SANUR PTY LTD and CITY OF SUBIACO - [2021] WASAT 90

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
PLANNING AND DEVELOPMENT (LOCAL PLANNING SCHEMES) REGULATIONS 2015 (WA) Sch 2 (deemed provisions)

CITATION: SANUR PTY LTD and CITY OF SUBIACO [2021] WASAT 90
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
MR W GREGORY, SESSIONAL MEMBER

HEARD: 14 - 16 APRIL 2021
FURTHER SUBMISSIONS FILED ON 23 APRIL 2021 AND 30 APRIL 2021

DELIVERED          :   1 JULY 2021
FILE NO/S:   DR 38 of 2021
BETWEEN:   SANUR PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent

FILE NO/S: DR 50 of 2021
BETWEEN: WINTERMIST PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent

FILE NO/S: DR 51 of 2021
BETWEEN: SANUR PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent

FILE NO/S: DR 52 of 2021
BETWEEN: WINTERMIST PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent

Catchwords:

Building orders Heritage conservation notices Building orders and heritage conservation notices requiring installation of temporary support structure for façade wall of single storey building and carrying out remedial works at adjoining two storey building Whether building orders can lawfully be made Whether heritage conservation notices can lawfully be issued Whether properties are located in a 'heritage area' Whether properties have not been 'properly maintained' Whether required works constitute 'specified repairs' Jurisdiction and power Whether Tribunal has power to vary building orders to require demolition of buildings rather than installation of temporary support structure and carrying out remedial works Correct and preferable decision Words and phrases: 'properly maintained', 'specified repairs'

Legislation:

Building Act 2011 (WA), s 110, s 110(2), s 110(2)(d), s 111, s 112, s 112(2)(g), s 112(2)(g)(iv), s 112(2)(g)(v), s 112(2)(g)(vi), s 122(1), s 122(2)
City of Subiaco Local Planning Scheme No. 5, cl 85A, cl 85D
City of Subiaco Town Planning Scheme No. 4, cl 59, cl 59(1)
Heritage Act 2018 (WA), s 38
Interpretation Act 1984 (WA), s 5, s 18, s 32(2), s 36
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 77, reg 79, reg 79(1), reg 80, Sch 2 (deemed provisions), cl 7, cl 9, cl 13, cl 13(1), cl 13(2), cl 13(6), cl 13A, cl 62(1)(b)
Planning and Development Act 2005 (WA), s 257B(2), s 257B(3)
Planning Regulations Amendment Regulations 2020 (WA), reg 2(c)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 17(3), s 25(2), s 27, s 27(1), s 27(2), s 29, s 50(1), s 90(1)

Result:

Building orders affirmed
Heritage conservation notices set aside

Summary of Tribunal's decision:

Sanur Pty Ltd and Wintermist Pty Ltd sought review by the Tribunal of decisions of the City of Subiaco to make building orders and to issue heritage conservation notices in relation to adjoining buildings at Nos. 424 436 Hay Street and No. 440 Hay Street, Subiaco. The properties are located on the northern side of Hay Street, a short distance to the east of the intersection of Hay Street and Rokeby Road. The building orders and heritage conservation notices require Sanur to install a temporary support structure to the façade wall of the building at Nos. 424 436 Hay Street and require Wintermist to carry out remedial works to the building at No. 440 Hay Street. In the proceedings, Sanur and Wintermist argued that the heritage conservation notices cannot be lawfully issued and should be set aside and Sanur (and initially also Wintermist) argued that building orders should be varied (or set aside and building orders substituted) to require them to demolish the buildings. The City argued that the heritage conservation notices can be lawfully issued, the Tribunal does not have power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings and the Tribunal should require Sanur to install the temporary support structure (in accordance with an amended plan and elevations dated April 2021) and should require Wintermist to carry out the remedial works.

The Tribunal determined that the heritage conservation notices cannot be lawfully issued, because it is not satisfied that the properties have not been 'properly maintained', within the meaning and for the purposes of cl 13 of the deemed provisions in local planning schemes, and further, in the case of the Nos. 424 436 Hay Street heritage conservation notice, the installation of the temporary support structure does not constitute 'specified repairs', within the meaning and for the purposes of cl 13 of the deemed provisions (although the Tribunal also determined, as the City argued and contrary to the Sanur’s and Wintermist’s arguments, that the properties are each a 'heritage place', in that they are located in a 'heritage area', namely the Rokeby Road and Hay Street Heritage Area, within the meaning and for the purposes of cl 13 of the deemed provisions).

The Tribunal determined that it does not have power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings.

The Tribunal determined that the correct and preferable decisions at the time of the decisions upon the review are:

(a)in relation to the decisions of the City to make the building orders, even assuming (contrary to the Tribunal’s determination) that the Tribunal has power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, having regard to the state of the buildings, the possibility, safety, benefit and cost of carrying out the works required by the building orders, and the heritage conservation significance of the building at Nos. 424 436 Hay Street, to –
•not vary the building orders (or set them aside and substitute building orders) to require the demolition of the buildings;
•require Sanur to install the temporary support structure at Nos. 424 436 Hay Street in accordance with the amended plan and elevations dated April 2021; and
•require Wintermist to carry out the remedial works at No. 440 Hay Street; and

(b)in relation to the decisions of the City to issue the heritage conservation notices, to set aside those decisions and substitute decisions that no heritage conservation notices are issued, because the heritage conservation notices cannot be lawfully issued.

Category: B

Representation:

DR 38 of 2021

Counsel:

Applicant	:	Mr H Jackson SC
Respondent	:	Mr AK Sharpe

Solicitors:

Applicant	:	Thomson Geer
Respondent	:	McLeods

DR 50 of 2021

Counsel:

Applicant	:	Mr H Jackson SC
Respondent	:	Mr AK Sharpe

Solicitors:

Applicant	:	Thomson Geer
Respondent	:	McLeods

DR 51 of 2021

Counsel:

Applicant	:	Mr H Jackson SC
Respondent	:	Mr AK Sharpe

Solicitors:

Applicant	:	Thomson Geer
Respondent	:	McLeods

DR 52 of 2021

Counsel:

Applicant	:	Mr H Jackson SC
Respondent	:	Mr AK Sharpe

Solicitors:

Applicant	:	Thomson Geer
Respondent	:	McLeods

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

A v Corruption and Crime Commissioner [2013] WASCA 288
Dunbar and Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Springmist Pty Ltd and Shire of AugustaMargaret River [2005] WASAT 143; (2005) 41 SR (WA) 207
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227

Table of Contents

Introduction

The buildings at Nos. 424 436 Hay Street and No. 440 Hay Street

Nos. 424 436 Hay Street

No. 440 Hay Street

Background

Issues for determination

Can the building orders be lawfully made?

Can the heritage conservation notices be lawfully issued?38

Are the properties located in a 'heritage area' and hence each a 'heritage place'?42

Section 36 of the Interpretation Act……………………………………………… 43

Clause 85D of the LPS 5………………………………………………………… .48

Regulations 79 and 80 of the LPS Regs……………………………………......… 54

Are the properties located in a 'heritage area' and hence each a 'heritage place'?....57

Have the properties not been 'properly maintained'?

Do the required works constitute 'specified repairs'?

Is it physically possible and safe to carry out the works required by the building orders and the heritage conservation notices?

Does the Tribunal have power in the circumstances of this case to vary the building orders to require demolition of the building?................................................................................. 71

What are the correct and preferable decisions in these proceedings?

