.]
classification, in relation to a building or incidental structure, means the classification of the building or incidental structure under the regulations[.]
Building Regulations
The Building Regulations 2012 (WA) (Building Regulations) provide that a building or incidental structure has the classification as stipulated by the Building Code of Australia (Building Code)[4] and that a building permit is not required for building work described in Sch 4 cl 2 of the Building Regulations,[5] which includes the following:
[4] Building Regulations, reg 6.
[5] Building Regulations, reg 41(3)
Item
Description of building work for which building permit is not required
1.
Construction, erection, assembly or placement of a freestanding Class 10a building that -
(a) has a floor area not exceeding 10 m2; and
(b) is no more than 2.4 m in height; and
(c) is not located in wind region C or D as defined in AS 1170.2.
2.
Renovation, alteration, improvement, repair or maintenance of a building or incidental structure if the building work -
(a) will not adversely affect the structural soundness of the building or incidental structure and does not include -
(i) an increase or decrease in the floor area or height of the building or incidental structure; or
(ii) underpinning or replacement of footings; or
(iii) the removal or alteration of any element of the building or incidental structure that is contributing to the support of any other element of the building or incidental structure;
and
(b) is done using materials commonly used for the same purpose as the material being replaced; and
(c) will not change the use or classification of the building or incidental structure; and
(d) will not adversely affect the safety and health of the occupants or other users of the building or incidental structure or of the public; and
(e) will not affect the way in which the building or incidental structure complies with each building standard that applies to the building or incidental structure[.]
…
…
8
Construction, erection, assembly or placement of a water storage tank with a capacity of 5 000 L or less.
…
…
10
Attachment of photovoltaic panels or solar hot water systems to the roof of a Class 1 or Class 10a building that is not located in wind region C or D as defined in AS 1170.2.
…
…
The Building Regulations define 'Building Code' as 'the Building Code of Australia, which is Volumes One and Two, as amended from time to time, of the National Construction Code series published by, or on behalf of, the Australian Building Codes Board'.[6]
Building Code
[6] Building Regulations, reg 3.
The Building Code is a set of technical provisions intended to provide for the uniform design and construction of structures. It 'sets the minimum required level for the safety, health, amenity, accessibility and sustainability' of building work.[7] The Building Act adopts the Building Code[8] and it applies to both new buildings and new building work in relation to existing buildings.
[7] National Construction Code, Introduction.
[8] Building Act, s 3 and Building Regulations, Div 1.
Part A6 of the National Construction Code provides for the classification of buildings and other structures:
(a)Class 1a relates to single dwellings, such as a detached house.
(b)Class 1b relates to other accommodation, including a boarding house, hostel or holiday accommodation.
(c)Class 2 relates to sole-occupancy units.
(d)Class 3 relates to residential buildings (except class 1 or 2 buildings) providing for long term or transient accommodation for a number of persons unrelated to each other.
(e)Class 4 relates to a single dwelling in a building that is Class 5, 6, 7, 8 or 9.
(f)Class 5 relates to office buildings.
(g)Class 6 relates to shops or other buildings used for the sale of good or services to the public.
(h)Class 7 relates to buildings used for storage.
(i)Class 8 relates to a laboratory or building for the production, assembly, etc of goods or produce for sale.
(j)Class 9 relates to buildings of a public nature including healthcare, residential care or assembly.
(k)Class 10a relates to non-habitable buildings such as a garage or shed.
(l)Class 10b relates to non-habitable structures including a fence, antenna or swimming pool.
(m)Class 10c relates to a private bushfire shelter.
Factual background
Based upon the evidence of the parties, we make the following findings of fact.
Mr Pattula is the owner and operator of a kennel and cattery business which is operated on the Property. Mr Pattula is the registered owner of the Property.
On 1 January 1994 the City issued a building licence for the erection of dog kennels (the old kennel building). There was a preexisting residence (residence) on the Property, approximately 20 metres from the proposed location of the old kennel building.
The plans forming part of the building licence indicate:
a)the external walls were to be constructed of Colorbond sheeting, save for one wall described as a 'block wall';
b)the roof was to be constructed of Zincalume sheets, save for the roof over what has been described as a patio was to comprise fibreglass sheets; and
c)the internal areas were to be divided into six dog enclosures with access to the outdoors, a grooming room and workshop.
