Robert and Shire Of Kellerberrin - [2016] WASAT 11

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING ACT 2011 (WA)

CITATION: ROBERT and SHIRE OF KELLERBERRIN [2016] WASAT 11

MEMBER: MR C RAYMOND (SENIOR SESSIONAL MEMBER)
MR J FISHER (SENIOR SESSIONAL MEMBER)

HEARD: 24 NOVEMBER 2015

DELIVERED : 16 FEBRUARY 2016

FILE NO/S: CC 910 of 2014

BETWEEN: CAMERON ROBERT
Applicant
AND
SHIRE OF KELLERBERRIN
Respondent

Catchwords:

Building Act 2011 (WA) Whether notice of proposed building order validly given Effect of orders agreed in mediation Whether building fit for human occupation Consideration of various factors in relation to exercise of discretion

Legislation:

Building Act 2011 (WA), s 23, s 111, s 114
Health Act 1911 (WA), s 135
Interpretation Act 1984 (WA), s 76

Result:

Application for review dismissed
Decision under review affirmed

Summary of Tribunal's decision:

The applicant applied for the review of a decision by the respondent to issue a building order requiring the demolition of certain structures.
The applicant provided no evidence in support of the application for review and his case was accordingly restricted to crossexamination of the witnesses called by the respondent. The Tribunal concluded that the respondent's expert evidence established that the structures concerned were unsafe and therefore not fit for human habitation.
The applicant raised in his statement of issues, facts and contentions various factors relevant to the exercise of the Tribunal's discretion whether to affirm or set aside the decision under review. The Tribunal concluded that there was no merit in any of the factors raised by the applicant and that the decision under review should be affirmed.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr P Gillett

Solicitors:

Applicant: N/A
Respondent: McLeods

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

Pearce & Anor and Germain [2006] WASAT 305
Thomas and City of Stirling [2013] WASAT 110

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 20 June 2014, the respondent, the Shire of Kellerberrin (Shire) issued and served a building order, reference BA‑2013‑02, on the applicant (Mr Robert) requiring that he demolish described structures erected on his property at No 80 Forrest Street, Kellerberrin. The structures comprised an outdoor kitchen and entertaining area with ablution facilities, and an undercover store area with a toilet, as shown on an attached plan to the building order.
On 1 July 2014, Mr Robert applied to the Tribunal for a review of the decision to make the building order.
The Shire had also previously issued a notice under s 135 of the Health Act 1911 (WA), and building orders in relation to other structures on the property, including the main dwelling house. Mr Robert had applied for a review of those matters as well in CC 2124 of 2014, CC 912 of 2014 and CC 913 of 2014. These various proceedings arise from works commenced on the site in approximately 2002. The evidence presented at the hearing in this matter has not given a clear picture of the precise history of the works and the dealings between the parties. It suffices, for the present, merely to indicate that Mr Robert believed that he had authority to carry out the works. The Shire issued a stop work notice in June 2002.
The works carried out involved the installation of a structural steel frame below the main residence and some surrounding outbuildings. The purpose of the steel frame is to allow the residence and outbuildings to be raised in the future to allow another storey to be inserted below. There are other outbuildings and structures.
All of the proceedings before the Tribunal were referred to a joint mediation which resulted in a settlement agreement and the issue of orders reflecting the settlement. The order was issued on 3 July 2015. The order reflects that the applicant agreed not to inhabit or occupy the dwelling until all required building works are completed. Further, the Shire agreed not to enforce a building order requiring the removal of a transportable building, and a building order requiring the removal of the steel framed raised deck with timber floor and steel stairs. Mr Robert agreed to apply for a building permit for all building work required at the property. The order further reflects that the sole issue for determination between the parties is whether the building order the subject of these proceedings should be affirmed or set aside. Mr Robert contends that in the circumstances in which the agreement was reached, the Tribunal should not make a determination in respect of the current proceedings.
Programming directions made by the Tribunal required the parties to file statements of any witnesses to be relied upon at the final hearing.
The Shire has filed witness statements by Mr Gary Charles Tucker, the manager of development services of the Shire, Mr Timothy Jurmann, a building surveyor employed by the Shire, and Mr Ashley List, a civil and structural engineer employed by Structerre Consulting Engineers, together with reports prepared by Mr List and Mr Jurmann.
Mr Robert did not avail himself of the opportunity to file any witness statements and his case was restricted at the hearing to crossexamination of the witnesses called by the Shire.
Both parties filed statements of issues, facts and contentions.
The Shire has been legally represented throughout the proceedings, while Mr Robert had pro bono legal representation appointed to assist him which ceased sometime after the conclusion of the mediation proceedings. Mr Robert prepared his statement of issues, facts and contentions himself. It is not an easy document to understand but the Tribunal has done its best to understand the substance of the issues raised.

