Shire of East Pilbara v FMG Pilbara Pty Ltd
[2009] WASC 110
•1 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SHIRE OF EAST PILBARA -v- FMG PILBARA PTY LTD [2009] WASC 110
CORAM: TEMPLEMAN J
HEARD: 7 APRIL 2009
DELIVERED : 1 MAY 2009
FILE NO/S: GDA 14 of 2008
BETWEEN: SHIRE OF EAST PILBARA
Appellant
AND
FMG PILBARA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR C RAYMOND (SENIOR MEMBER)
Citation :FMG PILBARA PTY LTD and SHIRE OF EAST PILBARA [2008] WASAT 256
File No :CC 195 of 2008
Catchwords:
Town planning - Classification of buildings - Shire appeal against Tribunal decision that building be classified as a shed - Tribunal uses manner of occupation and commercial purposes of building to distinguish proposed classifications - Whether error
Statutory interpretation - Building Code of Australia - Whether Code and Guide a written law for purposes of the Interpretation Act
Legislation:
Interpretation Act 1984 (WA), s 5, s 19
Building Code of Australia, pt A3
Building Code of Australia Guide, pt A3
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A J Power
Respondent: Mr P D Quinlan
Solicitors:
Appellant: McLeods
Respondent: Deacons
Case(s) referred to in judgment(s):
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
TEMPLEMAN J: This appeal is brought by leave of McKechnie J from a decision of the State Administrative Tribunal (the Tribunal) under s 105 of the State Administrative Tribunal Act 2004 (WA).
The appeal arises from a dispute between the appellant, the Shire of East Pilbara (the Shire) and the respondent, FMG Pilbara Pty Ltd (FMG) over the proper classification of two buildings erected by FMG on mining tenements in this Shire's local government area.
FMG contends that the buildings are sheds, within Class 10a of the classifications incorporated in the Building Code of Australia (BCA). The Shire contends that the buildings are used for storage, and therefore fall within Class 7b.
Part A3 of the BCA contains a 10‑part classification of buildings and structures. Class 10a includes:
A non‑habitable building being a private garage, carport, shed or the like.
The term 'private garage' is defined in pt A1 of the BCA, but carport and shed are not. The Tribunal referred to the following definition of a shed taken from the Shorter Oxford English Dictionary (5th ed, 2002):
A single storey esp. wooden structure, erected separately or as a lean to, and serving for storage, shelter for animals etc, or use as a workshop.
This evokes a picture of what is perhaps an Australian icon: the backyard shed to which men of a certain age retreat in order to pursue blameless activities of infinite variety. And perhaps where a whole range of items are stored against the possibility that one day, they might be useful.
However, the buildings the subject of this appeal fall well outside this definition. The Tribunal described them in the following way:
The as constructed drawings provided by FMG to the Shire describe each of the buildings as storage sheds. They are large structures. One shed is 40.5 metres in length and 15 metres in width, the other is slightly smaller being 30.4 metres in length. Both buildings are 7.5 metres in height. The drawings and photographs which have been filed reflect that the end elevations are semicircular in shape and the outer face appears to be a ribbed or corrugated metal sheeting. There are two standard sized exit doors, one on each end elevation. There is a large sliding door for machinery access on the one end elevation and when that is open, it covers the exit door on that side. The external shape of the building therefore is similar to that of a metal drum cut vertically in half and placed on the ground with the cut section facing downwards.
The buildings have no internal divisions or facilities of any nature. The Tribunal was informed that the floor is packed earth. The Tribunal was further informed as follows.
1)The buildings are located in a remote part of the East Pilbara. The nearest towns are Newman, which is approximately 150 kilometres away and Port Hedland, which is approximately 200 kilometres distant.
2)The buildings are to be used for what was referred to as 'passive storage'. This, it was explained, was intended to indicate that there would be only infrequent unloading or loading of materials. The materials to be stored would be that which is necessary for the maintenance and operation of FMG's railway service.
