TEO and PARKIN - [2018] WASAT 7

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: TEO and PARKIN [2018] WASAT 7

MEMBER: MR D AITKEN (SENIOR MEMBER)
MR P MARSHALL (SESSIONAL MEMBER)

HEARD: 31 OCTOBER 2017

DELIVERED : 29 JANUARY 2018

FILE NO/S: CC 1393 of 2017

BETWEEN: CHIANG HOWE TEO
Applicant
AND
JOHN PARKIN
Respondent

Catchwords:

Whether building work carried out by an owner without a building licence to complete a dwelling after lockup was a regulated building service for the purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - The proper construction of s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) - The proper construction of s 4(1)(A)(aa) of the Builders' Registration Act 1939 (WA)

Legislation:

Builders' Registration Act 1939 (WA), s 4
Building Act 2011 (WA), s 3, s 51(1)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11, s 36(1), s 37(1), s 38(1)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5A
Building Services (Registration) Act 2011 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 2, s 374
Local Government Act 1960 (WA), s 6
Local Government Act 1995 (WA)

Result:

Preliminary issue determined in the affirmative
The respondent carried out a 'regulated building service' for purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of the tiling and waterproofing work which is the subject of complaint

Summary of Tribunal's decision:

The applicant made a building service complaint to the Building Commissioner, which the Building Commissioner referred to the Tribunal, in respect of Tiling Work carried out at the dwelling which the applicant had purchased from the respondent.
The dwelling had been constructed to lockup stage for the respondent by a registered builder. The respondent had arranged all the building work after that stage to complete the construction of the Dwelling (Completion Work), which included the Tiling Work. The respondent subsequently sold the Dwelling to the applicant.
The Tribunal decided to determine, as a preliminary issue, whether the respondent had carried out a 'regulated building service' for the purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
'Regulated building service' is defined in s 3 of the BSCRA Act, relevantly, to include any work prescribed for the purposes of the definition. Regulation 5A of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) prescribes 'unauthorised work', within the meaning given in s 51(1) of the Building Act 2011 (WA) (Building Act), as a regulated building service. Section 51(1) of the Building Act provides, relevantly, that 'unauthorised work' means 'building work' done without an authority under a written law that was required by the written law applicable at the time the work was done. Section 3 of the Building Act provides that 'building work' means, relevantly, the construction of a building or the renovation, alteration, extension, improvement or repair of a building.
It was common ground between the parties that the Tiling Work was building work for the purposes of s 51(1) of the Building Act.
It was common ground between the parties that s 4(1)(A)(aa) of the Builders' Registration Act 1939 (WA) (BR Act) and s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) were written laws at the time the Tiling Work was done under which an authority may have been required, even though those provisions have subsequently been repealed.
The answer to the question of whether the Tiling Work was done without an authority required under either or both of those provisions depended on the proper construction of those provisions.
The Tribunal decided that it was the entirety of the Completion Work, not just the Tiling Work, which had to be considered in answering that question, for the reasons set out in its earlier decision in Shami and Teo [2017] WASAT 73.
The Tribunal's construction of s 4(1)(A)(aa) of the BR Act meant that the Completion Work, including the Tiling Work, was not done without an authority under that Act.
However, the Tribunal's construction of s 374(1) of the LGMP Act meant that the respondent required a building licence for the Completion Work, which he did not have. The Tribunal therefore decided that the Completion Work, including the Tiling Work, was unauthorised work for the purposes of reg 5A of the BSCRA Regulations and that the Tiling Work was a regulated building service for the purposes of the BSCRA Act.