The issues for determination

An analysis of the parties' respective statements of issues, facts and contentions reveals the following issues require determination by the Tribunal.
1)Was the required notice of proposed issue of a building order validly given to Mr Robert?
2)Can reliance be placed upon the expert report provided by Mr List and on an unsigned report purporting to have been prepared by Mr Jurmann?
3)The effect of:
a)Mr Robert's assertion that the Shire has not processed a building permit application lodged by him in March 2013;
b)Mr Robert having applied for and having been granted a demolition permit for removal of the outdoor covered area between the dwellings and the entertainment area;
c)the order of the Tribunal made on 3 July 2015 following the parties engaging in mediation and entering into a written settlement agreement; and
d)alleged conflicts of interest of members of the Council of the Shire.
4)Whether the masonry, timber and corrugated iron structure located immediately to the south and south-west of the dwelling and comprising an outdoor kitchen and entertainment area with ablution facilities, and an undercover and store area with a toilet (the building), is unfit for human occupation.
5)Whether in the exercise of the Tribunal's discretion the correct and preferable decision should be to affirm or set aside the decision under review.
It is convenient to deal with issues 1 and 3(c) above first as they are potentially determinative of the entire proceeding. Depending on their outcome, issue 2 will be considered as part of issue 4, and issues 3(a), 3(b), and 3(d) will be considered as part of issue 5.

Notice of proposed issue of building order

In section 6 of Mr Robert's statement of issues, facts and contentions he refers to 'Response # 5 Letter from Shire'.
It is not clear to which letter this refers but the response goes on to say that the letter 'says something about 14 days submissions to do what?'
This appears to be a reference to document 5 in the Shire's bundle of documents. This is a letter dated 29 May 2014 addressed by the Shire to Mr Robert. It appears from the body of the letter that the Shire gave notice of an intention to issue proposed building orders on the grounds that the buildings referred to therein were reasonably believed to be unfit for human occupation. The letter goes on to advise Mr Robert that he had 14 days from the date of receipt of the notice to make submissions to the Shire in relation to the proposed orders. Mr Robert states in his response that he never received this (unspecified) letter. He states that the letter did not arrive at his address.
The rest of the response relating to the above letter appears to be irrelevant and challenges the right of the Shire to 'reasonably' form a view. The point of substance, however, is the assertion that the notice was not received by him.
Section 111 of the Building Act 2011 (WA) (Building Act) provides that before making a building order, a permit authority must 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. The letter of 29 May 2014 states that it had attached to it a copy of the proposed building order. Section 114 of the Building Act provides that a permit authority that makes a building order must serve, in accordance with s 76 of the Interpretation Act 1984 (WA) (Interpretation Act), a copy of the order on each person to whom the order is directed. This provision relates to the building order, not the notice of proposed building order. However, the above provision of the Interpretation Act states that where any written law authorises or requires a document to be served, whether the word 'serve' or any of the words 'give', 'deliver', or 'send', or any other similar word or expression is used without directing it to be served in a particular manner, service of that document may be effected on the person to be served by, relevantly, leaving it for him at his usual or last known place of abode.
Mr Gary Charles Tucker, Manager, Development Services of the Shire of Kellerberrin, states in his witness statement dated 17 November 2015 (Exhibit M) that the abovementioned letter and an unsigned copy of the building order were placed by him in the letterbox at No 144 Massingham Street, Kellerberrin and that Mr Robert had advised the Shire he was living at that address with his mother. This is sufficient to constitute proper service of the notice as there is no evidence to the contrary.
We find that the notice of proposed building order was validly served by Mr Tucker leaving it at Mr Robert's last known abode.

