Swannell and Building Services Board - [2014] WASAT 53

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: BUILDING SERVICES (REGISTRATION) ACT 2011

CITATION: SWANNELL and BUILDING SERVICES BOARD [2014] WASAT 53

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 7 MAY 2014

FILE NO/S: VR 47 of 2014

BETWEEN: NATALIE SWANNELL
MATHEW ALAN THIOMAS SWANNELL
Applicants
AND
BUILDING SERVICES BOARD
Respondent

Catchwords:

Building Services (Registration) Act 2011 (WA) Review of decision refusing to grant ownerbuilder approval Whether requirement for approval met that the applicants intend to reside on the land on which the ownerbuilder work is to be carried out

Legislation:

Builders Registration Act 1939 (WA), s 4, s 4(1), s 4(1)(A)(a), s 4(1)(A)(b)
Building Services (Registration) Act 2011 (WA), s 45, s 45(1), s 64(2)
Building Services (Registration) Regulations 2011 (WA), reg 25, reg 25(a)

Result:

Application reviewed
Decision and review affirmed

Summary of Tribunal's decision:

The Building Services Board refused an application by the applicants for ownerbuilder approval to enable them to construct a detached dwelling in Jurien Bay. The applicants applied for a review of that decision pursuant to s 64(2) of the Building Services (Registration) Act 2011 (WA).
The determinative issue on review was whether or not the applicants met the requirement of reg 25(a) of the Building Services (Registration) Regulations 2011 (WA) which required that an ownerbuilder intend to reside on the land on which the ownerbuilder work is to be carried out when the work is completed.
The Building Services Board contended that it was necessary that the applicants show an intention that the proposed building constitute their primary or principal place of residence.
The Tribunal concluded that the word 'reside' was to be given its ordinary grammatical meaning, being to dwell permanently or for a considerable time. The Tribunal rejected submissions made on behalf of the Building Services Board that the legislation be construed in a way which did not permit an ownerbuilder to construct a dwelling which might be used for holidays. The Tribunal found that it was a question of fact to be determined in each case whether an applicant intended to dwell permanently or for a considerable period of time in the building. The Tribunal referred to authority for the proposition that a person may have more than one residence, and found that an applicant might meet the requirement of residing for a considerable time in a building even though they intended also to reside elsewhere.
The Tribunal considered the evidence provided by the applicants. It was clear that the applicants did not intend to reside permanently in Jurien Bay and the question was therefore whether the evidence showed that they intended to reside for a considerable amount of time in the proposed building. The evidence showed that the applicants intended to use the building for holidays over the Christmas and New Year period as well as for the Easter and Australia Day weekends and other unspecified weekends. Having regard to the dictionary definition of 'considerable', the Tribunal found that the applicants were required to show that a fairly significant or large part of each year would be spent in the occupation of the building to be constructed, but that the evidence produced did not meet this requirement.
The Tribunal therefore came to the same conclusion as the Building Services Board although for different reasons. The decision for review was therefore affirmed.

Category: B

Representation:

Counsel:

Applicants: Mr M A T Swannell and Mrs N Swannell
Respondent: Mr E Homan

Solicitors:

Applicants: N/A
Respondent: Mr E Homan

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

Gregory and Deputy Federal Commissioner of Taxation (Western Australia) (1937) 57 CLR 774
Levene v Inland Revenue Commissioners (1928) AC 217
Lysaght v Commissioner of Inland Revenue (1928) AC 217
Robertson v The Federal Commissioner of Taxation (Cth) (1937) 57 CLR 147

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicants applied to the respondent, the Building Services Board (Board), for an owner‑builder approval for the construction of a detached dwelling at 27 Bettong Avenue, Jurien Bay pursuant to s 45 of the Building Services (Registration) Act 2011 (WA) (Registration Act). By letter dated 18 November 2013 the Board's decision to refuse the application was communicated to the applicants.
The Board's reasons for refusal were outlined in a notice of decision attached to the letter of 18 November 2013. The reasons reflect that the Board relied on a communication from the applicants, by email dated 21 October 2013, that they intended to use the dwelling as a holiday home. Reference was made to reg 25(a) of the Building Services (Regulations) 2011 (WA) (Registration Regulations) which provides that for the purposes of s 45(1) (of the Registration Act) it is a requirement for the grant of an owner‑builder approval that, relevantly, if the owner‑builder work relates to a detached house, the applicants intend to reside on the land on which the owner‑builder work was to be carried out when the work is completed. Reference was further made to a dictionary definition of the word 'reside' being 'to dwell permanently or for considerable time'. The view was taken that 'reside' means to live or take on permanent residence, and that a holiday home is not considered a place of permanent residence.
On 14 March 2014 the applicants applied to this Tribunal for a review of the decision of the Board to refuse to grant the owner‑builder approval, and sought an order for leave to apply out of time. The Board consented to an extension of time for the lodging of the review application and an order to that effect was made at the first directions hearing on 27 March 2014. At the suggestion of the representative for the Board, Mr Homan, it was further agreed, as reflected in the Tribunal's directions, that the respondent should file a response to the application, including any submissions upon which the respondent wished to reply, and that, subject to further order, the matter be determined on the documents. This course was suggested on the basis that the Board did not dispute any of the factual information provided in support of the application as set out in an affidavit of Natalie Swannell sworn on 13 March 2014.
Section 45 of the Registration Act provides that the Board must grant an owner‑builder approval if it is satisfied in relation to a number of requirements, one of which is that the applicant is compliant with each requirement prescribed by the Registration Regulations. Regulation 25(a) of the Registration Regulations incorporates the requirement already referred to, that if the owner‑builder work relates to a detached house, the applicant must intend to reside on the land on which the owner‑builder work is to be carried out when the work is completed. Save for asserting that the applicants do not meet the requirement of reg 25(a) of the Registration Regulations, there is no suggestion that any of the other requirements set out in s 45(1) of the Registration Act have not been met.