Category: B

Representation:

Counsel:

Applicant: Mr P Fyfe
Respondent: Mr RL Marando

Solicitors:

Applicant: Fyfe Construction Lawyers
Respondent: Momentum Legal

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
City of Kwinana v Lamont [2014] WASCA 112
Laurent and City of Greater Geraldton [2013] WASAT 57
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Shami and Teo [2017] WASAT 73

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding concerns a complaint which has been referred to the Tribunal by the Building Commissioner under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
The complaint is in respect of tiling and associated waterproofing work (Tiling Work) which was carried out in the dwelling at 6 Central Road, Rossmoyne, Western Australia (Dwelling).
The background to the complaint is set out in the decision of the Tribunal in Shami and Teo [2017] WASAT 73 (Shami), which can be summarised as follows.
In the Shami proceeding, the applicant in this proceeding, Mr Chiang Howe Teo had lodged a complaint with the Building Commissioner against Mr Leonardo Farinola (a registered builder) and Mr Basel Shami (a tiler) in respect of the Tiling Work, which resulted in the Building Commissioner issuing a building remedy order which required Mr Shami to remedy the Tiling Work.
Mr Farinola held the building licence for the construction of theDwelling and there was a building contract for the construction of theDwelling between Mr Farinola as the builder and the respondent in this proceeding, Mr John Parkin as the owner. The construction of the Dwelling commenced sometime after the end of March 2010 and was completed in or about October 2011, with Mr Parkin and his wife moving into the Dwelling at that time. Mr Teo purchased the Dwelling from Mr Parkin in June 2015.
As stated at [7] of Shami, Mr Shami applied to the Tribunal for a review of that building remedy order on the following grounds:
•The building licence for the construction of the Dwelling was issued to Mr Farinola.
•Mr Farinola undertook the 'structural component' of the construction of the Dwelling and Mr Parkin undertook the 'finishing component' himself.
•Mr Shami was contracted by Mr Parkin for only the labour component of the tiling and the 'extent, supply, specification and methodology' of the tiling was done in accordance with the requirements of Mr Parkin.
•The waterproofing of the tiled areas was completed by Mr Parkin.
•The floor wastes were provided by the plumber engaged by Mr Parkin and given to Mr Shami by Mr Parkin.
•Mr Parkin subsequently undertook alterations to the tiling work which Mr Shami had completed.
The Tribunal decided to determine as a preliminary issue in the Shami proceeding whether either Mr Shami or Mr Farinola carried out a 'regulated building service' for the purposes of the BSCRA Act in respect of the Tiling Work.
The Tribunal determined that preliminary issue in the negative and set aside the building remedy order for the reasons set out in Shami including, relevantly, at [62] [69] the following:
The Tribunal has decided that Mr Parkin was the person who had the role of ensuring that the construction of the Dwelling was completed after it was at lockup stage (Completion Project).
Both Mr Farinola and Mr Parkin stated in their evidence that Mr Farinola only constructed the Dwelling to lockup. There was no other evidence to contradict that and the Tribunal finds that to be the case.
Mr Parkin stated in his evidence that he organised all the trades and building work after lock-up (T:78; 13.10.16).
Mr Parkin also stated in his evidence that he arranged for the following work to be done as part of the Completion Project:
•cabinet work (T:66, 76, 78; 13.10.16);
•electrical work (T:76, 78-79; 13.10.16);
•painting (which was done by Ms Parkin) (T:76; 13.10.16);
•tiling (T:59; 02.02.17); and
•shower screens (T:49; 02.02.17).
As part of the Completion Project, Mr Parkin did some work himself:
•waterproofing of areas being tiled (T:57, 72; 13.10.16); and
•electrical wiring, but he arranged an electrician to sign it off and do the meter box (T:79; 13.10.16).
Mr Shami was engaged by Mr Parkin as a subcontractor to do tiling work and Mr Shami, in turn, employed Mr Tarawneh and Mr An to assist him with that tiling work. Mr Parkin supplied the materials for the tiling, namely the tiles, the glue and the grout (T:58; 02.02.17).
As stated by Pidgeon J in [Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982)] at 11, the person who carried out building work of the Completion Project was not the subcontractors engaged by Mr Parkin (such as Mr Shami, the cabinet maker, the electrician or the installer of the shower screens), nor other persons who physically carried out the work (such as Ms Parkin who did painting work). It was Mr Parkin who carried out the whole work required for the Completion Project.
Therefore, for the purposes of s 37(1) of the BSCRA Act, Mr Parkin was the person who carried out the tiling and waterproofing work as part of the work which comprised the Completion Project. It is not necessary as part of this proceeding to decide whether that work was a regulated building service, because Mr Parkin is not a party to the proceeding.
Following the decision in Shami, Mr Teo made the complaint against Mr Parkin which is the subject of this proceeding.