The effect of the mediation order

In section 7 of Mr Robert's statement of issues, facts and contentions he refers to 'RESPONSE{7}Orders of Senior Sessional Member [Affleck]'.
Document No 7 in the Shire's bundle of documents is an order made by Senior Sessional Member Richard Affleck made on 3 July 2015 following mediation. In the response, Mr Robert states:
I have received the typed up orders in the post[.]
I wish to question the pressure that I felt I encountered on that particular day and I wish to ask permission of the tribunal to revisit and have reassessed the whole nerve wracking experience of the feeling of victimised pressure I felt I experienced on that day in the pursuit of a hurriedly secured outcome regardless of complete explanation and fairness for the whole situation[.].
I enclose a hand scribbled piece of paper mostly unreadable put in front of me to sign, secured under pressure to have apparently now become a hurried resolution.
This is not what I would do or consider in a different less stressful situation[.].
Attached is a handwritten heads of agreement relating to matters CC 910, CC 912 and CC 913 of 2015 and CC 2124 of 2012.
The handwritten terms are consistent with the order issued on 3 July 2015, although the latter is more fully and better expressed. As already indicated in the introduction, it was a term of the order that the only matter remaining for determination was whether the building order the subject of these proceedings should be affirmed or set aside.
As we understand Mr Robert's position, he contends that he would not have agreed to this matter proceeding to a final hearing, although it is also possible that there may be aspects of the other matters agreed which he would now prefer to deal with in a different manner.
This Tribunal does not have jurisdiction to set aside an agreement between the parties: see Pearce & Anor and Germain [2006] WASAT 305. The Tribunal has no general equitable jurisdiction and there is no provision in the Building Act which expressly provides power to grant equitable remedies. Such a power would be a necessary prerequisite to any process involving a setting aside of the Tribunal's order of 3 July 2015 which, on the face of it, would have to be the subject of proceedings in the Supreme Court. But, in any event, we note that the settlement agreement was not signed by Mr Robert. It was signed by Mr Gillett, representing the Shire, and Mr Michael Hardy, a senior and experienced legal practitioner who was acting pro bono for Mr Robert. In the circumstances, not only do we not have jurisdiction to impugn the order of 3 July 2015 but, in the absence of any evidence from Mr Robert and having regard to the legal representation which he had, we do not consider that there is any indication of a factual basis to support any interference (by the Supreme Court) with the settlement agreement or mediation order. If there was any properly laid evidential basis for coming to a contrary conclusion on the facts, it may have been appropriate to consider whether the proceedings should be adjourned to afford Mr Robert the opportunity to commence appropriate proceedings, but that is not the case.

Is the building unfit for human occupation?

