SULLIVAN and SHIRE OF CARNARVON

[2023] WASAT 43

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING ACT 2011 (WA)

CITATION:   SULLIVAN and SHIRE OF CARNARVON [2023] WASAT 43

MEMBER:   MS C BARTON, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   20 JUNE 2023

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 - Demolish and remove building - Whether person occupier of land - Meaning of control or management - Permit authority - Crown reserve - Management order

Legislation:

Building Act 2011 (WA), s 3, s 5, s 6, s 93(1), s 94, s 110(1), s 110(1)(c), s 110(2), s 110(2)(d), s 112(2)(g)(vi), s 113(2)(g)(vi), s 115, s 122(1)(a), Pt 3, Pt 7, Pt 8, Div 5
Building Regulations 2012 (WA), reg 10(2)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3
Interpretation Act 1984 (WA), s 6, s 17, s 44(1),
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Planning Policy 7.3 - Residential Design Codes Volume 1

Result:

Preliminary issues answered in the affirmative

Category:    B

Representation:

Counsel:

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	:	Mr TL Beckett & Ms 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):

Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463

City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61

Corpus and Shire of Broome (2017) 91 SR (WA) 365; [2017] WASAT 66

Jasinski and City of Mandurah [2020] WASAT 2

Mohammadi and Bethune [2018] WASCA 98

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Robert and Shire of Kellerberrin [2016] WASAT 11

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405

Thomas and City of Stirling [2013] WASAT 110

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 4 May 2022, the Shire of Carnarvon (respondent) served each of the applicants (applicants) with a building order to demolish and remove certain structures (building order) erected on Crown Reserve 37457, Blowholes, Carnarvon (reserve).

2. On 1 June 2022, the applicants commenced proceedings in the Tribunal pursuant to s 122(1)(a) of the Building Act 2011 (WA) (BuildingAct) seeking a review of the respondent's decision to make a building order.

3. Two preliminary issues arise for determination in these proceedings. The Tribunal made orders on 25 January 2023 that the preliminary issues are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Factual background

1. Certain factual matters are uncontroversial.  I make the following findings set out in this paragraph in relation to those matters.

   1.The reserve 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).

   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 2012 (WA) (Building Regulations).

   3.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 reserve (structures or shacks).  A final building order was subsequently served on each occupant requiring them to demolish and remove the shacks.

   4.Pursuant to s 6 of the Building Act, the respondent is the 'permit authority' for the shacks.

   5.On 1 June 2022, 23 of the persons who have a shack(s) on the reserve applied to the Tribunal to review the respondent's decision to make a building order.

   6.The respondent has historically permitted the applicants to use and occupy the shacks.  Draft leases have been prepared by the respondent to formalise the applicants' use and occupation of the land on which the shacks are located (draft leases).

   7.Most, if not all, of the shacks were constructed before the commencement of Pt 8 Div 5 the Building Act on 2 April 2012 (commencement day).

   8.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 reserve.

Issues for determination

1. The parties agreed that the following preliminary issues arise for determination:

   1.Whether the applicants are 'occupiers' for the purposes of s 110(2)(d) of the Building Act?

   2.Whether Pt 8 Div 5 of the Building Act applies to the 'structures' that are the subject of the building order?

Principles of statutory construction

1. A statutory provision must be construed, in its context, so that it is consistent with the language and purpose of all the provisions of the statute:  Mohammadi and Bethune [2018] WASCA 98 (Mohammadi) at [32]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].

2. In City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 at [66], the Western Australian Court of Appeal referred to the following passage from Mohammadi:

   … the objective discernment of the statutory purpose is integral to contextual construction.  The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials.  The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions[.]

3. Definitions contained in a written law apply to the construction of the text of the written law that contain those definitions.[1]  Further, words and expressions used in subsidiary legislation have the same respective meanings as in the written law under which the subsidiary legislation is made.[2]

   [1] Interpretation Act 1984 (WA) (Interpretation Act), s 6.

   [2] Interpretation Act, s 44(1).

4. Generally, the ordinary meaning of a word in a statute will prevail.  In Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 at [22], his Honour Hall J stated:

   … If it is intended that a word in a statute will be used in a specific way that may not accord with ordinary usage such an intention is generally reflected in a definition in the statute.  Absent such a definition, the ordinary meaning should prevail unless there is something in the context to suggest that another meaning is intended[.]

5. This is consistent with the approach of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [94] in which his Honour Edelman J stated, 'where a statute employs a term in its ordinary sense, there can be no warrant for the extension of the meaning beyond its ordinary sense'.

6. I will first consider whether each of the applicants is an 'occupier' of the land on which the shacks are located for the purposes of s 110(2)(d) of the Building Act.

Is each applicant an 'occupier' of land?

1. Section 110(1) of the Building Act provides that a permit authority may make an order (referred to in the Building Act as a 'building order') in respect of one or more of the following -

   (a)particular building work;

   (b)particular demolition work;

   (c)a particular building or incidental structure, whether completed before or after commencement day.