Conclusion89

Attachment A - Temporary support structure…………………………………………..... 92

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

Sanur Pty Ltd (Sanur) and Wintermist Pty Ltd (Wintermist) (collectively, applicants) seek review by the Tribunal of decisions of the City of Subiaco (City, Council or respondent) to make building orders and to issue heritage conservation notices in relation to adjoining buildings at Nos. 424 436 Hay Street, Subiaco (Nos. 424 436 Hay Street) and No. 440 Hay Street, Subiaco (No. 440 Hay Street). Nos. 424 436 Hay Street and No. 440 Hay Street are located on the northern side of Hay Street, a short distance to the east of the intersection of Hay Street and Rokeby Road.
Nos. 424 436 Hay Street comprises a single storey building of brick and iron construction owned by Sanur and No. 440 Hay Street comprises a two storey cavity brick and iron construction building owned by Wintermist.
Proceeding DR 38 of 2021 involves an application for review by Sanur, under s 122(1) of the Building Act 2011 (WA) (Building Act), of the decision of the City to make Building order (Emergency) E21/197 dated 17 March 2021 in respect of the building at Nos. 424 436 Hay Street (Nos. 424 436 Hay Street building order). The Nos. 424 436 Hay Street building order states that it is issued under s 110 of the Building Act in respect of the following:[1]
The building on the Property, namely a single storey building of brick and iron construction (Building), is reasonably believed to be in a dangerous state because the Hay Street facade [sic] of the Building is at risk of collapse. Accordingly, the City considers there is an imminent and high risk to people and property arising from the dangerous state of the Building.
[1] Amended respondent's section 24 bundle of documents dated 1 April 2021, Volume 2 (Exhibit 1.2), tab 73, page 758 (original emphasis).
The Nos. 424 436 Hay Street building order states that, in accordance with s 112 of the Building Act, the City as the permit authority directs Sanur as follows:[2]
Pursuant to section 112(2)(g) of the Act, you are required to, by no later than 23 April 2021, install the temporary support structure identified by the Quoin Structural & Heritage Engineers drawing dated March 2021 and attached to this Order (Drawing) and provide to the City written confirmation by a suitably qualified structural and heritage engineer that the temporary support structure has been installed, as specified in the Drawing.
[2] Exhibit 1.2, tab 73, page 759 (original emphasis).
Proceeding DR 51 of 2021 involves an application for review by Sanur, under cl 13(6) of the deemed provisions in local planning schemes (including the City of Subiaco Local Planning Scheme No. 5 (LPS 5), which applies to the properties in question) set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions), of the decision of the City to issue a heritage conservation notice dated 17 March 2021 in respect of the building at Nos. 424 436 Hay Street (Nos. 424 436 Hay Street heritage conservation notice). The Nos. 424 436 Hay Street heritage conservation notice states that the Council considers that the building at Nos. 424 436 Hay Street 'is not being properly maintained for the [following] reasons'[3]:[4]
1.The Building is not being properly maintained, as it is not being maintained in a way that ensures that there is no actual or imminent loss or deterioration of the structural integrity of the Building.
2.The Hay Street facade [sic] of the Building is at risk of collapse.
[3] Exhibit 1.2, tab 74, page 763.
[4] Exhibit 1.2, tab 74, page 764.
The Nos. 424 436 Hay Street heritage conservation notice requires Sanur 'to repair the [b]uilding by taking the [following] actions'[5]:[6]
By no later than 16 May 2021, install the temporary support structure identified by the Quoin Structural & Heritage Engineers drawing dated March 2021 and attached to this Order (Drawing) and provide to the City written confirmation by a suitably qualified structural and heritage engineer that the temporary support structure has been installed, as specified in the Drawing.
[5] Exhibit 1.2, tab 74, page 763.
[6] Exhibit 1.2, tab 74, page 764 (original emphasis).
The temporary support structure referred to in the Nos. 424 436 Hay Street heritage conservation notice is the same temporary support structure as that referred to in the Nos. 424 436 Hay Street building order (temporary support structure). An amended plan and elevations of the temporary support structure dated April 2021, which revised the design by adding plywood and which the City seeks to have substituted in these proceedings for the plan and elevations dated March 2021, is reproduced at Attachment A to these reasons.
Proceeding DR 50 of 2021 involves an application for review by Wintermist, under s 122(1) of the Building Act, of the decision of the City to make Building order E21/196 dated 17 March 2021 in respect of the building at No. 440 Hay Street (No. 440 Hay Street building order). The No. 440 Hay Street building order states that it is issued under s 110 of the Building Act in respect of the following:[7]
The building on the Property, namely a the [sic] two-storey cavity brick and iron construction building on the Property (Building), is reasonably believed to be in a dangerous state because the City has received a report from Quoin Structural & Heritage Engineers dated 25 February 2021, which concludes that the Hay Street façade of the Building is leaning outwards towards Hay Street.
[7] Exhibit 1.2, tab 71, page 709 (original emphasis).
The No. 440 Hay Street building order states that, in accordance with s 112 of the Building Act, the City as the permit authority directs Wintermist as follows:[8]
[8] Exhibit 1.2, tab 71, page 710 (original emphasis). Although not raised by the parties, the reference in paragraph 2 to 'paragraph 1(b)' is a typographical error and should be a reference to 'paragraph 1(a)', which sets out the remedial works.
1.Pursuant to section 112(2)(g) of the Act, you are required to, by no later than 26 May 2021:
(a)carry out the following remedial works to stabilise the façade of the Building:
(i)     stitch the two main cracks in the interior walls at first floor level using a proprietary crack stitching system;
(ii)    repoint the cracks in the exterior wall on the east side, located around the window approximately 5m back from the façade; and
(iii)   provide lateral restraint to the façade wall at roof level, for example by anchoring a steel angle along the full length of the wall and connecting it to the purlins; and
(b)provide to the City written confirmation by a suitably qualified structural and heritage engineer that the works specified in paragraph (a) have been carried out.
2.Pursuant to section 112(2)(h) of the Act, you are required to lodge with the City a certified application for a building permit (BA1) and obtain a building permit prior to carrying out the remedial works referred to in paragraph 1(b) [sic] above.
Proceeding DR 52 of 2021 involves an application for review by Wintermist, under cl 13(6) of the deemed provisions, of the decision of the City to issue a heritage conservation notice dated 17 March 2021 in respect of the building at No. 440 Hay Street (No. 440 Hay Street heritage conservation notice). The No. 440 Hay Street heritage conservation notice states that the Council considers that the building 'is not being properly maintained for the [following] reasons'[9]:[10]
1.The Building is not being properly maintained, as it is not being maintained in a way that ensures that there is no actual or imminent loss or deterioration of the structural integrity of the Building.
2.The City has received a report from Quoin Structural & Heritage Engineers dated 25 February 2021, which concludes that the Hay Street façade of the Building is leaning outwards towards Hay Street.
[9] Exhibit 1.2, tab 72, page 734.
[10] Exhibit 1.2, tab 72, page 735.
The No. 440 Hay Street heritage conservation notice requires Wintermist 'to repair the [b]uilding by taking the [following] actions'[11]:[12]
[11] Exhibit 1.2, tab 72, page 734.
[12] Exhibit 1.2, tab 72, page 735 (original emphasis).
By no later than 26 May 2021:
(a)carry out the following remedial works to stabilise the façade of the Building:
(i)stitch the two main cracks in the interior walls at first floor level using a proprietary crack stitching system;
(ii)repoint the cracks in the exterior wall on the east side, located around the window approximately 5m back from the façade; and
(iii)provide lateral restraint to the façade wall at roof level, for example by anchoring a steel angle along the full length of the wall and connecting it to the purlins; and
(b)provide to the City written confirmation by a suitably qualified structural and heritage engineer that the works specified in paragraph (a) have been carried out.
As can be seen, the remedial works to stabilise the façade of the building at No. 440 Hay Street referred to in the No. 440 Hay Street heritage conservation notice are the same remedial works as those referred to in the No. 440 Hay Street building order (remedial works).
Section 122(2) of the Building Act provides that '[t]he institution of a proceeding for the review of a decision [under s 122(1) of the Building Act] in relation to a building order other than a building order (emergency) stays the operation of the order pending the determination of the proceeding'. Thus, the No. 440 Hay Street building order was stayed upon the commencement by Wintermist of the application for review in relation to the decision of the City to make that building order. However, the Nos. 424 436 Hay Street building order, the Nos. 424 436 Hay Street heritage conservation notice and the No. 440 Hay Street heritage conservation notice continued to operate in accordance with their terms following the commencement of the applications for review in relation to the decisions of the City to make that building order and to issue those heritage conservation notices. On the application of the applicants, which was not opposed by the City, on 16 April 2021, Deputy President Judge Parry ordered, pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that the Nos. 424 436 Hay Street building order, the Nos. 424 436 Hay Street heritage conservation notice and the No. 440 Hay Street heritage conservation notice are each 'stayed until the final determination of the [relevant] proceeding'.
Under s 17(1) of the SAT Act, these proceedings, which involve the review of decisions of the City to make building orders and to issue heritage conservation notices, come within the Tribunal's review jurisdiction. Under s 17(3) of the SAT Act, the City's decisions the subject of these proceedings are each a 'reviewable decision' for the purposes of the SAT Act. Under s 27(1) of the SAT Act, the review of a reviewable decision is to be by way of a 'hearing de novo' and 'is not confined to matters that were before the [original] decision-maker but may involve the consideration of new material whether or not it existed at the time the [original] decision was made'. Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Neither party bears any legal or practical onus of proof in these proceedings.[13] In particular, the applicants do not bear any legal or practical onus of identifying error in the reviewable decisions or showing that there should be some departure from those decisions. Rather, it is the function of the Tribunal to consider the material before it and form its own view as to the correct and preferable decision in each of the proceedings.
[13] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135 [121]-[124] (Buss P and Murphy and Mitchell JJA).

Sanur contends that the correct and preferable decision in relation to the Nos. 424 436 Hay Street building order is for the Tribunal to vary it (or set it aside and substitute a building order) to require the demolition of the building, rather than the installation of the temporary support structure. Similarly, Wintermist originally contended that the correct and preferable decision in relation to the No. 440 Hay Street building order is for the Tribunal to vary it (or set it aside and substitute a building order) to require the demolition of the building, rather than the carrying out of the remedial works. However, at the hearing, in light of the engineering expert evidence, Wintermist no longer sought the variation of the No. 440 Hay Street building order (or setting it aside and substituting a building order) to require the demolition of the building, but rather contends that the building order should be suspended until the determination of a demolition application in relation to the building. The applicants contend that the correct and preferable decision in relation to the heritage conservation notices is to set them aside.
In contrast, the City contends that the correct and preferable decisions in these proceedings are to affirm the building orders and the heritage conservation notices (substituting the revised plan and elevations of the temporary support structure reproduced at Attachment A to these reasons in the Nos. 424 436 Hay Street building order and heritage conservation notice).
On 30 March 2021, Judge Parry ordered, pursuant to s 50(1) of the SAT Act, that each of the four proceedings 'are to remain as separate proceedings but heard and determined together and evidence in one proceeding is to be evidence in each other proceeding'.
We conducted the hearing over three days from 14 to 16 April 2021. The hearing included a view of the façades of the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street and other properties at the intersection of Hay Street and Rokeby Road and to the east of that intersection on the northern and southern sides of Hay Street.[14] Following the parties' oral closing submissions, we permitted the parties to file further written submissions. The applicants filed further written submissions on 23 April 2021 and the City filed further written submissions on 30 April 2021. We then reserved our decision.
[14] The Site Visit Plan (Exhibit 7) is reproduced at [20] below.
In these reasons, we will firstly describe the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street and review the factual background to these proceedings. We will then set out the principal issues for determination in these proceedings and address each of the issues in turn.

The buildings at Nos. 424 436 Hay Street and No. 440 Hay Street

We reproduce immediately below a photograph taken in June 2020 of the northern side of Hay Street, looking northwest, showing the single storey building at Nos. 424 436 Hay Street in the right and centre of the photograph, the two storey building at No. 440 Hay Street adjoining to the west in the left of the photograph, and the buildings at the northeastern and northwestern corners of the intersection of Hay Street and Rokeby Road at the extreme left of the photograph.[15] We also reproduce immediately below the Site Visit Plan showing the locations visited on the view,[16] including Nos. 424 436 Hay Street (location B) and No. 440 Hay Street (location A).[17]

Nos. 424 436 Hay Street

[15] Exhibit 1.2, tab 34, page 499.

[16] Locations A, B, 1, 2, 3 and 4.

[17] Exhibit 7.

We reproduce immediately below a photograph showing the façade of the building at Nos. 424 436 Hay Street taken in December 2012.[18]
[18] Amended respondent's section 24 bundle of documents dated 1 April 2021, Volume 1 (Exhibit 1.1), tab 1, page 116.
The building at Nos. 424 436 Hay Street was constructed in about 1921 in the Federation Free architectural style. The assessment of the Rokeby Road and Hay Street Heritage Area prepared by Griffiths Architects with Mr Eddie Marcus, historian, for the City in January 2013 (Heritage Area assessment) contains the following physical description of the building:[19]
The seven shops at 424436 are a row of single storey commercial buildings with intact shop fronts. All of the shops retain their original recessed entrance doors. A framed canopy with bullnosed edging runs the length of the building. The parapet above comprises eight piers with flower pot shaped finials, and both arch and square geometrical shapes to the top. A raised rectangular panel occurs in the centre parapet of the building, with large dentil mouldings and an arched niche surrounding a recessed arched vent. The remaining shops have plain parapet walls or arched pediments.
[19] Exhibit 1.1, tab 1, page 117 (based on external inspection only).