The first issue to be considered is whether reliance can be placed upon the report of Mr List and the unsigned report of Mr Jurmann.
It is convenient to deal firstly with the unsigned report of Mr Jurmann. Although the report is not signed, Mr Jurmann identifies it as his report in his witness statement signed on 18 November 2015. Little, therefore, turns on whether or not the report was signed by him.
Nevertheless, Mr Jurmann is not an engineer. He is an accredited building surveyor level 1 and holds a Bachelor of Applied Science in Environmental Health (Building Major) and a Graduate Diploma in Building Surveying. His unsigned report dated 11 April 2014 deals with structures which were the subject of other building orders which are not the subject of this review, and to that extent, it is not relevant and there is no need to rely upon it. To the extent that it deals with the building, or parts of it, the subject of these review proceedings, Mr Jurmann largely relies upon the report prepared by Mr List. To the extent that he volunteers any independent evidence, such as that the brickwork has not been constructed in accordance with the requirements for earthquake loading and particular Australian Standards, he is largely stating conclusions which fall outside his expertise and it would not be appropriate to rely on the report in relation to such matters. Similarly, the report is of little value where no more than conclusions are stated without a factual basis having been established therefor, although the topic appears to be within his expertise. An example of this is in relation to section 4, dealing with the outdoor covered area and toilet facilities, where the report states that 'this structure is constructed of miscellaneous materials that do not comply with the timber framing code' without any explanation as to why that is so. Similarly, there is no factual basis stated for his conclusion that the materials show signs of structural failure.
On the other hand, in his written statement, Mr Jurmann records observations made by him which are factual and to which it is appropriate to have regard. An example of this is that he states that the footings and slab of the building 'do not meet the requirements of the National Construction Code (NCC), which would require that the slab should be 100 millimetres thick, whereas the slab in the kitchen area is approximately 50 to 60 millimetres thick, and he observed that it appears not to be reinforced with steel. Similarly, he makes observations about the existence of termite damage to the roofing timbers of the covered outdoor area and that there are a number of timber posts supporting the roof structure which have been damaged by termites and are no longer capable of bearing loads.
We turn to consider the extent to which reliance can be placed on Mr List's report (Exhibit B). To the extent that the report deals with structures, not the subject of these proceedings, it is irrelevant.
Mr List has attached to his witness statement a curriculum vitae setting out his qualifications and experience. He holds a Bachelor of Engineering (Hons) Civil and Structural Engineering and a Diploma of Industrial Studies from the University of Bradford (England) awarded in 2001. His experience as outlined since obtaining his qualifications, particularly in relation to structural engineering, is sufficient to qualify him as an expert witness. We can see no reason for not placing reliance on Mr List's report. Its contents and his evidence need to be weighed and treated on their merits.
Does the evidence establish that the building, or any part thereof, is unfit for human occupation?
We turn to address the evidence and report provided by Mr List.
Mr List provided a very lengthy report dated 21 March 2012. He also provided a witness statement dated 24 November 2015 (Exhibit A).
Mr List's report was of a non-destructive visual inspection of the structure of the entire property undertaken on 21 March 2012.
The purpose of the report was to provide a structural assessment of all parts of the entire property. It addresses each of 19 areas of the property, providing, for each area, a descriptive overview, a description of the structure, a description of the structural connections, and commentary on structural stability. This is supplemented by an extensive photographic record of the areas, numbering 214 photographs.
Four of the areas within the report, numbered 10 to 14, describe the structural status of the areas to the south and southwest of the original cottage relevant to this review. The areas are not physically separated but are a series of interlinked structures covered by a single extensive metal sheet roof.
These areas are:
10.Covered outbuilding and toilet;
11.Covered hall;
12.Kitchen;
13.Shower room; and
14.Store building.
These areas, and other structures, are depicted in an annotated site plan attached to the report, which bears the above numbers relating to the corresponding parts of the building as described above.
Mr List's witness statement deals with a site visit on 10 November 2015. In order to establish a visual assessment of the current state of the areas 10 to 14, collectively referred to as the building, appended to the witness statement are 102 photographs of both the interior and the exterior of the building.
It is Mr List's opinion that the building does not comply with certain standards and building codes mentioned in the building order; that the structure has deteriorated during the period since his first inspection and report; that the building is not fit for human habitation; and that the structure should be demolished.
Mr List describes the covered outbuilding and toilet as being constructed of a floor made variously of 100 millimetre thick concrete, brick paving or sand, on which is a steel frame comprising members of various shapes and sizes to which are attached wall frames made of various materials, including metal bed frames and steel 'Acrow' props, a type of adjustable prop used for temporary construction.
Both internal and external walls, including the toilet compartment, are made from corrugated steel sheeting, spanning up to 2,100 millimetres, an excessive distance. The roof structure is made of timbers, apparently intended to span onto steel trusses, but, in fact, on occasions having no connection with the trusses and instead held in the air by the roof sheeting.