The issue for determination

In the above circumstances, the overriding issue which has been ventilated during the review proceedings is whether the applicants intend to reside in the detached house which they propose to construct at 27 Bettong Avenue, Jurien Bay. This raises the following sub‑issues for determination:
a)What is the meaning of the phrase 'intend to reside'?
b)Does the evidence disclose an intent to reside?

The relevant facts

The application to the Board for owner‑builder approval gives the applicants' residential address as 18 Whitehart Entrance, Aveley in the State of Western Australia. In the affidavit of Natalie Swannell, to which reference has already been made, she states that she and her husband made an application to build a second home at 27 Bettong Avenue, Jurien Bay. The information provided relevant to the applicants' intention concerning the proposed construction are set out in paragraphs 2 to 6, inclusive, of the affidavit, as hereinafter set out:
2.Mathew and I are the registered proprietors of 27 (Lot 507) Bettong Avenue, Jurien Bay (Land).
3.On 9 October 2013 Mathew and I made an application for an Owner‑Builder Approval to the Building Commission to build a second home on the Land. Annexed hereto and marked 'NS‑1' is a copy of the application.
4.Mathew and I purchased the Land to build a second home for various reasons. Jurien Bay [is] a short 2 hour drive from Perth and close enough to travel to after work on a Friday and spend the weekend. Jurien Bay is by the beach and we enjoy the beach lifestyle. Mathew enjoys fishing in Jurien Bay also.
5.For the past 3 or so years we have had annual holidays in Jurien Bay. Mathew and I also go to Jurien Bay on long weekends (Easter and Australia Day). Every year Mathew and I go away for a holiday around Christmas and New Years [sic]. Recently we have not been able to get accommodation at Jurien Bay so we have booked accommodation in Lancelin (which is approximately 1 hour south of Jurien Bay).
6.Mathew and I purchased the Land so that we can spend our spare time in Jurien Bay and spend as much time as possible there. It was a natural progression for us to want a second home in Jurien Bay because to date we have spent a considerable amount of time there and we intend to spend even more time there in the future.
The Board, as already indicated, relies on the information communicated in an email from the applicants dated 21 October 2013. That email is attached to the response from the Board. It states as follows:
Good afternoon
Thank you for your recent request to clarify the intended use of our dwelling in regards to our Owner‑Builder application.
We would like to confirm the dwelling/building's intended use is a residential property/holiday home for us to reside in. I hope this clarifies and is a suitable response to your request.
Any further queries, please don't hesitate to contact us.
Mr and Mrs Swannell
The length of time of the holidays 'around Christmas and New Years [sic]' is not stated. It is noted that at paragraph 16 of the affidavit of Natalie Swannell, in dealing with the delay in bringing the application, it is stated:
There were further delays with the Christmas and New Year period. On 26 December 2013 Mathew and I travelled to Lancelin for a holiday and did not return to Perth until 4 January 2014[.]

The meaning of the phrase 'intends to reside'