On 26 February 2021, the Heritage Council of Western Australia (Heritage Council) conducted a preliminary review of the nomination by the City for the building at Nos. 424 436 Hay Street to be considered for possible inclusion in the State Register under the Heritage Act 2018 (WA) (Heritage Act). The preliminary review report dated February 2021 prepared by the Heritage Council and considered by it at its meeting on 26 February 2021 contains a similar description of the place to the physical description of the building in the Heritage Area assessment and also refers to the residences associated with the shops which were originally constructed at the rear of the building.
In a letter to the City dated 2 March 2021, Mr Richard Offen, Acting Chair of the Heritage Council, advised that the Heritage Council determined that 'while the place may have some cultural heritage significance, it is unlikely to have the cultural heritage significance required to meet the condition for entry in the State Register under [s] 38 of the [Heritage Act]'.[20] However, Mr Offen said that the Heritage Council 'also noted that the place has local heritage significance through its contribution to the City of Subiaco's Rokeby Road and Hay [Street] Conservation [that is, Heritage] Area'.[21]
[20] Exhibit 1.2, tab 47, page 638.
[21] Exhibit 1.2, tab 47, page 638.
By a Council resolution made on 23 August 2013, the Rokeby Road and Hay Street Heritage Area, which includes the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street, was declared to be a 'Conservation Area' under cl 59 of the City of Subiaco Town Planning Scheme No. 4 (TPS 4) (Rokeby Road and Hay Street Heritage Area).[22] Clause 59(1) of TPS 4 provided that '[i]f in the opinion of the Council, it is necessary or appropriate to have special planning controls to conserve or enhance the cultural heritage significance of an area, the Council may, by resolution, declare that area to be a conservation area'.[23] We reproduce immediately below a map of the Rokeby Road and Hay Street Heritage Area and the wider Subiaco Town Centre Precinct in which the buildings within the Rokeby Road and Hay Street Heritage Area are coloured differentially depending on whether they are considered in the Heritage Area assessment to make 'considerable contribution', 'some/moderate contribution' or 'no contribution' to the Rokeby Road and Hay Street Heritage Area.[24]
[22] Exhibit 1.1, tab 2, page 137.
[23] Exhibit 19.
[24] Exhibit 1.1, tab 1, page 20.
As indicated on the map reproduced immediately above, the building at Nos. 424 436 Hay Street is considered in the Heritage Area assessment to make 'some/moderate contribution' to the Rokeby Road and Hay Street Heritage Area. In particular, the Heritage Area assessment identifies the contributory significance of the building as follows:[25]
Some / Moderate Contribution
The place contributes to the significance of the Rokeby Road and Hay Street Heritage Area. This set of shops makes a very strong visual contribution to the streetscape.
[25] Exhibit 1.1, tab 1, page 116 (original emphasis).
Consistently with this assessment, but more fulsomely, the preliminary review report prepared by the Heritage Council identifies the building at Nos. 424 436 Hay Street as having the following cultural heritage 'values':[26]
•The place is an aesthetically pleasing and cohesive example of an inter-war row of seven shops with residences at the rear.
•Although some original fabric has been replaced this has been done in a sympathetic manner so the place has retained its original form and appearance.
•The place is a representative example of the type of shops, including residences, constructed in small and medium suburban shopping areas during the inter-war period.
•The place may have some rarity value as an intact row of a number of singlestorey shops (seven) in the same design, and the presence of the complimentary residential properties at the rear.
•The place makes a pleasing contribution to the Hay St and Rokeby Rd streetscapes.
[26] Exhibit 1.2, tab 47, pages 639-640.
The preliminary review report prepared by the Heritage Council also identifies the tenants of the seven shops at various points based on historical sources. Mr Malcolm Mackay, who is an architect and urban designer with 35 years' experience and has been working with the applicants since 2013 on various projects relating to Nos. 424 436 Hay Street and No. 440 Hay Street, and who was called by the applicants, said in his evidence that '[t]enants of [Nos.] 424 [ 436] and [No.] 440 Hay Street have included quality 'bluechip' corporate tenants and national retail chains'.[27] Mr Mackay also gave evidence that the tenancies in both buildings 'have been gradually vacated over the course of the last few years to free up the buildings for redevelopment'.[28]

No. 440 Hay Street

[27] Witness statement of Malcolm Alexander Mackay dated 9 April 2021 (Exhibit 13) [19].

[28] Exhibit 13 [18].

We reproduce immediately below a photograph showing the façade of the building at No. 440 Hay Street taken in December 2012.[29]
[29] Exhibit 1.1, tab 1, page 112.
The building at No. 440 Hay Street was constructed in 1912 in the InterWar Free Classical architectural style as a picture palace for West's Pictures, which also established cinemas around the same time in Murray Street, Perth and Fremantle. The Heritage Area assessment states that the building was known as 'West's Theatre' and 'Palace Theatre' and was operated in conjunction with openair gardens to the west of the building where moving pictures were also shown. Extensive remodelling of the building was carried out in 1928 and, in 1929, sound equipment was installed in the cinema, while silent films continued to be shown in the gardens for some further period. The Heritage Area assessment states that '[p]robably in response to the construction of the Regal [Theatre] on the northwestern corner of the intersection of Rokeby Road and Hay Street], in 1937, 'West's Theatre was proposed to be demolished and replaced with a more modern cinema'.[30] However, the cinema closed in 1938, and the building was used during the 1940's and early 1950's as a Police Boys Club and a boxing stadium. In 1954, the building underwent major alterations to convert it into a showroom for motor vehicles. As Ms Gemma Dewar, who is a heritage planner and consultant with 18 years' experience, and who was called by the applicants, said in her evidence, the alterations involved complete remodelling of the ground level shop front, including a new window in a different location to the original opening, introduction of reinforced concrete columns and lintels to support the upper level of the fa ade, bricking up the oriel window/projection box between the two round windows, removal of two moulded plaques to the east and west of the round windows and to the parapet, and reconstruction of the ground level floor in concrete. Ms Dewar gave evidence that subsequent changes were also made to the façade, including further changes to the shop front and replacement of the round windows to the façade with aluminium frames and plain glazing.
[30] Exhibit 1.1, tab 1, page 114.
The Heritage Area assessment contains the following physical description of the building at No. 440 Hay Street:[31]
The place at 440 Hay Street is a twostorey commercial building in the Inter-War Free Classical architectural style. The lower storey has a rendered brickwork façade with two large aluminium windows either side of the centrally located aluminium sliding door shop entrance. These are shaded by an upward curved awning supported by metal bracket, neither of which are original. The upper storey is rendered brickwork with two large porthole windows either side of a large rectangular window, which is also not original. An entablature with decorative mouldings runs the length of the façade above which is the parapet which has a central raised panel containing two small arched niches surrounded by ornamental consoles.
The front façade is largely authentic above the canopy line.
[31] Exhibit 1.1, tab 1, pages 114-115 (based on external inspection only).
In early March 2021, the Heritage Council conducted a preliminary review of the nomination by the City of the building at No. 440 Hay Street to be considered for possible inclusion in the State Register under the Heritage Act.[32] The description of the place in the updated preliminary review report prepared by the Heritage Council is consistent with the physical description of the building in the Heritage Area assessment, but contains further information as follows:[33]
…
The interior has been divided into two floors. The lower floor is largely empty but does retain some elements of the most recent shop fit out (Priceline Chemist) in the form of shelving supports, wall cladding, signage and linoleum flooring. There are eight square steel posts which support the mezzanine above, and there is a loading bay with roller door at the rear.
The upper floor is accessed from a set of stairs in the northwest corner of the building, and retains a relatively recent office fit out. There are numerous partitions in various configurations across the floor, partitioned office spaces, and a conference room to the north end. What appear to be the original steel roof trusses remain insitu, as do the steel window frames that would have once supported the louvres used to cool the theatre. However, the louvres have been replaced with window glass or have been bricked up. The front rectangular window comprises a modern aluminium frame, and the circular windows above and to either side remain insitu. Most walls are plastered and painted, apart from the conference room which is exposed brick.
[32] Exhibit 1.2, tab 67, page 688 (original emphasis).
[33] Exhibit 1.2, tab 67, page 690.
In a letter to the City dated 12 March 2021, Mr Offen advised that, having considered the updated preliminary review report prepared by the Heritage Council, and '[a]fter careful consideration[,] the [Heritage] Council determined that, while the place may have some cultural heritage value, it is unlikely to have the cultural heritage significance required to meet the condition for entry in the State Register under [s] 38 of the [Heritage Act]'.[34] However, Mr Offen also said that '[t]he Heritage Council again noted that the place has local heritage significance through its contribution to the City of Subiaco's Rokeby Road and Hay [Street] Conservation [that is, Heritage] Area'.[35]
[34] Exhibit 1.2, tab 70, page 688.
[35] Exhibit 1.2, tab 70, page 688.
As can be seen on the map reproduced at [25] above, the building at No. 440 Hay Street is considered in the Heritage Area assessment to make 'some/moderate contribution' to the Rokeby Road and Hay Street Heritage Area. The Heritage Area assessment contains the following description of the contributory significance of the building to the Rokeby Road and Hay Street Heritage Area:[36]
Some/ Moderate Contribution
The place contributes to the significance of the Rokeby Road and Hay Street Heritage Area. Although much altered at ground floor level, this building makes a strong visual contribution to the streetscape.
[36] Exhibit 1.1, tab 1, page 112 (original emphasis).
Again, consistently with this assessment, but more fulsomely, the updated preliminary review report prepared by the Heritage Council identifies the building at No. 440 Hay Street as having the following cultural heritage 'values':[37]
•The place is an early example of a picture theatre in suburban Perth dating from the period when the industry was still in its infancy in Western Australia.
•The place may have some rarity value as a theatre which remains extant from the pre-WWI period.
•The place is associated with architects Thomas Anthoness and Samuel Rosenthal.
•The place demonstrates the changing demographics of the Subiaco area during the early part of the twentiethcentury.
•The place makes a contribution to the Hay St and Rokeby Rd streetscapes.

Background

[37] Exhibit 1.2, tab 67, pages 689-690.

In late January 2021, Mr Philip Meir,[38] who is a builder and was engaged by the applicants to install hoardings to the vacant shop fronts at Nos. 424 436 Hay Street, observed some cracks in masonry return or party walls between shop premises in that building (party walls). In addition, Mr Meir assessed the veracity of the façade wall of the building with a plumb line, and found that it was 160 millimetres out of plumb, leaning towards Hay Street. Mr Meir informed the applicants.
[38] Mr Meir was not called to give evidence. In the evidence before the Tribunal, Mr Meir's surname is also spelled as 'Mier'.
On or about 26 January 2021, the applicants requested Mr David Williams, who is a structural engineer with 24 years' experience, including in relation to repair, refurbishment, expansion and repurposing of heritage buildings, and who is Associate Principal at the engineering consultancy Arup (Arup), to carry out a structural site inspection of the party walls and façade wall of the building at Nos. 424 436 Hay Street. In particular, Mr Williams was requested to inspect the cracks and provide advice regarding the immediate safety of the building having regard to the cracks and the lean of the façade wall. Mr Williams initially inspected the building on 28 January 2021 and provided a verbal report and a draft written report to the applicants following that inspection.
On 1 February 2021, Ms Cara McIntyre, a director of Sanur, emailed the acting Chief Executive Officer of the City advising that '[w]e have uncovered major structural issues in the building at [Nos.] 424436 Hay [Street] and the building may be in imminent danger of collapse'.[39] Ms McIntyre also said that '[w]e need to arrange an urgent meeting on site with you and the City's engineer, together with our engineer David Williams from ARUP [sic]'.[40] Ms McIntyre said that Arup was 'finalising their written report today and you will have a copy of that tomorrow'.[41]
[39] Exhibit 1.1, tab 13, page 262.
[40] Exhibit 1.1, tab 13, page 262.
[41] Exhibit 1.1, tab 13, page 262.
On 2 February 2021, an onsite meeting took place at Nos. 424 436 Hay Street attended by Mr Meir, Ms McIntyre and other representatives of the applicants, Mr Williams, Mr Alex Petrovski, who is Manager Planning Services at the City, Mr James Hambly, who is Manager Transport & Infrastructure Development at the City, and Mr Rama Sritharan, who is Coordinator Traffic & Development at the City. Mr Meir and Mr Williams showed the City's officers the cracks and the lean of the building and there was detailed discussion regarding measures to be taken to address those issues, both in the immediate and longer terms. Mr Williams, who was called by the applicants, said in his evidence that the 'key outcomes of the meeting were that given the size of the cracks and considered excessive lean of the façade towards the street, I advised the people present that I considered [Nos.] 424 [ 436] Hay Street unsafe and at risk of potential collapse [especially] if there were high winds or an earthquake'.[42]
[42] Statement of evidence of David Alexander James Williams dated 9 April 2021 (Exhibit 14) [11].

At the meeting on 2 February 2021, and in the Arup report that he finalised on 3 February 2021, Mr Williams proposed that vertical props be installed under the ends of the cantilevered awning over the footpath. As he explained, '[t]he purpose of the props was to relieve the cantilever load of the awning on the façade that could contribute to the overturning forces on the façade', but the props would 'not support the façade itself or prevent collapse of the facade [sic] should the lean extend beyond that at which the facade [sic] is stable'.[43] Mr Williams also recommended that the building should be monitored for movement 'to establish if the building was actively moving, potentially worsening the current condition as it then was',[44] by means of '[t]ell[]tales to be installed on the cracks to assess if they were still moving' and '[a] survey of the front elevation to monitor the 'lean' of the front elevation with the main purpose to identify if the façade lean is increasing'.[45]
[43] Exhibit 14 [12].
[44] Exhibit 14 [13].
[45] Exhibit 14 [14].
On 4 February 2021, the applicants requested Mr Williams to inspect the building at No. 440 Hay Street. During that inspection, Mr Williams 'observed cracks in [No.] 440 Hay Street of a similar nature to [Nos.] 424 [ 436] Hay Street at first floor level only (no cracks observed at ground floor where visible)'.[46] At that stage, Mr Williams 'considered there were similarities between the buildings that caused similar concerns to be raised as to the safety of [No.] 440 Hay Street'.[47] Mr Williams recommended that the building at No. 440 Hay Street should also be monitored to assess whether ongoing movement was occurring.
[46] Exhibit 14 [21].
[47] Exhibit 14 [21].
On the same day as Mr Williams inspected No. 440 Hay Street, the applicants' solicitor wrote to the acting Chief Executive Officer of the City advising the City of Mr Williams' inspection and that, while Mr Williams was completing a written report in relation to the building, he 'has indicated that the building at [No.] 440 Hay Street is considered to be structurally unsafe for the same reasons as the building at [Nos.] 424 [ 436] Hay Street as set out in his report relating to that building'.[48]
[48] Exhibit 1.1, tab 17, page 279.
The applicants engaged Brown McAllister Surveyors (BMS) to survey and monitor the façades of the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street. Mr Trevor Pizzi, who is a director of BMS and a surveyor with 16 years' experience, supervised the survey. On 4 February 2021, BMS placed 46 survey grade reflective targets on the façades of the buildings. Thirtyeight targets were placed on the façade of Nos. 424 436 Hay Street and eight targets were placed on the façade of No. 440 Hay Street. Mr Pizzi, who was called by the applicants, gave evidence that the initial survey detected leans in the façades of the buildings towards Hay Street ranging between 28 millimetres and 155 millimetres over the wall height of 6.9 metres in the building at Nos. 424 436 Hay Street and ranging between 32 millimetres and 48 millimetres over the wall height of 10.7 metres in the building at No. 440 Hay Street. Between 4 February 2021 and 9 April 2021, BMS surveyed the building façades using the 46 reflective targets on 18 occasions. We will refer to the results of the surveying later in these reasons.
On 6 February 2021, the City published a notice on its website advising that the applicants 'have become aware of significant structural issues' with the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street and that the buildings 'are being monitored and assessed by a structural engineering firm'.[49] The City also advised that '[a]s a precautionary measure, until these further assessments are completed[,] the footpath, parking bays and two lanes of traffic [on Hay Street abutting the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street] have been closed' and '[t]raffic has been diverted to a single lane, using the parking [bays] on the southern side of the road'.[50]
[49] Exhibit 1.1, tab 21, page 343.
[50] Exhibit 1.1, tab 21, page 343.
Also on 6 February 2021, Mr Meir and Mr Williams installed 'telltales' on each of the cracks that had been observed in the walls of the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street, using screws drilled into the walls. Mr Williams explained in his evidence that '[t]he installed tell[]tales are a standard structural crack measuring gauge to measure expansion and contraction [of cracks]'.[51] However, Mr Williams also acknowledged in his evidence that 'the discontinuity of the brickwork at the cracks mean that the tell[]tales are not perfectly aligned such that absolute readings and values should not be taken literally'.[52] Over the following approximately seven weeks, Mr Meir and Mr Williams inspected the telltales 13 times. During an inspection on 8 February 2021, Mr Williams noticed that part of the ceiling of the former Commonwealth Bank tenancy at Nos. 424 436 Hay Street had collapsed. Because those premises have only one entry and exit, Mr Williams considered that 'there was an increased risk that ongoing movement could precipitate a collapse which could trap somebody with no means of escape' and consequently 'no further readings of the telltale in that tenancy were taken'.[53] We will refer to Mr Williams' observations from the inspections of the telltales later in these reasons.
[51] Exhibit 14 [33].
[52] Exhibit 14 [36].
[53] Exhibit 14 [39].
The City engaged the engineering consultancy Structerre (Structerre) to inspect the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street and provide a report in relation to the identified cracking. On 10 February 2021, Mr Williams accompanied engineers from Structerre in an inspection of the buildings and 'noticed a new crack in the west wall of the old Flight Centre tenancy [at Nos. 424 436 Hay Street]' that 'had not been observed or recorded in the previous inspections'.[54] Mr Williams 'considered this as further evidence of the ongoing movement of [Nos.] 424 [ 436] Hay Street'.[55] Structerre provided the City with an initial report on 10 February 2021 and a revised report on 14 February 2021 (Structerre report). Mr Jonathan Sanders, a structural engineer employed by Structerre, advised the City in the Structerre report that '[b]ased on observations from the inspection and the anecdotal evidence provided, it is considered that the facades [sic] of both the subject buildings are in an active state (not stable) and may be considered in a state of progressive collapse'.[56] Structerre recommended that the City should maintain an exclusion zone in front of the buildings 'until such time as the facades [sic] can be safely demolished, or otherwise assessed as being safe and stable by appropriately qualified professionals'.[57]
[54] Exhibit 14 [44].
[55] Exhibit 14 [44].
[56] Exhibit 1.1, tab 25, page 355.
[57] Exhibit 1.1, tab 25, page 355.
On 13 February 2021, the partial closure of Hay Street abutting the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street was extended by the City to a complete closure of Hay Street between Catherine Street and Rokeby Road.
On 15 February 2021, the City held a Special Council Meeting in relation to the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street. At that meeting, the Council passed the following resolution:[58]
A structural engineer (independent of the engineers who have already reported) with suitable built heritage expertise and conservation experience be urgently engaged. They are to report to Council as soon as possible on whether it is possible and the methods by which the parts of the buildings at 424 436 and 440 Hay Street Subiaco which preserve the heritage values of the buildings can be stabilised, remediated, made safe and retained in situ or deconstructed (so that the materials can potentially be retained, stored and possibly reconstructed as part of any future development of the land at those addresses) with a view to other parts of the buildings not required to stabilise or retain the facades [sic] being demolished.
[58] Exhibit 1.1, tab 28, page 411 (original emphasis).
In accordance with the Council's resolution, the City engaged the engineering consultancy Quoin Consulting (Quoin) to undertake a visual site investigation of the façades of the buildings and to report on its findings. In particular, as Dr David Katz, who is a structural engineer with 13 years' experience in the design, construction and assessment of structures, including over the last six years in relation to heritage buildings, and the coauthor, together with Mr Martin Silk, of the subsequent Quoin report, and who was called by the City, said in his evidence, 'the report was to document the extent of damage, whether or not the facades [sic] could be saved and stabilised, what makesafe measures would be required to reopen Hay Street, and what steps would be required if the facades [sic] were to be demolished whilst salvaging assets of heritage value'.[59] On 17 February 2021, Dr Katz conducted a visual inspection of the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street, accompanied by Mr Williams, Mr Meir and (in the inspection of Nos. 424 436 Hay Street) Mr Silk. Dr Katz and Mr Silk then drafted a report and issued it to the City in draft form dated 19 February 2021 and in final form dated 25 February 2021 (Quoin report). The Quoin report concluded that '[t]here is a low risk that part of the façade of [Nos.] 424 436 Hay Street may fail if subject to an adverse environmental event (high wind, earth tremor)' and recommended '[t]herefore, the façade should be propped as soon as is practicable to maintain its stability'.[60] The Quoin report also concluded that '[t]he façade of [No.] 440 Hay Street is not at immediate risk of failure and does not need to be propped' and recommended that '[f]urther investigation of the condition of the façade wall should be completed, then remedial works designed and completed'.[61] Although the Quoin report recommended that '[t]he façade of [Nos.] 424 436 [Hay Street] should be supported with a temporary structure'[62] and set out, '[i]n general terms' in bullet points,[63] the steps that should be taken, it did not provide a plan or elevation of the temporary support structure. The Quoin report also recommended that the southern traffic lane and southern parking bays in Hay Street may be reopened immediately and that the northern traffic lane and northern parking bays may be reopened when the temporary support structure is in place at Nos. 424 436 Hay Street.
[59] Witness statement of David Katz dated 9 April 2021 (Exhibit 8) [10].
[60] Exhibit 1.2, tab 38, page 549.
[61] Exhibit 1.2, tab 38, page 549.
[62] Exhibit 1.2, tab 38, page 552.
[63] Exhibit 1.2, tab 38, page 551.
On 2 March 2021, the City held a Special Council Meeting in relation to the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street. At that meeting, the Council passed resolutions including the following:[64]
[64] Exhibit 1.2, tab 44, page 617 (original emphasis).
...
Procure the owner of [Nos. 424 436 Hay Street] to stabilise the building
3.issue the owner of [Nos. 424 436 Hay Street] with a building order, on terms acceptable to the City and subject to any engineering or legal advice obtained by the City to the contrary, to:
a.design and install a temporary support structure to support [Nos. 424 436 Hay Street];
b.provide to the City written confirmation by a suitably qualified structural and heritage engineer that the temporary support structure has been designed and installed and is fit for purpose; and
c.complete the works listed in sub-paragraphs (a) and (b) above within 28 days from the date of service of the order.
Procure the owner of [No. 440 Hay Street] to repair the building
4.issue the owner of [No. 440 Hay Street] with a building order, on terms acceptable to the City and subject to any engineering or legal advice obtained by the City to the contrary, to:
a.arrange for a suitably qualified structural and heritage engineer to prepare a report specifying the remedial works required to repair [No. 440 Hay Street];
b.carry out the remedial works specified in the report;
c.provide to the City written confirmation that the works have been carried out; and
d.complete the works listed in sub-paragraphs (a), (b) and (c) above within 84 days from the date of service of the order;
…
Issue other orders
6.take such action and issue such directions, notices or orders, including heritage conservation notices, that the CEO may reasonably determine from time to time as being necessary or appropriate in order to achieve Council's priorities as stated in this report;
…
On 3 March 2021, the City issued Building order (Emergency) E21/197 directing Sanur as follows:[65]
Pursuant to section 112(2)(g) of the Act, you are required to:
(a)Within 14 days of the service of this Order, arrange for a suitably qualified structural and heritage engineer to design a temporary support structure to support the Hay Street façade of the Building [at Nos. 424 436 Hay Street] which can be installed through the awning on the Hay Street side of the Building and provide a copy of the design to the City; and
(b)Within 28 days of the service of this Order, install the temporary support structure referred to in paragraph (a) above and provide to the City written confirmation by a suitably qualified structural and heritage engineer that the temporary support structure has been installed as designed and is fit for purpose.
[65] Exhibit 1.2, tab 53, page 662.2.
Also on 3 March 2021, under s 111 of the Building Act, the City issued notice of a proposed building order to Wintermist in respect of the building at No. 440 Hay Street in terms that subsequently became the No. 440 Hay Street building order.
On 3 March 2021, Sanur filed an application for review in the Tribunal of the decision of the City to make the Building order (Emergency) issued earlier that day and Wintermist foreshadowed that it would seek review of the No. 440 Hay Street building order once it was made. As Sanur also filed interim applications in the Tribunal seeking a stay of the Building order (Emergency), under s 25(2) of the SAT Act, and an interim injunction to restrain the City from reopening the southern traffic lane and southern parking bays on Hay Street, under s 90(1) of the SAT Act, the Tribunal convened an urgent directions hearing before Judge Parry on 5 March 2021. Following discussions between Mr Williams and Dr Katz during and subsequent to the directions hearing, the application for an injunction was ultimately not pressed by the applicants and the City subsequently reopened the southern traffic lane and southern parking bays on Hay Street. Furthermore, following discussion during the directions hearing between the Tribunal and the parties' representatives, the parties agreed that the City would procure the design of a temporary support structure to support the façade of the building at Nos. 424 436 Hay Street, which was acceptable to the City, and the City would then issue a substituted emergency building order requiring Sanur to install that temporary support structure.
Quoin was then engaged by the City to design the temporary support structure. On 17 March 2021, Quoin issued the plan and elevations of the temporary support structure, which Dr Katz had designed, and the City made the Nos. 424 436 Hay Street building order requiring Sanur to install the temporary support structure in accordance with that plan and elevations. On the same day, the City also made the No. 440 Hay Street building order and issued the heritage conservation notices. On 30 March 2021, Judge Parry ordered that '[t]he building order dated 17 March 2021 is substituted for the building order dated 3 March 2021 as the building order the subject of [proceeding DR 38 of 2021]'.
In late March 2021, Dr Katz provided the plan and elevations of the temporary support structure to two scaffolding companies, JV Scaffolding Pty Ltd (JV Scaffolding) and ScafWest Pty Ltd (ScafWest), for the purposes of quoting. On 9 April 2021, JV Scaffolding provided a quotation to install the temporary support structure and hire the scaffold and concrete blocks for a period of 13 weeks in the amount of $59,000 (plus GST), with the additional cost of hiring the scaffold of $260 (plus GST) per week and hiring the concrete blocks of $1,800 (plus GST) per week after the initial 13 week period. On 13 April 2021, ScafWest provided a quotation to install the temporary support structure and hire the scaffold and concrete blocks for a period of two weeks in the amount of $35,500 (plus GST), with the additional cost of hiring the scaffold and concrete blocks of $750 (plus GST) per week after the initial two week period.
There are two further matters to be noted by way of background. First, in mid-2020, the applicants lodged a development application with the State Development Assessment Unit (SDAU) for approval of development of the site comprising Nos. 424 436 Hay Street and No. 440 Hay Street, a narrow strip of land to the north of these properties owned by the City and comprising part of Burley Lane, and a property to the north of Burley Lane and south of Seddon Street (DA). However, at its Ordinary Council Meeting on 20 October 2020, the Council resolved 'not [to] sign the DA as the registered proprietor of Burley Lane at this time', that is, not to give what is commonly known as 'owner's consent' to the making of the DA, as required by cl 62(1)(b) of the deemed provisions, and that it 'will consider the signing of a DA when the comprehensive planning for the area is finalised through the [Local Development Plan that it is currently preparing]'.[66] Although a development application can lawfully be considered by the planning consent authority in the absence of owner's consent (but cannot lawfully be determined by the planning consent authority in the absence of owner's consent),[67] it is common ground between the parties that the DA is not presently being considered by the SDAU and is in abeyance.[68]
[66] Exhibit 1.1, tab 5, page 164.
[67] Springmist Pty Ltd and Shire of AugustaMargaret River [2005] WASAT 143; (2005) 41 SR (WA) 207 [14] (Judge Chaney DP, Mr DR Parry SM and Ms M Connor M).
[68] ts 271, 16 April 2021.
Secondly, on or about 5 February 2021, planning consultants acting for the applicants lodged development applications with the City for approval under LPS 5 for the demolition of the buildings at Nos. 424 436 Hay Street and No. 440 Hay Street (demolition applications).