The plans did not indicate the materials which were to be used in the construction of the internal walls.
In approximately 2009, after the erection of a larger kennel building, Mr Pattula verbally informed the City he intended to use the old kennel building for storage rather than as a kennel. No application was submitted by Mr Pattula to the City for any physical alterations to the old kennel building, nor for any change of use.
Also in 2009, Mr Pattula sought approval to construct a storeroom (Storeroom) and a 30 metre long cattery (Cattery) on the Property. Mr Pattula and his mother prepared plans which were used by Mr Pattula to obtain informal advice from the City. Following verbal advice from the City, the plans were modified to provide for separate applications for the erection of the Storeroom and the Cattery.
Plans attached to the building licence for the Storeroom provide that a contractor was to erect a steel roof and frame upon a concrete pad, which were engineered so that Mr Pattula could then construct single leaf brickwork walls between the steel posts. The building licence dated 27 August 2009 described the building as a 'storeroom/shed' which had been assessed as a class 10a structure. The floor plan (which was not professionally prepared) indicates there was to be no internal facilities or divisions, save for one internal brick wall of only 0.82 metres in length. However, a file note to the building licence stated the Storeroom would be used 'to store dog and cat food and for washing feeding bowls, so there will be a sink and cook top to heat water only'.
Mr Pattula's plans for the Cattery had been modified upon the advice of the City so that instead of cat pens along the entire length of the building, the cat pens were limited to a 9.1 metre section and the remaining 20.9 metres was to be an open-ended space with no internal divisions or facilities. The plans provided for the erection of a concrete slab and steel roof and frame, with the external walls along the 9.1 metre sides of that part of the building to enclose the cat pens and be clad with cool room panels. The plans do not disclose the materials to be used for the remainder of the external walls, nor the internal walls of the cat pens. A file note attached to the building licence suggests at that time there was an expectation Mr Pattula would install additional cat pens in the future. The building licence dated 27 August 2009 described the building as a 'shed cattery' which had been assessed as a class 10a structure.
In May or June 2014 there was a fire which destroyed the residence and subsequently Mr Pattula and his family moved to stay with family overseas. In or about 2016 Mr Pattula returned, and having nowhere to live, moved into the old kennel building and proceeded to make it a more liveable space.
On or before 28 January 2021 the City formed the view there may be unapproved structures upon the Property and contacted Mr Pattula accordingly. On 22 June 2021 the City carried out an inspection of the Property and observed a number of structures which it considered were not recorded in the building licences issued in relation to the Property. On 3 August 2021 the City gave notice to Mr Pattula of an intention to issue a building order. Mr Pattula sent an email in response to the Chief Executive Officer of the City on 5 August 2021. On 1 September 2021 the City issued the Building Order.
The Building Order states the City identified building works in relation to which no building licence had been issued on the Property in relation to the following:
(A)The construction of an internal wall and external verandah and the installation of solar panels, kitchen and toilet fit out to the existing storeroom previously approved by the City pursuant to Building Licence BA09/1138 (Storeroom) …
(B)The construction of a 11 metre extension to the existing 9.1 metre long cattery previously approved by the City pursuant to Building Licence BA08/1218 (Cattery) …
(C)The construction of 2 x patios, 1 x habitable building with kitchen and toilet facility and 1 x habitable transportable building … (Habitable Structure).
(D)The construction of new masonry walls to the fire damaged residence … (Masonry Walls).
(E)The construction of a cool room/shed housing a water tank for the purpose of a hot water system (Coolroom/Shed) …
The Building Order directs as follows:
Pursuant to sections 112(2)(b) and 112(2)(c) of the Act, you are required within 60 days of the date of service of this Order to -
(a)Demolish, dismantle and remove the unauthorised works to the Storeroom and bring the Storeroom into compliance with the approved plans for Building Licence BA09/1138;
(b)Demolish, dismantle and remove the unauthorised works to the Cattery and bring the Cattery into compliance with the approved plans for Building Licence BA08/1218;
(c)Demolish, dismantle and remove the Habitable Structure referred to above;
(d)Demolish, dismantle and remove the Masonry Walls; and
(e)Demolish, dismantle and remove the Coolroom/Shed.