Preliminary issue

Upon receiving this complaint from the Building Commissioner, the Tribunal decided to determine as a preliminary issue in this proceeding whether Mr Parkin carried out a 'regulated building service' for the purposes of the BSCRA Act in respect of the Tiling Work (Preliminary Issue).
The Tribunal listed the Preliminary Issue for hearing and the parties were given the opportunity to file written submissions, copies of cases and documents on which they wished to rely, and a list of witnesses they wished to call at the hearing.
Each party filed written submissions and copies of cases on which they wished to rely and Mr Parkin also filed a number of documents. Theparties did not call any witnesses at the hearing.
At the hearing, counsel for each party made oral submissions to supplement their written submissions.

The relevant provisions of the BSCRA Act

Section 5(1) of the BSCRA Act provides that a person may make a complaint to the Building Commissioner about a 'regulated building service' not being carried out in a proper and proficient manner or being faulty or unsatisfactory (defined in s 3 of the BSCRA Act as a 'building service complaint').
Section 38(1) of the BSCRA Act provides that if the Tribunal is satisfied that a 'regulated building service' that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory the Tribunal may make a 'building remedy order', within the meaning given to that term in s 36(1) of the BSCRA Act.
'Regulated building service' is defined in s 3 of the BSCRA Act, relevantly, to include any work prescribed for the purposes of the definition.
Regulation 5A of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) prescribes 'unauthorised work' for the purposes of the definition of 'regulated building service' in s 3 of the BSCRA Act and provides that 'unauthorised work' has the meaning given in s 51(1) of the Building Act 2011 (WA) (Building Act).
Section 51(1) of the Building Act provides, relevantly, that 'unauthorised work' means 'building work' that was done without an 'authority under a written law' that was required by the written law applicable at the time the work was done.
Section 3 of the Building Act provides that 'building work' means, relevantly, the construction of a building or the renovation, alteration, extension, improvement or repair of a building.
Section 3 of the Building Act provides that 'authority under a written law' includes an approval, licence, registration, right, permit or exemption granted under a written law.

What has to be decided to determine the Preliminary Issue?

In Shami the Tribunal found that, for the purposes of s 37(1) of the BSCRA Act (and hence also s 38(1) of the BSCRA Act), Mr Parkin 'carried out' the Tiling Work as part of the work which he carried out to complete the construction of the Dwelling after it was at lockup stage (Completion Project); see [69] of Shami. That finding was based on the evidence given by Mr Parkin as a witness in that proceeding.
To determine the Preliminary Issue in this proceeding the Tribunal must decide whether the Tiling Work is 'unauthorised work' within the meaning given to that term in s 51(1) of the Building Act. If it is then, pursuant to reg 5A of the BSCRA Regulations, it will be a 'regulated building service', for the purposes of the BSCRA Act under the definition of that term in s 3 of the Act.
This requires the Tribunal to decide, firstly whether the Tiling Work was 'building work' for the purposes of s 51(1) of the Building Act and, ifit was, whether an authority was required for it under a written law applicable at the time the work was done.
It is common ground between the parties that:
•The work comprised in the Completion Project (Completion Work), which included the Tiling Work, is 'building work' for the purposes of s 51(1) of the Building Act.
•A written law at the time the Tiling Work was done under which an authority may have been required was s 374(1) of the Local Government (Miscellaneous Provisions) Act1960 (WA) (LGMP Act). Section 374 of the LGMP Act was repealed when the Building Act commenced on 2 April 2012, but it was in force during the time when the Tiling Work was done.
•Another written law at the time the Tiling Work was done under which an authority may have been required was s 4(1)(A)(aa) of the Builders' Registration Act 1939 (WA) (BR Act). The BR Act was repealed when the Building Services (Registration) Act 2011 (WA) commenced on 29 August 2011, but it was in force when the Tiling Work was done. Although the Completion Project was completed in or about October 2011 neither party contends that the Tiling Work was done after 29 August 2011.
Section 374(1) of the LGMP Act provided:
No person shall
(a)lay out for building, or commence or proceed with a building on, land in a district; or
(b)in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension, or enlargement of the structure of the building,
until he has caused to be submitted to the local government, and the localgovernment has approved by the issue to the person of a building licence in the prescribed form and on payment of the prescribed fee, acopy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built, or the amendment, alteration, extension, or enlargement proposed to be made, as the case may be, and the area of land to be occupied by each building, or by the amendment, alteration, extension or enlargement of the existing buildings, as the case may be, and the position of the privies and drains and unless he complies with the conditions, if any, that are specified in the licence.
…
Section 4(1)(A)(aa) of the BR Act provided, relevantly, that a person who was not registered under that Act must not 'construct for himself any building other than a dwelling house or a building comprising 2 dwellings on ground level, each being complete and selfcontained, whether or not the building is so designed as to give an external appearance of asingle dwelling'.
Section 4(1b) of the BR Act provides that for the purposes of s 4(1) of the Act the word 'construct' includes 'add to, alter, improve, renovate and repair'.
It is common ground that Mr Parkin did not have a building licence under s 374(1) of the LGMP Act in respect of the Completion Project or the Tiling Work and that he was not a registered builder under theBR Act.