2. Relevantly, s 110(2)(d) of the Building Act provides that a building order must be in an approved form and must be directed to any one or more of the following persons as is appropriate in the case -

   …

   (d)a person who is an owner or occupier of the land on which the particular building or incidental structure is located.

3. The expression 'occupier' is defined in s 94 of the Building Act as follows:

   occupier, of a place, includes any person who appears to have the control or management of the place.

4. The full meaning of the expression 'place' (as referred to in the above definition of 'occupier') is not defined in the Building Act. However, 'place' is defined in s 94 of the Building Act to include 'a vehicle'.

5. In the Macquarie Dictionary Online, 'place' is defined broadly to include:

   1.a particular portion of space, of definite or indefinite extent.

   2.space in general (chiefly in connection with time).

   3.the portion of space occupied by anything.

   …

   21.a building.

   22.a part of a building.

   23.

   a.a residence, dwelling, or house.

   b.a property (def. 3) comprising land, buildings, residence, etc.

6. Notably, the dictionary meaning of 'place' is consistent with its definition for the purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). In the BS(CRA) Act, the expression 'place' means 'any land, building or structure, or part of any land, building or structure'.[3]

   [3] BS(CRA) Act, s 3.

7. Consequently, I find that a 'place' for the purposes of its definition in s 94 of the Building Act is a portion of land or property, including a building, structure or vehicle on that land or property.

8. The expression 'appears' is not defined in the Building Act and, having regard to the context in which it is used, I find that there is no reason why its ordinary meaning should not prevail. Relevantly, the Macquarie Dictionary Online defines the word 'appear' as follows:

   verb (copular) 1.  to have an appearance; seem; look:  to appear wise.

The meaning of 'control or management'

1. In Corpus and Shire of Broome (2017) 91 SR (WA) 365; [2017] WASAT 66 (Corpus), the Tribunal concluded that, for the purposes of s 110(2)(d) of the Building Act, an 'occupier' is a person who must have, or appear to have, 'a legal right of control or management of the land or premises so as to be in a position to be capable of complying with the type of directions that may be imposed by a building order'.[4]  Ultimately, the Tribunal was not satisfied that the applicant, who sought review of the building order directed at him, was someone who the respondent could reasonably have concluded appeared to have control or management of the land in question or any part of it.[5]

   [4] Corpus at [41].

   [5] Corpus at [45].

2. The respondent contends that each of the applicants fall within the meaning of an 'occupier' and that Corpus can be distinguished from the circumstances of these proceedings because:[6]

   (a)most of the shacks on the reserve have been in existence for decades and used consistently as dwellings;

   (b)the applicants have been permitted to stay in the shacks by the respondent;

   (c)the applicants have been recognised as both owners and occupiers of the shacks by the respondent and state government; and

   (d)the respondent has proposed draft leases to formalise the applicants' tenure.

   [6] Respondent's written submissions dated 10 February 2023, para 12.

3. Whilst the applicants acknowledge that they have had unfettered use of the shacks since the structures were erected, they point to the draft leases which they say demonstrate control or management by the respondent of the land on which the shacks are located.[7]

Findings

[7] Applicants' written submissions dated 10 March 2021, para 1.

1. I can see nothing in s 110(2)(d) of the Building Act which would require or indicate that the definition of 'occupier' in s 94 of the Building Act should not be applied or that it should not be given its ordinary meaning. It follows that a person will be an 'occupier' of land for the purposes of s 110(2)(d) of the Building Act if he or she appears to have the control or management of the relevant building, structure or vehicle located on the land. The 'or' in the expression 'control or management' is to be construed disjunctively.[8]

   [8] Interpretation Act, s 17.

2. There was no dispute, and I find, that the respondent is the owner of the land on which the shacks are located and has historically permitted the applicants to use and occupy the shacks.  I further find that the applicants have been charged by the respondent, and paid, an occupancy fee in respect of their occupation of the shacks.[9]  Whilst the existence of a signed lease agreement between the respondent and each of the applicants might assist in establishing that the applicants are lawfully permitted to occupy the shacks, I consider that the absence of a formal agreement between the parties is not determinative.

   [9] Applicants' written submissions dated 10 March 2021, para 1(f).

3. There was no dispute that the applicants have unfettered access to the shacks all year around.  The applicants also permit their family and friends to stay at or occupy the shacks from time to time.[10]  Consequently, the facts of this case support a finding that the shacks seem or look to be under the control or management of the applicants.

   [10] Applicants' written submissions dated 10 March 2021, para 1(i).

4. Having regard to the historical use of the shacks by the applicants, I am satisfied that each of them is an 'occupier' of that portion of land on which their respective shack(s) are located for the purposes of s 110(2)(d) of the Building Act.

5. Accordingly, for these reasons, the first preliminary issue is answered in the affirmative.

6. I will next consider whether Pt 8 Div 5 of the Building Act applies to the 'structures' that are the subject of the building order.

