STOCK and SHIRE OF VICTORIA PLAINS

[2007] WASAT 231

STOCK and SHIRE OF VICTORIA PLAINS [2007] WASAT 231

Last Update :18/09/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 231
Published:
Act:	LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
Case No:	CC:495/2007, CC:601/2007, CC:602/2007, CC:603/2007	Heard:	21 JUNE 2007
Coram:	DR B DE VILLIERS (MEMBER)	Delivered:	12/09/2007
No Pages:	30	Judgment Part:	1 of 1
Result:	The applications are dismissed. The decision of the Shire of Victoria Plains to issue the notices dated 19 March 2007 is affirmed. The timeframes allocated for Mr Stock to comply with the notices are varied. The application for costs is adjourned.
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) CITATION : STOCK and SHIRE OF VICTORIA PLAINS [2007] WASAT 231 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 21 JUNE 2007 DELIVERED : 12 SEPTEMBER 2007 FILE NO/S : CC 495 of 2007

CC 601 of 2007
CC 602 of 2007
CC 603 of 2007

BETWEEN : MICHAEL STOCK

Applicant

AND

SHIRE OF VICTORIA PLAINS
Respondent

Catchwords:

Notice to pull down a structure – What constitutes a building – Can a building licence be issued orally – Does the use by which a structure is referred to influence the classification of the structure as a "building" – Nature of discretion of the Shire if a building is erected without a building licence – Meaning of unjustified proceedings

(Page 2)

Legislation:

Building Regulations 1989 (WA), reg 4, reg 4(2)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 2, s 374(1), s 401(1), s 401(3)
Local Government Act 1960 (WA), s 6
Local Government Act 1995 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(3), s 29(1), s 29(3), s 29(5), s 47

Result:

The applications are dismissed. The decision of the Shire of Victoria Plains to issue the notices dated 19 March 2007 is affirmed. The timeframes allocated for Mr Stock to comply with the notices are varied. The application for costs is adjourned.

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Mr M Gregory

Solicitors:

Applicant : N/A
Respondent : Minter Ellison

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

Stock v Anning [2006] WASC 275

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr Stock sought a review of the Shire's decision to issue notices for four structures to be pulled down and removed. The Shire opposed the applications and sought an order for the proceedings to be dismissed on grounds that they were "unjustified".

2 The Shire contended that each of the structures was a "building"; that a building licence had to be issued prior to the erection of each structure; that no building licence had been issued for any of the structures; and that the Shire exercised its discretion properly by issuing an order for the structures to be removed. The Shire contended that the proceedings were unjustified.

3 Mr Stock contended that some of the structures did not fall within the definition of "building" and therefore did not require a building licence. He contended, in regard to some of the buildings, that he had oral permission to erect them, and that in one instance a building licence had been issued. The Shire, therefore, decided incorrectly that the buildings should be removed. Mr Stock therefore sought orders to revoke the notices and authorise the buildings to remain in place.

4 The Tribunal found that each of the structures constitutes a "building"; that a building licence was required prior to the erection of the buildings; that no building licence had been issued for any of the structures; and that the Shire had exercised its discretion properly by issuing the notices. The Tribunal affirmed the decision of the Shire to issue the notices. The Tribunal also found that the proceedings were unjustified and the applications should therefore be dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).

Background

5 The applications concern the review of a decision by the Shire of Victoria Plains to issue a notice for four structures situated at adjoining properties, lots 182 and 194 Poincare Street, Bolgart to be pulled down and to be removed.

6 The four structures were the subject of separate applications; however, the Tribunal ordered all of the matters to be dealt with in the same proceeding. The applications are CC 495 of 2007, CC 601 of 2007, CC 602 of 2007 and CC 603 of 2007.

(Page 4)

7 Notices for the four structures to be pulled down and removed were issued on 19 March 2007.

8 During the course of the hearing the structures were referred by different descriptions. For purposes of consistency the Tribunal will adopt the same terminology as used in the respective notices, namely:

• Matter CC 495 of 2007: Timber-clad shed (lot 194)

• Matter CC 601 of 2007: L-shaped shed (lot 182)

• Matter CC 602 of 2007: Timber-framed games room (lot 194)

• Matter CC 603 of 2007: Steel-framed shed with no wall cladding (lot 194)

9 A photograph of these structures was tendered in evidence and was marked Exhibit 10.

10 The Shire contended that each of the structures was erected in breach of s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGM Act) since a building licence had not been issued prior to the erection thereof. The Shire further contended that the structures cannot be allowed to remain since they do not comply with the Building Code of Australia (Building Code) and are not structurally safe for the seismic conditions and wind loadings of the area.

11 Mr Stock contended that he had received approval for some of the structures to be erected and that some of the structures such as the cubby house and builders hut do not require a building licence. He therefore sought an order for the notices to be revoked.

Hearing "de novo"

12 In exercising its review function, the Tribunal deals with a matter in accordance with s 17 of the State Administrative Tribunal Act 2004 (WA) and s 401(3) of the enabling LGM Act.

13 The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the Shire.

14 The Tribunal is not limited to the statement of reasons given by the Shire (s 27(3) SAT Act). The Tribunal may also take into account any

(Page 5)

additional or new information that was not at the disposal of the Shire at the time when the decision was made (s 27(1) SAT Act).

15 The review hearing is therefore de novo (s 27(1) SAT Act) and is not confined to the matters and information that were before the Shire at the time of the decision.

16 The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:

a) affirm the decision; or

b) vary the decision; or

c) set aside the decision,

and, in any case, to make appropriate orders.

