Starr and Shire Of Harvey
[2012] WASAT 32
•8 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
CITATION: STARR and SHIRE OF HARVEY [2012] WASAT 32
MEMBER: MS L WARD (MEMBER)
HEARD: 7 FEBRUARY 2012
DELIVERED : 8 FEBRUARY 2012
FILE NO/S: CC 381 of 2011
BETWEEN: JOSEPHINE STARR
Applicant
AND
SHIRE OF HARVEY
Respondent
Catchwords:
Local government Building Shed near a river Condition of building licence Finished floor level specified Australian Height Datum Notice Order to comply with building licence Extent of discretion when considering order to comply Actions or omissions done in good faith Public interest in construction complying with building requirements Balancing of interests Application unsuccessful Tribunal affirmed notice as varied Reduction in finished floor level
Legislation:
Building Code of Australia, cl 2.2.1(b)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374, s 374(a), s 374(1)(a), s 401, s 401(1)
Residential Design Codes of Western Australia 2008
Shire of Harvey District Planning Scheme No 1, cl 8.3
State Administrative Tribunal Act 2004 (WA), s 29
Result:
Application unsuccessful
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr G Owen
Solicitors:
Applicant: Self-represented
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Dawson & Anor and City of Fremantle [2008] WASAT 125
Drake and City of South Perth & Anor [2005] WASAT 271
Re Griffiths; Ex parte Homestyle Pty Ltd (2005) 139 LGERA 178
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicants, Mr and Mrs Starr, owned land in the Shire of Harvey. Their land was located on a rural block on the Brunswick River a few kilometres from the town of Brunswick. They sought building approval from the Shire of Harvey for the erection of a shed in the northeastern part of the property.
A building licence was issued by the Shire of Harvey in Mrs Starr's name as the builder. Condition 11 on the building licence stated that a minimum finished floor level of 20.59 metres when referenced to the Australian Height Datum was to be attained and certified by a licensed surveyor upon completion.
Unfortunately, the finished floor level of the shed was 19.47 metres when referenced to the Australian Height Datum. That is, the shed floor was built 1.12 metres when referenced to the Australian Height Datum lower than required under the building licence.
A notice under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) was then issued by the Shire of Harvey to Mr and Mrs Starr. The effect of the notice, if valid and complied with, would be to bring the shed into compliance with condition 11 on the building licence.
Below is an edited and formally revised version of the reasons for decision of the Tribunal which has been taken from the transcript of proceedings of the oral reasons for decision given on 8 February 2012.
Introduction
This is a review of a notice given to the applicants, Mr and Mrs Starr, on or about 2 March 2011 under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act) (s 401 notice).
Section 401(1) of the LG(MP) Act provides as follows:
A local government may, during or after the erection of a building in its district, give to the builder or owner of the building, written notice of anything, in the construction of the building
(a)which tends to render the building unsafe or prejudicial to the public interest;
(b)which is not in compliance with, or is a departure from, the plans and specifications for the building, of which plans and specifications the approval of the local government has been obtained as required by this Act;
(ba)which is a contravention of this Act; or
(c)which, where permission of the local government is required for carrying it out, has been carried out without that permission;
and requiring him to pull down or so alter the building as to remove the cause of the objection and on being served with the notice the builder or owner shall comply with the requisition, unless he applies to the State Administrative Tribunal under subsection (3) for a review of the decision to make the requisition and the State Administrative Tribunal sets aside the decision.
The notice is dated 2 March 2011 and recites three material matters:
(i)[The building is a] 15.29 x 6.09m brick masonry with colorbond roof shed located in the North East corner of the land.
(ii)[The location of the subject land owned by the applicants is] Wellesley Road, Brunswick being Lot 26 on Diagram 202193 comprised in Certificate of Title Volume 2097 Folio 976.
(iii)[The contravention is stated to be], [t]he building was constructed without attaining a minimum finished floor level of 20.59 metres when referenced to the Australian Height Datum contrary to Section 374(1a) of the Act.