Does Pt 8 Div 5 of the Building Act apply to the shacks?

1. Part 8 Div 5 of the Building Act relates to the making of building orders and requires a person served with a building order to comply with the order. A building order may require the person to whom it is directed to, amongst other actions, demolish, dismantle or remove the building or incidental structure.[11]  Failure to comply with a building order, without reasonable excuse, is an offence.[12] Relevantly, s 110(1)(c) of the Building Act empowers a 'permit authority' to make a building order in respect of 'a particular building or incidental structure, whether completed before or after commencement day'.

   [11] Building Act, s 112(2)(g)(vi).

   [12] Building Act, s 115.

2. Part 8 Div 5 of the Building Act commenced on 2 April 2012 and, consequently, 'commencement day' for the purposes of s 110(1)(c) of the Building Act is 2 April 2012.

3. Further, for the purposes of s 110(1)(c) of the Building Act, a 'building' is defined in s 3 of the Building Act to include 'a part of a building'. A 'building' is not otherwise defined in the Building Act. The BS (CRA) Act provides that a 'building' includes an 'incidental structure' as defined in s 3 of the Building Act. 'Incidental structure' is defined in the Building Act as follows:[13]

   incidental structure means a structure attached to or incidental to a building and includes —

   (a)a chimney, mast, swimming pool, fence, free-standing wall, retaining wall or permanent protection structure; and

   (b)a part of a structure;

   [13] BS (CRA) Act, s 3.

4. Ordinarily, a 'building' means:[14]

   noun 1.  a substantial structure with a roof and walls, as a shed, house, department store, etc.

   [14] Macquarie Dictionary Online.

5. In State Planning Policy 7.3 – Residential Design Codes Volume 1 (R­Codes) a 'building' is defined as follows:

   Any structure whether fixed or moveable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools.

6. The respondent contends that s 110(1)(c) of the Building Act expressly contemplates that a building order can be made in respect of buildings or incidental structures that were constructed and in existence before commencement day. Further, the respondent says that Parliament could not have intended that buildings or incidental structures constructed before 2 April 2012 would not be the subject of a building order. Otherwise, a permit authority would be prevented from taking compliance action in respect of a dangerous building erected before that day.[15]  The respondent also points to several cases where the Tribunal has found that it was open to a permit authority to make a building order with respect to buildings or works constructed, or apparently constructed, prior to commencement day.[16]

   [15] Respondent's written submissions dated 10 February 2023, para 22.

   [16] Robert and Shire of Kellerberrin [2016] WASAT 11; Jasinski and City of Mandurah [2020] WASAT 2; Thomas and City of Stirling [2013] WASAT 110.

7. The applicants contend that the Building Act does not apply to the shacks because the building standards of today cannot apply retrospectively to buildings erected 'in the 1960s'.[17]  The applicants further contend that the shacks are not permanent dwellings or class 1 buildings (houses or dwellings of a domestic or residential nature) under the National Construction Code (NCC) and that no building permit was required at the time they were constructed.[18]

Findings

[17] Applicants' written submissions dated 10 March 2021, para 2(a) and 2(b).

[18] Applicants' written submissions dated 10 March 2021, para 2(e) and 2(f).

1. Having regard to the ordinary meaning of the word 'building', supported by the R-Codes definition, I find that each of the shacks is a 'building' for the purposes of the Building Act.

2. Properly construed, I find that s 110(1)(c) of the Building Act empowers a permit authority to make a building order in respect of a 'building or incidental structure' that was constructed prior to 2 April 2012. The provision expressly provides, relevantly, that a building order may be made in respect of a 'building' that was completed before or after commencement day.

1. For these reasons, I am satisfied that Pt 8 Div 5 of the Building Act applies to the shacks that are the subject of the building order. I observe that this finding does not result in the retrospective application of current building standards to the shacks because building standards are dealt with in a separate part of the Building Act (specifically, Pt 3) which operates prospectively.[19] 

   [19] Regulations made pursuant to s 93(1) of the Building Act may provide for a specified building standard to apply to an existing building: see Building Act, Pt 7.

2. Accordingly, the second preliminary issue is answered in the affirmative, that is, Pt 8 Div 5 of the Building Act applies to the 'structures' that are the subject of the building order.

Conclusion

1. In accordance with these reasons, I conclude that the preliminary issues are answered in the affirmative.

2. In determining the preliminary issues, it is unnecessary for me to consider which building classification applies to the structures for the purposes of the NCC.  It is also unnecessary for me to determine whether or not the building order is valid.

Orders

The Tribunal orders:

1.The preliminary issues are answered in the affirmative.  That is:

(a)the applicants are 'occupiers' for the purposes of s 110(2)(d) of the Building Act 2011 (WA); and

(b)Pt 8 Div 5 of the Building Act 2011 (WA) applies to the 'structures' that are the subject of the building order.

2.The matter is listed for a directions hearing at 12.00 pm on 6 July 2023 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

20 JUNE 2023