On 1 September 2021 Mr Pattula lodged his application for review of the Building Order pursuant to s 122(1)(a) of the Building Act.
Consideration
Save in relation to one preliminary point, it is most convenient to deal with the evidence and contentions of the parties in the context of each separate structure to which the Building Order applies.
The preliminary point is that Mr Pattula objected to the issuing of the Building Order in circumstances where the City did not reply to his email dated 5 August 2021 (Email), which was sent by him in response to the City's proposed building order, before the issuing of the Building Order.
Section 111(1)(c) of the Building Act provides that before making a building order, the City must consider each submission in relation to the proposed building order which is received in the relevant period.
Mr West in his evidence, and the submissions of counsel for the City, appeared to concede the officers who had made the decision to issue the Building Order had not received the Email until after the issuing of the Building Order. This appeared to be as a result of the City at that time having been unable to locate any records relating to the Email, save for an email from Mr West to Mr Pattula dated 6 September 2021 in which he responds to the Email.[9]
[9] Hearing Book, pages 191-196.
However, the witness statement of Mr Santoriello dated and lodged with the Tribunal on 27 June 2022 attaches documents indicating:
a)Mr Andrew Noad, Senior Building Surveyor, commented on the contents of the Email in a message circulated to other employees of the City on 11 August 2021;
b)Mr Sunny Singh, Development Compliance Officer, indicated he had read and agreed with Mr Noad's comments by a message circulated amongst the same employees of the City on 12 August 2021; and
c)Mr Singh sent a further message to the same persons (in the same 'email trail') on 20 August 2021 which stated that the City was ready to issue the Building Order.
The City did not have leave to lodge Mr Santoriello's witness statement and the failure to call Mr Santoriello to provide evidence at the hearing deprived Mr Pattula the opportunity to cross-examine him. Mr Pattula did not object to the City's lodgement of Mr Santoriello's witness statement, but in fairness to Mr Pattula, he did not have legal representation and may not have realised he could have raised an objection.
It is noted that pursuant to s 32 of the SAT Act, we are not bound by the rules of evidence or any practices or procedures applicable to courts of record, and we are to act according to equity, good conscience and the substantial merits of the case.[10]
[10] SAT Act, s 9.
If Mr Santoriello's witness statement had not been admitted into evidence, the material which had been admitted into evidence would be to the effect the City had not considered the Email prior to issuing the Building Order. Given the mandatory 'must' in s 111 of the Building Act, a failure to consider the Email would have rendered the Building Order void. However, this conclusion would be in contradiction of the totality of the information before us and accordingly we consider it in accordance with fairness and the substantial merits of this issue that Mr Santoriello's witness statement be admitted into evidence notwithstanding its late lodgement. On that basis, the evidence establishes there has been no breach of s 111(1)(c) of the Building Act.
Storeroom
The Building Order requires Mr Pattula to '[d]emolish, dismantle and remove the unauthorised works to the Storeroom and bring the Storeroom into compliance with the approved plans for Building Licence BA09/1138'.
The documents which comprise Building Licence BA09/1138 establish:
1)Building Licence BA09/1138 was issued partly on the basis of a floor plan which was not professionally prepared. The plan contained one small internal wall perpendicular to and approximately 2.5 metres away from the double entry doors. The plan provides all walls and pillars were to be of brick, save for the wall containing the double entry doors which was to be of limestone. That wall was to contain two windows, whereas the other three walls were to contain one window. Each wall contained a door. No plumbing fixtures are evident.
2)There was also a non-professionally drawn plan which depicted the planned location of the Storeroom on the Property, and which described the structure as 'storeroom only on this licence'.
3)A file note by the then Senior Building Surveyor dated 27 August 2009 stated the 'storeroom will be used to store dog and cat food and for washing feeding bowls, so there will be a sink and cook top to heat water only'.
4)In issuing Building Licence BA09/1138, the Storeroom had been assessed as being a Class 10a structure.
The Site Inspection established that the verandah which had been attached to the Storeroom at the time the Building Order was issued had been removed, and there was no toilet in or attached to the Storeroom. The City therefore sought a continuation of the Building Order on the basis that:
1)There was no approval for the erection of an internal partitioning wall.
2)The internal partitioning wall created three areas inside the Storeroom. It was alleged the front area is used as an office, the smaller rear area as a dog wash area and the larger rear area is used for storage.
3)The uses described in paragraph 2 are not consistent with a Class 10a structure and it would be more appropriate for the front area to be Class 5 and the rear area to be Class 7b. The City has not approved the changes in use.
4)If the Storeroom is not a Class 10a structure, then the exemption contained in Sch 4 cl 2 Item 10 of the Building Regulations did not apply and it was necessary to obtain building approval for the installation of solar panels to the Storeroom.
Mr Pattula did not agree with the conclusions of the City, stating:
1)There has been no change of use in that the Storeroom has always been intended and used as part of his kennel and cattery business.
2)He has been informed by other persons involved in other local kennel and cattery businesses that their buildings are all Class 10a.
3)It is incorrect to describe the front area of the Storeroom as an office. It is used for the drop-off and collection of dogs and cats by their owners and there is an EFTPOS machine for any payments which may be due. There is no other office equipment (such as a computer) and the filing cabinet is used for storing personal items rather than business records.
4)He and other staff members do not spend a great deal of time in the Storeroom; more of their time is spent in or around the kennel and cattery.
5)Mr Pattula was previously unaware of Exemption 1 in Part A6.0 of the Building Code and if it would satisfy the concerns of the City, Mr Pattula would be prepared to reduce the size of the front area (designated by the City as an office) to less than 10% of the total floor area of the Storeroom.
During the Site Inspection, in relation to the Storeroom, it was observed:
1)The front section of the Storeroom has been sectioned off by an internal wall, which runs the width of the Storeroom save for one doorway through to the rear section of the Storeroom.
2)Contrary to the floor plan attached to Building Licence BA09/1138, there are no windows installed on the front wall and natural light enters through the glass of the double doors at the front and through a side window.
3)There is a washing machine and a dog hydrobath unit located in the smaller rear section. Neither the hydrobath nor the washing machine appear to be plumbed in and Mr Pattula stated they are fed from an outside hose. The washing machine drains into a bucket and the hydrobath appears to drain on the ground outside via a pvc plastic pipe run along the concrete floor and through a hole in the wall.
4)Two or three staff were present in the Storeroom attending to tasks for the duration of the Site Inspection of the Storeroom (approximately 5 minutes).
5)The presence of shelving and refrigeration units indicate the larger rear area is used for storage.
6)The weather on the day of the Site Inspection was sunny and dry. The three entry/exit doors at the rear were open and the Storeroom appeared bright and well ventilated. It is not clear whether that would have been the case if the sky were darkened with rain and the doors all kept closed.
In his evidence, Mr Pattula conceded that in addition to heating water, the kitchen facilities in the Storeroom are now also used to boil meat to feed to some of the animals whilst they are kept on the Property.
It was the submission of the City that a building permit was required for the internal wall because the erection of that wall was part and parcel of Mr Pattula's non-compliant usage of the Storeroom and for that reason the erection of the wall adversely affected the occupants and affected the compliance of the Storeroom with building standards. It is for these reasons, the City argued, that the erection of the internal wall did not qualify for the exemption to the requirement to obtain a building permit.[11]
[11] Building Regulations, Sch 4, cl 2, Items 2(d) and 2(e).
We do not consider the installation of the internal wall has the effect of altering the use of the Storeroom. A structure containing internal walls can be used for storage. We can envisage ways in which internal walls might improve options for storage. The City did not take us to anything which suggested a Class 10a structure may not include internal walls.
There was no evidence as to the effect such an internal wall may have upon the occupants and based upon our observations at the Site Inspection, we are not satisfied the relevant internal wall has a detrimental effect. We are also not satisfied the internal wall of itself affected the manner in which the Storeroom complies with building standards.
The central issue is not the internal wall but the use of the Storeroom. The City has formed the view the Storeroom is not being used in a manner which is consistent with a Class 10a structure and that the Storeroom likely does not comply with the minimum technical requirements for office use or other purposes which involve extended human occupation.
The front section of the Storeroom is an office only in the most extended sense. There is no computer or other office equipment beyond a portable EFTPOS machine. The filing cabinet contains not documentation, but personal objects such as water bottles. There was no chair in which an office worker might sit. We find credible and accept the evidence of Mr Pattula (which was not opposed by the City) that this area was used only for pet owners to drop-off their pets and to make any payments which had not been previously processed online.
Whether or not it is accurate to describe the front section of the Storeroom as an office, it is clear the invitation of members of the public for commercial purposes is outside the uses which might be expected of a Class 10a structure.
The rear sections are used for storing pet food, washing food bowls, heating water, cooking pet food, washing dogs and washing pet blankets. The evidence of Mr West was that in his opinion a Class 10a structure was intended for very short-term occupation only. The example given of very short-term occupation was entering a shed to collect an item stored therein, and then exiting the building. The view of Mr West would seem to be contradicted by:
a)the original building licence records which indicate approval to use the Storeroom for the heating of water and the washing of feed bowls; and
b)the explanatory information to the list of building classifications in the Building Code which states that a toolshed used for traderelated hobbies on the same allotment as a Class 1 building would be classified as a 10a building - noting that it would not be uncommon for a person to spend substantial time in a shed whilst pursuing a hobby.
The term 'non-habitable' is not defined in the Building Code. The most relevant definition is that of 'habitable room':
Habitable room means a room used for normal domestic activities, and
(a)includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room, home theatre and sunroom; but
(b)excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods.
This definition may bear minimal relevance to the uses comprised within the conceptualisation of a Class 10a building. However, we note the level of occupation which might be expected in a normal residential laundry, bathroom or toilet is not inconsistent with Mr Pattula's description of the extent to which staff are inside the Storeroom.
Buildings of Classes 2-9 may only be used or occupied after the granting of an occupancy permit and the legislation specifically provides that a building may not be used or occupied in a manner which is inconsistent with the use authorised in the occupancy permit or the building classification set out in the occupancy permit.[12] Where it is proposed to use or occupy a building in a manner that is different to that authorised in the occupancy permit, there is a mechanism for seeking modification to or replacement of the occupancy permit.[13]
[12] Building Regulations, reg 41 and reg 43.
[13] Building Regulations, reg 48 and reg 49.
However, an occupancy permit is not required for a Class 10 building.[14] We have found nothing in the legislation which stipulates that a building may not be used or occupied in a manner inconsistent with the original building classification. Nor have we found authority for the proposition that the classification of a building alters automatically with the use to which it is put. We sought submissions from the parties on these points, but without disrespect those submissions were not helpful in resolving the question.
[14] Building Regulations, reg 43(a).
The City submitted that the use of a building must change the classification of a building because otherwise there would be the 'absurd' result that a Class 1 or Class 10a building (both of which are exempt from the requirement for an occupancy permit) could be used for any purpose with immunity.[15] The example given was of the conversion of a residence into offices or a retail outlet requiring an application for an occupancy permit because the original classification would no longer apply and there would be additional public safety requirements which apply to buildings which are entered by the public.[16]
[15] Respondent's submissions lodged 27 June 2022, para 19.
[16] Respondent's submissions lodged 27 June 2022, para 20.
We appreciate the perspective of the City, but if this were correct, it is surprising there is nothing explicit in the legislation. In comparison the provisions regarding occupancy permits are clear and unambiguous. We agree on the one hand that the omission of Class 1 and Class 10a is surprising, but on the other hand it appears likely many if not most changes of use would require approval by the local authority pursuant to planning regulations or building work for which a building permit is required. This case appears somewhat unique in that there is no alleged breach of the approved uses under the relevant town planning scheme and the building work is so minor as to not require a permit.
Accordingly, there appears insufficient basis upon which we can conclude the Storeroom has altered its classification. On that basis, there was no requirement for Mr Pattula to obtain a building permit for the installation of the solar panels. Further, we have concluded there is insufficient evidence to establish the erection of the internal wall was not within the ambit of the exemption of the requirement for a building permit.[17]
[17] Building Regulations, Sch 4, cl 2, Item 2.
On the basis of the forgoing, we conclude the best and preferable decision is to set aside the Building Order in relation to the Storeroom. However, it is not clear to us whether there may be further action the City might take in relation to the public accessing the 'office' area. On the suggestion of the City that it would have no objection if the floor area of that part of the Storeroom were to be reduced to 10% or less of the total floor area, it may be prudent for Mr Pattula to consider that option.