Section 374 of the LG(MP) Act is headed 'Plans of buildings to be approved by local government' and in particular s 374(1)(a) states:
A building licence referred to in subsection (1) may be issued subject to such conditions as are specified in it including any condition limiting the time within which the licence is valid.
In short, the s 401 notice relates to the shed floor being constructed by Mrs Starr without attaining a minimum finished floor level (FFL) of 20.59 metres when referenced to the Australian Height Datum (AHD), contrary to s 374(1)(a) of the LG(MP) Act.
If the s 401 notice is affirmed, the shed must be made to comply with condition 11 of the building licence (BL).
Critically, the s 401 notice recites a failure to build the shed floor level in accordance with condition 11 of the BL. The s 401 notice purports to give rise to an obligation under the LG(MP) Act to bring the building into compliance with condition 11.
Condition 11
Condition 11 of the BL states that:
A minimum FFL of 20.59 Australian Height Datum is to be attained and certified by a Licenced [sic] Land Surveyor on completion.
The building licence for the shed was issued by the Shire of Harvey (Shire) to Mrs Starr, as builder, on 22 September 2009. The building is listed as being an 'outbuilding/shed'. Condition 10 of the BL states that it is not to be used as a habitable room. Mrs Starr has signed an acknowledgment on the conditions of approval, which states that:
These conditions of approval have been read by me … and are accepted as forming an addition to the drawings and specifications submitted with the building application. I undertake to notify the Owner, Architect and Builder of the need to observe these requirements.
Actual FFL
The parties agree that the FFL of the shed is actually 19.47 metres when referenced to the AHD. That is, there is a 1.12 metre difference between condition 11 and the actual FFL.
Application for review
Mr and Mrs Starr sought a review of the s 401 notice in the Tribunal on 28 March 2011. At that time they were legally represented. Mr and Mrs Starr proposed that they provide an indemnity to the Shire in respect of any injury or property damage or loss as a result of the Brunswick River flooding and damaging the shed.
The matter was listed for a directions hearing in the Tribunal on 7 April 2011. However, at Mr and Mrs Starr's request, this date was adjourned to 2 June 2011 so that the Shire could consider the indemnity request.
On 2 June 2011 the directions hearing took place and the matter was adjourned to give Mr and Mrs Starr time to obtain an engineering report into matters the subject of the s 401 notice, and possible solutions.
On 20 June 2011 an engineering report was provided by Mr Peter Suckling.
On 21 July 2011 at the directions hearing, the matter was referred to mediation on 15 August 2011. The mediation proceeded on 15 August 2011 and officers from the Department of Water (DoW) were invited by the Tribunal to attend. A further mediation was held on 30 August 2011 and the Shire was invited to reconsider its decision in view of advice received from DoW. A third mediation occurred on 10 October 2011 and the Shire was again invited to reconsider its decision. The matter was then referred back to the presiding member for a directions hearing on 27 October 2011.
On 27 October 2011 the Shire provided a copy of the council resolution to the Tribunal in relation to Mr and Mrs Starr's property. The council required that the FFL be 19.7 metres when referenced to the AHD, and that a building approval certificate be applied for by Mr and Mrs Starr and then the s 401 notice would be withdrawn.
On 27 October 2011 the Tribunal programmed the matter for hearing on 7 February 2012. The parties were ordered to provide all relevant documentation to the Tribunal. The Shire provided a bundle of documents to the Tribunal and to Mr and Mrs Starr.
Final hearing on 7 February 2012
On 7 February 2012 the final hearing proceeded with Mr and Mrs Starr attending in person. The Shire was legally represented at the hearing by Mr Owen.
Mr Simon Hall, the Manager of Planning Services at the Shire, and Mr Merv Stewart, the Principal Building Surveyor at the Shire, both gave oral evidence. Both witnesses were subject to cross-examination. Mr and Mrs Starr also gave evidence and made submissions before the Tribunal.