It is Mr List's opinion that the timber structural elements are not compliant with the relevant Australian Standard for timber framed construction (AS 1684.22010), nor is the roof sheeting span compliant with the requirements of the NCC Figure 3.5.1.5.
The covered hall is constructed using similar construction materials to those of the covered outbuilding and toilet. The roof comprises corrugated steel sheeting on timber purlins and rafters, which span in excess of the distance permitted in the NCC above. The rafters span onto a truss over 7 metres long, made of various pieces of steel, several of which are broken or missing at its northern support such that no loadbearing connection is apparent. The northern support comprises a timber frame significantly damaged by white ant attack. In Mr List's opinion, the structure lacks any form of structural integrity and cannot be assessed against current Australian Standards.
Moving on to the kitchen, Mr List describes similar roof construction deficiencies to that in the covered hall. The purlins span an excessive distance, several trusses have missing bottom chords and the timber supports exhibit heavy white ant damage. One corrugated steel sheet wall, intended not to take load from the roof, nonetheless appears to be sustaining loading from the roof and has bowed and been pushed into the ground since the first site visit. The brick kitchen walls supporting the roof and kitchen fixtures are constructed off the ground floor slab in miscellaneously bonded brickwork to varying thicknesses. One crack is noticeable, extending some length vertically through the brick joints. One truss is built into the brickwork at roof level. Mr List is of the opinion that the masonry wall is not supported by an adequate footing in accordance with AS 2870‑2011 'Residential slabs and footings'.
The shower room is constructed with tiled masonry walls attached on one side to those in the kitchen. The roof spans over but does not connect with the masonry walls. As in the kitchen, the shower room walls appear to be built directly off the 100 millimetre thick slab. Again, Mr List considers that the roof does not comply with the requirements of NCC Figure 3.5.1.5 and the walls are not supported by an adequate footing in accordance with AS 2870‑2011 'Residential slabs and footings'.
The store, a substantial building approximately 8.5 metres long, 6.4 metres wide and 2.65 metres high, is constructed in a similar manner to the covered hall, in that it has a steel frame and metal sheet cladding. A particular feature of the store is that it has large timber doors, described as barn doors, which have been decorated. These are supported by 50 millimetre diameter steel posts which Mr List considers would fail in a design wind event. Mr List concludes that various trusses again have damaged or missing chords, which have deflected due to the loads they sustain. In his opinion, the building is structurally unsound.
Overall, Mr List is concerned that the various elements do not exhibit clear load paths as would be required by a compliant structural design. Instead, the entire roof appears to be acting as a diaphragm and had, to date, remained upright only because of incalculable interactions between the roof sheeting, the wall sheeting and the various frame members. The roof sagging has worsened since his first inspection and there is an increasing risk of collapse or loss of sheeting in high winds.
Mr List acknowledges that his report and the building order refer to standards which have only come into existence since construction of the structures and therefore the building could not have been built to those standards. However, he considered the standards to be representative examples of correct building standards if the building were to be constructed now, rather than compliance requirements. In his opinion:
•the building has not been constructed to any standards, whether current or not, and the essential requirement of any structure is that it should be safe;
•the building is unsafe, having no adequate way to transmit loads to the ground in the event of a severe storm event; and