17 The decision of the Tribunal is regarded as a decision of the Shire (s 29(5) SAT Act).

Orders sought

18 Mr Stock sought an order to the decision to issue the notices to be set aside and for the notices to be revoked.

19 The Shire sought an order for the applications to be dismissed as "unjustified proceedings" pursuant to s 47 of the SAT Act.

Alternative dispute resolution

20 The Tribunal explored with parties the possibility of the applications being referred for mediation to be dealt with by way of agreement rather than by a decision of the Tribunal.

21 Mr Stock was of the view that there is, within the offices of the Shire, a concerted effort to defraud him, to falsify documentation that he had submitted, and to unlawfully withhold information and documentation from him. The Tribunal explained to Mr Stock that the Tribunal was not the appropriate forum to consider the merit of such allegations. If he wanted to pursue the allegations, complaints must be brought to the relevant prosecuting authority.

22 The Shire was of the view that the issue is clear and that, given the track record and behaviour of Mr Stock in this and other matters, the likelihood of a mediated outcome was slim. The Shire contended at the

(Page 6)

opening of the hearing that the application should be dismissed pursuant to s 47 of the SAT Act for being "unjustified". The Shire accepted, however, that the Tribunal could not make such a finding without hearing more evidence and it therefore agreed for the hearing to continue.

23 It appeared that the dispute had been ongoing for some time and that the parties were entrenched in their respective positions.

24 The Tribunal therefore decided to continue with the hearing.

25 Mr Stock also raised the possibility that the proceedings be adjourned to enable him to pursue a complaint against the Shire with the Crime and Corruption Commission. The Tribunal declined the request for an adjournment, but indicated that Mr Stock could, if he wanted, pursue his concerns with the Commission.

Framework for conduct of hearing

26 In order to assist Mr Stock (who was self-represented) and to prevent confusion in discerning which evidence is of relevance to the respective structures, the Tribunal requested the parties to make their submissions and give evidence in response to the following framework:

i) Is each of the structures a "building" for purposes of s 374(1) of the LGM Act?

ii) Was a building licence issued for the structure to be erected?

iii) If a building licence had not been issued for a structure, did the Shire properly exercise its discretion by issuing the notice for the structure to be removed?

iv) Should the application be dismissed as an 'unjustified proceeding' pursuant to s 47 of the SAT Act?

v) What orders should the Tribunal make?

27 Both parties accepted the framework as a useful tool for organising the evidence and submissions.

28 The Shire also raised the question of costs, but the Tribunal indicated that such an application could only be dealt with after a decision had been made in regard to the main applications.

(Page 7)

29 The Tribunal will hence address the evidence and contentions of the parties in regard to each of these questions.

Question 1: Is each of the structures a "building" for purposes of s 374(1) of the LGM Act?

30 For purposes of dealing with this question the Tribunal is guided by the provisions of the LGM Act, the Local Government Act 1995 (WA), the Local Government Act 1960 (WA), the ordinary dictionary meaning of the word "structure", Building Regulations 1989 (WA) and the Classification of Buildings according to the Building Code.

31 For purposes of convenience the Tribunal will quote the relevant sections:

32 Section 374(1) LGM Act determines that:

"No person shall -

(a) lay out for building, or commence or proceed with a building on, land in a district; or

(b) in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension, or enlargement of the structure of the building,

until he has caused to be submitted to the local government, and the local government has approved by the issue of the person of a building licence in the prescribed form and on payment of the prescribed fee, a copy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built … and the area of land to be occupied by each building …" (Emphasis in bold added).

33 The LGM Act does not contain a definition of "building", but s 2 of the LGM Act determines as follows:

"The Local Government Act 1995 applies as if the provisions of this Act were in that Act but in constructing the provisions of this Act account is to be taken of the meanings that they had before the Local Government Act 1995 commenced."

34 In the absence of a definition of "building" in the LGM Act, the Tribunal may therefore rely on the definition of "building" contained in (Page 8)

the Local Government Act 1960. Section 6 of the Local Government Act 1960 defined "building" as follows:
"'building' means a structure erected or placed on land, unless in the circumstances of a particular case, a court required to decide the case declared otherwise, but in any case includes a fence erected in the district of a city or town or in a townsite" (Emphasis in bold added).

35 The meaning of "structure" in turn is defined by the Macquarie Concise Dictionary (Revised Third Edition, 2004) as "something built or constructed".

36 According to the Butterworths Business and Law Dictionary (eds) Ipp and Weerasooria, Sydney, 1997 at page 66, reference to building "generally does not include a movable dwelling or structure unless it can be fixed on site."

37 The Building Regulations 1989 (WA) deals with exemptions as to what constitutes a "building" and with transportables. Regulation 4 provides that:

"(1) These regulations do not apply to the following buildings and work -
(a) any building that is exempted by Statute;

(b) temporary offices and sheds used by builders, on or about the site of any building being constructed, repaired, altered or reinstated, or used by contractors in carrying out works for any public body or corporation on or about the site of the work and used exclusively for the purpose of that building or work; but that exemption shall, however, continue only during the time occupied in completing the building or work, and in any case shall not exceed the duration of the building operations, except by special permission of the local government; …

(2) For the purposes of these regulations the re-erection of a building that has been removed and transported from another site or from another location on the same site

(Page 9)

shall be regarded as being the erection of a new building." (Emphasis in bold added).

38 The Building Code contains in part 1.3 principles of classification. A Class 10 building is defined in Pt 1.3.2 as:

"Class 10 - a non-habitable building or structure being-
(a) Class 10a - a non-habitable building being a private garage, carport, shed, or the like; or

(b) Class 10b - a structure being a fence, mast, antenna, retaining or free-standing wall, swimming pool, or the like." (Italics in original).