The Board's original view was that 'reside' is to live or take on permanent residence, and that a holiday home is not considered a place of permanent residence. The applicants take exception to this interpretation and refer to authority for the proposition that 'reside' has been applied by the Courts in a manner which recognises that a person may have two residences.
In the review proceedings the Board accepts this proposition, and that concession is correctly made. In Gregory and Deputy Federal Commissioner of Taxation (Western Australia) (1937) 57 CLR 774 at page 777, Dixon J held that the word 'residence' in the Northern Territory legislation under consideration should be interpreted in the same way as similar expressions have been interpreted in the British Income Tax Acts. His Honour stated:
… I think that the answer is that the word should receive the same meaning and application as 'person residing' and 'ordinary resident'" have been given in England. No technical or artificial meaning has been placed upon these expressions and parallel expressions under the British income tax law. But certain principles have been laid down by judicial decision for interpreting and applying the expressions. The well-settled interpretation of the words includes in their application a man who resides in two or more places[.]
His Honour referred to various authorities in which the proposition was settled, the last of which being by the House of Lords in Levene v Inland Revenue Commissioners (1928) AC 217 at page 223 (Levene) and in Lysaght v Commissioner of Inland Revenue (1928) AC 217 at page 245 (Lysaght).
In Robertson v The Federal Commissioner of Taxation (Cth) (1937) 57 CLR 147 at page 163 Dixon J observed that the concept of whether or not a person was a resident had been elaborately discussed in both Levene and Lysaght. His Honour referred with apparent approval to a report published by the Committee on Income Tax Codification referred to in the decision, in which it was stated that it could be taken to be settled law that the question of residence is a question of fact.
However, while the Board now accepts that it is possible for a person to have more than one residence, it submits that reg 25 of the Registration Regulations must be construed as requiring an intention to reside in the dwelling, once constructed, as the primary or principal place of residence.
In support of this submission the Board refers to the practice which it asserts was applied by its predecessor, the Builders Registration Board of Western Australia (BRB), for some 45 years based on the construction which the BRB apparently placed on s 4(1)(A)(a) of the Builders Registration Act (1939) (WA) (BR Act). The Board refers to a form of declaration which an owner‑builder was required to provide to the BRB. The explanatory notes to the form state in paragraph 8:
The Builders' Registration Act 1939 enables a person to construct a 'dwelling house or a building comprising 2 dwellings on ground level', meaning a building that is occupied solely or mainly as a place of residence (ie a home)[.]
The relevant provision of the BR Act (which is now repealed and substituted by the Registration Act) provides as follows:
4. Prohibition against unregistered builders carrying on business
(1)Subject to this section, a person who is not registered under this Act shall not ‑
(A)(a)construct either for himself or any other person, any building for the purpose of the immediate sale thereof;
(aa)construct for himself any building other than a dwelling house or a building comprising 2 dwellings on ground level, each being complete and self‑contained, whether or not the building is so designed as to give an external appearance of a single dwelling;
(b)enter into any contract or engagement to construct any building, or build any building for another in pursuance of any contract or engagement[.]
The Board further submits that because of the requirement that an owner construct a dwelling 'for himself', and because a dwelling house means a building that is occupied solely or mainly as a place of residence, the exemption permitting construction by an owner‑builder did not apply if the building to be constructed was intended to be used as a holiday home which might be rented to others at times when not occupied by the owner.
These submissions on behalf of the Board are not accepted.
The explanatory note provided in the BRB statutory declaration requiring that a building be occupied 'solely or mainly as a place of residence' places a greater restriction on the exemption provided under s 4(1) of the BR Act than the actual wording of the section conveys. Insofar as a person was entitled to construct for himself a dwelling house, that might initially appear to be consistent with the current reg 25 of the Registration Regulations that the owner‑builder must intend to reside in the building when constructed. The Macquarie Dictionary (5th ed, 2009) contains the following relevant definitions:
dwelling 1. a place of residence or abode; a house. 2. continued or habitual residence.
abode 1. a dwelling place; a habitation. 2. continuance in a place; sojourn; stay.
On the other hand, to the extent that the provision also enabled an owner‑builder to construct for himself a building comprising two dwellings on ground level, each being complete and self‑contained, it is blatantly obvious that it was not intended that the owner‑builder must reside in both dwellings. When regard is had to s 4 of the BR Act as a whole, an owner‑builder was restricted from constructing a building for the purposes of immediate sale whether for himself or for any other person (see s 4(1)A(a) of the BR Act) and was precluded from entering into any contract or engagement to construct a building or to build a building for another person in pursuance of any contract or engagement (see s 4(1)A(b) of the BR Act). There was nothing to prevent an owner‑builder constructing a building comprising two dwellings on ground level one of which could be rented out to others, as it clearly would not usually also be occupied by the owner. In its context a requirement 'to construct for himself', refers to the owner‑builder being the owner of the property who is to benefit from the construction in contradistinction to building for any other person. Once that is accepted, on a proper construction, there is nothing to indicate that an owner‑builder constructed dwelling house or two dwellings on ground level could not be rented to others.
While the phrase 'construct for himself any building other than a dwelling house', on its own, is consistent with the existing reg 25(a) of the Registration Regulations, the phrase 'construct for himself' in its full context qualifies not only the construction of a dwelling house, but also a building comprising two dwellings, and in that context, the owner‑builder was entitled to construct a single dwelling even though he intended to immediately let it out for rent, or intended that it be occupied by any other person, whether or not rent was paid.
In any event, notwithstanding this view, even if the former s 4 of the BR Act was to provide an exemption only to a person intending to dwell or reside in the building, that does not convey an obligation that the person occupy it solely or mainly as a place of residence. The above cases recognise that a person may have more than one residence and it is a question of fact as to whether or not one resides in a particular place. As in the meaning given to comparable expressions in British income tax law, there is no indication under the Registration Act or Registration Regulations that 'reside' has any technical or artificial meaning. 'Reside' should therefore be given its ordinary grammatical meaning which according to the Macquarie Dictionary (5th ed, 2009) is:
reside 1. to dwell permanently or for a considerable time; have one's abode for a time[.]
Each case will therefore turn on its own facts when a person has or intends to have more than one residence.
Thus, in order to determine whether the requirements of reg 25(a) of the Registration Regulations have been met, the meaning to be given to the phrase 'intends to reside' is whether the applicants intend to dwell permanently or for a considerable time in the building which they propose to construct at 27 Bettong Avenue, Jurien Bay, even though they intend also to reside elsewhere. If this intent is demonstrated, there is nothing to indicate that the dwelling cannot be intended to be rented to others when not occupied by the owner.
If the Tribunal is wrong in its view that an intention to rent the premises out during times when it is not occupied by the owner, would not preclude satisfaction of the requirement of intention to reside, it is noted that there is no scintilla of evidence to suggest that the applicants have any intention of letting the premises out.