Mr Teo's contentions

Mr Teo contends that Mr Parkin required a building licence under s 374(1)(a) of the LGMP Act to carry out the work comprised in the Completion Project because that work constituted 'proceeding with' abuilding.
Mr Teo contends that a building built to lock-up stage is a partially completed building that is not fit for its intended purpose, in this case a residential dwelling. Therefore, when Mr Parkin carried out the Completion Work he 'proceeded with' the building of the Dwelling for the purposes of s 374(1)(a) of the LGMP Act.
Mr Teo says that the Dwelling only became a building to which s 374(1)(b) of the LGMP Act applied once the Completion Work was carried out and that prior to that the Dwelling was still in the process of being built.
Mr Teo says that the term 'proceed with a building' in s 374(1)(a) of the LGMP Act means 'to continue with, go ahead with, push on, progress', which is precisely what Mr Parkin did in carrying out the Completion Work.
Mr Teo says that Mr Parkin therefore required a building licence under s 374(1)(a) of the LGMP Act for the Completion Project, which he did not have and accordingly the Completion Work, which included the Tiling Work, was 'unauthorised work' the purposes of s 51(1) of the Building Act and accordingly a 'regulated building service' as defined in s 3 of the BSCRA Act pursuant to reg 5A of the BSCRA Regulations.
Mr Teo also contends that Mr Parkin was prohibited by s 4(1)(A)(aa) of the BR Act from building a two storey dwelling, which the Dwelling is.
Mr Teo contends that s 4(1)(A)(aa) of the BR Act prohibited anyone who was not a registered builder under that Act from constructing atwo storey dwelling because a two storey dwelling is not a dwelling 'on ground level'.
Mr Teo points out that the definition of the word 'construct' in s 4(1b) of the BR Act, includes 'add to, alter, improve, renovate and repair' and says that the Completion Work falls within that definition and therefore was done without authority and in breach of s 4(1)(A)(aa) of the BR Act.

Mr Parkin's contentions

Mr Parkin contends that the question which the Tribunal must decide is whether an authority under a written law was required for the Tiling Work alone, not all of the Completion Work.
Mr Parkin says the Dwelling at lockup stage was 'a building already erected on land' to which s 374(1)(b) of the LGMP Act applied and therefore after that stage it was not caught by s 374(1)(a) of the LGMP Act.
Mr Parkin says that the distinction between s 374(1)(a) and s 374(1)(b) of the LGMP Act is not, as Mr Teo contends, whether or not a building is complete, but whether or not the structure of the building has been erected, irrespective of whether the building is completed or not.
Mr Parkin points out that the LGMP Act does not define the word 'building', but that s 2 of the LGMP Act provides that in construing the provisions of the Act, account is to be taken of the meanings they had before the Local Government Act 1995 (WA) commenced, which is to be found in the definition of 'building' in s 6 of the now repealed Local Government Act1960 (WA). Mr Parkin says that, relevantly, that definition defines 'building' as 'a structure erected or placed on land'. MrParkin says that 'structure' means 'something built or constructed' and refers to the decision of the Tribunal in Laurent and City of Greater Geraldton [2013] WASAT 57 (Laurent) [23] [24] in support of that contention.