39 The Tribunal will now briefly summarise the evidence and submissions of the parties in respect to each of the structures.

40 The Shire contended that each of the structures comes within the definition of "building" in the LGM Act. The Shire further contended that none of the structures was exempt from the provisions of the LGM Act. In addition, none of the structures could be treated as a "builders hut" since Mr Stock has completed construction of the dwelling on lot 182, and no construction is underway on lot 194 where three of the structures are situated. Although construction by Mr Stock is occurring on lot 183 (not the subject of these applications), the four structures the subject of this application were erected prior to the building licence being issued for work on lot 183. No permission has been given to the use of any of these structures for purposes of construction on lot 183. The Shire further disputed the applicability of referring to the one structure as a "cubby house" since it is clear from the evidence that it is not intended or used for such a purpose.

41 Mr Stock contended as follows:

• The timber-clad shed (lot 194) is used as a builders hut and is therefore exempt pursuant to reg 4. It was used for the construction of the house on lot 182. The material stored in it will be used for the further building works on lot 183 for which a building licence has been issued. Mr Stock admitted that some of the shed's timber may show rot, but given the temporary nature of the structure it should in any event not remain in place for a long time. Mr Stock also contended that he received permission

(Page 10)

from Mr Randall (building inspector for the Shire at that time) in 2001 to erect the builders hut.
• The L-shaped shed (lot 182) is, according to Mr Stock, a "building". It is properly fixed to the ground and Mr Tester (current building surveyor for the Shire) had indicated previously that the Shire had no concerns with the building and that it complies with the Building Code.

• According to Mr Stock, the timber-framed games room (lot 194) would require a building licence if it was a permanent structure. Mr Stock was told that, if it were used as a builders hut, no approval was required. If, however, it were to be used as a games room, it is a "building".

• The steel-framed shed with no wall cladding (lot 194) is not a "building" since it is his daughter's cubby house.

42 The Tribunal finds as follows in regard to the first question:

43 The LGM Act gives a very wide meaning to the word "building". Any structure that is erected on land may fall within the definition of a "building". Unless a structure is exempt from the operation of the LGM Act, it must be treated as a "building". Although a builders hut may be exempt from the requirements of a "building", such a hut must be used exclusively for construction purposes and must be removed immediately upon completion of the construction. If these two conditions are not met, a structure that purports to be a builders hut must be treated as a "building" for purposes of the LGM Act.

44 The timber-clad shed (lot 194) falls within the definition of a "building" under the LGM Act for the following reasons. Firstly, Mr Stock is not carrying out any building work on the house on the lot on which the shed is situated. His reference to the structure as a "builders hut" is misplaced. Even if the shed had at some point in time been used as a builders hut, the work on the house has been completed and the shed must therefore be removed. The LGM Act does not allow for a builders hut to remain on a lot after completion of the purpose for which it had been used. Secondly, the shed is not being used "exclusively" for building work to the house on lot 194. Mr Stock confirmed in his evidence that building material for other construction are stored in the shed. The shed has therefore served its purpose and must now be treated as a "building". Thirdly, the Tribunal does not accept Mr Stock's evidence that the

(Page 11)

structure could be used as a builders hut for the construction on lot 183. The Shire did not give Mr Stock approval to let the structure remain in its current location for purposes of building on another lot. The evidence has also shown that the accessibility of lot 183 from the current location of the shed is limited and impractical. A laneway separates the lots and there are fences on both lots (Exhibit 12). Fourthly, reg 4(2) explicitly requires that a structure which had been transported from one site to another is treated as being a "building" for purposes of the LGM Act. Fifthly, the structure is not exempt by any statute. The only logical conclusion is that the structure is a "building" for purposes of the LGM Act.

45 The L-shaped shed (lot 182) is a "building". This is conceded by Mr Stock.

46 The timber-framed games room (lot 194) is a "building" for the following reasons. The games room falls within the definition of a "structure". Mr Stock at first referred to this structure as a "games room", but later described it as a "builders hut" that is used for storage. It appears to the Tribunal that Mr Stock is prone to change the type of use of a structure, thinking, mistakenly, that the name by which he refers to a structure would assist his case. The Tribunal accepts the evidence of the Shire that the structure falls within the ambit of a "building" for purposes of the LGM Act. Even if the structure was used as a builders hut, the reasons given by the Tribunal above in regard to the timber-clad shed would apply for this to also be treated as a "building".

47 The steel-framed shed with no wall cladding (lot 194) is a "building". The Tribunal rejects the evidence of Mr Stock that this is merely a "cubby house" for his child. There is insufficient evidence to show this is a cubby house and even if it were, Mr Stock has not been able to show why such a structure would be exempt from the LGM Act. It appears that Mr Stock believes that by calling the structure a "cubby house" he changes its basic characterisation from a "building" (which requires a building licence) to something else (which does not require a building licence). The Tribunal is required to characterise a structure according to the provisions of the statute and regulations. The Local Government Act 1960 defines a "building" as a "structure erected or placed on land". The Tribunal is satisfied that this structure must be treated as a "building" for purposes of the LGM Act.

48 In conclusion, the Tribunal therefore finds in response to the first question that:

(Page 12)

a) each of the four structures is a "building" under the LGM Act;

b) none of the structures is exempt from the provisions of a "building" under the LGM Act; and

c) a building licence was therefore required prior to the erection of each of the structures.

Question 2: Was a building licence issued for the structure to be erected?

49 Now that it has been established that each of the structures is a "building" for purposes of the LGM Act and that, as a consequence, a building licence was required prior to the erection thereof, the question is whether a building licence had been issued for each of the respective buildings.

50 At face value it is a simple question that depends on the facts and documentation.

51 Mr Stock could not provide the Tribunal with an actual building licence for any of the buildings, and much of his evidence and allegations of misconduct and conspiracy focused on his interaction with the Shire over the past five years.

52 The Shire contended in brief that no building licence had been issued for any of the buildings. According to the evidence of Mr Tester, he had searched the Shire's records and could not find any evidence of a building application received or issued for any of the buildings the subject of these applications. He explained that, although he had not been employed by the Shire at the time when the buildings were erected, the standard procedure would be for written records to be kept and for building approvals to be issued in writing. The special licence 02002, issued by the Shire on 15 January 2002, only provided for the construction of a dwelling on lot 182 and not for any of the structures the subject of this application. Mr Tester further testified that there was no expert evidence available to satisfy the Shire that any of the buildings comply with the Building Code or with the specifications for seismic or cyclonic activity in the area.

53 Mr Stock contended in brief that some of the structures were erected on the basis of an oral or written building licence, while the other structures did not require a building licence. His evidence and contentions can be summarised as follows:

(Page 13)

• Special licence 02002 was followed by the issuing of building licence 00012 which authorised the buildings that were indicated on the original application. This includes the dwelling and the timber-framed games room.

• The timber-clad shed, or "builders hut", does not need a building licence since it is used for the purposes of constructing another dwelling on another lot (lot 183). It may therefore remain on lot 194 for as long as construction is under way.

• The steel-framed shed, or "cubby house", does not need a building licence since it is not a "building" and is only used as a play house by his child.

• The timber-framed shed, or "games room", had received authorisation from the Shire. The application for a building licence for the dwelling on lot 182 contained explicit reference to the shed. The building licence issued for the dwelling therefore included the games room. The building complies with the Building Code, although it may not be in compliance with requirements for cyclonic conditions. The Shire had acted fraudulently and dishonestly in its treatment of the application.

• The Shire gave oral approval for the erection of the L-shaped shed. Mr Tester recently inspected the building and he was satisfied that it was in compliance with the Building Code. The building should therefore be allowed to remain in place.

54 The Tribunal finds as follows in regard to each of the buildings:

Timber-clad shed

55 As found above, the timber-clad shed is a "building" for purposes of the LGM Act and it therefore requires a building licence to be issued prior to its erection.

56 Even if the shed was used for purposes of constructing the dwelling on lot 182, the LGM Act does not exempt it from a building licence since the construction of the dwelling is complete. Further, Mr Stock's evidence was that the shed is not being used exclusively for the construction of a dwelling on lot 182 on which it is situated. He testified that he stores

(Page 14)

building materials for use on another building on another lot, in the shed. The shed therefore does not fall outside the approval's process of the Shire.

57 The Tribunal does not find the evidence of Mr Stock, namely that he had been given oral approval for the building to be erected and that he had received oral permission for it to remain in place, credible. Mr Stock's evidence was disjunctive and it appeared as if he simply refused to accept the reality under which building approvals operate. He constructed silence of Shire staff or their willingness to render assistance as "approval" and consequently drew conclusions that were not supported by the facts or any documentation. Mr Stock also did not call, as witness, the person who purportedly gave him approval for the shed to be erected. The Tribunal therefore only has his evidence that such discussions occurred and in regard to the content of the discussions.

58 Mr Tester's evidence is preferred to that of Mr Stock. Mr Tester appeared very well informed, open and honest, and a very capable public official with a sound understanding of how a Shire operates. He holds an Associate Diploma in Applied Science (Building Surveying) and has been employed as a building inspector for close to 20 years.

59 Mr Tester holds no personal vendetta against Mr Stock and he has attempted on several occasions to assist Mr Stock to bring the buildings in compliance with the LGM Act. Mr Tester assisted the Tribunal greatly to come to an understanding of the events leading to the issuing of the notices as he saw it.

60 The Tribunal accepts the evidence of Mr Tester, namely that the Shire cannot give oral permission for a building to be constructed without a written building licence. The Shire cannot "issue" a building licence orally and it is not the practice of the Shire to give informal oral approvals for buildings to be erected without compliance with the LGM Act. Any building licence must be issued in writing.

61 The Tribunal finds that no building licence was issued for the timber-clad shed to be erected.

L-shaped shed

62 As found above, the L-shaped shed is a building and therefore requires a building licence.

(Page 15)

63 The Tribunal does not accept, for the same reasons as set out in regard to the timber-clad shed, the evidence of Mr Stock that oral permission had been given for the shed to be erected.

64 The Tribunal accepts, for the same reasons as set out in regard to the timber-clad shed, the evidence of Mr Tester.

65 The Tribunal therefore concludes that no building licence was issued for the L-shaped shed to be erected.

Timber-framed games room

66 As found above, the timber-framed games room is a building and therefore requires a building licence.

67 The Shire contended that no building licence had been issued for the erection of this building. The "special licence 02002" issued on 15 January 2002 only related to the dwelling on lot 182 and not to any outbuildings such as this games room. The Shire admitted that, although there may have been some confusion in the interactions between themselves and Mr Stock, the fact remains that no building licence had been issued for the games room. This has, according to the Shire, been explained to Mr Stock on several occasions prior to the commencement of these proceedings.

68 Mr Stock contended that a building licence (00012) had been issued and the games room was therefore erected lawfully. According to Mr Stock, the approval sought by him for the dwelling included drawings of the games room and it is therefore reasonable to conclude that the building licence gave approval for the dwelling and the games room to be erected.

69 Mr Stock's contentions and evidence in regard to special licence 02002 and building licence 00012 can be summarised as follows:

• The plans submitted to the Shire for the dwelling on lot 182 included reference to the games room. The approval given for the dwelling therefore included the outbuilding that formed part of the application. Mr Stock contended that his interpretation of events is supported by the actions of Mr Tester, who visited the site and indicated that the room was in compliance with the Building Code.

(Page 16)

• Council of the Shire approved the issuing of the building licence for the dwelling and the timber-framed games room at its meeting of 15 May 2002. This decision of Council was made after the expiry of the special licence 02002.

• The special licence was, therefore, upgraded to a full building licence 00012 and it included the games room. Although building licence 00012 which was sent to Mr Stock referred to a site in New Norcia, it was according to Mr Stock a typographical error and should have referred to the proposed buildings on lot 182. Mr Stock's contention is therefore that an unconditional building licence was approved by the Council and that an administrative error caused an incorrect building licence (00012) to be sent to him. Shire staff refused to issue the correct and complete building licence.

• Officers of the Shire, through their actions and oral communication, confirmed that approval had been given for the games room to be erected.

• Mr Stock concluded that the Shire had acted in an unprofessional and fraudulent manner in the treatment of his application. Although Council had approved the issuing of a building licence, the actual licence was never sent to him. He further alleged that records of the Shire had been altered and possibly falsified.

70 The Tribunal will first deal with the special licence 02002 and building licence 00012, before a finding is made whether a building licence was issued.

71 Mr Tester produced the original building licence envelope for lot 182 during the course of his evidence. He explained in detail to the Tribunal the contents of the envelope and he was extensively cross-examined by Mr Stock about it. Mr Stock took issue with the contents of the envelope, the handwriting thereon, the possibility that records may have been altered to his detriment, and the possibility that documents that support his version of events may have been removed.

72 The Tribunal understands that some confusion may have been caused by the way in which the Shire dealt with the original application and subsequent correspondence. It appears from the evidence of Mr Tester

(Page 17)

that the content of the envelope was not properly numbered, dated or stamped; there was no chronological order to it; there was no separate sheet to serve as a record of contents; variations of plans could be inserted into the envelope without proper identification of their status; and documents could be removed from the envelope without a person signing for it.

73 These inadequate file management practices of the Shire exacerbated the concerns expressed and confusion experienced by Mr Stock and his sense of being a victim of misconduct on the part of the Shire.

74 The slack administrative procedures do not, however, constitute a criminal offence, nor does it serve as evidence that a detailed building application had been received or of a building licence being approved.

75 The Tribunal is not empowered to make a finding regarding purported criminality by any individuals employed by the Shire, as alleged by Mr Stock. The Tribunal explained to Mr Stock during the hearing that he could, if he chose to do so, submit his complaints of criminal misdemeanour to the appropriate authorities for consideration.

76 Mr Stock did not call any of the persons, for example councillors or Shire officials, with whom he had dealings to give evidence of his understanding of events. His evidence and contentions are therefore uncorroborated.

77 Having considered all the evidence before it, the Tribunal finds the explanation given by Mr Tester credible and prefers his evidence to that of Mr Stock.

78 The Tribunal therefore accepts the following explanation given by Mr Tester in regard to special licence 02002 and building licence 00012:

• The Tribunal accepts that the standard conduct of the Shire is for a building licence to be issued in writing. This is consistent with the LGM Act. Although the minutes of the Council meeting that was held on 27 May 2003 may contain some inconsistencies, there is no evidence to support the contention that the Shire had approved or issued a building licence for the games room.

• Special licence 02002 dealt only with approval for the erection of the dwelling on lot 182. On the proper construction of the licence, the Tribunal is satisfied that

(Page 18)

the licence referred only to the dwelling and not to any ancillary building such as the games room. This finding is consistent with the conclusion of the Supreme Court in the matter Stock v Anning [2006] WASC 275 at [17] that a building licence is required for a shed-like structure or "games room". Mr Stock, it seems, refused to accept the reasoning and finding of the Supreme Court. There is no reason for this Tribunal to come to a different conclusion than the Court.
• Although the Shire records did contain a rough plan in which reference was made to a games room on lot 182, there is no evidence that a building licence had been issued for the room or that a detailed plan as required by the LGM Act had been submitted for consideration. The plan referred to by Mr Tester at best indicates the locality of a possible building, but lacks the detail required by the LGM Act for the granting of a building licence. Section 374(1) of the LGM Act requires that a building licence application must contain a plan "showing clearly, the building or the building proposed to be built … and the area of land to be occupied by each building …". There is no evidence to suggest that the plan for the games room contained the necessary detail as required by the LGM Act for the Shire to have considered it. The lack of a detailed plan is consistent with the Shire's contention that no building licence for the games room was ever received or approved.

• Special licence 02002 relates to lot 182, and there is no evidence to support Mr Stock's contention that building approval was given for the games room that is now situated on lot 194.

• The minutes of the Council meeting that took place on 27 May 2003 may be misleading in that it refers to a Council meeting that occurred on 15 May 2002. Mr Stock has construed this reference as proof that Council had approved the building licence. Mr Stock did not call any witnesses to support his interpretation of events. It would have assisted his case if he had called a councillor who had attended the meeting to give evidence to the effect that a building licence had been approved.

(Page 19)

The Tribunal accepts the explanation by the Shire, namely that the date of 15 May 2002 was a typographical error and should probably have been 15 January 2002. The agenda of the Council meeting of 27 May 2003 included in its annexes explicit reference to the special licence of 15 January 2002.
• The Shire allowed Mr Stock time, at the expiry of special licence 02002, to bring the dwelling the subject of the licence to a habitable state. Mr Tester gave evidence of how he explained to Mr Stock, after a site visit, that the dwelling now complies with Shire requirements but that a retrospective building licence cannot be issued due to the wording of the LGM Act. The Tribunal accepts the evidence of Mr Tester that he had not told Mr Stock that the games room complies with the requirements of the LGM Act.

• The reason why building licence 00012 was sent to Mr Stock remains unclear. The Tribunal does not accept the interpretation of Mr Stock that the sending of the licence is indicative that approval had been given by the Shire. The Tribunal prefers the explanation of Mr Tester, namely that building licence 00012 dealt with an approval of a structure in New Norcia and that it was sent to Mr Stock in error. The building licence issued to Mr Stock only dealt with the dwelling. The Tribunal understands that this may have caused some confusion to Mr Stock, but had he been receptive to the Shire's explanation the current proceedings would not have been necessary.

79 The Tribunal therefore concludes that no building licence was issued for the games room to be constructed.

Steel-framed shed

80 As found above, the steel-framed shed is a building and requires a building licence.

81 The Tribunal accepts the evidence of Mr Stock that he never applied for a building licence for this shed to be erected. This is confirmed by the records of the Shire.

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82 Mr Stock had two explanations to justify why he had not applied for a building licence. On the one hand he contended that a building licence was not required since it is a "cubby house" and it therefore does not require a building licence. The Tribunal has dealt with this contention and rejected it. On the other hand, Mr Stock said that he had been given oral permission by an officer of the Shire for the structure to remain. The Tribunal also does not accept the evidence of Mr Stock in regard to the second option.

83 The Tribunal does not accept Mr Stock's explanation for the same reasons as we have set out in regard to the timber-clad shed. The Tribunal accepts the evidence of Mr Tester for the same reasons as we have set out in regard to the timber-clad shed.

84 The Tribunal therefore finds that, since the steel-framed shed is a building, a building licence had to be issued prior to its construction. No building licence was issued.

85 In summary, the Tribunal therefore finds, in response to the question if a building licence was issued for any of the structures the subject of these applications, that no licence had been issued for any of the buildings.

Question 3: If a building licence had not been issued any of the buildings, did the Shire properly exercise its discretion by issuing the notice for the buildings to be removed?

86 It is accepted that the Shire has, pursuant to s 401(1) of the LGM Act, discretion as to whether it issues a notice for a building to be pulled down. Hence the use of the word "may" in the opening sentence of s 401(1) of the LGM Act.

87 The Shire issued notices on 19 March 2007 for each of the buildings to be pulled down and removed within 35 days from the date of the notice. Section 401(1) reads as follows:

"A local government may, during or after the erection of a building in a 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 for the public interest;

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(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, or 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 ... "

88 Mr Tester explained that it often happens that buildings are constructed without complying with the LGM Act or the Building Code. In some instances a building has to be pulled down since there is no way to cure the problem of non-compliance with the LGM Act and the Building Code. In many other instances, however, a pragmatic approach is adopted by giving an owner time to bring the building into compliance with the Building Code and to submit evidence to such effect. The Shire can then allow a building to remain.

89 The pragmatic approach usually taken by the Shire is that it does not insist on the immediate pulling down of a building that has been erected without a building licence. The Shire usually engages the owner in discussions and may encourage the owner to undertake corrective works and to submit to the Shire evidence that the building complies with the provisions of the LGM Act and the Building Code. Although the Shire does not have the power to retrospectively issue a building licence, it may, if it is satisfied that the building is structurally safe and in compliance with the Building Code, issue a letter or certificate of "substantial compliance" to the owner. Such a letter gives certainty to the owner and future owners that a building is in compliance with the LGM Act and Building Code.

90 In the experience of the Tribunal, the approach of the Shire as described by Mr Tester is consistent with the practice of many local governments across Western Australia.

91 The Tribunal has, since its inception, dealt with many - possibly hundreds - of matters where a local government had agreed for a s 401 notice to be revoked on the grounds that an owner had been able to satisfy it (local government) that the requirements of the LGM Act and the Building Code had been complied with. A local government can usually

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be satisfied if it receives a report from a structural engineer or other specialist to certify that a building is in compliance with the Building Code.

92 The mere fact that the Tribunal has found in this matter that (a) all the structures the subject of these applications are "buildings" for purposes of the LGM Act and therefore require a building licence prior to construction, and (b) that no building licence had been issued for any of the four buildings, does not automatically mean the structures must be pulled down and removed.

93 The Tribunal has the same discretion as the Shire to consider all factors, including information that was not available to the Shire at the time when it made the decision to issue the notices. As explained above, the hearing is de novo and the Tribunal can therefore take into account any information, including information that was not at the disposal of the decision-maker at the time it made the decision.

94 The Tribunal invited the parties to make submissions and provide evidence in regard to the question of whether the decision of the Shire to issue the notices should be affirmed or not. Mr Stock was given ample time and opportunity to present to the Tribunal the evidence of an expert in regard to the compliance of any or all of the buildings with the Building Code.

95 Mr Stock gave evidence that each of the buildings complies with the LGM Act and the Building Code. He referred to the footings of the buildings and the quality of construction. He admitted, however, that some of the buildings may not comply with the seismic and cyclonic conditions of the area.

96 Mr Stock did not call any expert witness, such as a structural engineer, to testify in support of his contentions. His evidence should be treated as general assertions. Due to the lack of technical data to support Mr Stock's evidence, the Tribunal attaches little weight to it.

97 Mr Tester, on behalf of the Shire, gave evidence of his expertise as a building inspector and his many years of employment in this field. He had several dealings with Mr Stock since he (Mr Tester) commenced employment with the Shire in early 2006. Mr Tester was emphatic about the concerns he had for the safety of each of the buildings. He pointed out that all the buildings appeared to be unsafe, dilapidated and a risk to Mr Stock and members of the public. Mr Tester emphasised that it was

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incumbent on Mr Stock to demonstrate to the Tribunal that the buildings were compliant with the Building Code.

98 In the absence of any expert evidence on the part of Mr Stock, the Shire, and now the Tribunal, had to exercise its discretion in the interest of the general public.

99 Some of the specific concerns Mr Tester raised were:

• The footings of the buildings are not visible and it is therefore impossible to tell from a casual inspection if they are properly secured and in compliance with the Building Code.

• The L-shaped shed is constructed mainly from second-hand materials. It does not comply with the Building Code and is unlikely to be in compliance with the required seismic conditions and wind loads.

• The timber used for the timber-clad shed shows signs of rot and is generally unsafe. It does not comply with the Building Code and is unlikely to be in compliance with the required seismic conditions and wind loads.

• The timber-framed games room appears not to be properly fixed to the ground. In fact, the building is placed on skids. It does not comply with the Building Code and is unlikely to be in compliance with the required seismic conditions and wind loads.

• The steel-framed shed does not comply with the Building Code and is unlikely to be in compliance with the required seismic conditions and wind loads.

100 The concerns expressed by Mr Tester for public safety became relevant soon after conclusion of the hearing, when, according to the written closing submission of the Shire, it appeared that iron sheets had blown off the roof of the L-shaped building. Mr Stock gave evidence that he had removed the sheets in order to replace them with Colorbond. The Tribunal accepts Mr Stock's explanation but it does not alter the Tribunal's findings.

101 The Tribunal prefers the evidence of Mr Tester to that of Mr Stock for the following reasons: Mr Tester is qualified in this field and has many

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years experience as a building inspector and surveyor. His evidence throughout the hearing was very professional, sincere and his expertise was of great assistance to the Tribunal. He responded to cross-examination with tolerance and self-control, although his patience may have been tested. It appears that he had done what he could to assist Mr Stock, but he (Mr Stock) has been generally unwilling to co-operate with the Shire. Mr Tester's account of the meetings with Mr Stock was consistent with the Shire's policies in regard to dealing with building applications.

102 The Tribunal does not find the evidence of Mr Stock, namely that Mr Tester had told him orally that the buildings were compliant with the Building Code, credible or reliable.

103 The photograph (Exhibit 10) submitted by the Shire is further proof, even to a lay observer, of the dilapidated state of the respective buildings. It appears as if Mr Stock is using the lots as a storage or dumping site for second hand and reject building material. It is a complete farce to describe the buildings as a "cubby house" or a "games room" for the mere sake of giving some legitimacy to it.

104 If Mr Stock were of the view that the buildings were in compliance with the LGM Act and the Building Code, he had more than ample opportunity to provide expert evidence to such effect to the Shire or ultimately to the Tribunal. Mr Tester made it clear that, if the buildings were compliant, a "certificate of substantial compliance" could be issued. Mr Stock nevertheless relied on his own evidence and chose not to call any expert witness.

105 The Tribunal finds that the Shire acted lawfully and with complete justification when it issued the notices for the buildings to be pulled down and the material to be removed. The Tribunal has come to the same conclusion after it has taken into account all the information available to it.

106 The Tribunal deals annually with many s 401 notices that have been issued by local governments. The vast majority of the notices are eventually revoked, by consent, on the ground that the owner had been able to demonstrate substantial compliance with the LGM Act and Building Code. Mr Stock did not assist his own cause by failing to provide the Shire or the Tribunal with the necessary expert evidence. He has ultimately himself to blame for the situation in which he finds himself.

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107 The Tribunal finds, in response to the question whether the Shire had properly exercised its discretion by issuing the notice for the structure to be removed, that the answer is "yes".

108 The decision of the Shire to issue the notices must therefore be affirmed.

Question 4: Should the application be dismissed as an "unjustified proceeding" pursuant to s 47 of the SAT Act?

109 The Shire sought an order on the first day of the hearing for the application to be dismissed on grounds that it was an "unjustified proceeding" pursuant to s 47 of the SAT Act.

110 Counsel appearing for the Shire acknowledged at the time that the Tribunal did not have sufficient information to make such a finding immediately. The Shire contended that it would become clear in the course of the hearing that the proceedings were unjustified. It was therefore agreed that the hearing would continue.

111 Section 47 of the SAT Act clothes a legally qualified member of the Tribunal with the power to declare a proceeding unjustified if he believes that the proceeding:

a) is frivolous, vexatious, misconceived or lacking in substance;

b) is being used for an improper purpose;

c) is otherwise an abuse of process.

112 I am a legally qualified member.

113 In summary, the Shire contended that the application falls within the ambit of s 47 of the SAT Act for the following reasons: Mr Stock must have been aware that a building licence was required for each of the four buildings; the Supreme Court in the matter of Stock v Anning found that a building licence was required for a shed-like structure called a games room; and Mr Stock's general experience in the building and removals industries. The Shire further pointed out that in the Supreme Court proceedings the fate of the very same "games room" was at issue, although it was located at the time on lot 182. In those proceedings the Court made it clear that a building licence was required for the building to be erected. Mr Stock, however, rather than to accept the decision of the Supreme Court and the advice from Shire officials, chose to re-argue the

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same issues before the Tribunal. Mr Stock refused to accept that his interpretation of documents and/or events were not supported by the facts.

114 The Tribunal has already made a finding that the applications should be dismissed. The question now is whether the applications were of such nature that they fall within the scope of s 47 of the SAT Act.

115 The Tribunal accepts that in dealing with self-represented parties, tolerance and patience should be shown since an unrepresented party may find it difficult to present evidence in a coherent and concise manner. The Tribunal was created with the aim to increase accessibility to administrative review and to simplify review processes and procedures. It is therefore not surprising that a self-represented party may from time to time repeat evidence or become confused by legal processes. The mere fact that an application fails does not automatically bring it within the scope of s 47 of the SAT Act.

116 Although Mr Stock was self-represented, he appeared to have a very good understanding of legal procedures and court-like processes. The Tribunal was at pains to allow him more than enough time to exhaust his evidence, submissions and cross-examination. The Tribunal also assisted him at several occasions by clarifying issues and reformulating questions. Mr Stock expressed his appreciation during his closing submissions to the Tribunal for the effort it made to ensure that the procedures were well understood by him.

117 It was clear to the Tribunal that, although Mr Stock is not legally trained, he is well-spoken, expresses himself fluently and has a sound understanding of legal processes.

118 The Tribunal can understand that Mr Stock feels aggrieved with the notices that were issued by the Shire. It is not easy to accept the reality to pull down and remove a building. It appears, however, as if Mr Stock refused to accept the explanations offered to him at various stages of the sorry tale which started in 2002. His distrust of the intentions of the Shire and its officials may have clouded his judgement, or he may simply refuse to accept "no" as an answer. Whatever the case, it seems as if Mr Stock turned a deaf ear to officials when they responded to his concerns. It became clear, even during the hearing and the evidence given by Mr Tester, that Mr Stock only sees things in his own way. He appears not to be swayed or influenced by the evidence or explanation of others or by the advice offered to him.

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119 The Tribunal is of the view that these proceedings could have been averted if only Mr Stock had taken proper account of the law and heeded the advice given to him.

120 The Tribunal therefore believes the applications fall within the scope of s 47 of the SAT Act and were unjustified. In short, the applications were not warranted.

121 The following are the main considerations that have lead the Tribunal to come to this conclusion:

a) Given Mr Stock's experience in the building and removals industries, he could be expected to have a good understanding of the requirements to erect buildings under the LGM Act.

b) It was made clear to Mr Stock at various occasions by staff of the Shire, that a building licence was required for each of the buildings and that no licence had been issued. Although he may have taken issue with the administrative procedures of the Shire, it does not alter the fact that no building licence had been issued for any of the buildings.

c) Mr Stock's evidence was lacking substance and he merely relied on personal interaction he has had with the Shire and his belief that staff were intent on defrauding him. He nevertheless failed to call any persons with whom he had dealings, as witness.

d) It appears as if Mr Stock was attempting to abuse the legal process by referring to the buildings as a "cubby house", "games room" and "builders hut" in the belief that it would result in a finding that they were not "buildings" for purposes of the LGM Act.

e) It is clear from the photograph marked as Exhibit 10 that Mr Stock is using the lots for purposes of storing used and second-hand building materials. This is not a case of an ordinary member of the public accidentally acting in breach of the LGM Act.

f) Mr Stock refused to accept the findings of the Supreme Court that the shed-like structure which he described at the time as a "games room" in the matter before the

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Court, required a building licence. Since the Supreme Court decision he merely moved the same structure from lot 182 to lot 194 and again contended it is not a "building" in these proceedings before the Tribunal.
g) The Supreme Court found that special licence 02002 did not authorise the construction of a shed. The Court was critical of Mr Stock's "inability or unwillingness to accept the correct position …" (Stock v Anning at [46]).

h) Mr Stock continued in these proceedings to make unsubstantiated accusations and allegations against officers of the Shire, after he had been cautioned by the Supreme Court "against making further unsubstantiated and unwarranted accusations …" (Stock v Anning at [151]).

i) Mr Stock failed to produce any witnesses or expert evidence to support his application. There was ample opportunity for Mr Stock to produce an expert report to enable the Shire to issue a "certificate of substantial compliance", but he failed to take up the opportunity.

122 The Tribunal believes that the proceedings were unjustified pursuant to s 47 of the SAT Act on the ground that they were misconceived, lacked substance and were an abuse of process.

Conclusion

123 In conclusion, the findings of the Tribunal are:

a) Each of the structures the subject of these applications is a "building" for purposes of s 374(1) of the LGM Act;

b) A building licence was not issued for any of the buildings to be erected;

c) The Shire had exercised its discretion properly to issue the notices for the buildings to be pulled down and removed;

d) The applications were unjustified proceedings and should consequently be dismissed pursuant to s 47 of the SAT Act; and

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e) The decision of the Shire to issue the notices should be affirmed.

124 The Tribunal realises that it may take some time for all the buildings to be pulled down and for the material to be removed. The Tribunal will therefore vary the notice of the Shire to provide for a staggered timeframe for the orders to be complied with.

125 The Tribunal allowed the parties opportunity to discuss the cost application made by the respondent. The parties reached agreement that an amount of $6000 be paid to the respondent within 28 days of these orders.

Orders:

1. The applications are dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).

2. The decision of the Shire of Victoria Plains to issue the notices dated 19 March 2007 is affirmed.

3. The timeframes allocated for Mr Stock to comply with the notices are varied to read as follows:

a) The timber-clad shed (lot 194) must be pulled down and removed within 21 days from the date of these orders.

b) The L-shaped shed (lot 182) must be pulled down and removed within 60 days from the date of these orders.

c) The timber-framed games room (lot 194) must be pulled down and removed within 40 days from the date of these orders.

d) The steel-framed shed with no wall cladding (lot 194) must be pulled down and removed within 21 days from the date of these orders.

4. By consent, Mr Stock must pay, within 28 days from the date of these orders, the amount of $6000 towards the costs of the respondent.

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I certify that this and the preceding [125] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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DR B DE VILLIERS, MEMBER