•there is no cost‑effective way to remediate the structure and it should be demolished.
The evidence of Mr List may be regarded as deficient to the extent that his report states his conclusions that certain aspects of the works do not comply with particular provisions of the NCC or particular Australian Standards because the particular requirements thereof are not stated, nor have any particular edition of the NCC or the Australian Standards referred to been otherwise produced in evidence, and it is not stated in which particular respects the works do not meet those requirements or standards. However, this does not affect the overall evidence that loads are not adequately transmitted to the ground and that the building remains upright only because of incalculable interactions between the roof sheeting, the wall sheeting and various frame members, all of which is supported by factual observations and photographs.
Under cross‑examination by Mr Robert, Mr List was taken to a number of his photographs showing welded connections. Mr List stated that, in his opinion, certain welds showed poor connections but that others were possibly satisfactory. Mr List acknowledged that, although he had professional qualifications as a structural engineer, he did not have technical qualifications in welding or oxyacetylene cutting. He accepts that he could therefore not express an expert opinion whether a particular weld or cut was actually satisfactory. Nevertheless, he is satisfied that he could express a professional opinion of the safety of the structural members supporting the roof, since the size, load bearing capacity, load transmission and connection principles were directly within his sphere of expertise. In his opinion, the structures the subject of the review are inadequate regardless of the capacity of individual welds.
In further examination, Mr List acknowledged he was unable to comment on the strength of the tek screws holding the roof sheets to the structure. However, in his opinion, the spacing of screws does not comply with any standard and is such that there is a real risk of the roof sheets becoming disconnected from the structure and flying off in a design wind event.
The witness statement of Mr Jurmann adds observations which support Mr List's conclusions. Mr Jurmann notes that the slab to the kitchen area is only approximately 50 to 60 millimetres thick and appears not to be reinforced with steel; whereas Part 3.2 of the NCC would require a 100 millimetre thick slab reinforced with SL82 steel mesh. Further, he observes that the footings for the brickwork to the kitchen area comprise two courses of bricks laid under the slab. Mr Jurmann notes that the NCC would require reinforced concrete footings measuring 600 millimetres deep by 400 millimetres in width and reinforced with trench mesh at the top and bottom of the footing, or, if the footings were combined with the concrete slab, the footings would be required to be 500 millimetres deep by 300 millimetres in width with trench mesh at the bottom of the footing. Mr Jurmann referred to the roof sheeting at the rear verandah where the building joins the existing dwelling. He describes the roof sheeting as being over-spanned, as evidenced by 'sagging and trailing' due to lack of intermediate support. Similarly, he observes that the timber and steel framing for the roof is in a state of disrepair and is showing signs of structural failure in that the framing is sagging and has failed in a number of places which was not evident during his initial inspection in 2012. This demonstrates a deteriorating situation. As commented previously, Mr Jurmann made various observations in relation to termite damage to the extent that timber posts were no longer capable of bearing loads.
None of the above evidence of Mr Jurmann was challenged in cross‑examination.
The photographic evidence presented supports the observations made by both Mr Jurmann and Mr List. The crossexamination of Mr List did not impact in any way on the substance of his views as to the structural inadequacy of the building. We find that the building is unfit for human occupation.