Cattery
The Building Order requires Mr Pattula to '[d]emolish, dismantle and remove the unauthorised works to the Cattery and bring the Cattery into compliance with the approved plans for Building Licence BA08/1218'.[18] It should be noted the reference in the Building Order to BA08/1218 is incorrect and the evidence establishes the relevant building licence is BA09/1218.[19]
[18] Hearing Book, pages 157-160.
[19] Hearing Book, pages 179-187, 219-225.
The Site Inspection established that Mr Pattula removed the verandah which had been attached to the Cattery at the time the Building Order was issued. At the hearing, the City conceded that in fact the City had approved the full 30 metre length of the Cattery (not the 9.1 metres as stated in the Building Order). Accordingly, the City sought a continuation of the Building Order in relation to the Cattery on the basis:
1)The wall at the entry was constructed of masonry rather than coolroom panels.
2)The internal walls creating individual cat pens had been built of masonry, which was not approved.
3)The 'full height' internal masonry wall at the end of the cat pens and the door attached to that internal wall, were not shown on the plans and not approved. In this instance, 'full height' does not suggest the internal wall extends to the roof, but to the ceiling.
4)A toilet installed in the Cattery had not been approved.
At the hearing, the City confirmed there was no evidence the brick walls were structurally unsound or unsafe. The objection of the City to the walls is on the basis of not being properly approved. It is noted the City's records indicate a building licence was issued on 27 August 2009 and the Cattery was erected by May 2010.
Mr Pattula conceded the toilet was not approved, but otherwise did not agree with the conclusions of the City, stating:
1)The plans which were approved by the City as part of granting the building licence for the construction of the Cattery did not specify the materials to be used for any of those walls now identified by the City as unapproved.
2)The original plans which were not lodged with the City, but which were sighted by an officer of the City to provide preliminary advice to Mr Pattula, stated the walls in question were to be made of brick. The same officer who sighted those plans, issued the building licence and so would have done so with the knowledge of Mr Pattula's intention as explained in the original plans.
3)If the City had notified him of the omission in the plans, Mr Pattula would have rectified the plan at the time. If the plans do not specify the material from which those walls are to be built, the City could raise the same objection no matter what material was used.
It appears plain from the evidence and submissions of the parties that the installation of the toilet in the Cattery was 'building work' as defined by the Building Act and that work was not subject to an exemption to the normal requirement to obtain a building permit because the installation of a toilet affects the manner in which the building complies with building standards, including the plumbing and drainage requirements applying to sanitary facilities in Part 3.8.3.3 of the Building Code. It therefore appears reasonable that in the absence of a contemporaneous or retrospective approval of the toilet, there be a building order for its removal.
The plans attached to Building Licence BA09/1218 contain the words '75mm Cool room panel' adjacent to the 9.1 metre section the building in which the cat pens are located.[20] Those external walls are marked with a double line. The remainder of the 20.9 metre length of the building is marked with a single line and there is no indication whether those walls are also to be made of coolroom panels or another substance. Single lines of identical appearance denote the internal walls which are the subject of the Building Order.
[20] Hearing Book, page 183.
It is not suggested by the plans (nor by the City) that all walls of the Cattery were to be constructed of coolroom panels. Given that the records of the City are such that its officers were initially unaware that it had approved the full 30 metre length of the Cattery, it is not beyond the bounds of possibility that in 2009 the relevant officer may have obtained further information from Mr Pattula and made a file note to that effect (as occurred in relation to the Storeroom), but the file note has since been misplaced or misfiled.
In addition to the brick construction, the City states the plans do not indicate the internal wall at the end of the cat pens was to be full height, nor that there would be a door. Given that the remainder of the Cattery is open ended, it would appear logical and desirable to install a door to prevent the escape of cats into the environment. Similarly, a full height wall would also appear to be desirable to prevent the escape of cats, and it might be noted the internal wall is marked identically to the external wall - there is nothing on the plans before the Tribunal which indicates the height of either.
In all of the circumstances the Tribunal concludes the best and preferable decision is that only the toilet ought to be removed if retrospective approval is not sought or granted, and therefore that portion of the Building Order directed to parts of the Cattery other than the toilet should be set aside.