3)The only persons who would ever make use of the sheds would be employees of FMG or its contractors who would attend for the limited purpose of unloading or loading materials when required.
4)It was submitted that there was no need for toilet facilities to be provided because the only access to the buildings was through 2 FMG rail camps. The precise distance of the camps to each building could not be provided but it was between 1 and 2 kilometres in each case. The camps contained all appropriate facilities and any employee or contractor needing to load or offload equipment would be able to make use of those facilities either on arrival or departure.
FMG did not obtain building licences before it erected the buildings. When, subsequently, FMG applied for licences, its application was refused. The Shire considered it had no power to grant approval retrospectively.
The Shire then served notices on FMG under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) requiring that the buildings be pulled down.
Being dissatisfied with this requisition, FMG applied to the Tribunal, as it was entitled to do under s 401(3), for 'a review of the decision to make the requisition'.
As I understand it, the Shire then agreed that if FMG could demonstrate that the buildings satisfied the performance criteria appropriate to their classification, it would not insist on their demolition. However, as I have noted above, there was an issue as to the classification. FMG contended that the buildings are sheds within Class 10a. The Shire contended that the buildings fall within Class 7b being:
For storage, or display of goods or produce for sale by wholesale.
The Tribunal identified this as a preliminary issue and resolved it in favour of FMG. The Shire now appeals. By s 105(2) of the State Administrative Tribunal Act, such an appeal can only be brought on a question of law: see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [53] per Buss JA, with whom Wheeler and Pullin JJA agreed.
In order to determine whether that is the case here, it is necessary to consider the Tribunal's reasons for its decision, to which I now turn.
The Tribunal first summarised the dispute and the background to it in a way which is not contentious. The Tribunal then set out the description of the buildings and the use to which they would be put. This is the passage which I have quoted above, and which I take to contain all the relevant findings of fact.
Under the heading 'The BCA and its effect', the Tribunal next summarised the principal provisions of the BCA and the 10 classifications contained in pt A3.
The Tribunal then referred to pt D, dealing with access and egress; and pt F2, dealing with sanitary and other facilities.
The BCA is produced by the Australian Building Code Board (the Board). The Tribunal noted that the Board publishes a guide (the BCA Guide) to be used as a 'companion manual' to the BCA. The Tribunal considered that the BCA Guide could be used under 'section 18' of the Interpretation Act 1984 (WA), which, it was said:
[P]ermits reference to extrinsic material either to confirm the meaning of a provision which is clear and unambiguous, or to clarify the meaning of a term which is ambiguous. [39]
This is clearly intended as a reference to s 19 of the Interpretation Act.
The Tribunal noted that the Shire had relied on the BCA Guide to pt A3.2 insofar as it dealt with Class 7 and Class 10a buildings.
I pause to note that in this appeal, FMG contends that it is impermissible to resort to s 19. That section is applicable 'in the interpretation of a provision of a written law'. FMG contends that the BCA is not a written law, having no statutory basis.
FMG has not filed any notice of contention raising that issue. In my view, therefore, it does not arise in the appeal. However, in case I am wrong, I should note that I do not accept FMG's submission. That is because the BCA is incorporated into the Building Regulations 1989 (WA) by regs 5 and 19. The Building Regulations are made under s 433A of the Local Government (Miscellaneous Provisions) Act.
In my opinion, therefore, the BCA is properly classified as part of subsidiary legislation and falls within the definition of 'written law' in s 5 of the Interpretation Act. That being so, I consider it appropriate to have regard to the BCA Guide when attempting to construe the BCA. Indeed, it would be unfortunate if that were not so. It would mean that the court would be deprived of the assistance provided by the authors of the BCA, when that assistance is available to those who are required to apply the BCA in the real world.
The Tribunal's decision is contained in the section of its reasons under the heading 'The distinction between Class 7 and Class 10a buildings'.