Issues for determination

The following five principal issues arise for determination in these proceedings:[69]
[69] These issues are based on the parties' respective statements of issues and contentions (respondent's statement of issues and contentions dated 19 March 2021 (Exhibit 4), applicants' statement of issues and contentions dated 31 March 2021 (Exhibit 5) and respondent's statement of contentions in reply dated 12 April 2021 (Exhibit 6)) and the parties' opening statements at the hearing. The principal issues for determination, in essentially these terms, were then distilled by the Tribunal and agreed by counsel in a document that became Exhibit 17.
1.Can the building orders be lawfully made on the basis that each of them satisfies one or more of the statutory preconditions necessary for their making?
2.Can the heritage conservation notices be lawfully made on the basis that:
a.the properties are each a 'heritage place', in that they are located in a 'heritage area';
b.the properties have not been 'properly maintained'; and
c.the required works constitute 'specified repairs',
within the meaning of cl 13 of the deemed provisions?
3.Is it:
a.physically possible; and
b.safe,
to carry out the works required by the building orders and the heritage conservation notices?
4.Does the Tribunal have power under s 110, s 112 and s 122 of the Building Act and s 27 and s 29 of the SAT Act in the circumstances of this case to vary the building orders to require demolition of the buildings?
5.Having regard to the state of the buildings, the possibility, safety, benefit and cost of carrying out the works required by the building orders and the heritage conservation notices, and (to the extent that it is relevant) the heritage conservation significance of the buildings, is the correct and preferable decision in these proceedings to:
a.affirm either or both of the building orders and (if they can be lawfully issued) either or both of the heritage conservation notices; or
b.(if the Tribunal has power to do so) vary either or both of the building orders to require the demolition of the building or buildings and set aside either or both of the heritage conservation notices?

We will now address each of these issues in turn.

Can the building orders be lawfully made?

Section 110 of the Building Act provides for the making of building orders in the following terms:[70]
[70] Original emphasis.
(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.
Section 112 of the Building Act provides as follows in relation to the content of building orders:[71]
[71] Original emphasis.
(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.
Although the issue of whether the building orders can lawfully be made was raised by the applicants in their statement of issues and contentions and in opening, ultimately, in their closing submissions, the applicants do not contest that the building orders can lawfully be made. It is common ground that each of the building orders is in respect of 'a particular building … whether completed before or after commencement day', within the meaning and for the purposes of s 110(1)(c) of the Building Act, and that each of the building orders is 'in an approved form and … directed to … a person who is an owner … of the land on which the particular building … is located', within the meaning and for the purposes of s 110(2) and s 110(2)(d) of the Building Act.
Mr Henry Jackson SC, who appeared on behalf of the applicants, submits that 'it's open to the [T]ribunal to find that both buildings are not fit for [human] occupation',[72] within the meaning and for the purposes of the precondition for the making of a building order in relation to a building or incidental structure in s 112(2)(g) of the Building Act. Mr Adam Sharpe, who appeared on behalf of the City, makes the same submission, 'because both of the structural engineering experts [that is, Mr Williams and Dr Katz] agree that [Nos. 424 436 Hay Street] is unfit for human occupation' and although Dr Katz expressed the opinion that the building at No. 440 Hay Street 'is not in a dangerous state and is fit for human occupation',[73] Mr Williams expressed the opinion that '[u]ntil remedial repairs can be completed, and a degree of redundancy introduced, I would caution against human occupation [of that building]'.[74] Mr Sharpe also submits (and we find later in these reasons) that 'while [the building at Nos.] 424 [ 436 Hay Street] is stable, [its façade wall] is structurally compromised and at risk of collapse in high winds or in the event of an earth tremor or earthquake'.[75]
[72] ts 234, 16 April 2021.
[73] Exhibit 8 [113].
[74] Exhibit 14 [105].
[75] ts 221, 16 April 2021.
Both counsel also submit that the temporary support structure is 'to shore up, fence or otherwise secure the building [at Nos. 424 436 Hay Street] … in a specified way for the protection of persons, of other property or of the environment', within the meaning and for the purposes of s 112(2)(g)(iv) of the Building Act, and that the remedial works are 'to … repair the building [at No. 440 Hay Street] … to a specified standard or in a specified way so as to prevent or stop the building … from being a danger to persons, to other property or to the environment or to render it fit for human occupation', within the meaning and for the purposes of s 112(2)(g)(v) of the Building Act.[76]
[76] ts 234 (Mr Jackson) and ts 221222 (Mr Sharpe), 16 April 2021.
We accept the parties' submissions in relation to this issue. Each of the building orders can lawfully be made on the basis that they satisfy the relevant statutory preconditions for their making. In matters concerning public health and safety, it is appropriate to adopt a precautionary approach. Consequently, we find in relation to the building at No. 440 Hay Street that it follows from Mr Williams' opinion 'I would caution against human occupation' of the building,[77] that it is unfit for human occupation, for the purposes and within the meaning of s 112(2)(g) of the Building Act, and that the remedial works are 'to … repair the building … to a specified standard or in a specified way so … to render it fit for human occupation', within the meaning and for the purposes of s 112(2)(g)(v) of the Building Act.
[77] Exhibit 14 [105].
Finally, in relation to this issue, we note that although Mr Williams and Dr Katz agree that the façade wall of the building at Nos. 424 436 Hay Street is not in a structurally sound state, there is a disagreement between them as to whether it is 'moving' and consequently whether it is in imminent danger of collapse. Mr Williams considers that the façade wall (and the building as a whole) is not in equilibrium and is in imminent danger of collapse, and therefore requires at least partial demolition, whereas Dr Katz considers that the façade wall is not in an active state of movement or rotation, despite evidence of widening cracks in party walls, and is not in imminent danger of collapse, and that the façade 'can be saved by remedial works',[78] although, given its historic lean, it may collapse in high winds or if there an earthquake or earth tremor. We will refer to the engineering expert witnesses' difference of opinion in this respect when considering the issue of whether it is physically possible and safe to carry out the works required by the building orders and the heritage conservation notices (issue 3) below. For the reasons given when considering that issue below, we prefer Dr Katz's evidence over Mr Williams' evidence in relation to this aspect. However, although we find below that the façade wall of Nos. 424 436 Hay Street is not in an active state of movement or rotation, given that the façade, with its significant historic lean, may collapse at least in part as a result of high winds, earthquake or earth tremor, we are satisfied that the façade wall is 'in a dangerous state', within the meaning and for the purposes of s 112(2)(g) of the Building Act. We also accept Dr Katz's evidence, which was not questioned or contradicted by any other evidence, that '[t]he temporary support structure was designed to withstand a 1:200 year wind event acting on the parapet and façade wall'[79] and that it will therefore effectively 'shore up' the façade of the building for the purposes of s 112(2)(g)(iv) of the Building Act.

Can the heritage conservation notices be lawfully issued?

[78] Exhibit 8 [73].

[79] Exhibit 8 [97].