Does the evidence disclose an intention to reside?

The applicants have outlined in the affidavit of Natalie Swannell the extent to which they intend to occupy the proposed building. In recent years they have taken their holidays at Jurien Bay, over the Christmas/New Year period and during the Easter and Australia Day weekends. Because they were unable to find accommodation in Jurien Bay during the last Christmas/New Year period they rented accommodation in Lancelin. The period of that holiday was from 26 December 2013 to 4 January 2014. In the absence of any other evidence it appears likely that the duration of previous holidays over this period at Jurien Bay were of approximately the same length of time; namely, nine to 10 days. In addition they usually spent the Easter and Australia Day long weekends at Jurien Bay. One of the reasons they purchased the land in question was that it is close enough to Perth to enable them to travel up for weekends. They have not disclosed in their evidence how often they anticipate being able to spend weekends at Jurien Bay.

It is apparent that the applicants have characterised the amount of time which they have spent at Jurien Bay to date as 'a considerable amount of time' (paragraph 6 of the affidavit) and they assert that they intend to spend more time there in the future.
It is clear that the applicants do not intend to dwell permanently at Jurien Bay, and the question is, therefore, whether the extent of their intended occupation of the building is sufficient to constitute a considerable time which might therefore be considered as sufficient to meet the requirement of having to reside in the building to be constructed.
The requirement under reg 25(a) of the Registration Regulations to reside brings the statutory language closer into line with what was the practice of the BRB for a considerable period, at least insofar as the BRB would not have permitted an owner‑builder to construct a dwelling to be occupied only for holiday purposes. But, at the other end of the scale, it is clear that a person who wished to construct his or her own home in the south of the State for occupation during the summer and another home in the north of the State for occupation in the winter would meet the ordinary meaning of the requirement to reside in both locations. It becomes a matter of fact and degree to be determined on the circumstances of each case at what point a lesser degree of occupation meets the requirement to reside in the proposed building.
It is submitted on behalf of the Board that, properly construed, the evidence of the applicants does not indicate an intent to reside, but an intent to visit Jurien Bay from time to time and spend time there on holidays.
It is not relevant, on the above reasoning, whether the purpose of occupation is to enjoy holidays. The question is whether the degree of occupation is sufficient to constitute residing in the building to be constructed. An owner‑builder fortunate to be able to intend to spend half of each year in the building to be constructed during extended holidays, while residing and working elsewhere during the remainder of the year, would obviously meet the requirement. It is not appropriate to attempt to determine where the line is to be drawn because that will depend on the facts of each case. The Macquarie Dictionary (5th ed, 2009) defines 'considerable' as follows:
considerable … 2. (of an amount, extent, etc) worthy of consideration; fairly large or great.
In the Tribunal's view, it is required to show that a fairly significant or large part of each year would be spent in the occupation of the building to be constructed. The evidence produced by the applicants does not meet this requirement.

Conclusion and orders

For the above reasons, the Tribunal concludes that the degree of intended occupation of the building proposed to be constructed by the applicants is insufficient to meet the requirement of showing an intention to reside in the building. Accordingly, the decision of the Board to refuse the applicants' owner‑builder approval should be affirmed, although for different reasons to those upon which the decision was based. The Tribunal will accordingly cause an order to issue as follows:

Order

1.The decision of the Building Services Board communicated by letter dated 18 November 2013 refusing the applicants' application for owner‑builder approval is affirmed.

I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER