SULLIVAN and SHIRE OF CARNARVON
[2024] WASAT 58
•7 JUNE 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION: SULLIVAN and SHIRE OF CARNARVON [2024] WASAT 58
MEMBER: MS C BARTON, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER
HEARD: 11 - 14 MARCH 2024
DELIVERED : 7 JUNE 2024
FILE NO/S: DR 91 of 2022
BETWEEN: GLENDA SULLIVAN
First Applicant
DAVID KEARNEY
Second Applicant
DAVID SADECKY
Third Applicant
BARRY MASON
Fourth Applicant
SHANE AYLMORE
Fifth Applicant
KIM GANE
Sixth Applicant
JOANNE BUZZARD
Seventh Applicant
BRETT CAMPBELL
Eighth Applicant
MICHAEL LEE
Ninth Applicant
CRAIG SMITH
Tenth Applicant
BRETT KILGALLON
Eleventh Applicant
GREG HARPER
Twelfth Applicant
COLIN BARON
Thirteenth Applicant
KAI SHANKS
Fourteenth Applicant
KEITH DUNN
Fifteenth Applicant
PETA BURKETT
Sixteenth Applicant
MICHAEL PARRY
Seventeenth Applicant
MATTHEW LARMAN
Eighteenth Applicant
JULIE CLARKE
Nineteenth Applicant
ELIZABETH ANDERSON
Twentieth Applicant
GAVIN HARRIS
Twenty First Applicant
KELLY JANET MANN
Twenty Second Applicant
BRIAN SNOOK
Twenty Third Applicant
AND
SHIRE OF CARNARVON
Respondent
Catchwords:
Review of decision to make a building order - Building order to demolish and remove - Coastal shacks - Crown reserve - Whether building reasonably believed to be in a dangerous state - Class of building - Non-habitable building - Decision to make a building order varied - Revocation of building order
Legislation:
Building Act 2011 (WA), s 3, s 5, s 6(3), s 9(a), s 9(b), s 110(1), s 110(1)(c), s110(2)(d), s 111(1)(a), s 111(1)(b), s 111(1)(c), s 111(2), s 112(1)(a), s 112(1)(b), s 112(1)(g), s 112(2), s 112(2)(a), s 112(2)(b), s 112(2)(c), s 113(2)(d), s 112(2)(e), s 112(2)(f), s112(2)(g), s 112(2)(g)(i), s 112(2)(g)(v), s112(2)(g)(vi), s 115, s 117(1), s 122(1), s 122(1)(a), s 122(1)(b), s 122(2), Div 5, Pt 8
Building Regulations 2012 (WA), reg 4, reg 10(2), Sch 4, cl 1, cl 2
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 76
Evidence Act 1906 (WA)
Land Administration Act 1997 (WA), s 273
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 27(1), s 27(3), s 29(3), s 32(1), s 32(2)(a), s 32(2)(b)
State Planning Policy 7.3 - Residential Design Codes Volume 1Result:
Application for review allowed
Category: B
Representation:
Counsel:
First Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Second Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Third Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Fourth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Fifth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Sixth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Seventh Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Eighth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Ninth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Tenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Eleventh Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Twelfth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Thirteenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Fourteenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Fifteenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Sixteenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Seventeenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Eighteenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Nineteenth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Twentieth Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Twenty First Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Twenty Second Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Twenty Third Applicant : S Aylmore, Blowholes Protection Association Inc (Acting as agent) Respondent : TL Beckett & M Madvad Solicitors:
First Applicant : N/A Second Applicant : N/A Third Applicant : N/A Fourth Applicant : N/A Fifth Applicant : N/A Sixth Applicant : N/A Seventh Applicant : N/A Eighth Applicant : N/A Ninth Applicant : N/A Tenth Applicant : N/A Eleventh Applicant : N/A Twelfth Applicant : N/A Thirteenth Applicant : N/A Fourteenth Applicant : N/A Fifteenth Applicant : N/A Sixteenth Applicant : N/A Seventeenth Applicant : N/A Eighteenth Applicant : N/A Nineteenth Applicant : N/A Twentieth Applicant : N/A Twenty First Applicant : N/A Twenty Second Applicant : N/A Twenty Third Applicant : N/A Respondent : McLeods Case(s) referred to in decision(s)
Sanur Pty Ltd and City of Subiaco [2021] WASAT 90.
Sanur Pty Ltd and City of Subiaco [2021] WASAT 90 (S).
Sullivan and Shire of Carnarvon [2023] WASAT 43.
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1Located at the Blowholes camp site, 75 kilometres north of the town of Carnarvon, are coastal shacks built in the 1950s and 1960s (shacks). The shacks are located on Crown Reserve 37457, Blowholes, Carnarvon (Blowholes reserve).
2On 4 May 2022, the Shire of Carnarvon (respondent or Shire) served each of the 23 applicants (applicants) with a building order to demolish and remove their respective shack because the respondent considered it to be in a dangerous state (building orders).
3On 1 June 2022, the applicants commenced proceedings in the Tribunal pursuant to s 122(1)(a) of the Building Act 2011 (WA) (Building Act) seeking a review of the respondent's decision to make the building orders.
4For the reasons that follow, we have found that ten of the 23 shacks are in a dangerous state. However, we have decided to vary the respondent's decision to make the building orders by giving the applicants the opportunity to repair those shacks to make them safe.
5In respect of the shacks that we have found are not dangerous, we will set aside the respondent's decision to make the building orders and revoke the relevant building order.
Issues for determination
6The following primary issue arises for determination by the Tribunal:
(1)Whether the respondent's decision to make the building orders pursuant to s 112(2)(g)(vi) of the Building Act requiring the shacks to be demolished because they are in a dangerous state should be affirmed?
7In considering the primary issue, the following secondary issue is relevant to our determination:
(1)Whether each shack is reasonably believed to be in a dangerous state because the shack:
(a)presents a risk of harm to its occupants or others in the vicinity?; and/or
(b)is structurally unsound?
The conduct of the hearing and expert evidence
8The applicants were represented at the hearing by Mr Shane Aylmore of the Blowholes Protection Association Inc (BPA). The applicants relied on the evidence of Mr Gary Bouse, a registered builder with Bouse Building. Following a visual inspection and assessment of the shacks, Mr Bouse prepared an expert witness statement dated 11 December 2023.
9The respondent called Mr David Gibson, a building surveyor with the City of Greater Geraldton. Mr Gibson carried out an inspection of the shacks in February 2022 and prepared a dilapidation report in relation to each of them (February 2022 Reports). Mr Gibson also prepared an expert witness statement dated 14 September 2023 following a further inspection of the shacks in August 2023.
10On 11 December 2023 and 1 February 2024, Mr Bouse and Mr Gibson attended a chaired expert conferral. The experts prepared a joint statement dated 5 February 2024 (joint statement).