Clause 13 of the deemed provisions states as follows:[80]
[80] Bolded and italicised emphasis original and underlined emphasis added.
(1)In this clause —
heritage conservation notice means a notice given under subclause (2);
heritage place means a place that is on the heritage list or located in a heritage area;
properly maintained, in relation to a heritage place, means maintained in a way that ensures that there is no actual or imminent loss or deterioration of —
(a)the structural integrity of the heritage place; or
(b)an element of the heritage place that is integral to —
(i) the reason set out in the heritage list for the entry of the place in the heritage list; or
(ii) the heritage significance of the area in which it is located, as set out in a statement in the local planning policy for the area adopted in accordance with clause 9(2).
(2)If the local government forms the view that a heritage place is not being properly maintained the local government may give to a person who is the owner or occupier of the heritage place a written notice requiring the person to carry out specified repairs to the heritage place by a specified time, being a time that is not less than 60 days after the day on which the notice is given.
(3)If a person fails to comply with a heritage conservation notice, the local government may enter the heritage place and carry out the repairs specified in the notice.
(4)The expenses incurred by the local government in carrying out repairs under subclause (3) may be recovered as a debt due from the person to whom the notice was given in a court of competent jurisdiction.
(5)The local government may —
(a)vary a heritage conservation notice to extend the time for carrying out the specified repairs; or
(b)revoke a heritage conservation notice.
(6)A person who is given a heritage conservation notice may apply to the State Administrative Tribunal for a review, in accordance with Part 14 of the Act, of a decision —
(a)to give the notice; or
(b)to require repairs specified in the notice to be carried out; or
(c)to require repairs specified in the notice to be carried out by the time specified in the notice.
It is common ground that Nos. 424 436 Hay Street and No. 440 Hay Street are each not 'a place that is on the heritage list', for the purposes of the definition of 'heritage place' in cl 13(1) of the deemed provisions. However, as discussed below, there is a dispute between the parties as to whether these properties are each 'a place that is … located in a heritage area', within the meaning and for the purposes of that definition. Clause 7 of the deemed provisions contains definitions of various terms used in Part 3 Heritage protection, which comprises cl 7 cl 13A of the deemed provisions. Clause 7 relevantly states as follows:[81]
In this Part —
heritage area means an area designated as a heritage area under clause 9[.]
…
[81] Original emphasis.
Clause 9 of the deemed provisions states as follows:
(1)If, in the opinion of the local government, special planning control is needed to conserve and enhance the cultural heritage significance and character of an area to which this Scheme applies, the local government may, by resolution, designate that area as a heritage area.
(2)If the local government designates an area as a heritage area the local government must adopt for the area a local planning policy that sets out the following —
(a)a map showing the boundaries of the heritage area;
(b)a statement about the heritage significance of the area;
(c)a record of places of heritage significance in the heritage area.
(3)Before designating an area as a heritage area the local government must —
(a)give each owner of land affected by the proposed designation —
(i) notice of the proposed designation; and
(ii) a copy of the proposed local planning policy for the heritage area or details of how the proposed local planning policy is made available to the public under clause 4(1)(a);
and

(b)advertise the proposed designation by —
(i) publishing in accordance with clause 87 a notice of the proposed designation; and
(ii) erecting a sign giving notice of the proposed designation in a prominent location in the area that would be affected by the designation;

and

(c)carry out any other consultation the local government considers appropriate.

(4)Notice of a proposed designation under subclause (3)(b) must specify —
(a)the area that is the subject of the proposed designation; and
(b)details of how the proposed local planning policy for the heritage area is made available to the public under clause 4(1)(a); and
(c)the manner and form in which submissions may be made; and
(d)the period for making submissions and the last day of that period.

(5)The period for making submissions specified in the notice under subclause (4)(d) must not be less than the period of 21 days after the day on which the notice is first published under subclause (3)(b)(i).
(6)After the expiry of the period within which submissions may be made, the local government must —
(a)review the proposed designation in the light of any submissions made; and
(b)resolve —
(i)    to adopt the designation without modification; or
(ii)     to adopt the designation with modification; or
(iii)    not to proceed with the designation.

(7)If the local government designates an area as a heritage area the local government must give notice of the designation to —
(a)the Heritage Council of Western Australia; and
(b)each owner of land affected by the designation.

(8)The local government may modify or revoke a designation of a heritage area.
(9)Subclauses (3) to (7) apply, with any necessary changes, to the amendment to a designation of a heritage area or the revocation of a designation of a heritage area.

The applicants submit that the heritage conservation notices cannot be lawfully issued, and consequently that the City's decisions to issue them should be set aside on review and decisions should be substituted not to issue the heritage conservation notices, because:
(a)Nos. 424 436 Hay Street and No. 440 Hay Street are each not a 'heritage place', as they are not located in a 'heritage area' designated under cl 9 of the deemed provisions, with the consequence that heritage conservation notices cannot be given to the applicants in relation to those properties under cl 13(2) of the deemed provisions;
(b)the Tribunal should not form the view on the evidence before it that either Nos. 424 436 Hay Street or No. 440 Hay Street 'is not being properly maintained' and therefore that this requirement for the issue of a heritage conservation notice under cl 13(2) of the deemed provisions is satisfied in relation to either property; and
(c)the temporary support structure does not constitute 'specified repairs', within the meaning and for the purposes of cl 13(2) of the deemed provisions, with the consequence that the Nos. 424 436 Hay Street heritage conservation notice cannot be issued under that provision.
As discussed below, the City makes contrary submissions in relation to each of the applicants' contentions.

Are the properties located in a 'heritage area' and hence each a 'heritage place'?

As indicated earlier, by a Council resolution on 23 August 2013, the Rokeby Road and Hay Street Heritage Area was declared to be a 'Conservation Area' under cl 59 of TPS 4. As also indicated earlier, Nos. 424 436 Hay Street and No. 440 Hay Street are within the Rokeby Road and Hay Street Heritage Area. However, the applicants contend that these properties are not located in a 'heritage area' for the purposes of the definition of 'heritage place' in cl 13(1) of the deemed provisions, and consequently are not a 'heritage place' in respect of which a heritage conservation notice can lawfully be issued under cl 13(2) of the deemed provisions, because 'cl 7 [of the deemed provisions] exhaustively and comprehensively defines a 'heritage area' as an area 'designated under cl 9' and further … cl 9 [of the deemed provisions] exhaustively and comprehensively sets out the process for the designation of a 'heritage area'',[82] and the Rokeby Road and Hay Street Heritage Area has not been designated as a 'heritage area' under cl 9 of the deemed provisions.
[82] Outline of additional submissions on behalf of the applicants dated 23 April 2021 (applicants' further submissions) [42].
In contrast, the City contends that the Rokeby Road and Hay Street Heritage Area, declared to be a Conservation Area under cl 59 of TPS 4, is a 'heritage area' within the meaning and for the purposes of cl 13 of the deemed provisions. The City makes this contention on the basis of each of three submissions that it advances. The City's first submission is based on s 36 of the Interpretation Act 1984 (WA) (Interpretation Act). The City's second submission is based on cl 85D of LPS 5. The City's third submission is based on reg 79 and reg 80 of the LPS Regs. We will now proceed to address each of the City's three submissions. For the reasons set out below, the City's first two submissions are correct, while its third submission is incorrect. Because of the success of the City's first two submissions, we determine below that the Rokeby Road and Hay Street Heritage Area, declared as a Conservation Area under cl 59 of TPS 4, is a 'heritage area' for the purposes of cl 13 of the deemed provisions.

Section 36 of the Interpretation Act

Section 36 of the Interpretation Act states as follows:
Where a written law repeals and re‑enacts, with or without modification, any enactment —
(a)all districts or other local divisions or areas; and
(b)all councils, corporations, boards, tribunals, commissions, trusts, or other bodies constituted, and all elections and appointments of members thereof made; and
(c)all offices constituted and appointments of officers made; and
(d)all subsidiary legislation, warrants, certificates, and documents made; and
(e)all other acts, matters, and things whatsoever,
which, at the commencement of the repealing law, are respectively in existence, or in force or operation, under or for the purposes of such provision, shall, in so far as is consistent with the repealing law, subsist and enure for the purposes of such law and shall continue as if the repealing law had been in operation when they respectively originated or were constituted, made or done and they had originated or been constituted, made or done under that law.