Habitable Structure
The Building Order requires Mr Pattula to '[d]emolish, dismantle and remove the Habitable Structure'.[21] The Building Order defines 'Habitable Structure' to mean two patios, one habitable building with kitchen and toilet facilities and one habitable transportable building. The 'one habitable building' was the old kennel building, in relation to which a building licence was issued by the City on 24 January 1994.[22]The 'one habitable transportable building' was located immediately adjacent.[23]
[21] Hearing Book, pages 157-160.
[22] Hearing Book, pages 207-211.
[23] Hearing Book, page 161.
The Site Inspection established Mr Pattula had removed the transportable building from the Property and had removed one patio which had been attached to the Habitable Structure at the time the Building Order was issued.
At the hearing the City conceded that the City had approved the construction of the patio currently attached to the Habitable Structure. In his written witness statement, Mr West states at para 34(b) 'the approved "fibreglass" patio [attached to the Habitable Structure] … had been replaced with a steel structure'.[24] If this is an allegation the approved patio was originally approved to be entirely constructed of fibreglass, the approved plans do not reflect this, and we consider it more likely the reference to 'steel frame' in the building application and licence referred to both the main structure and the patio. Accordingly, we take the complaint of the City to refer to the replacement of the fibreglass roof panels to the patio.
[24] Witness Statement of John West dated 3 June 2022.
Accordingly, the City sought a continuation of the Building Order in relation to the Habitable Structure on the basis:
1)There was no approval for the installation of additional internal walls nor the installation of the kitchen, bathroom and toilet facilities.
2)Those facilities are not consistent with a Class 10a structure. The City had not approved the use of that building as a habitable structure.
3)Building Licence 9400110 approved erection of the patio with fibreglass roof panels. The replacement of the fibreglass panels of the patio roof with Colorbond sheets had not been approved.
4)The electrical and plumbing services running to the Habitable Structure do not appear to have been professionally installed.
Mr Pattula conceded he had not sought approval for the installation of the kitchen, bathroom and toilet facilities. He said he was left with no choice after his house burnt down; he had nowhere else to live. However, he has now found alternative living arrangements and plans to use the structure for storage only.
Regarding the electrical and plumbing services, he stated:
1)the electrical services had been inspected by Western Power which determined no further action was required; and
2)water had been provided to the building from an adjacent rainwater storage tank, but that was now disconnected, and the tank was dry.
Mr Pattula did not agree with the City's characterisation of the patio, on the apparent basis that the structure had been approved, the condition of the fibreglass roof sheets had deteriorated to the point where replacement was necessary and the installation of the Colorbond sheets in substitution for the fibreglass was reasonable.
Neither party called expert evidence regarding the suitability or otherwise of the electrical and water services which may or may not service the Habitable Structure. The City advanced no basis upon which the replacement of the patio roof sheeting did not qualify for an exemption to the requirement to seek a building permit under Sch 4 cl 2 Item 2 of the Building Regulations.
There is scant evidence regarding the internal walls. The plans approved in 1994 include internal walls to create dog pens and two rooms. It appeared from the Site Inspection some of the internal walls appearing on the floor plan may have been removed and it is alleged by the City internal walls were installed. There was nothing in the documents lodged by the City which identified those internal walls which had been removed or recently constructed.
Although the argument was not advanced by Mr Pattula, it is possible the building works regarding the internal walls came within the exemption in Sch 4 cl 2 Item 2 of the Building Regulations in that:
1)There is no evidence which indicates the removal of the walls has adversely affected the structural soundness of the Habitable Structure.
2)There is no evidence that the alteration of the configuration of the internal walls of itself without any other building work would:
a)be inconsistent with the original Class 10a classification;
b)adversely affect the health or safety of occupants or the public; nor
c)affect the way the Habitable Structure complies with the building standards applicable to a Class 10a structure.
In the absence of evidence establishing on the balance of probabilities what internal walls were removed or constructed and the basis on which a building permit would have been required in relation to that work, we would not support the Building Order as it applied to the internal walls.
A more substantial concern is the installation of the kitchen, bathroom and toilet facilities. It appears plain their installation was 'building work' as defined by the Building Act and that work was not subject to an exemption to the normal requirement to obtain a building permit because the installation of such services affects the manner in which the building complies with building standards - the requirements of a Class 1 habitable structure under the Building Code are significantly more onerous than the standards which apply in relation to a Class 10a nonhabitable structure. It therefore appears reasonable that in the absence of a contemporaneous or retrospective approval of that building work, that there be a Building Order for removal of the kitchen, bathroom and toilet facilities.