The Tribunal there referred to the Shire's principal contention that because FMG admits that the buildings are used for storage, they must fall within Class 7b. It will be recalled that Class 7b includes buildings which are used:
For storage, or display of goods or produce for sale by wholesale.
The Tribunal noted that:
… the Shire relies on s 17 of the Interpretation Act which provides that in respect of a written law passed or made after the commencement of the Interpretation Act 'or' must be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added. The BCA applies under the Building Regulations and is therefore subject to s 17 of the Interpretation Act. [46]
The Tribunal then said:
Nevertheless, the task of the Tribunal is to find the true construction having regard to the context of the words, the consequences of the literal or grammatical construction, the purpose of the statute and where necessary, cannons of construction: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky Inc) at 384. [47]
The Shire does not take issue with that approach.
The Tribunal continued:
The various classes of buildings are based upon the purpose for which the building is designed, constructed or adopted to be used. In the Tribunal's view, the purpose and classification also reflect the manner in which the building will be occupied. So, there is occupation in dwellings, or sole occupancy units, and residential buildings consistent with a building being inhabited or dwelled in - Shorter Oxford Dictionary (5th ed, 2002), above:
'inhabit 1. verb trans. Dwell in, occupy as an abode; live permanently or habitually in ...'. [48]
I pause to observe that I believe the word 'adopted' reflects a typographical error, a misspelling of 'adapted', that being the word used in pt A3.1 of the BCA.
In ground 3 of its grounds of appeal, the Shire contends that the learned senior member who constituted the Tribunal erred in law in his construction of the BCA:
In determining that purpose and classification of a building reflect the manner in which the building would be occupied. (paragraph 48).
I see no error here. In my view, the classification of a building, involving as it does, the purpose for which the building is to be used, cannot be divorced from the manner in which it will be occupied: the nature of the occupation of the building is a factor to be taken into account in defining its use.
The Tribunal continued:
There are then buildings that are used for professional or commercial purposes, buildings for the sale of goods by retail or the supply of services direct to the public, and in that context there are some Class 7 buildings, which relevantly, in relation to Class 7b, are for the display of goods or produce for sale by wholesale. This reflects the commercial use to which Class 7b buildings are designed to be put, but relevantly, also, the extent to which people will occupy or have access to and be in the buildings. That must be relevant to any assessment of risk and it is self‑evident that the requirements of the BCA differ depending upon that risk. See for example: Table B1.2a - 'Importance Levels of Buildings and Structures', which incorporates as part of the design criteria the extent to which there is hazard to life and the number of people likely to be within a building. [49]
The Tribunal's view that Class 7b is intended to apply to commercial buildings is repeated in a later passage:
On what basis then is a Class 10a shed to be distinguished from a Class 7b storage building? In the Tribunal's view, the distinction is that, as above stated, the full context in which the Class 7 definition appears, reflects that the buildings would be designed for a commercial use and that in turn reflects some indication of the extent to which people occupy or have access to and be in the buildings. Commercial use in this sense must be taken to mean storage of goods either for wholesale or retail purposes or even as a commercial operation in which goods are stored for others. In the case of a Class 10a shed, while it can be used for a commercial purpose, if that requires people to occupy or have access to and be in the building to an extent which is comparable to a Class 7b use, that would raise a direct classification issue to be determined having regard to the facts and circumstances of each case. [52] (emphasis added)
This paragraph is the basis for the Shire's principal contention in the appeal, as set out in grounds 1 and 2:
The Learned Member erred in law in his construction of the Building Codes of Australia:
1.In determining that the distinction between a Class 10a shed and a Class 7b shed is that a Class 7b shed must be designed for a commercial use: (paragraph 52).
2.(a) In failing to determine that a building constructed for storage as or as part of a commercial operation is a Class 7[b] building;
(b)In his interpretation of the Class 7b building category as applying to a building constructed for the purpose of storage as a commercial operation only if the commercial operation involves storage of goods for others;
(c)In failing to determine that the buildings the subject of the review are Class 7b buildings, being buildings for the purpose of storage. (paragraph 52).