In particular, for the following reasons, the correct and preferable decision at the time of decision upon the review of the decision of the City to make the Nos. 424 436 Hay Street building order is to require Sanur to install the temporary support structure at Nos. 424 436 Hay Street in accordance with the amended plan and elevations of the temporary support structure dated April 2021 reproduced at Attachment A to these reasons.[193] As we found earlier, it is physically possible and safe to install the temporary support structure. As Dr Katz said in his evidence, which we have accepted, while there is no imminent risk of collapse of the façade wall of Nos. 424 436 Hay Street, bearing in mind its lean towards the street, the façade wall may at least partially collapse in the event of high winds, earth tremor or earthquake. We accept Dr Katz's evidence that the installation of the temporary support structure 'mitigates the risk of collapse to a level acceptable by Australian standard AS1170.2 (Structural design actions Part 2: Wind actions; Appendix F) and will allow for a structural engineer to develop a design to permanently restrain the façade and parapet'.[194] As Dr Katz also said, if the temporary support structure is installed, 'it will be safe to enter, inspect and repair the building'.[195] In particular, as he said, 'a structural engineer can complete a detailed assessment of the façade, return walls and roof structure so that remedial works can be specified' and carried out.[196] Furthermore, the cost of installation of the temporary support structure and the ongoing cost of scaffold and concrete block hire specified in the quotations from JV Scaffolding and ScafWest is not disproportionate to the public and private (to Sanur) benefits of preventing the collapse of the façade wall and enabling entry, inspection and repair of the building.
[193] Sanur did not contest the substitution of the amended plan and elevations of the temporary support structure if the Tribunal determines that Sanur should be required to install it.
[194] Exhibit 8 [99].
[195] Exhibit 8 [109].
[196] Exhibit 8 [75].
For the following reasons, the correct and preferable decision at the time of the decision upon the review of the decision of the City to make the No. 440 Hay Street building order is to require Wintermist to carry out the remedial works at No. 440 Hay Street. Mr Williams and Dr Katz agree that the structural integrity of the upper storey façade of the building at No. 440 Hay Street has been compromised by the cracks in the return walls and that the remedial works will, in Dr Katz' words, 'reinstate the structural integrity of the façade and ensure the longterm stability and durability of the façade'.[197] Furthermore, as Mr Williams said in evidence, which was not questioned or contradicted and we accept, the remedial works are 'not considered unusual'[198] and 'are not considered disproportionate in return for reinstating the opportunity to safely reoccupy the building'.[199]
[197] Exhibit 8 [124].
[198] Exhibit 14 [116].
[199] Exhibit 14 [120].
Although the applicants originally contended in the proceedings that both building orders should be varied to require demolition of the building in question, in opening and again in the final submissions made on behalf of Wintermist, Mr Jackson, properly recognising the common position of the engineering expert witnesses, did not argue that the Tribunal should require demolition of the building at No. 440 Hay Street. Although Wintermist does not ultimately contend that the correct and preferable decision in relation to the No. 440 Hay Street building order is other than to affirm the City's decision, it contends that 'because an order to carry out repair works to [No. 440 Hay Street] might end up being inconsistent with the determination … granting … demolition [approval]', 'the operation of the [building order] [should] be suspended pending the determination of the demolition [application]'.[200]
[200] ts 30, 14 April 2021.
Sanur submits that the correct and preferable decision at the time of the decision upon review in relation to the Nos. 424 436 Hay Street building order is to vary that building order to require the demolition of the building on that property. Consequently, both parties addressed the issue of what is the correct and preferable decision in relation to Sanur's application for review of the City's decision to make the Nos. 424 436 Hay Street building order on the basis that the Tribunal has power to vary that building order to require demolition of the building. On the assumption that the Tribunal has power to vary the building order to require demolition of the building, Sanur submits that the correct and preferable decision at the time of the decision upon the review is to vary the building order in that way, whereas the City submits to the contrary. Given that the parties made their respective submissions on the assumption that the Tribunal has power to vary the building order to require demolition of the building, for completeness and if we are wrong in relation to our determination that the Tribunal does not have power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, we will now proceed to address the issue of what is the correct and preferable decision on the assumption (contrary to our determination) that the Tribunal has power to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings. In our view, for the reasons which follow, even assuming that the Tribunal has power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, the correct and preferable decision at the time of the decision upon the review is to not vary the Nos. 424 436 Hay Street building order (or set it aside and substitute a building order) to require demolition of the building, but rather to require Sanur to install the temporary support structure at Nos. 424 436 Hay Street in accordance with the amended plan and elevations dated April 2021 reproduced at Attachment A to these reasons.
Sanur submits that the assessment of whether the correct and preferable decision is to affirm the Nos. 424 436 Hay Street building order or to vary it (or set it aside and substitute a building order) to require the demolition of the building involves a 'question … of proportionality'.[201] It submits that '[e]ffectively, … the [T]ribunal ought to balance the benefits of the [building] order if it's made against the burden suffered by the owner'.[202] In particular, Sanur submits that 'the balance of benefits [of its preferred outcome of requiring demolition of the building by the building order] outweighs the burdens and disbenefits and that can't be said for the respondent's preferred outcome [of requiring installation of the temporary support structure by the building order]'.[203]
[201] ts 33, 14 April 2021.
[202] ts 33, 14 April 2021.
[203] ts 259, 16 April 2021.
We accept that proportionality and balancing benefits and burdens is relevant in assessing whether to make a building order and in relation to its requirements. However, it is common ground between the parties – and clearly the case from the terms of s 110 and s 112(2)(g) of the Building Act – that the primary focus and consideration in relation to whether to make a building order referred to in s 112(2)(g) of the Building Act and its requirements is public health and safety. Other considerations may also be relevant in the circumstances of a case and, as we discuss below, a relevant consideration in the particular circumstances of this case is the heritage conservation significance of the building at Nos. 424 436 Hay Street. For the reasons which follow, we do not accept Sanur's submission that the benefits of its preferred outcome (requiring demolition of the building by the building order) outweigh the burdens and disbenefits of that outcome and we find that the benefits of the City's preferred outcome (requiring installation of the temporary support structure by the building order) outweigh the burdens and disbenefits of that outcome.
As Sanur submits, a benefit of its preferred outcome is 'the complete resolution of the safety issues'.[204] However, the City's preferred outcome would also appropriately address the safety issues by preventing the collapse of the building façade and enabling entry, inspection and repair of the building. As we found earlier, it is both physically possible and safe to install the temporary support structure.
[204] ts 258, 16 April 2021.
In terms of cost, Sanur submits that its preferred outcome involves 'considerably lower [cost] burden on the owner'.[205] However, Sanur did not present any evidence of the cost of demolition of the building. In contrast, the City presented evidence as to the cost of installation of the temporary support structure and continuing hire of the scaffold and concrete blocks. As indicated earlier, one quotation is for $59,000 (plus GST) for installation and hire for 13 weeks and then a continuing cost of $260 (plus GST) per week for scaffold hire and $1,800 (plus GST) per week for concrete block hire and the second quotation is for $35,500 (plus GST) for installation and hire for two weeks and $750 (plus GST) per week for scaffold and concrete block hire after this period. As the City submits, the amounts in these quotations are 'a proportional cost in the context of a regime which [is] primarily concerned with achieving building safety'.[206]
[205] ts 258, 16 April 2021.
[206] ts 233, 16 April 2021.
Sanur also referred in its submissions to 'costs such as ongoing traffic management' and to 'holding costs'.[207] However, Mr Jackson subsequently clarified that the applicants are now only 'paying for some elements of the traffic management'[208] and, in any case, once the temporary support structure is installed, there will no longer be any traffic management cost, because the northern traffic lane and the northern parking bays on Hay Street abutting Nos. 424 436 Hay Street and No. 440 Hay Street will be available for public use. Furthermore, as Dr Katz explained, the design of the temporary support structure is such that pedestrians will also be able to traverse the northern footpath on Hay Street abutting Nos. 424 436 Hay Street. In terms of 'holding costs', as indicated earlier, the tenancies in both buildings have progressively ended in anticipation of redevelopment by the applicants and the DA proposing redevelopment, although made to the SDAU in mid2020, is currently in abeyance, because the City has refused to give owner's consent for the development of Burley Lane.
[207] ts 257, 16 April 2021.
[208] ts 263, 16 April 2021.
We also note that, although Mr Williams was invited in the letter of instruction from the applicants' solicitors to respond to the question '[I]s the condition of the building such as it can be positively said, at this time, that demolition is the only option?',[209] he did not express such an opinion. Rather, Mr Williams expressed the opinion that 'the lean is cause for concern and it would be appropriate to consider at least partial demolition and rebuilding of the façade to reinstate the verticality'.[210] Mr Williams added that 'I would also note that this does not address the cause of the ongoing movement'.[211] However, as we found earlier, the 'ongoing movement' to which Mr Williams referred has not translated to any movement of the façade wall of the building.
[209] Exhibit 14, page 14.
[210] Exhibit 14 [97].
[211] Exhibit 14 [97].
Mr Williams also expressed the opinion that 'further assessment, investigation and monitoring would be required in order to understand and address the cause of the ongoing movement and assess the condition of the existing structural building fabric, before it would be possible to even consider any solution – and, as noted above, at least partial demolition will be required in any event due to the lean of the facade [sic]'.[212] However, the installation of the temporary support structure will enable the further 'assessment, investigation and monitoring' to take place. Furthermore, 'at least partial demolition' of the façade wall in order to address the lean is not the same as complete demolition of the building (as sought by Sanur).
[212] Exhibit 14 [99].
The applicants initially advanced the following contention:[213]
… [W]hether the buildings are in an [h]eritage [a]rea and the heritage value of a building are irrelevant to the question of whether a [b]uilding [o]rder should be made in that the scope, subject matter and purpose of the [Building Act] is limited to the identification and compliance with relevant standards for the construction and demolition of buildings and the associated question of whether buildings are safe and fit for human occupation[.]
[213] Exhibit 5 [8(b)].
In opening the applicants' case, Mr Jackson initially advanced a similar position. However, when the Tribunal asked whether the applicants' submission is that heritage conservation significance is a legally irrelevant consideration, in the sense discussed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 3940, in relation to whether a building order should be made and as to its requirements, Mr Jackson said 'I'm not sure whether I can express the view that the Building Act says that you must not have regard to anything other than safety because plainly the discretion is very, very broad'.[214] Counsel agreed that the City would make its closing submissions prior to the applicants. When Mr Sharpe addressed the Tribunal on this aspect, Mr Jackson stated that he was 'not going to put' the submission that heritage conservation significance is a legally irrelevant consideration,[215] and when he then came to address the Tribunal, Mr Jackson said that the applicants do not submit that 'it's impermissible for this [T]ribunal to take into account matters other than safety' and that 'I say that the [T]ribunal ought not to have regard to those things [that is, cultural heritage significance] not that it must not'.[216]
[214] ts 42, 14 April 2021.
[215] ts 229, 16 April 2021.
[216] ts 255, 16 April 2021.
The applicants' concession was appropriately made. In order for a matter to be a legally irrelevant consideration in the exercise of a statutory power, 'it must be established that the [matter] … was one which the decisionmaker was prohibited from considering, either by the express terms of the statute, or by implication arising from the subject matter, scope and purpose of the power being exercised'.[217] Moreover:[218]
It must be recognised that, between matters that a decision[]maker is bound to take into account, and those irrelevant considerations that the decisionmaker is prohibited from considering, there may be a wide range of permissible considerations which the decisionmaker may weigh or disregard without committing an error of law.
[217] A v Corruption and Crime Commissioner [2013] WASCA 288 [100] (Martin CJ and Murphy JA), referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd 3940 (Mason J).
[218] A v Corruption and Crime Commissioner [90] (Mason CJ and Murphy JA).
As we said earlier, it is clear from s 110 and s 112(2)(g) of the Building Act that the primary focus and consideration in relation to whether to make a building order referred to in s 112(2)(g) of the Building Act and its requirements is public health and safety. However, the Building Act does not either expressly or by implication arising from the subject matter, scope and purpose of the power being exercised indicate that public health and safety is the only legally permissible consideration or that heritage conservation significance is a legally irrelevant consideration in relation to whether to make a building order referred to in s 112(2)(g) and as to its requirements. Rather, in our view, heritage conservation significance is a permissible consideration which the decisionmaker may weigh or disregard without committing an error of law.
Furthermore, in our view, heritage conservation significance is a relevant matter for consideration in the circumstances of this case. As Mr Jackson observed during closing submissions, a 'disbenefit [from Sanur's preferred outcome of demolition] is that there would be no chance to save the façade'.[219] In contrast, as the City submits, the Nos. 424 436 Hay Street building order that it made and its preferred outcome in the proceedings will 'allow for the preservation of the heritage value of [the] buildin[g] for the time being, while allowing the development application process that is underway [involving assessment of the demolition application] to continue'.[220] Moreover, as the City also submits, 'it would not be correct and preferable to make [a building order requiring demolition] under [the Building Act, in the circumstances of this case,] because it would prevent the proper consideration of the planning and heritage implications of the demolition of [the] buildin[g]'.[221]
[219] ts 259, 16 April 2021.
[220] Exhibit 4 [65].
[221] Exhibit 4 [50].
The Tribunal had the benefit of heritage expert evidence from Ms Dewar and Mr Stephen Carrick, who is an architect with over 30 years' experience in the conservation and management of heritage sites and who was called by the City. Mr Carrick expressed the opinion that the building at Nos. 424 436 Hay Street 'has some cultural heritage significance'.[222] Mr Carrick emphasised, in particular, the 'aesthetic value'[223] of the building within the streetscape of the Rokeby Road and Hay Street Heritage Area, because of the 'regular … rhythm of the facade [sic]', including 'the recessed shop entries which are reflective of the period', and, 'tying it together', the 'parapet and pediment' together with the 'architectural detailing'.[224]
[222] Witness statement of Stephen Carrick dated 9 April 2021 (Exhibit 10), page 20.
[223] ts 150, 15 April 2021.
[224] ts 159, 15 April 2021.
Ms Dewar expressed the opinion that the building at Nos. 424 436 Hay Street 'is considered to be of limited heritage value'.[225] She emphasised that '[t]he authenticity of [the building] is low due to the degree of nonoriginal fabric introduced to repair the buildin[g] and the alteration to the internal planning to create open plan retail spaces rather than distinct retail spaces and residential accommodation'.[226] In particular, repair works were undertaken in 1986, which, Ms Dewar said, 'replaced much of the original fabric to the façades including the shop windows, the stained glass windows, doors and decorative urns',[227] although, as indicated earlier, the preliminary review report prepared by the Heritage Council states that 'some original fabric has been replaced' and 'this has been done in a sympathetic manner so that the place has retained its original form and appearance'.[228] Ms Dewar also said that '[w]hilst the shops still present with recessed entries, a regular rhythm and elements of the original design, some have been further altered to accommodate former occupants' requirements including installation of ATMs, changing doors to sliding doors, changing the position of doors and altering internal planning of the buildings'.[229]
[225] Exhibit 15 [27].
[226] Exhibit 15 [26].
[227] Exhibit 15 [23].
[228] Exhibit 1.2, tab 47, page 639 (emphasis added).
[229] Exhibit 15 [24].
Thus, both heritage expert witnesses are of the opinion that the building at Nos. 424 436 Hay Street has some heritage conservation significance. Their evidence is broadly consistent with the Heritage Area assessment, which, as indicated earlier, states that the building is considered to make 'some/moderate contribution' to the Rokeby Road and Hay Street Heritage Area. As also indicated earlier, the Heritage Council considers that 'the place has local heritage significance through its contribution to the City of Subiaco's Rokeby Road and Hay [Street] Conservation [that is, Heritage] Area'[230] and the preliminary review report prepared by the Heritage Council identifies the building as having the following cultural heritage 'values':[231]
•The place is an aesthetically pleasing and cohesive example of an inter-war row of seven shops with residences at the rear.
•Although some original fabric has been replaced this has been done in a sympathetic manner so the place has retained its original form and appearance.
•The place is a representative example of the type of shops, including residences, constructed in small and medium suburban shopping areas during the inter-war period.
•The place may have some rarity value as an intact row of a number of singlestorey shops (seven) in the same design, and the presence of the complimentary residential properties at the rear.
•The place makes a pleasing contribution to the Hay St and Rokeby Rd streetscapes.
[230] Exhibit 1.2, tab 47, page 638.
[231] Exhibit 1.2, tab 47, pages 639640.