Should the decision under review be set aside or affirmed?

Under the Building Act, a permit authority has a broad discretion to be exercised in determining whether or not to issue a building order and therefore so does the Tribunal on review: see Thomas and City of Stirling [2013] WASAT 110.
We turn, therefore, to consider any factors which may bear upon the exercise of that discretion and will address firstly the matters raised by Mr Robert in his statement of issues, facts and contentions.
What is the effect of Mr Robert's assertion that the Shire has not processed an application for a building permit lodged by him in March 2013?
We do not understand it to be in issue that Mr Robert did make an application for a building permit in March 2013. Correspondence tendered through crossexamination established Mr Robert's intention of making such an application (Exhibit N). While there was no direct evidence in relation to lodgement of the application, the assertion was made and was not disputed on behalf of the Shire. In closing submissions, counsel for the Shire indicated that the application had not been advanced because it was necessary for Mr Robert firstly to apply for planning consent, which he had not done. Mr Robert contended that he had received advice to the contrary.
The merits of that particular dispute are irrelevant. Pursuant to s 23 of the Building Act, an application for a building permit must be decided upon within prescribed periods failing which the permit authority is to be taken to have refused to grant the building permit. Mr Robert had the benefit of assistance from competent and experienced legal representation. It is inconceivable that he is not aware of the right to apply to review the deemed refusal of the application. It is apparent that, for whatever reason, Mr Robert has not wished to press ahead with his proposed development of the property. He tendered a letter through the cross‑examination of Mr Tucker, from an engineer with whom he consulted (Exhibit Q), which comments on Mr List's report and an earlier report from Mr Jurmann which has not been discussed above. The letter is dated '19 December [2013]'. In the earlier report, Mr Jurmann had supported only the demolition of what were referred to as the buildings between the dwelling and the entertainment area. After commenting that Mr List's report listed very little about faulty structures and very much about the 'unfinished/untidy/careless appearance of your home' (the report dealt with all structures, not only those the subject of this review), the author went on to state:
I cannot, however, empathise with [your] determination to remain in that state when you have the skills to remedy the small list of problems that are expressed by Mr Tim Jurmann in his Building Inspection Report dated 28th April 2012 and his general comment on page 161.2. With such a report why would you not attend to his generous recommendations?
It was within Mr Robert's power to ensure that any proposal to develop the site was progressed. He has not taken any steps to address issues raised by the Shire. Furthermore, at a time when he had the benefit of legal representation, he agreed in the mediation in July 2015 to apply for a building permit for all building work required at the property. Accordingly, the lack of progress relating to the 2013 application for a building permit is not a reason for setting aside the decision under review. The failure of Mr Robert to take positive action to address the Shire's concern is a factor in favour of affirming the decision under review.
What is the effect of Mr Robert having applied for and having been granted a demolition permit for removal of the outdoor covered area between the dwelling and the entertainment area?
In Mr Robert's statement of issues, facts and contentions he makes specific reference to the grant of the demolition permit which, he points out, is valid for two years, expiring on 18 February 2016. On similar reasoning to that expressed above in relation to the application for a building permit, we do not consider that this issue supports Mr Robert's position. He has shown no willingness to address the issues raised.
What is the effect of the allegation that members of the Council of the Shire have a conflict of interest relating to this matter?
In Mr Robert's statement of issues, facts and contentions (Response #8), he raises the issue of conflict of interest on the part of Shire councillors and asserts that, from the onset of trying to establish a business in the town, certain elements have been very 'destructive to any progress' he was able to make and used the authorities as the medium for their own agenda. Mr Robert attached a copy of the minutes of a Shire meeting dated 17 July 2001. The minutes show that Mr Robert's neighbours, Mr Watkins and Mrs Morrell, were present as observers to the meeting and enquired whether it was necessary for them to give their permission for Mr Robert's proposed works to go ahead. The Chief Executive Officer advised that permission from neighbouring property owners was not required with regard to two storey residences. Mr Watkins and Mrs Morrell then left the Council meeting when a vote was taken on an agenda item relating to what was described as 'unlawful works at Lot 331 Forrest Street, Kellerberrin' (which is Mr Robert's property). A councillor declared a financial interest as he was the owner of accommodation premises in Kellerberrin and left the Council chambers. At that stage, Mr Robert's proposal was that the proposed two storey residence would be used for hostel accommodation.
A manuscript note added to the minutes, presumably by Mr Robert, states that Mr Morrell gained a Council seat in April 2002 and that shortly thereafter an order (presumably a stop work order) was issued in relation to the building works being carried out by him.
This material falls far short from establishing any impropriety or conflict of interest. To the contrary, it shows that the Council was conscious of conflicts of interest and that one of the councillors declared a financial interest and left the meeting when a vote was taken. The fact that Mr Morrell later became a councillor does not, in itself, establish that any wrong process was followed. Indeed, if the same standards were applied, one would assume that Mr Morrell would have been required to declare an interest and leave the Council chambers if it was necessary to consider the ongoing dispute with Mr Robert.
Having regard to the circumstances of the matter as a whole, we can see no reason why the decision under review should not be affirmed. Mr Robert has produced no evidence of any proposal to address the concerns of the Shire, other than his apparent willingness to demolish the outdoor covered area between the dwelling and the entertainment area, but he has had two years to do that and has not done so. He has not proposed any remedial measures which might address the specific areas covered by the building order the subject of the review. There is some evidence (Exhibit Q) to suggest that he is determined not to address these issues. That would be a justifiable course only if he had produced evidence challenging the basis on which the Shire contends that the building is structurally unsound, but he has not done so.
On the evidence of Mr List, supported in some respects by Mr Jurmann's evidence, which evidence we accept, the building the subject of review is at risk of collapse at any time. The correct and preferable decision is to affirm the decision under review.

Order

For the above reasons the Tribunal will cause an order to issue in the following terms:
1.The application for review is refused.
2.The decision of the respondent to issue the building order reference BA‑2013‑02 dated 20 June 2014 is affirmed.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR SESSIONAL MEMBER