With all respect to the learned senior member who constituted the Tribunal, I consider that ground 1 is made out. That is because I do not think it correct to say that the expression 'storage' should be limited to storage for commercial purposes as described in the italicised sentence set out above, in par 52 of the Tribunal's reasons.
Such an interpretation would leave out of account, for example, a building in which items were stored in a factory for use in the maintenance or repair of manufacturing machinery. This would be a commercial operation, but not one involving wholesale or retail sales or the storage of goods for others. Indeed, that would be an analogous situation to the intended use of the buildings in the present case.
It follows, in my view, that ground 2(b) is made out: but not necessarily, grounds 2(a) and (c). That is to say, the fact that a building is used for storage in a commercial enterprise does not, of itself, result in its inclusion in Class 7b. For example, a large farm shed containing machinery would fit that description. Indeed, as the Tribunal noted later in its reasons:
… under Part A3.2 ‑ 'Classifications', it is stated that in some states or territories, appropriate authorities may classify farm buildings as Class 10a. The BCA Guide continues that this decision would be made only if classification of Class 7 or Class 8 would not be more appropriate and that when making the decision consideration must be given to the building's size, purpose, operations and the extent to which people are employed in the building. If that is correct, it is a clear indication that a Class 10a shed can be used for a commercial purpose. If the above criteria were applied, while the size of the buildings is a negative factor, the purpose, operations and extent to which people are employed in the buildings favour the Class 10a classification. Reference to the BCA Guide therefore supports and confirms the Tribunal's construction of the BCA. [58]
Conversely, I consider that a building might be used for storage other than in a commercial context, but nevertheless fall within Class 7b. For example, a building used for storage by a government department.
If the fact that a building is used for storage of any description is enough to result in a Class 7b classification, then, as counsel for FMG points out, even a humble garden shed used for the storage of tools and implements would be so classified. This would clearly be a nonsensical result.
In my view, it is difficult to apply the governing principle of pt A3.1 to sheds. The principle is that the classification is to be determined by the purpose for which the building is 'designed constructed or adapted to be used'. In relation to all the other classifications - and 10a other than sheds - the class describes the purpose of the buildings included in it. For example, Class 5 is an office building used for professional or commercial purposes; Class 8 includes a laboratory; and Class 9 includes various buildings of a public nature having the uses there specified. It is therefore obvious that a building designed, constructed or adapted to be used as an office will fall within Class 5; and a laboratory will fall within Class 8.
However, to say that a building has been designed, constructed or adapted to be used as a shed does not advance the matter. And if commercial use is an inappropriate criterion, how is the classification of such a building determined: when is a shed not a shed?
Counsel for the Shire submitted that the classifications are used to determine the appropriate level of risk attaching to the particular building or structure (ts 8 ‑ 9). Thus, two buildings, identical in their design and construction, might be used quite differently and therefore be subject to different classifications.
Further, as counsel pointed out, the BCA is so structured that buildings having the same classification might be subject to different Performance Requirements.
Performance Requirement is a term which is defined in the BCA to mean a requirement stating the level of performance which a Building Solution must meet.
Building Solution is also a defined term. It means:
A solution which complies with the Performance Requirements and is -
(a)an Alternative Solution; or
(b)a solution which complies with the Deemed‑to‑Satisfy Provisions; or
(c)a combination of (a) and (b).
An Alternative Solution is defined to mean:
A Building Solution which complies with the Performance Requirements other than by reason of satisfying the Deemed‑to‑Satisfy Provisions.
And Deemed‑to‑Satisfy Provisions are defined to mean:
Provisions which are deemed to satisfy the Performance Requirements.