Mr Hall was summonsed by Mr and Mrs Starr to attend because he was the draftsman who prepared their plans for the shed for the purpose of the BL application. This was at a time prior to Mr Hall's employment at the Shire. Mr Hall said that he did not make the BL application, nor was he requested to assist in satisfying the conditions of approval. As a qualified planner, Mr Hall spoke about the intention of cl 8.3 of the Shire of Harvey District Planning Scheme No 1 (DPS 1) and said that it was put in place to provide protection to the building itself, and to prevent it from coming adrift and creating risks to others downstream.
Mr Stewart provided a sworn statement to the Tribunal and it was tendered into evidence as Exhibit A. In relation to other sheds being approved at lower levels, Mr Stewart said in his evidence that, recently, a shed had been approved at less than 20.59 metres when referenced to the AHD, due to the recent information provided by DoW. Mr Stewart said that, for a habitable building, an extra 500 millimetres was required over and above the AHD, and 260 millimetres over and above the AHD for a noninhabitable building. Mr Stewart said that the tolerance for the Shire accepting different FFLs was in terms of a few millimetres and not greater.
Mr and Mrs Starr said that the shed contains a shower and a sink. This is so that they can clean themselves up after working on the property and before they enter the home. The shed is used by them to store farm equipment and organic vegetables. Mrs Starr said that she did not understand condition 11 on the BL, but she did not seek clarification about it at the time from either Mr Hall or from the officers at the Shire.
Matters of common ground
Mr and Mrs Starr do not challenge the form, or service, of the s 401 notice. They accept that if the s 401 notice is upheld in this review, then an obligation in law arises to ensure compliance with condition 11 of the BL provided for in the notice.
It is also common ground that:
•In or about September 2009 professionally drafted plans for the shed were submitted to the Shire by Mr and Mrs Starr.
•The BL was issued to Mrs Starr as an owner/builder. In effect, Mrs Starr said that she contracted subcontractors to build the shed.
•Mrs Starr said that she did not understand condition 11 on the BL, even though she signed an acknowledgement that she did understand it. She did not seek any clarification from the Shire or from her then planner Mr Hall. She did not query the condition or seek a review of the condition when the BL was issued.
•The parties agree that the FFL of the shed is actually 19.47 metres when referenced to the AHD.
•There is a 1.12 metre difference between the requirement in condition 11 and the actual FFL.
•It is not in issue that the property is in the flood fringe of the Brunswick River and that the shed is a class 10 building under the Building Code of Australia (BCA).
Applicants' case
The applicants' case, in summary, is as follows:
•They did not understand what condition 11 of the BL required.
•They allege that the Shire had approved sheds in similar locations at a lower FFL.
•The shed was not a habitable space and, therefore, the FFL should be reduced.
•The issue of liability for the Shire could be dealt with by way of an indemnity registered on the certificate of title.
•Noone from the Shire has physically visited the property to inspect the shed.
Respondent's case
In reply, the respondent relies on the following:
•The Shire is required to apply DPS 1, in particular cl 8.3, in relation to all developments in the flood fringe. Applying this requirement to the applicants' property is based on DoW's requirements at the time, and the BCA requirements regarding the 100 year Average Recurrence Interval (ARI).
•At the time the BL was issued on 22 Sept 2009, DoW's 100 year ARI was 20.09 metres AHD; noting that a minimum FFL of 0.50 metres above the 100 year ARI flood level is recommended for habitable buildings. This information is provided in an email to the Shire from DoW dated 21 Sept 2009, to specifically relate to Lot 18 on Wellesley Road, that is, a block to the northwest of Mr and Mrs Starr's block.
•The 100 year ARI was subsequently revised to 19.7 metres AHD by the DoW in relation to the applicants' block on 31 August 2011.
•The Shire did not accept that it would be indemnified from any future liability through a deed being registered on the title. Accordingly, it declined to enter into such an agreement with Mr and Mrs Starr.
Issues
The issues which require determination by the Tribunal are:
1)Is the shed in breach of condition 11 on the BL?
2)What is the extent of the breach?
2.1)Is the shed a habitable room or not?
2.2)Which ARI applies to the shed?
3)What, if anything, needs to be done about the breach?
Issue 1 is the shed in breach of condition 11 on the BL?
Condition 11 on the BL requires an FFL of 20.59 metres when referenced to the AHD. The parties accept that the shed floor is 19.47 metres when referenced to the AHD.
Clearly, the shed has been built in breach of condition 11 on the BL.
The Tribunal notes that Mrs Starr was named as the builder on the licence. As an owner/builder she took on full responsibility as the builder, including the need to comply with building standards and requirements, and also the liability to future owners for building defects.
Mrs Starr said in her evidence that she did not know what condition 11 on the BL meant. However, she also said that she did not seek any clarification before building the shed. Mrs Starr also queried why her copy of the plans submitted to the Shire was not returned to her with a red stamp on it, drawing the FFL requirement to her attention. In the Tribunal's view, the lack of a red stamp on Mrs Starr's copy of the plans would not have altered her ability to construct the shed in accordance with condition 11. Condition 11 was already clearly stated on the BL and she acknowledged its existence in writing. She said she knew about condition 11 but she did not know or understand what it meant. In the Tribunal's view, a red stamp on a document from the Shire would not have altered Mrs Starr's conduct in these circumstances.
The Shire clearly warned Mrs Starr in the BL that she was responsible for building the shed in accordance with the conditions of approval on the BL. Mrs Starr signed an acknowledgement to this effect. Mrs Starr did not seek any clarification of condition 11 until after the shed was built. While Mrs Starr acted in good faith, and the Tribunal accepts that she certainly did not set out to wilfully build the shed too low, as the builder, she was entirely responsible for the shed being built to the BL requirements.
Issue 2 what is the extent of the breach?
A number of issues arose at the hearing, all of which require consideration in order to resolve this matter.
In particular, the Tribunal notes that the letter before it from Mr Rick Brentnall, the Manager Water Resource Assessment from DoW, relevantly stated in his letter to the Shire dated 31 August 2011, that:
EXISTING SHED LOT 26 WELLESLEY ROAD BRUNSWICK
The Department of Water (DoW) provides advice on development of floodplains with the object of promoting the wise use of floodplains while minimising flood risk and damage. The DoW uses the following guiding principles of ensure proposed development in floodprone areas is acceptable with regard to major flooding:
(1)proposed development has adequate flood protection[; and]
(2)proposed development does not detrimentally impact on the existing flooding regime of the general area[.]
A recent hydraulic assessment of major river flooding in this section of the Brunswick River … shows the lot in question is affected by flooding with the following flood levels expected:
•10 year ARI flood level 19.0m AHD
•25 year ARI flood level 19.5m AHD
•100 year ARI flood level 19.7m AHD
…
Our floodplain development strategy recommends that a floor level for a habitable building is to be at least 0.50 metre above the 100 year ARI flood level. However, with regard to nonhabitable buildings such as a shed, the DoW recognises that these types of buildings do not require such a high level of flood protection and being built at a lower level is acceptable.
Consequently, based on the above discussion, the existing shed conforms with our guiding principles and is therefore considered acceptable with regard to major flooding. As the floor level of the existing shed is [about] 19.5 m AHD it can be said that the shed has 20 year ARI flood protection which is considered an adequate level of flood protection for such a nonhabitable building.
However, it is acknowledged that some amount of flood damage is expected to occur to the shed in floods greater than a 20 year ARI flood event.
Issue 2.1 is the shed a habitable room or not?
According to Mr Stewart, whether or not the shed is habitable is relevant to the height that is recommended for the FFL over and above the ARI flood level. Mr Stewart stated in his evidence that an additional 260 millimetres was required for a nonhabitable building, and an additional 500 millimetres was required for a habitable building for the FFL to be over and above the ARI flood level.
Mr and Mrs Starr argued very strongly at the hearing that a shower and sink did not make the shed a habitable room and that, therefore, the FFL should be lowered.
The additional 500 millimetres for a habitable dwelling is also referred to in both DoW documents dated 21 September 2009 and 31 August 2011.
The additional 260 millimetres is based on Mr Stewart's oral evidence before the Tribunal. This aspect of Mr Stewart's evidence was not challenged by Mr and Mrs Starr. Some support for an alternate view to Mr Stewart's is contained in the DoW letter dated 31 August 2011, where DoW applies the AHD without any excess for a nonhabitable dwelling.
However, the Tribunal attaches greater weight to Mr Stewart's evidence that an additional 260 millimetres is required for a nonhabitable building, as he is a building surveyor with knowledge and experience in this area. Also, Mr Stewart was available for crossexamination on this particular issue, if Mr and Mrs Starr had chosen to challenge that aspect of his evidence.
With reference to the definition of a 'habitable room' in the Residential Design Codes of Western Australia (2008), the Tribunal accepts that the shed is not a habitable room, given the manner in which Mr and Mrs Starr say that they use it, and the facilities available in the shed do not alter this view.
The effect of this finding is that, in the Tribunal's view, based on the evidence which is available to it, the FFL should be 260 millimetres in excess of the FFL when referenced to the AHD, rather than the 500 millimetres applied by the Shire in calculating the FFL in condition 11 on the BL.
2.2 which ARI applies to the shed?
Mr and Mrs Starr submitted that the FFL for the shed should be 19.5 metres when referenced to the AHD, based on the DoW advice dated 31 August 2011, which applied the 25 year ARI flood protection.
However, the Shire's evidence from Mr Stewart was that the BCA required the application of cl P2.2.1(b), which refers to the average recurrence interval of 100 years and not the 25 year interval.
Clause P2.2.1 of the BCA states that:
Surface Water
(a)Surface water, resulting from a storm having an average recurrence interval of 20 years and which is collected or concentrated by a building of sitework, must be disposed of in a way that avoids the likelihood of damage or nuisance to any other property.
(b)Surface water, resulting from a storm having an average recurrence interval of 100 years must not enter the building.
Limitation
P2.2.1(b) does not apply to a Class 10 building where in the particular case there is no necessity for compliance.
The Shire submitted that the limitation did not apply to the shed because, while it is a class 10 building, it is necessary for it to comply.
The Tribunal prefers the Shire's evidence and submissions in relation to the application of the BCA over the statement made by DoW, especially as the DoW officer was not made available to give evidence in person. Accordingly, the Tribunal accepts that the BCA does apply to this case and that the average recurrence interval of 100 years is to be relied upon.
Accordingly, based on all of the evidence before the Tribunal, the FFL of 19.7 metres when referenced to the AHD based on 100 year ARI, plus 0.26 metres when referenced to the AHD based on it being a nonhabitable building, gives a total FFL of 19.96 metres when referenced to the AHD.
Issue 3 what, if anything, should be done about the breach?
As the FFL of the shed is actually 19.47 metres when referenced to the AHD rather than 19.96 metres, the Tribunal must now determine what, if anything, should be done about the shed floor in terms of complying with the s 401 notice.
It is well established that s 401(1) of the LG(MP) Act confers a discretion on a local government to issue a notice to the builder or owner of a building to pull down or alter the building in specified circumstances: see Re Griffiths; Ex parte Homestyle Pty Ltd (2005) 139 LGERA 178, McLure JA, with whom RobertsSmith and Pullin JJA agreed, held at [22], referred to by Senior Member Parry, as he then was, in Drake and City of South Perth & Anor [2005] WASAT 271 at [90]:
Her Honour set out four reasons in support of her conclusion that the section confers a discretion, the first three of which were as follows:
'Firstly, by virtue of section 56(1) of the Interpretation Act 1984 (WA) there is a presumption that the word 'may' imports a discretion. Secondly, the power is activated by a variety of conduct which may differ significantly in nature and degree. Thirdly, there would be little need for an appeal if the City was under an obligation to issue a notice.'
As Member Peter McNab, as he was then, stated in Dawson & Anor and City of Fremantle [2008] WASAT 125 at [39]:
The criteria for the exercise of discretion is not set out in the LGMP Act, and thus the discretion in relation to reviewing the demolition order will on ordinary principles be found in the scope and purposes of the Act. Such an enquiry will determine the width of the discretion and what are the relevant and irrelevant considerations in the exercise of that discretion.
The main purpose for the imposition of the minimum FFL by the Shire is to protect the owner of the building from flooding, and to also protect other people and property from various risks should the building, or parts of it, enter the nearby Brunswick River.
On the other hand, Mr and Mrs Starr have obviously expended a considerable amount of money in building the shed, given its dimensions and the building materials used; however, this is not a case where the Shire is seeking the demolition of the building. Quite properly, the Shire seeks that the shed be brought into compliance with condition 11 of the BL. At the hearing it was apparent that this was a possibility with the raising of the floor level and lifting of the roof.
Also, in this case, the Tribunal notes that the effluxion of time has worked in favour of Mr and Mrs Starr as DoW has revised the 100 year ARI flood level downwards.
The balancing required between these two sets of interests is the Tribunal's task on review. Based on the Tribunal's findings, it considers that Mr and Mrs Starr are required to have an FFL of 19.96 metres when referenced to the AHD. The FFL of the shed is actually 19.47 metres when referenced to the AHD, that is, it is 0.49 metres too low.
In the Tribunal's view, based on Mr Stewart's uncontradicted evidence, such a difference is more than a few millimetres and is too much of a variation from the requirement set out in condition 11 of the BL.
Further, there is nothing in the personal circumstances of Mr and Mrs Starr, or the conduct of the Shire, that would warrant setting aside the s 401 notice. While the Shire may be encouraged to meet onsite with parties in future similar matters, this is a matter wholly for the management of the Shire to determine. Further, there is no evidence that any neighbouring properties have been treated differently to Mr and Mrs Starr's. In relation to some properties, the Tribunal notes that the Shire is now undertaking investigations in relation to whether or not appropriate approvals have been sought prior to building. Further, the variation to the AHD, as recommended by DoW on 30 August 2011, has now been applied to Mr and Mrs Starr by this Tribunal. The Tribunal notes that the DoW variation to the AHD could have been applied to Mr and Mrs Starr as soon as 18 October 2011 if they had chosen to accept the Shire's recommendation of that date.
Conclusion
In these circumstances, and balancing the interests of both parties, the Tribunal is satisfied that compliance with the s 401 notice, as varied by this Tribunal, to meet an FFL of 19.96 metres when referenced to the AHD, is not grossly disproportionate to the additional costs which will be borne by Mr and Mrs Starr in order for their shed to comply with the Shire's requirements.
Accordingly, the Tribunal will vary the decision under review of s 29 of State Administrative Tribunal Act 2004 (WA), and, in effect, it will suspend the operation of the s 401 notice in order for the notice to be complied with by 11 April 2012.
Orders
It is ordered that:
1.The decision of the respondent to issue the notice under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) to the applicant, dated 2 March 2011, is affirmed.
2.Paragraphs 1 and 2 of the notice dated 2 March 2011 is varied to read as follows:
1)You are hereby required to provide a finished floor level of 19.96 metres Australian Height Datum to remove the cause of objection by 11 April 2012.
2)If a builder on whom a s 401 notice is served does not comply with that notice by 11 April 2012; a Magistrates Court, on complaint by the council that the requisitions have not been complied with, may order that the building be pulled down and the court may make such orders as to the costs of and incidental to the proceedings as the court thinks fit.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L WARD, MEMBER
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