Masonry Walls
The Building Order requires Mr Pattula to '[d]emolish, dismantle and remove the Masonry Walls'. The Masonry Walls are defined as 'new masonry walls to the fire damaged residence' located on the Property.[25]It appears that all that remained of the fire damaged residence was the concrete slab, and Mr Pattula had made significant progress in erecting the walls for a new house.[26] However, by the time of the Site Inspection, all but one relatively small section of those walls had been dismantled.
[25] Hearing Book, pages 157-160.
[26] Hearing Book, pages 325, 336.
Mr Pattula conceded he had not sought approval prior to commencing to rebuild the Masonry Walls and stated he would remove the last piece still standing.
Accordingly, the evidence provides no basis upon which we might consider altering the Building Order in relation to the Masonry Walls, save that it is now more accurate to refer to a Masonry Wall in the singular.
Coolroom/Shed
The Building Order requires Mr Pattula to '[d]emolish, dismantle and remove the Coolroom/Shed', which is described as Coolroom or Shed Housing in relation to a water tank used for a hot water system located on the Property.[27] The City sought its removal on the basis no building permit had been sought or issued for the placement of this structure on the Property.[28]
[27] Hearing Book, pages 157-160.
[28] Hearing Book, page 204.
A photograph of the Coolroom/Shed taken during one of the City's inspections of the Property shows a small, white, apparently freestanding structure with the door open to a dark interior.[29] At the time of the Site Inspection, the door had been removed from its hinges and propped against the external wall. The Coolroom/Shed had the appearance of a structure which might be moved without dismantling, but Mr Pattula was prepared to agree it had been located on the Property for between three to five years.[30]
[29] Hearing Book, page 302.
[30] And hence was not a temporary structure as suggested by Mr Pattula at para 19 of Hearing Book, page 150.
Although it appears no formal measurements were taken, the parties agreed the Coolroom/Shed had a floor area of less than 10m2 but was approximately 2.8 metres in height. In his email to the Tribunal on 20 March 2022, Mr Pattula stated the Coolroom/Shed was less than 2.4 metres high.[31] When asked about that, he said he had intended to reduce the height to 2.4 metres but when informed by the City that it would not make any difference, he did not proceed.
[31] Hearing Book, page 150, para 19.
Accordingly, the Coolroom/Shed is too tall to come within the exemption contained in Sch 4 cl 2 Item 1 of the Building Regulations. There is nothing to suggest the placement or erection of the Coolroom/Shed does not come within the definition of 'building work'[32] and accordingly Mr Pattula should have obtained a building permit in relation to the same.[33]
[32] Building Act, s 3.
[33] Building Act, s 9.
Accordingly, we see no basis which would justify disturbing the Building Order in relation to the Coolroom/Shed.
Conclusion
For the reasons set out above, we have determined the best and preferable decision is as follows:
1)the Building Order in relation to the Storeroom be set aside;
2)the Building Order in relation to the Cattery be varied so that Mr Pattula is required to remove the toilet only;
3)the Building Order in relation to the Habitable Structure be varied so that Mr Pattula is required to remove the kitchen, bathroom and toilet facilities;
4)the Building Order in relation to the Masonry Walls is varied to refer to the Masonry Wall in the singular rather than plural; and
5)the Building Order in relation to the Coolroom/Shed is affirmed.
Orders
The Tribunal orders:
1.Upon review of the building order issued by the City of Cockburn on 1 September 2021 concerning the land and buildings at 18 Hybrid Court, Treeby, pursuant to s 122 of the Building Act 2011 (WA) and s 29(3) of the State Administrative Tribunal Act 2004 (WA), the Tribunal varies the building order and directs Mr Yodi Pattula under s 112 of the Building Act 2011 (WA) as follows:
Mr Yodi Pattula is required within 90 days of the date of this decision to:
(a)demolish, dismantle and remove the toilet installed in the Cattery;
(b)demolish, dismantle and remove the kitchen, bathroom and toilet facilities installed in the Habitable Structure;
(c)demolish, dismantle and remove the Masonry Wall; and
(d)demolish, dismantle and remove the Coolroom/Shed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
12 OCTOBER 2022
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