As I understand it, the net effect of these somewhat circular definitions, is that the safety, sanitary and other essential performance requirements of the BCA may be satisfied by a 'solution', which is designed to address the risk invoked in the particular use of a building, irrespective of its classification.
An example considered in the course of submissions serves to illustrate the point: a building used for storing a single motor vehicle. The Shire would contend that such a building (not falling within the description of a garage) would necessarily be classified as being used for storage, within Class 7b. However, the circumstances would be such that there would be no need for disabled toilet facilities prescribed for buildings within that class.
The Shire would contend that in such circumstances, it would be appropriate to maintain a Class 7b storage classification and relax the performance requirement: not to change the classification.
In my view, however, this approach is inconsistent with that taken in the BCA Guide, under the heading 'Difficult classifications' (page 58). There, it is said, in effect, that a classification should be adopted which reflects the most likely use of the building and the risks involved. Under the sub‑heading 'Farm buildings', it is noted that:
In some States or Territories, appropriate authorities may classify farm buildings as Class 10a, which covers non‑habitable buildings. They would only make this decision if a classification of Class 7 or Class 8 would not be more appropriate.
When making their decision they consider the building's size, purpose, operations and the extent to which people are employed in the building.
This is the passage to which the Tribunal referred in par 58 of its reasons, set out above.
The Tribunal approached the preliminary issue in the following way:
In this case, given the low occupancy applying to the buildings and the infrequent occasions on which access will be required, on the information provided to the Tribunal, the buildings lie very much on the side of the scale favouring their classification as Class 10a sheds. [54]
This is repeated in the Tribunal's conclusion:
Having regard to the use and intended manner of operation for which the buildings have been designed including the infrequent occasions on which limited numbers of persons will have access to, occupy or be in the buildings, and for all the above reasons, the Tribunal determines that the correct classification of the buildings under the BCA is Class 10a. [60]
The reference to 'all the above reasons' in par 60, must be taken to include what I consider to be the erroneous construction of Class 7b. That is, the buildings could not fall within that class because they were not used for a commercial purpose in the sense set out in par 52 of the Tribunal's reasons, meaning 'storage of goods either for wholesale or retail purposes, or even as a commercial operation in which goods are stored for others'.
Counsel for the Shire submits that the Tribunal's decision is flawed for that reason. But, the decision does not appear to depend on its construction of Class 7b. In essence, the decision is that, applying the principles of classification, the buildings in issue here were designed and constructed for the purpose of 'passive storage' involving only infrequent unloading or loading of materials, this requiring only occasional attendance by the employees of FMG or its contractors who, if they required toilet facilities, would use those available in the associated FMG rail camps located between 1 and 2 km of each of the buildings.
In my view, the Tribunal's approach accords with that prescribed by the BCA (as explained in the BCA Guide) and leads to an appropriate result. I therefore consider that the Tribunal was justified in concluding that the buildings should be classified as sheds.
There is a fourth ground of appeal added by amendment on 25 February 2009. It is in the following terms:
4.In failing to give proper consideration to principles of statutory construction, in particular:
(a)In failing to give consideration to the context of the word 'shed' in the Class 10a definition in the Building Codes of Australia;
(b)In failing to give proper weight to the consequences of a literal or grammatical construction of the words of the class definitions for a Class 7b and a Class 10a building;
(c)In failing to give due regard to the purpose of the Building Codes of Australia, contrary to section 18 of the Interpretation Act 1984;
(d)In failing to properly apply the provision of section 19 of the Interpretation Act 1984 in not giving proper weight to the guide to the Building Codes of Australia.
In my view, this ground does not add anything further to the grounds to which I have referred previously and therefore requires no further consideration.
On the view I take, it is not necessary to consider whether the question asked by the Tribunal is a question of fact or law. However, I think the latter. Essentially, the Tribunal's task was to construe the BCA and apply it to the non‑contentious facts of this case: and questions of construction are questions of law.
I conclude, for the reasons given above, that the appeal should be dismissed.
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