Mr Parkin contends that the Tiling Work did not constitute proceeding with a building for the purposes of s 374(1)(a) of the LGMP Act because that work did not constitute proceeding with the erection of a structure on land.
Mr Parkin also contends that the Tiling Work did not constitute the amendment, alteration, extension or enlargement of the structure of a building for the purposes of s 374(1)(b) of the LGMP Act.
Mr Parkin refers to the decision of the Court of Appeal in City of Kwinana v Lamont [2014] WASCA 112 (Lamont) at [48], [50], [51], [52] and [61], the Macquarie Dictionary (7^th ed, 2017), and the Shorter Oxford Dictionary (6^thed, 2007) as authority for the following contentions:
•Section 374(1)(b) of the LGMP Act is concerned with the amendment, alteration, extension or enlargement of the structure of a building, not the amendment, alteration, extension or enlargement of a building itself.
•Properly construed the word 'structure' in s 374(1)(b) of the LGMP Act denotes the essential constituent elements or parts of the building which, in combination, give it its essential form and nature.
•The Tiling Work was not an essential constituent element or part of the Dwelling and did not give the Dwelling its essential form and nature.
•The words 'amend, alter, extend, or enlarge' in s 374(1)(b) of the LGMP Act are ordinary words of common usage and are to be given their natural and ordinary meanings.
•Properly construed 'amend' means 'to change for the better, improve, correct or rectify'; 'alter' means 'change or modify'; 'extend' means 'to spread out in area, make longer, continue further in space, cause to cover space or area or stretch out in various directions'; and 'enlarge' means 'to increase the capacity or scope of, increase or expand'.
•In determining whether the performance of the Tiling Work constituted an amendment, alteration, extension or enlargement of the structure of the Dwelling the Tribunal ought to view the whole of the works constructed prior to the performance of the Tiling Work, to the extent that those works comprised a building and consider the impact of the Tiling Work on the structure of that building.
•Viewed under that lens, the Tiling Work which was simply floor, alternatively wall and floor, coverings did not amend, alter, extend or enlarge the structure of the Dwelling.
Mr Parkin contends that the proper construction of the words 'other than a dwelling house or a building comprising 2 dwellings on ground level' in s 4(1)(A)(aa) of the BR Act is that they apply, firstly to adwelling house without any qualification and, secondly to a building containing two dwellings with the qualifications which are set out in respect of such a building, namely that those two dwellings must both be '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'. Mr Parkin refers to s 4(1a)(b) of the BR Act in support of that contention. That subsection provided that the Builders' Registration Board could authorise a person who was not aregistered builder to construct a building for himself which was not 'adwelling house or a building referred to in [s 4(1)(A)(aa) of the BR Act]'.
Mr Parkin says that construing the words 'other than a dwelling house or a building comprising 2 dwellings on ground level' in s 4(1)(A)(aa) of the BR Act in any other way would make the words 'adwelling house' superfluous, which would be contrary to the approach referred to by the High Court (per McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [71] that in construing a statutory provision a court, or in this case the Tribunal, must strive to give meaning to every word of the provision so that no clause, sentence or word shall prove superfluous, void or insignificant if by any other construction they may all be made useful and pertinent.
Mr Parkin says that if the above argument is not accepted and the words 'on ground level' are held by the Tribunal to be a qualification to the words 'a dwelling house' then he contends that the requirement is simply that the foundations of the dwelling be constructed on ground level and if that is so then it is immaterial whether the dwelling is comprised of one or more storeys.
At the conclusion of his oral submissions, the Tribunal asked Mr Parkin's counsel, Mr Marando what Mr Parkin's position would be if the Tribunal decided that it is the totality of the Completion Work, not just the Tiling Work, which needs to be considered regarding the application of s 374(1) of the LGMP Act.
In response, Mr Marando made two points. Firstly, Mr Marando made the point that the complaint which was referred to the Tribunal by the Building Commissioner only deals with the Tiling Work. Secondly, Mr Marando said that if the Completion Work caused the 'procession' of the erection or placement on land of a structure then s 374(1)(a) of the LGMP Act would apply, but if it did not then it would not apply. Mr Marando, on behalf of Mr Parkin, did not express a view on whether the Completion Work did that.

Determination of the Preliminary Issue

The Tribunal finds, as each party has properly acknowledged, that the Completion Work, which included the Tiling Work, is 'building work' for the purposes of s 51(1) of the Building Act. Clearly that work falls within the definition of that term in s 3 of the Building Act.
The Tribunal therefore must decide whether the Tiling Work was done without an authority required under either or both of s 4(1)(A)(aa) of the BR Act and s 374(1) of the LGMP Act.
The Tribunal does not accept the contention by Mr Parkin that the question the Tribunal must decide is whether an authority under a written law was required for the Tiling Work alone, not all of the Completion Work.
It is the entirety of the work which was carried out by Mr Parkin, being the Completion Work, which needs to be considered regarding whether the Tiling Work is a regulated building service, not just the Tiling Work; see [39] [48] of Shami.
If the Completion Work is a regulated building service then each component of it is a part of the regulated building service and can be the subject of a building service complaint under the BSCRA Act.
Therefore, although the complaint made by Mr Teo, which the Building Commissioner has referred to the Tribunal, is only in respect of the Tiling Work, to decide whether the Tiling Work was a regulated building service, the entirety of the Completion Work has to be considered. If the Tiling Work was the only work carried out by Mr Parkin then the question of whether or not that work was a regulated building service might be answered differently to the situation here, where Mr Parkin carried out all of the Completion Work, of which the Tiling Work formed a part.
Therefore in deciding whether the Tiling Work was done without an authority required under either or both of s 4(1)(A)(aa) of the BR Act and s 374(1) of the LGMP Act it is necessary to consider whether such an authority was required for the Completion Work, not just the Tiling Work.

Was the Tiling Work done without an authority required under s 4(1)(A)(aa) of the BR Act?

The answer to the question of whether the Tiling Work was done without an authority required under s 4(1)(A)(aa) of the BR Act depends on the proper construction of that provision.
In the Tribunal's view the proper construction of s 4(1)(A)(aa) of the BR Act is to construe the word 'or' in it as disjunctively separating the words 'a dwelling house' from the words 'a building comprising 2 dwellings on ground level, each being complete and selfcontained, whether or not the building is so designed as to give an external appearance of a single dwelling'.
That construction is consistent with the words 'a dwelling house or a building referred to in [s 4(1)(A)(aa) of the BR Act]' which appear in s 4(1a)(b) of the BR Act. In Project Blue Sky at [69], the High Court (per McHugh, Gummow, Kirby and Hayne JJ) stated that '[t]he primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute'.
Further, if the words 'on ground level' in s 4(1)(A)(aa) of the BR Act were to be construed as applying to both a dwelling house and a building comprising two dwellings, then the words 'each being complete and selfcontained, whether or not the building is so designed as to give an external appearance of a single dwelling' could be argued to be intended to apply to both a dwelling house and a building comprising two dwellings which would not make sense. That would not be in accordance with the approach to statutory construction referred to in Project Blue Sky at [71], which is stated in [45] above.
The Tribunal's construction of s 4(1)(A)(aa) of the BR Act means that a person who was not a registered builder under that Act was permitted to construct for himself a dwelling house, without any qualification or, alternatively, a building comprising two dwellings on ground level if each of those dwellings were complete and self-contained (which is commonly referred to as a duplex).
Therefore the Tribunal has decided that the Completion Work, including the Tiling Work, was not done without authority under s 4(1)(A)(aa) of the BR Act.

Was the Tiling Work done without an authority required under s 374(1) of the LGMP Act?