11Whilst Mr Bouse was of assistance in our determination, Mr Gibson has considerable experience as a building surveyor who conveyed his technical expertise and expert opinion in an objective and impartial manner. For these reasons, to the extent that there are differences of opinion between the experts, we prefer the evidence of Mr Gibson to that of Mr Bouse.
12On the first day of the final hearing, the Tribunal had the benefit of a site view which was attended by the parties' representatives and the expert witnesses.
The Tribunal's review jurisdiction
13 By reason of s 122(1)(a) of the Building Act and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application falls within the Tribunal's review jurisdiction. The institution of the review proceeding stays the operation of the building orders pending the determination of the proceeding.[1] In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the Building Act (the latter referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction which may modify the operation of the SAT Act in relation to the matter).[2]
[1] Building Act, s 122(2).
[2] SAT Act, s 18.
14The Tribunal's review of the respondent's decision to issue the building orders is by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the information and evidence before it.[3] The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[4] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[5]
[3] SAT Act, s 27.
[4] SAT Act, s 32(2)(a).
[5] SAT Act, s 32(1).
15The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[6] Nor is the review limited to the reasons for decision or any grounds for review set out in the application.[7] The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.[8] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside, affirm or vary the decision that is being reviewed.
[6] SAT Act, s 27(1).
[7] SAT Act, s 27(3).
[8] SAT Act, s 32(2)(b).
The statutory framework
16Section 110(1) of the Building Act confers a general power on a permit authority to make a building order. Pursuant to s 110(1)(c) of the Building Act, a permit authority has the power to make a building order in respect of a particular building or incidental structure whether completed before or after commencement day.[9] The relevant 'permit authority' in this case is the respondent, being the local government in whose district the shacks are located.[10]
[9] Part 8 Div 5 of the Building Act, of which s 110(1)(c) forms part, commenced on 2 April 2012.
[10] Building Act, s 6(3).
17The Tribunal has previously found that each of the shacks is a 'building' for the purposes of the Building Act and that s 110(1)(c) of the Building Act, and the other provisions of Pt 8 Div 5 of the Building Act, apply to the shacks that are the subject of the building orders.[11] Further, the applicants are occupiers of the shacks for the purposes of s 110(2)(d) of the Building Act and, consequently, are persons to whom a building order may be directed.[12]
[11] See Sullivan and Shire of Carnarvon [2023] WASAT 43 (Sullivan) at [36]-[38].
[12] See Sullivan at [26].
18Before making a building order, other than an emergency order, the permit authority must give each person to whom the order is proposed to be directed written notice of the terms of the proposed order and the reasons for it.[13] The permit authority is also required to advise each person to whom the order is proposed to be directed that the person has 14 days from the day on which the notice is received in which to make submissions in relation to the proposed order.[14] The permit authority must consider each submission received within that period.[15]
[13] Building Act, s 111(1)(a), s 111(2).
[14] Building Act, s 111(1)(b).
[15] Building Act, s 111(1)(c).
19Section 112(2) of the Building Act enumerates the specific powers which can be exercised by a permit authority in making a building order and the circumstances in which they can be exercised. Section 112(2) of the Building Act relevantly provides that a building order may require a person to whom the order is directed to do the following within a specified time:
…
(g)if a building or incidental structure is reasonably believed to be in a dangerous state or unfit for human occupation —
…
(v)to renovate or repair the building or incidental structure to a specified standard or in a specified way so as to prevent or stop the building or incidental structure from being a danger to persons, to other property or to the environment or to render it fit for human occupation;
(vi)to demolish, dismantle or remove the building or incidental structure;
…
20Section 117 of the Building Act provides that a permit authority may, by notice in writing, revoke a building order at any time.
21In accordance with s 112(3)(c) of the Building Act, the person to whom the order is directed is required to notify the permit authority in a specified manner when the person has done what the building order requires them to do. Failure to comply with a building order, without reasonable excuse, is an offence.[16]
[16] Building Act, s 115.
22A person is prohibited from doing 'building work' unless, amongst other things, a building permit is in effect for the building work, or the building work is exempt from the requirement for a building permit under Pt 5 of the Building Act or the Building Regulations 2012 (WA) (Building Regulations).[17]
[17] Building Act, s 9(a) and s 9(b). Exemptions from the requirement for a building permit are contained in cl 2 of Sch 4 to the Building Regulations.
23Pursuant to s 3 of the Building Act, 'building work' is defined to include 'the construction, erection, assembly or placement of a building or an incidental structure' or 'the renovation, alteration, extension, improvement or repair of a building or an incidental structure'. An 'incidental structure' is defined in the Building Act as a structure attached to or incidental to a building and includes a chimney, mast, swimming pool, fence, free-standing wall, retaining wall, or permanent protection structure, and part of a structure.
24Sch 4 to the Building Regulations lists the building work for which a building permit is not required. The list includes, subject to certain qualifications, the renovation, alteration, improvement, repair or maintenance of a building or incidental structure if the building work will not adversely affect the structural soundness of the building or incidental structure.[18]
[18] See Building Regulations, Sch 4, cl 2, item 2.
25Relevantly, pursuant to reg 41 of the Regulations, a building permit is not required for:
(a)building work for a Class 10 building or incidental structure that is located, or to be located, in a local government district specified in column 1 of the Table in the area specified for that district in column 2 of the Table;
(b)building work for a building or incidental structure that is not a Class 10 building or incidental structure and that is located, or to be located, in a local government district specified in column 1 of the Table in the area (if any) specified for that district in column 3 of the Table.
26The Table in cl 1 of Sch 4 to the Building Regulations provides that in the local government district of Carnarvon, a building permit is not required for building work for a Class 10 building or incidental structure located in the 'Gascoyne-Minilya Ward'. The National Construction Code 2022 (NCC) provides that a Class 10 building is a non-habitable building or structure and includes the following subclassifications:[19]
(a)Class 10a is a non-habitable building including a private garage, carport, shed or the like.
(b)Class 10b is a structure that is a fence, mast, antenna, retaining wall or free-standing wall or swimming pool or the like.
(c)Class 10c is a private bushfire shelter.
[19] NCC, Volume 2 - Building Code of Australia, Pt A6 Building classification, A6G11 Class 10 buildings and structures.
27The expression 'non-habitable building' is not defined in the NCC. However, a 'habitable room' is defined in the NCC as a room used for normal domestic activities and includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room, home theatre and sunroom but excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods.[20]
[20] NCC, Volume 2 - Building Code of Australia, Sch 1 Definitions, Glossary.
28For context, we outline below the history of the Blowholes reserve and matters relevant to the legal status of the shacks on the reserve.
History of the Blowholes reserve and establishment of the shacks
29The Blowholes reserve, commonly known as 'The Blowholes', is located 75 kilometres north of Carnarvon. It was created in 1961 when an area of approximately 139 acres was resumed from Quobba Station and set apart as Class 'A' Reserve 25933 (Reserve 25933) for 'Recreation and Camping' and a vesting order without power to lease was issued to the Gascoyne-Minilya Road Board.
30Anecdotal evidence from the BPA suggests that shacks first appeared at the Blowholes area around 1954. A memorandum on a Lands Department file (2880/59) dated 11 July 1960 acknowledges the existence of five small huts and a caravan.[21]
[21] Respondent's proposed statement of agreed facts dated 9 March 2023, para 6.
31In 1966, the Shire (created on 1 March 1965 by the amalgamation of the Town of Carnarvon and Shire of Gascoyne-Minilya) considered leasing sites at Reserve 25933 for holiday huts and 'fishing shacks'.[22] In 1968, the Shire suggested extending Reserve 25933 south to cater for holiday huts and provided the names of five squatters who had been in situ since before 1960.
[22] Exhibit 2, page 4.
32Subsequently, in 1981, three reserves were created from Reserve 25933 and the Blowholes reserve was vested in the Shire for the purpose of 'Recreation and Foreshore Protection' for a term of ten years.[23] Agendas and minutes from 1985 onwards reveal many instances of the Council of the respondent (Council) considering improvements or modifications to existing shacks and in some cases, the appearance of new shacks.[24]
[23] Exhibit 2, page 5-6.
[24] Respondent's proposed statement of agreed facts dated 9 March 2023, para 7.
33In 1986, Council resolved 'that a maximum term of a 2-year occupation period be permitted by Council subject to an annual registration fee of $100 to be charged to each shack owner'. However, no formal agreement developed from this resolution.[25]
[25] Respondent's proposed statement of agreed facts dated 9 March 2023, para 8.
34In 1996, Council adopted a draft lease agreement to be used for the shacks. However, the agreement was not entered into by the parties.[26]
[26] Respondent's proposed statement of agreed facts dated 9 March 2023, para 9.
35On 30 August 2002, Council resolved 'that subject to the payment of outstanding occupancy fees by shack owners and their entering into a lease agreement as per the State Shacks Policy, Council form a working party … to work with the Department of Planning and Infrastructure and the Department of Land Administration towards the development of an agreed concept for the future, orderly development of the Blowholes'.[27]
[27] Respondent's proposed statement of agreed facts dated 9 March 2023, para 10.
36On 3 April 2003, the Shire wrote to the president of the BPA and advised that 'lease agreements are still being finalised however it is intended they shall be offered on an annual renewable basis for a period of six years effective from the date of Council's adoption of the State Shacks Policy being March 2002 and concluding in 2008'.[28]
[28] Respondent's proposed statement of agreed facts dated 9 March 2023, para 11.
37In November 2003, the Shire received an Instrument of Delegation (delegation) from the Minister for Lands, issued pursuant to s 273 of the Land Administration Act 1997 (WA) which delegated to the Shire the Minister's powers and duties in relation to the Blowholes reserve. The delegation provided for the Shire to do the following:[29]
[29] Respondent's proposed statement of agreed facts dated 9 March 2023, paras 12-13.
1.To remove shacks and structures owned by persons who do not:
(i)enter into a lease agreement with the Shire to occupy the relevant land for a period terminating on 27 March 2008; and
(ii)pay in full the annual fee prescribed by the Shire for progressive rehabilitation and management of the shack area and referred to in State Government Policy Number 12.5.1.1 "illegal Occupation of Coastal Crown Land (Squatters)" (Government Policy).
2.To remove, at any time, unauthorised shacks or structures erected on the Reserve after 27 March 2002, the date of the commencement of the implementation by the Shire of the Government Policy.
3.To remove, at any time, structures which are or have been erected in positions that fail to fit proposed building envelopes identified in the final design for the area.
Findings relevant to the making of the building orders
38There were certain matters that were not in dispute between the parties concerning the management of the Blowholes reserve and the making of the building orders. We make the findings set out in this paragraph in relation to those matters.
(1)The Blowholes reserve, commonly referred to as 'the Blowholes', is vested in the respondent pursuant to a management order (Management Order) for the purpose of 'Recreation Tourism and Landscape Protection' with the power to lease for any term not exceeding 21 years, subject to the consent of the Minister for Lands (Minister).[30]
[30] Respondent's proposed statement of agreed facts dated 9 March 2023, para 1.
(2)By virtue of the Management Order, the respondent is the 'owner' of the reserve for the purposes of s 5 of the Building Act and reg 10(2) of the Building Regulations.
(3)In 2008, the respondent adopted the Blowholes Masterplan in an effort to progress the longstanding issues between the Shire and the shack occupiers (Blowholes Masterplan).[31] The Masterplan provides for the removal of existing shacks and their replacement with caravan and camping facilities.
[31] Respondent's proposed statement of agreed facts dated 9 March 2023, para 16.
(4)In 2013, the Blowholes Management Plan 2014-2036 was prepared by the respondent, and endorsed by the Minister, which addresses the future use and management of the Blowholes reserve and brings the Blowholes Masterplan into effect (Management Plan).[32]
[32] Respondent's proposed statement of agreed facts dated 9 March 2023, para 16.
(5)In 2016, the respondent issued building orders which required all shacks to be removed from the Blowholes reserve. An application to review those orders was commenced in the Tribunal but the application was eventually withdrawn.[33]
[33] Respondent's proposed statement of agreed facts dated 9 March 2023, para 18.
(6)Following a complaint from a visitor to the Blowholes reserve in 2021 relating to risks from unsecured loose material (including pieces of corrugated tin) from the shacks, the respondent arranged for Mr Gibson to inspect the site and provide a risk assessment.[34]
[34] Respondent's proposed statement of agreed facts dated 9 March 2023, para 20.
(7)The February 2022 Reports prepared by Mr Gibson concluded that the remaining shacks and structures are at high risk of collapse, would become dangerous in a high wind event, and are not fit for human occupation.[35]
[35] Respondent's statement of issues, facts and contentions dated 15 September 2023 (Respondent's SIFC), para 4.
(8)Between 17 March 2022 and 6 April 2022, the respondent issued 31 notices of its intention to issue a building order to each of the persons who have a shack(s) located on the Blowholes reserve.
(9)A final building order was subsequently served on each occupant requiring them to demolish and remove the shacks. The following is an example of its terms:[36]
Pursuant to Section 112(2)(g)(vi) of the Act, you are required within 60 days of being served with this Order to demolish and remove from the reserve and dispose of appropriately at the Shire waste disposal site, the Building and associated structures including building materials, concrete footings, slabs and septic systems associated with Shack 38 situated on Crown Reserve 37457, Blowholes, Shire of Carnavon.
(10)The shacks were identified in each of the building orders in similar terms to the following:[37]
The building identified as Shack 38 situated on Crown Reserve 37457, Blowholes, Shire of Carnarvon, in the location shown on the plan annexed as Attachment 1 (Building), including all associated structures, has been erected without a building permit, in contravention of section 9 of the Act, and is reasonably believed to be in a dangerous state for the reasons identified in the report dated 17 February 2022, attached as Attachment 2.
[36] Exhibit 2, page 908.
[37] Exhibit 2, page 908.
Tribunal's consideration
39On 4 May 2022, the respondent served each of the applicants with a building order to demolish and remove their respective shacks because the respondent believed them to be dangerous.
40On 1 June 2022, the applicants commenced proceedings in the Tribunal pursuant to s 122(1)(a) of Building Act seeking a review of the respondent's decision to make the building orders on the grounds that the shacks are not dangerous. If a shack is found to be dangerous, the applicants would like the opportunity to make it safe.[38]
[38] ts 16, 23 May 2024.
41The respondent says that its decision to serve the building orders on the applicants should be affirmed and not varied. Because of the proximity of the shacks to a corrosive environment, and the ongoing cycle of 'risk and repair', it is the respondent's position that all shacks identified as dangerous should be demolished.[39] The respondent contends that the shacks are unapproved and are non-compliant with the NCC.[40] The joint experts agreed, and we find, that the shacks and associated structures do not generally comply with current recognised building standards including the NCC and relevant AS/NZ standards.
[39] ts 364-365, 407, 14 March 2024.
[40] Respondent's SIFC, para 11.
42The respondent further contends that the shacks are incapable of retrospective building approval because the applicants are not the owners of the land on which the shacks are situated and, consequently, they are unable to sign any building approval certificate applications. For the same reason, the respondent says that the shacks are incapable of being the subject of an application for a building permit for any further building (repair) works.[41]
[41] Respondent's SIFC, para 12.
43We observe that the building approval forms of the Department of Energy, Mines, Industry Regulation and Safety (DMIRS) provide that a BA1 (application for building permit) does not require the owner's signature in respect of Class 1 or Class 10 buildings or incidental structures. However, a BA13 (application for building approval certificate) does require the owner's signature.
44We will first consider the scope of the Tribunal's power to review the making of a building order.
Scope of the Tribunal's power to review the making of a building order
45A person who is served with a building order by a permit authority may apply to the Tribunal pursuant to s 122(1) of the Building Act for a review of the decision to make the building order or in relation to a requirement of the order.
46Section 122(1) of the Building Act provides:
(1)A person who is served with a copy of a building order may apply to the State Administrative Tribunal for a review of the decision of the permit authority –
(a)to make the building order; or
(b)in relation to a requirement of the order.
(2)The institution of a proceeding for the review of a decision under subsection (1) in relation to a building order other than a building order (emergency) stays the operation of the order pending the determination of the proceeding.
47Based on the text of the provision and its broader statutory context, we find that paragraph (a) and paragraph (b) of s 122(1) of the Building Act are to be read disjunctively because of the drafter's use of the word 'or' at the end of paragraph (a). Consequently, an application for the review of a building order may be made to the Tribunal pursuant to s 112(1)(a) of the Building Act or s 112(1)(b) of the Building Act.
48In Sanur Pty Ltd and City of Subiaco [2021] WASAT 90 (Sanur),[42] the Tribunal considered the scope of its power to review a building order in circumstances where the application was commenced under s 122(1)(b) of the Building Act. The Tribunal stated:[43]
Section 122(1) of the Building Act confers a right on a person who is served with a copy of a building order to apply to the Tribunal for a review of 'the decision of the permit authority … to make the building order … or … in relation to a requirement of the order'. As the City submits, this provision 'limits the scope of this [T]ribunal's review to the question of whether the building order should … [be] made at all and whether the individual requirements of that order should … [be] made or should be varied within the scope of the power that was actually exercised'. Section 122(1) of the Building Act does not confer jurisdiction or power on the Tribunal to make a different building order to the building order that was served by the permit authority on the relevant applicant and, in particular, does not confer jurisdiction or power on the Tribunal to vary the building order (or set it aside and substitute a building order) requiring the relevant applicant to demolish the building to which the building order relates under s 110(1)(c) and s 112(2)(g)(vi) of the Building Act when the City made a building order requiring the applicant to shore up the building in a specified way under s 110(1)(c) and s 112(2)(g)(iv) of the Building Act or to repair the building in a specified way under s 110(1)(c) and s 112(2)(g)(v) of the Building Act. That would go beyond the review of 'the decision of [the City] … to make the building order [which it made and a copy of which it served on the relevant applicant] … or … in relation to a requirement of the order'.
[42] The orders of the Tribunal were published in a supplementary decision in Sanur Pty Ltd and City of Subiaco [2021] WASAT 90 (S).
[43] Sanur at [163].
49In Sanur, the Tribunal did not make a distinction between the scope of its power to review the making of a building order if the application is brought pursuant to s 122(1)(a) as opposed to s 122(1)(b) of the Building Act. Whilst we find Sanur of assistance in determining the scope of our power to review the making of a building order, we observe that the application in that proceeding was made pursuant to paragraph (b) and not paragraph (a) of s 122(1) of the Building Act as is the case in this proceeding.
50The buildings orders that are the subject of this proceeding were made by the respondent pursuant to s 110(1)(c) and s 112(2)(g)(vi) of the Building Act. The applicants rely on s 122(1)(a) of the Building Act to review the respondent's decision to make the building orders. Consequently, the decision that is the subject of the review by the Tribunal pursuant to s 122(1)(a) of the Building Act is the respondent's decision to make the building orders for demolition pursuant to s 112(2)(g)(vi) of the Building Act because it reasonably believed the shacks to be in a dangerous state.
51It follows that if we reasonably believe that a shack is not in a dangerous state for the purposes of s 112(2)(g) of the Building Act, we may set aside the decision of the respondent to issue a building order requiring demolition of the shack (and substitute our own decision in respect of that shack or send the matter back to the decision-maker for reconsideration).[44]
[44] See SAT Act, s 29(3).
52If we reasonably believe that a shack is in a dangerous state, we may affirm the respondent's decision to issue a building order requiring demolition of the shack or vary the respondent's decision.[45] The decision under review is in respect of the making of a building order by the respondent and, consequently, we are empowered to vary the building order to direct the applicants to do any one or more of the actions listed in s 112(2)(g)(i) to s 112(2)(g)(vi) of the Building Act. We have the authority to vary the building order because the proceeding was brought pursuant to s 122(1)(a) of the Building Act in respect of the making of a building order by the respondent (under s 112(2)(g)(vi) of the Building Act) and not in relation to a requirement of an order pursuant to s 122(1)(b) of the Building Act. However, in varying the respondent's decision in circumstances where we find that a shack is in a dangerous state, we are unable to make any of the orders referred to in s 112(2)(a)-(f) of the Building Act because they are not powers that may be exercised if a building is reasonably believed to be dangerous.
[45] See SAT Act, s 29(3).
53Where a building order is the subject of a review pursuant to s 122(1)(b) of the Building Act, we observe that the scope of the Tribunal's power to vary the decision of the permit authority and make a different order under s 112(2)(g) of the Building Act is necessarily constrained (as was the case in Sanur) because the review is limited to a requirement of the relevant building order and not the making of it.
54We will next consider the meaning of the expression 'dangerous state' in s 112(2)(g) of the Building Act.
What is the meaning of 'dangerous state'?
55The building orders were issued to the applicants pursuant to s 112(2)(g) of the Building Act on the basis that the shacks were reasonably believed by the respondent to be in a 'dangerous state'.
56The expression 'dangerous state' is not defined in the Building Act. Notably, the expression 'dangerous situation' is defined in s 76 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) to mean 'a situation where there is an imminent and high risk to people, property or the environment from the carrying out of a building service'.
57Counsel for the respondent observed that the Building Act makes provision for emergency building orders where there is an imminent and high risk to people, property or the environment arising from the dangerous state of a building.[46] We accept this contention, and we find, that that the expression 'dangerous state' in s 112(1)(g) of the Building Act should be afforded its ordinary meaning without a temporal element necessitating an imminent risk to persons or property.
[46] See Building Act, s 111(2); ts 396, 14 March 2024.
58The expression 'dangerous' is defined in the Macquarie Dictionary Online as meaning:
adjective full of danger or risk; causing danger; perilous; hazardous; unsafe.
59Relevantly, the expression 'state' is defined in the Macquarie Dictionary Online as follows:
noun1. the condition of a person or thing, as with respect to circumstances or attributes: a state of disrepair.
…
60The joint experts agreed, and we find, that a shack may be structurally sound but may still be dangerous if part of the shack, such as loose or corroded roof sheeting, poses a risk of harm to its occupants or other persons in the vicinity.
61Consequently, we will find that a shack is in a 'dangerous state' for the purposes of s 112(2)(g) of the Building Act if we reasonably believe, based on the evidence before us, that the condition of the shack presents a risk of harm to its occupants or to other persons or property in the vicinity, and/or the shack is structurally unsound.
62We will next consider whether each of the shacks are in a dangerous state.
Are the shacks in a dangerous state?
63In Annexure A to these reasons is a table setting out a summary of the evidence provided by the joint experts, and our findings, in respect of each shack which the experts agreed are not in a dangerous state.
64Whilst the respondent may have held a reasonable belief that the shacks listed in Annexure A were in a dangerous state when the buildings orders were given to the applicants, our belief as to the state of the shacks must be based on the evidence before us at the final hearing, including the dilapidation reports prepared by Mr Gibson and the opinions expressed by the experts in the joint statement. In this proceeding, the joint experts carried out further inspections of the shacks during the course of the final hearing and, consequently, we had the benefit of their expert opinion following those inspections. Pursuant to s 27(1) of the SAT Act, we are entitled to consider new material whether or not it existed at the time the decision to issue the building orders was made by the respondent.
65Our findings in respect of the remainder of the shacks, the subject of this proceeding, which we have found to be in a dangerous state, are addressed below.
66A map of the Blowholes reserve showing the location of each of the shacks is contained in Annexure B to these reasons.
Shack 1
67Following an inspection of shack 1 on 13 March 2024, the joint experts ultimately agreed that shack 1 (including the attached patio) is in a dangerous state.
68Whilst additional work had been done to the shack since Mr Gibson prepared the joint expert report, it was Mr Gibson's opinion that shack 1 remains in a dangerous state due to corrosion (to the external cladding and steel support structure) and erosion under the shack's foundation which has created a void. During an inspection of the shack on 13 March 2024, Mr Gibson observed that a 3-metre section of the cement floor had collapsed.[47]
[47] ts 231, 13 March 2024.
69Mr Bouse did not originally consider that shack 1 was in a dangerous state to occupants and others in the vicinity because the external sheets were not sufficiently rusted to render the cladding dangerous. He also did not consider the floor slab was at risk of collapsing.[48] At the final hearing, Mr Bouse observed that a lot of work had been done to the shack since he had prepared the joint statement and, for this reason, maintained his opinion that the shack was not dangerous. However, following a further inspection of shack 1 on 13 March 2024, Mr Bouse agreed with the opinion of Mr Gibson that the shack is structurally unsound and dangerous.[49]
[48] Joint statement of expert witnesses filed on 5 February 2024, page 3.
[49] ts 232, 13 March 2024.
70We accept the evidence of the joint experts, and we find, that shack 1 (including the attached patio) is in a dangerous state because of the corrosion to the external cladding and steel support structure, and the existence of a void under the cement floor which has partly collapsed.
Shack 4
71The joint experts agreed that shack 4 is in a dangerous state.
72In Mr Gibson's opinion, the shack is dangerous due to deterioration of the steel structure, and a lack of footings and tie downs. During an inspection of the shack on 13 March 2024, Mr Gibson confirmed that there were no footings or tie downs.[50] He observed that the roof sheeting was screwed down but was corroded.[51]
[50] ts 236, 13 March 2024.
[51] ts 236, 13 March 2024.
73Mr Bouse agreed with Mr Gibson's assessment of shack 4 and considered the shack remains structurally unsound and dangerous to others in the vicinity.[52]
[52] ts 237, 13 March 2024.
74We accept the evidence of the joint experts, and we find, that shack 4 is in a dangerous state because of the absence of footings and tie downs, and corrosion to the roof sheeting.
Shack 12 – patio
75The joint experts agreed, and we find, that the patio to Shack 12 is in a dangerous state because of undersized building elements.[53]
[53] Joint statement of expert witnesses filed on 5 February 2024, page 4.
Shack 17
76The joint experts agreed that the pergola attached to shack 17 is in a dangerous state and needs to be demolished.[54] The experts further agreed that the outbuilding is not in a dangerous state and does not need to be demolished. However, the experts did not agree on the dilapidation status of shack 17.
[54] Joint statement of expert witnesses filed on 5 February 2024, page 5.
77Following an inspection of shack 17 on 13 March 2024, Mr Gibson maintained his opinion that the shack is not structurally sound because the supporting steel post is badly corroded at the base.[55] In Mr Gibson's opinion, the shack would not meet wind load requirements due to the extensive corrosion.[56] He considered that the roof of the shack would be dangerous if someone were to walk on it due to the corrosion of three to four roof sheets. Consequently, it is Mr Gibson's opinion that shack 17 is not structurally sound and the roof is dangerous.[57]
[55] ts 256-257, 13 March 2024.
[56] ts 258, 13 March 2024.
[57] ts 272, 13 March 2024.
78During the inspection of shack 17 on 13 March 2024, Mr Bouse observed that the roof had bad rust spots between the purlins and considered that water could leak through the roof. However, he did not consider this to be a structural issue. He also did not consider that the roof sheets are sufficiently corroded to warrant demolition of shack 17.[58] Mr Bouse agreed with the observations of Mr Gibson that the supporting post is partially corroded but considered that it was a matter for engineer's advice.[59]
[58] ts 273, 13 March 2024.
[59] ts 258, 13 March 2024.
79We prefer the evidence of Mr Gibson, and we find, that shack 17 is in a dangerous state because the supporting post is badly corroded. We further find that due to the extensive corrosion of three to four roof sheets, the shack would present a danger to anyone walking on the roof. The experts agreed, and we find, that the pergola attached to shack 17 is in a dangerous state and needs to be demolished. However, we find that the outbuilding is not in a dangerous state because it has been recently renovated.[60]
[60] Joint statement of expert witnesses filed on 5 February 2024, page 5.
Shack 18
80The joint experts agreed that shack 18 is in a dangerous state because it is structurally unsound.[61] Their concern about the structural integrity of the shack was confirmed by an inspection of the shack on 13 March 2024.[62] Mr Gibson and Mr Bouse agreed that the wall and roof sheeting of the shack is badly corroded and that the shack has not been constructed to withstand wind loads.[63]
[61] Joint statement of expert witnesses filed on 5 February 2024, page 5.
[62] ts 276, 13 March 2024.
[63] ts 274-275, 13 March 2024.
81We accept the evidence of the joint experts, and we find, that shack 18 is in a dangerous state because the wall and roof sheeting of the shack is badly corroded.
Shack 19
82The joint experts agreed that shack 19 is in a dangerous state because it is structurally unsound.[64]
[64] Joint statement of expert witnesses filed on 5 February 2024, page 6.
83Some work to the shack had been undertaken since the experts prepared the joint statement. Whilst Mr Gibson acknowledged that the work may have helped, his opinion about the shack had not changed. During an external assessment of shack 19 on 13 March 2024, Mr Gibson observed that the steel frame was still corroded and, consequently, remained of the opinion that the shack is dangerous.[65]
[65] ts 296, 13 March 2024.
84In the opinion of Mr Bouse, the current state of the shack is 'not good'. He concluded that the shack is structurally unsound and dangerous.[66]
[66] ts 296, 13 March 2024.
85We accept the evidence of the joint experts, and we find, that shack 19 is in a dangerous state and structurally unsound because the steel frame is corroded.
Shack 22 – patio
86The joint experts agreed, and we find, that the patio to Shack 22 is in a dangerous state. We further find, based on the evidence of the experts which we accept, that the patio could be removed without disturbing the shack.
Shack 23
87The joint experts agreed that shack 23 is in a dangerous state because it is structurally unsound.[67]
[67] Joint statement of expert witnesses filed on 5 February 2024, page 6; ts 300, 13 March 2024.
88Mr Gibson considered that shack 23 is in a dangerous state due to the state of corroded sheeting. He also observed that asbestos cladding had been removed from the shack and, consequently, the status of asbestos containing material was unknown. During an inspection of the shack on 13 March 2024, Mr Gibson observed that the beam resting on the cross member of the roof truss system had no support.[68]
[68] ts 199, 13 March 2024.
89In the opinion of Mr Bouse, the shack is structurally unsound and in a dangerous state.[69] He agreed with Mr Gibson that uplift was a concern.[70] This is consistent with the view expressed by the experts in the joint statement that the shack was in danger of collapse in high winds.
[69] ts 301, 13 March 2024.
[70] ts 302, 13 March 2024.
90We accept the evidence of the experts, and we find, that shack 23 is in a dangerous state because of corrosion to the sheeting and the inadequate truss system. Based on the evidence before us, we find that the shack is in danger of collapse in high winds.
Shack 26
91The joint experts agreed, and we find, that shack 23 is in a dangerous state because of white ant damage, corrosion to the steel components and lack of up lift resistance.[71] We further find, based on the evidence of the joint experts which we accept, that there has been no substantial alteration to the shack since August 2023.
[71] Joint statement of expert witnesses filed on 5 February 2024, page 7.
Shack 32
92The joint experts agreed that shack 32 is in a dangerous state because it is structurally unsound.
93In Mr Gibson's opinion, the shack is dangerous due to substantial corrosion to the external cladding and fixings on the ocean side.[72] Whilst Mr Bouse did not initially consider shack 32 to be in a dangerous state, his opinion changed after an external inspection of the shack on 13 March 2024.[73]
[72] ts 279, 13 March 2024.
[73] ts 277 and ts 279, 13 March 2024.
94We accept the evidence of the joint experts, and we find, that shack 32 is in a dangerous state due to substantial corrosion to the external cladding and fixings.
Shack 35
95The joint experts agreed, and we find, that shack 32 is in a dangerous state due to the quality of the steel subframe (which has corroded) and the absence of footings.[74]
[74] Joint statement of expert witnesses filed on 5 February 2024, page 8.
Shack 43
96The joint experts agreed, and we find, that shack 43 is in a dangerous state due to corrosion of the steel structure and cladding.[75]
[75] Joint statement of expert witnesses filed on 5 February 2024, page 9.
What is the proper classification of the shacks under the NCC?
97We propose to make orders giving the applicants the opportunity to remedy the shacks that we have identified are in a dangerous state. If remedial work is required to the shacks, it is the respondent's position that future building work may require a building permit (which could only be issued with the consent of the owner of the land on which the shacks are located).
98The respondent contends that the shacks are Class 1 buildings because they are habitable.[76] A Class 1a building, for example, is a single dwelling being a detached house, or one of a group of attached dwellings being a town house, row house or the like. In Mr Gibson's opinion, the shacks are Class 1 buildings and works of a structural nature carried out to the shacks would require a building permit.[77] A building permit is generally required for building work for a Class 1 building if the work affects the structural soundness of the building.[78]
[76] ts 408, 14 March 2024.
[77] ts 81, 12 March 2024.
[78] See Building Act, s 9(a) and s 9(b); Building Regulations, Sch 4, cl 2, item 2.
99In contrast, the applicant contends that the shacks are not Class 1 buildings because the shacks do not have bedrooms or separate rooms like a kitchen and dining area.[79] Mr Aylmore said that people using the shacks generally sleep and cook outside.[80] Consequently, it is the applicant's position that the shacks are ancillary buildings, being a shed. In the opinion of Mr Bouse, the shacks are Class 10 buildings because they are non-habitable.[81]
[79] ts 23, 11 March 2024.
[80] ts 23, 11 March 2024; ts 29, 12 March 2024.
[81] ts 84, 12 March 2024.
100We find that the shacks are Class 10a buildings for the purposes of the NCC because they are non-habitable buildings which fall within the meaning of a private garage, carport, shed or the like. The shacks are not houses (or dwellings) that are domestic or residential in nature and, therefore, are not Class 1 buildings. We have reached the conclusion that the shacks are Class 10a buildings for the following reasons:
(1)The expression 'dwelling,' referred to in the description of a Class 1 building, is defined in State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes) as a building designed or intended to be used for the purpose of human habitation on a permanent basis. Based on the evidence of Mr Aylmore, which we accept, we find that the shacks are not used for human habitation on a permanent basis but are typically used intermittently and as an annex for outdoor cooking and living.
(2)According to the Australian Building Codes Board (ACBC) Housing Provisions of the NCC, a Class 1 building must be provided with the following:[82]
[82] NCC 2022, Part 10.4.1 Required facilities; Exhibit 3.
a)a kitchen sink and facilities for the preparation and cooking of food; and
b)a bath or shower; and
c)clothes washing facilities, comprising at least one washtub and space in the same room for a washing machine; and
d)a closet plan; and
e)a washbasin.
Based on the evidence before us, we are not satisfied that each shack has all of the above facilities.
(3)The shacks are akin to a private garage, carport, shed or the like, which are referred to in the NCC as non-habitable buildings. The expression 'non-habitable building' is not defined in the NCC. However, a 'habitable room' is defined in the NCC as a room used for normal domestic activities and includes a bedroom, living room, lounge room, music room, television room, kitchen, and dining room etc. For the reasons stated above, we find that the shacks are not used for human habitation on a permanent basis and do not generally have habitable rooms such as bedrooms, a kitchen or dining room, which are used for normal domestic activities. Consequently, we find that the shacks are non-habitable buildings for the purposes of the NCC.
101The Building Regulations provide that in the local government district of Carnarvon, a building permit is not required for building work for a Class 10 building or incidental structure located in the 'GascoyneMinilya Ward'. 'Building work' is defined in the Building Act to include 'the renovation, alteration, extension, improvement or repair of a building or an incidental structure'.[83]
[83] Building Act, s 3.
102There was no dispute, and we find, that the shacks are located in the Gascoyne-Minilya Ward.
103Consequently, for these reasons, we find that a building permit is not required for building work carried out to the shacks.
Conclusion
104We have found that shacks 1, 4, 17, 18, 19, 23, 26, 32, 35, 43 and the patio to both shack 12 and shack 22 are in a dangerous state because the relevant shack (or incidental structure) presents a risk of harm to its occupants or others in the vicinity, and/or the shack is structurally unsound (dangerous shacks). However, rather than affirming the respondent's decision to make the building orders, we have decided that the correct and preferable decision is to afford the applicants the opportunity to repair the dangerous shacks (including the patio to shack 12 and shack 22) because the structures are demonstrably capable of being made safe.
105Consequently, we will vary the respondent's decision to make the building orders and make an order pursuant to s 112(2)(g)(v) of the Building Act in respect of shacks 1, 4, 17, 18, 19, 23, 26, 32, 35 and 43 and the patio to both shack 12 and shack 22 (dangerous shacks) that the applicants must, by 30 August 2024, repair them so as to prevent or stop the building or incidental structure from being a danger to persons or to other property, and to make them structurally sound.
106We will make a further order that if the dangerous shacks are not repaired by 30 August 2024 the applicants must, by 30 September 2024, demolish and remove them from the Blowholes reserve (including building materials, concrete footings slabs and septic systems) and dispose of all building waste at the Shire's waste disposal facility, the Brown Range Waste Management Facility, in accordance with all disposal requirements of the facility, pursuant to s 112(2)(g)(vi) of the Building Act.
107In respect of the shacks listed in Annexure A, which we have found are not in a dangerous state, we will set aside the decision of the respondent to issue the building orders and make an order that the building orders in respect of shacks 2, 3, 12, 13, 15, 21, 22, 28, 31, 34, 37, 38 and 42 are revoked pursuant to s 117(1) of the Building Act.
Orders
108Subject to hearing from the parties, the Tribunal will order:
1.The application for review is allowed.
2.The decision of the respondent to make building orders dated 4 May 2022 in respect of the shacks 1, 4, 12, 17, 18, 19, 22, 23, 26, 32, 35 and 43 located at Crown Reserve 37457, Blowholes, Carnarvon, (Reserve) is varied as follows:
(a)Pursuant to s 112(2)(g)(v) of the Building Act 2011 (WA) in respect of shacks 1, 4, 17, 18, 19, 23, 26, 32, 35 and 43 and the patio to shack 12 and shack 22 the respective applicant must repair the building or incidental structure so as to prevent or stop the building or incidental structure from being a danger to persons or to other property by 5.00 pm on 30 August 2024.
(b)If shacks 1, 4, 17, 18, 19, 23, 26, 32, 35 and 43 and the patio to shack 12 and shack 22 are not repaired by the date specified in order 2(a) the respective applicant must pursuant to s 112(2)(g)(vi) of the Building Act 2011 (WA) demolish and remove from the Reserve and dispose of at the Brown Range Waste Management Facility in accordance with all disposal requirements of the facility the building or incidental structure (including building materials, concrete footings, slabs and septic systems) in respect of shacks 1, 4, 17, 18, 19, 23, 26, 32, 35 and 43 and the patio to shack 12 and shack 22 by 5.00 pm on 30 September 2024.
(c)Pursuant to s 112(3)(c) of the Building Act 2011 (WA) the respective applicant must notify the respondent when the applicant has done what order 2(a) and order 2(b) require the applicant to do.
3.The decision of the respondent to make building orders dated 4 May 2022 in respect of shacks 2, 3, 12, 13, 15, 21, 22, 28, 31, 34, 37, 38 and 42 located at Crown Reserve 37457, Blowholes, Carnarvon, is set aside and the building orders in respect of those shacks are revoked pursuant to s 117(1) of the Building Act 2011 (WA).
4.The proceeding is listed for a directions hearing at 2.00 pm on 15 July 2024 at 565 Hay Street, Perth, Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
7 JUNE 2024
ANNEXURE A
Condition of shacks 2, 3, 12, 13, 15, 21, 22, 28, 31, 34, 37, 38 and 42
| Shack No. | Joint statement | Summary of Mr Bouse's evidence (expert engaged by the applicant) | Summary of Mr Gibson's evidence (expert engaged by the respondent) | Tribunal's findings |
| 2 | The joint experts agreed that shack 2 is not in a dangerous state to occupants and others in the vicinity.[84] | Based on the evidence of the joint experts, which we accept, we find that shack 2 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 2 and revoke the building order. | ||
| 3 | The joint experts agreed that shack 3 has been removed and that the toilet block has been left standing. The experts further agreed that the toilet block is not in a dangerous state to occupants and other in the vicinity.[85] | Based on the evidence of the joint experts, which we accept, we find that shack 3 has been removed. We further find that the toilet block remains standing but is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of the toilet block of shack 3 and revoke the building order. | ||
| 12 | The joint experts agreed that the patio attached to shack 12 is in a dangerous state.[86] | Mr Bouse could not initially provide an opinion about shack 12 because he had not been inside. However, following an external inspection of the shack on 13 March 2024, Mr Bouse agreed with Mr Gibson that the shack is in a reasonable condition and structurally sound.[87] | Mr Gibson initially considered shack 12 to be in a dangerous state due to the poor integrity of the shack's structure. However, following an external inspection of the shack on 13 March 2024, Mr Gibson advised that the shack is in a satisfactory condition, and that the roof and cladding is not overly corroded.[88] In his opinion, the shack is structurally sound and not dangerous.[89] | We accept the evidence of the joint experts, and we find, that shack 12 is structurally sound and not dangerous. However, based on the evidence of the joint experts, which we accept, we find that the patio attached to shack 12 is in a dangerous state because of undersized building elements. Accordingly, we will affirm the respondent's decision to issue the building order in respect of the patio of shack 12 but will set aside the respondent's decision to issue the building order in respect of shack 12 and revoke that part of the building order. |
| 13 | The joint experts originally agreed that shack 13 is in a dangerous state to occupants and others in the vicinity and needs to be demolished.[90] This was on the basis that the aluminium sheet wall fixings had corroded, the screen wall sheets and flashings were not secured, and the patio beams were undersized. However, new works had been completed to the shack prior to the final hearing. | Mr Bouse agreed with Mr Gibson's comments. | Following an inspection of the shack on 11 March 2024, Mr Gibson observed evidence of new works and, in his opinion, the shack is likely to be structurally sound. | Based on the evidence of the joint experts, which we accept, we find that shack 13 is no longer in a dangerous state following works carried out to the shack prior to the final hearing. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 13 and revoke the building order. |
| 15 | The joint experts originally agreed that shack 15 is in a dangerous state to occupants and others in the vicinity and needs to be demolished.[91] This was on the basis that the shack is not structurally sound, the screw fittings to the external cladding are too far apart, and the fixing purlins are over spaced. However, new works had been completed to the shack prior to the final hearing. | At the final hearing, Mr Bouse agreed with the evidence of Mr Gibson that shack 15 was not in a dangerous state.[92] However, Mr Bouse considered that the fence was dangerous. | Following an inspection of shack 15 on 13 March 2024 in which internal access was granted, Mr Gibson observed extra purlins and an extra column to the support beam with wall sheets appropriately fixed. He also observed that the solar panels were fixed to the roof.[93] In his opinion, the shack is likely to be structurally sound and to meet wind load requirements. However, in his opinion the fence located adjacent to shack 15 is dangerous.[94] | Based on the evidence of the joint experts, which we accept, we find that shack 15 is no longer in a dangerous state following works carried out to the shack prior to the final hearing. However, we find that the fence (which was not the subject of a building order) is dangerous. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 15 and revoke the building order. |
| 21 | The joint experts agreed that shack 21 is not in a dangerous state to occupants and others in the vicinity.[95] | Based on the evidence of the joint experts, which we accept, we find that shack 21 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 21 and revoke the building order. | ||
| 22 | The joint experts agreed that the patio attached to shack 22 is in a dangerous state and could be removed without disturbing the shack. However, the experts agreed that shack 22 is not in a dangerous state.[96] | Based on the evidence of the joint experts, which we accept, we find that the patio attached to shack 22 is in a dangerous state because of sub-standard framing. However, the experts agreed, and we find, that the remainder of shack 22 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 22 (excluding the patio) and revoke that part of the building order that applies to the shack. | ||
| 28 | The joint experts agreed that shack 28 is not in a dangerous state to occupants and others in the vicinity.[97] | Based on the evidence of the joint experts, which we accept, we find that shack 28 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 28 and revoke the building order. | ||
| 31 | The joint experts did not originally agree on the dilapidation status of shack 31. Mr Gibson considered shack 31 to be in a dangerous state because of corrosion to its steel components and inadequate structural integrity.[98] | Mr Bouse considered shack 31 is not in a dangerous state. However, he observed that maintenance is required to shack 31 to address its rusty roof and wall sheeting.[99] | Following an inspection of shack 31, it is Mr Gibson's opinion that it is no longer dangerous because the steel column has been replaced with sizeable footings placed underneath the shack. | Based on the evidence of the joint experts, which we accept, we find that shack 31 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 28 and revoke the building order. |
| 34 | The joint experts did not originally agree on the dilapidation status of shack 34. | Whilst Mr Bouse acknowledged that there did not appear to be any tie downs or footings evident, he considered that shack 34 is not in a dangerous state. | Mr Gibson initially considered that shack 34 was in a dangerous state due to the lack of footings and tie downs. However, after viewing photographs provided by the applicants showing the presence of footings inside the shack, he was satisfied that shack 34 is structurally sound. | We accept the evidence of the joint experts, and we find, that shack 34 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 34 and revoke the building order. |
| 37 | The joint experts agreed that shack 37 is not in a dangerous state to occupants and others in the vicinity.[100] | Based on the evidence of the joint experts, which we accept, we find that shack 37 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 37 and revoke the building order. | ||
| 38 | The joint experts agreed that shack 37 is not in a dangerous state to occupants and others in the vicinity.[101] | Based on the evidence of the joint experts, which we accept, we find that shack 38 is not in a dangerous state because remedial works have been carried out to address the absence of tie downs. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 38 and revoke the building order. | ||
| 42 | The joint experts originally agreed that shack 42 is in a dangerous state because of corrosion to its steel support structure and white ant damage affecting the structural integrity of the shack. [102] However, new works had been completed to the shack during the course of the final hearing. | Mr Bouse agreed with Mr Gibson's comments. Mr Bouse did not observe any rusty steel on the inspection carried out on 13 March 2024 and white ant damage had been rectified.[103] He did not consider the shack was dangerous.[104] | Following an inspection of shack 42 on 13 March 2024, Mr Gibson observed that extensive works had been carried out to the shack, including concrete added to the existing footings which were still wet (as they had been recently completed), the cladding to the patio area had been reframed, extra steel roof purlins had been added and wall sheeting had been refixed.[105] In Mr Gibson's opinion, the shack was probably not dangerous and would be wind resistant.[106] | Based on the evidence of the joint experts, which we accept, we find that shack 42 is not in a dangerous state. Accordingly, we will set aside the respondent's decision to issue the building order in respect of shack 42 and revoke the building order. |
[84] Joint statement of expert witnesses filed on 5 February 2024 (Joint statement), page 3.
[85] Joint statement, page 3.
[86] Joint statement, page 4.
[87] ts 240, 242 13 March 2024.
[88] ts 238-239, 13 March 2024.
[89] ts 241, 13 March 2024.
[90] Joint statement, page 4.
[91] Joint statement, page 5.
[92] ts 250, 13 March 2024
[93] ts 243, 13 March 2024.
[94] ts 244, 13 March 2024.
[95] Joint statement, page 6.
[96] Joint statement, page 6.
[97] Joint statement, page 7.
[98] Joint statement, page 7.
[99] Joint statement, page 7.
[100] Joint statement, page 9.
[101] Joint statement, page 9.
[102] Joint statement, page 9.
[103] ts 288, 13 March 2024.
[104] ts 296, 13 March 2024.
[105] ts 280-281, ts 293, 13 March 2024.
[106] ts 293, 13 March 2024.
ANNEXURE B
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
7 JUNE 2024
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