The heritage expert witnesses disagree in relation to the impact that the demolition of the building at Nos. 424 436 Hay Street would have on the Rokeby Road and Hay Street Heritage Area. Ms Dewar considers that the demolition of the building 'would [have] a minimal impact'.[232] In contrast, Mr Carrick considers that 'there would be a negative impact on the streetscape with the loss of the building … and I would rate it a fairly high loss …'.[233] However, while we have said that heritage conservation significance is a relevant matter for consideration in these proceedings, this is plainly not the appropriate forum for the planning, including heritage planning, assessment of the impact that the demolition of the building would have on the cultural heritage significance of the Rokeby Road and Hay Street Heritage Area. This is because the primary focus and consideration in this case is public health and safety, not cultural heritage. In contrast, the demolition application is the appropriate forum for the determination of whether, having regard to the contribution made by the building at Nos. 424 436 Hay Street to the cultural heritage significance of the Rokeby Road and Hay Street Heritage Area and other relevant planning considerations, the demolition of the building should or should not be allowed. Unlike these proceedings, in the assessment of the demolition application by the planning consent authority (which may, of course, ultimately be the Tribunal on review), the primary focus and consideration is planning, including heritage planning, issues. Moreover, when Ms Dewar was asked by Mr Jackson 'Can the streetscape contribution or aesthetic contribution [of the building at Nos. 424 436 Hay Street] be provided by a new building?', she replied '[a] new building can contribute positively to a heritage area if the design has been informed by the surrounding architectural styles …'.[234] Mr Carrick considers that a replacement building would make 'a lesser contribution … for the items that I've identified in terms of the specific building that's there … [a]nd in conservation terms, we always look to work with the existing fabric as much as possible'.[235] Ms Dewar's and Mr Carrick's evidence in this regard indicates that a planning assessment as to whether, having regard to the contribution made by the building to the cultural heritage significance of the Rokeby Road and Hay Street Heritage Area and other relevant planning considerations, the demolition of the building should or should not be allowed, is most appropriately made concurrently with a planning assessment of the proposed replacement building, which may be found to contribute sufficiently positively to the Rokeby Road and Hay Street Heritage Area such that, in the exercise of planning discretion, the demolition of the existing building (in whole or in part) may be considered to be acceptable. As the City submits, a building order requiring the installation of the temporary support structure is preferable to a building order requiring the demolition of the building, because the former would, and the latter would not, 'preserve [the] heritage building and allow proper planning processes to be carried out'.[236]
[232] ts 135, 15 April 2021.
[233] ts 151, 15 April 2021.
[234] ts 152, 15 April 2021.
[235] ts 160, 15 April 2021.
[236] ts 231, 16 April 2021.
We note that during crossexamination, Dr Katz gave the following evidence:[237]
JACKSON, MR:   ... Can the risk – is the risk managed by the current hoarding?
WITNESS, KATZ:   Yes.
JACKSON, MR:   So, there's no ‑ ‑ ‑
WITNESS, KATZ:   Sorry, is the risk managed by the current hoarding? Sorry, I misheard that. Yes, in should the, in the unlikely event of collapse, it won't affect people or property other than the building and the road.
JACKSON, MR:   So, there's no need for the temporary support structure to protect against any collapse, in your view.
WITNESS, KATZ:   I don't know if you're happy for collapse to occur in the unlikely event.
[237] ts 9293, 15 April 2021.
We do not consider that 'management' of the risk caused by the potential collapse of the façade of the building in the event of high winds, earthquake or earth tremor by the current hoarding is the correct and preferable decision in this case. While the current hoarding would prevent harm to people and damage to property if the façade wall collapsed, it is preferable to require the temporary support structure to be installed, because it will prevent potential collapse of the façade wall and enable entry, inspection and repair of the building, and because the current hoarding precludes public access to the northern traffic lane, parking bays and footpath on Hay Street abutting the building, whereas the temporary support structure would enable public access to that land.
Finally in relation to this issue, we note that Mr Mackay expressed the opinion that what he characterises as 'the City's intent to force the [a]pplicants to stabilise and retain the buildings' at Nos. 424 436 Hay Street and No. 440 Hay Street 'is contrary to' certain planning considerations.[238] In particular, Mr Mackay considers that retention of the buildings is contrary to '[a]n existing planning framework that anticipates significant development of up to 8 storeys in height and a plot ratio of 3 within the overall precinct, and redevelopment potential of up to 4 storeys on the subject site', '[a] draft planning framework … that anticipates development on the site up to 11 storeys in height and with unlimited plot ratio', '[a] draft planning framework that anticipates partial demolition of [Nos.] 424 [ 436] Hay Street' and the 'architectural inappropriateness of new development wearing the skin of an old building façade, and of a scale that would be discordant with the scale of the new development, and incompatible with the scale of shopfront demanded by contemporary and discerning retailers'.[239] However, these matters are appropriately the subject of the planning assessment in relation to the demolition applications and the pending DA in which planning, including heritage planning, considerations are the primary focus of the process. Mr Mackay's evidence in relation to what Mr Jackson termed in his submissions 'planning difficulties'[240] involved in retention of the existing buildings does not satisfy the Tribunal that the correct and preferable decision is to vary the Nos. 424 436 Hay Street building order (or the No. 440 Hay Street building order) (or set aside the building order (or building orders) and substitute a building order (or building orders)) to require the demolition of the building (or buildings).
[238] Exhibit 13 [37].
[239] Exhibit 13 [37]. Although Mr Mackay refers to the properties in question having 'redevelopment potential of up to 4 storeys', we note that the DA submitted by the applicants to the SDAU seeks approval for development of a 2 to 3 storey presentation to the street rising to 7 storeys in the eastern part of the combined site (Exhibit 3, tab 2).
[240] ts 258, 16 April 2021.
We conclude that, even assuming (contrary to our determination) that the Tribunal has power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, the 'correct and preferable decision[s] at the time of the decision[s] upon the review', under s 27(2) of the SAT Act, are to:
•not vary either or both of the building orders (or set them aside and substitute building orders) to require the demolition of the building or buildings;
•require Sanur to install the temporary support structure at Nos. 424 436 Hay Street in accordance with the amended plan and elevations dated April 2021; and
•require Wintermist to carry out the remedial works at No. 440 Hay Street.
The applicants did not present any evidence or make any submissions to the effect that the periods for compliance with the building orders specified by the City, namely five weeks for the Nos. 424 436 Hay Street building order and 10 weeks for the No. 440 Hay Street building order, are inadequate to carry out the work specified. We also note that Dr Katz estimated that it would in fact only take 'three to five days' to carry out the installation of the temporary support structure.[241] Dr Katz's estimate was not questioned or contradicted and we accept his evidence in this regard. As indicated earlier, Quoin has received two quotations to install the temporary support structure. As also indicated earlier, Ms Dewar described the specified crack stitching in the No. 440 Hay Street building order as 'standard works and … specified regularly for heritage and nonheritage buildings'[242] and said that '[t]he installation of the lateral restraint to the façade at roof level is also considered to be standard works'.[243] We are satisfied that the periods for compliance specified in the building orders made by the City are appropriate and reasonable to carry out the work. However, the periods for compliance should be varied to be effective from the date of the Tribunal's final order (subject to any suspension of the building orders).

Conclusion

[241] ts 120, 15 April 2021.

[242] Exhibit 15 [72].

[243] Exhibit 15 [73].

For the reasons set out above, we have determined that:
1.The building orders can be lawfully made on the basis that each of them satisfies one or more of the statutory preconditions necessary for their making.
2.The heritage conservation notices cannot be lawfully issued, because we are not satisfied that the properties have not been 'properly maintained', within the meaning and for the purposes of cl 13 of the deemed provisions, and further, in the case of the Nos. 424 436 Hay Street heritage conservation notice, the installation of the temporary support structure does not constitute 'specified repairs', within the meaning and for the purposes of cl 13 of the deemed provisions (although we also determined that the properties are each a 'heritage place', in that they are located in a 'heritage area', within the meaning and for the purposes of cl 13 of the deemed provisions).
3.It is physically possible and safe to carry out the works required by the building orders and the heritage conservation notices.
4.The Tribunal does not have power under s 110, s 112 and s 122 of the Building Act and s 27 and s 29 of the SAT Act in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings.
5.The 'correct and preferable decision[s] at the time of the decision[s] upon the review', under s 27(2) of the SAT Act, are:
(a)in relation to the decisions of the City to make the building orders, even assuming (contrary to our determination) that the Tribunal has power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, having regard to the state of the buildings, the possibility, safety, benefit and cost of carrying out the works required by the building orders, and the heritage conservation significance of the building at Nos. 424 436 Hay Street, to –
•not vary either or both of the building orders (or set them aside and substitute building orders) to require the demolition of the building or buildings;
•require Sanur to install the temporary support structure at Nos. 424 436 Hay Street in accordance with the amended plan and elevations dated April 2021; and
•require Wintermist to carry out the remedial works at No. 440 Hay Street; and
(b)in relation to the decisions of the City to issue the heritage conservation notices, to set aside those decisions and substitute decisions that no heritage conservation notices are issued, because the heritage conservation notices cannot be lawfully issued.
As we said earlier, Wintermist contends that the building order in relation to No. 440 Hay Street should be 'suspended pending the determination of the demolition [application]'.[244] Similarly, Sanur contends that, if the Tribunal determines (as we have) that the correct and preferable decision is to require Sanur to install the temporary support structure at Nos. 424 436 Hay Street, then the Nos. 424 436 Hay Street building order should be 'suspended until a decision is made on the demolition permit'.[245] The applicants said that a suspension of the building orders is appropriate, because the building orders would be 'inconsistent'[246] with decisions made in the planning assessments concerning the demolition applications to allow the demolition of the buildings. However, as the parties did not address this matter in detail, we will hear any submissions the parties wish to make in relation to the terms of the final orders in these proceedings, including whether the building orders should be suspended pending the determination of the demolition applications.
[244] ts 30, 14 April 2021; see also ts 261, 16 April 2021.
[245] ts 260, 16 April 2021.
[246] ts 30, 14 April 2021.

Attachment A – Temporary support structure

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
1 JULY 2021