The answer to the question of whether the Tiling Work was done without an authority required under s 374(1) of the LGMP Act, namely a building licence, depends on the proper construction of that provision.
In particular, it depends on the proper construction, firstly of the words 'proceed with a building' in s 374(1)(a) and, secondly of the words 'a building already erected' in s 374(1)(b) of the LGMP Act.
Whilst the Court of Appeal in Lamont was concerned with the proper construction of s 374(1)(b), it was concerned, in particular, with the construction of the words 'alter' and 'structure' in s 374(1)(b) of the LGMP Act and whether the particular works in that case constituted an alteration of the structure of a building which clearly had already been erected. That was a different situation to the situation in this matter.
Significantly, the Court of Appeal in Lamont did not need to, and therefore did not, construe the words 'proceed with a building' in s 374(1)(a), nor the words 'a building already erected' in s 374(1)(b) of the LGMP Act in arriving at its decision.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the High Court (per Hayne, Heydon, Crennan and Kiefel JJ) stated as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Footnotes omitted)
In the Tribunal's view the general purpose and policy of s 374(1) of the LGMP Act, prior to its repeal, was to ensure that:
•in the first instance, buildings were built to completion in accordance with plans and specifications submitted to the relevant local government and approved by it by the issue of a building licence; and
•if the structure of a completed building was subsequently to be amended, altered, extended or enlarged then that was to be done in accordance with plans and specifications submitted to the relevant local government and approved by it by the issue of a building licence.
Further, in the Tribunal's view, the mischief which s 374(1) of the LGMP Act was seeking to remedy was to ensure that health and safety standards would be met in the construction of a building to completion and any subsequent structural alteration of the building.
This view is supported by the provisions of:
•section 374(1d) of the LGMP Act, which empowered the local government to require a person to whom a building licence was issued to give notice of the completion of the building work; and
•section 374(3) of the LGMP Act, which provided that a person committed an offence if they occupied or used or permitted a person to occupy or use a building before the plans and specifications referred to in s 374(1) had been approved by the local government.
The Tribunal will now, in that context, consider the meaning of the words 'proceed with a building' in s 374(1)(a) and the meaning of the words 'a building already erected' in s 374(1)(b) of the LGMP Act.
Before doing that it is useful to consider the state of the Dwelling, at lockup stage, when Mr Parkin commenced the Completion Project.
There is a description of the lockup stage of the construction of a dwelling set out in the fact sheet published by the Building Commission (and available on its website) titled Building contracts and progress payments. In that fact sheet, lockup is described as being when externally the structure is able to be secured, hence the term lockup, after the walls and roof cover have been completed and all external doors and windows have been installed, and internally the structure is ready for the finishing trades such as carpenters, electricians, cabinet makers, tilers, plumbers and painters.
The Completion Work was clearly work involving finishing trades which was carried out by Mr Parkin to complete the construction of the Dwelling, following which he and his wife moved into the Dwelling.
The Tribunal accepts the contention of Mr Teo that when Mr Parkin carried out the Completion Work, which included the Tiling Work, he proceeded with the building of the Dwelling for the purposes of s 374(1)(a) of the LGMP Act.
In the Macquarie Dictionary Online (2018) the definition of 'proceed' includes 'to go on with or carry on any action or process'.
When the ordinary meaning of 'proceed' is applied to the words of s 374(1)(a) of the LGMP Act that provision should be construed to refer to the process of completing the construction of a building.
The Tribunal, therefore, does not accept Mr Parkin's contention that the distinction between s 374(1)(a) and s 374(1)(b) of the LGMP Act is whether or not the structure of the building has been erected, irrespective of whether the building is completed or not.
The Tribunal, therefore, also does not accept the contention of Mr Parkin that the Tiling Work did not constitute proceeding with a building for the purposes of s 374(1)(a) of the LGMP Act because the Tiling Work did not constitute proceeding with the erection of a structure on land.
The Tribunal accepts Mr Parkin's contention that the definition of 'building' contained in the Local Government Act 1960 (WA) should be taken into account in construing the provisions of s 374(1)(a) of the LGMP Act and that 'structure' means 'something built or constructed' as stated in Laurent at [23] [24]. However, in this case the thing which was being built or constructed was the completed Dwelling, not the Dwelling to lockup stage.
When s 374(1)(a) of the LGMP Act refers to 'proceed with a building', the word 'building' should be construed to refer to the thing which is being built or constructed, which in this case was the completed Dwelling.
The Tribunal therefore finds that the Completion Work, including the Tiling Work, was part of the building or construction of the Dwelling and when Mr Parkin carried out that work he was proceeding with a building for the purposes of s 374(1)(a) of the LGMP Act and therefore he required a building licence before he proceeded with it.
That finding has answered the question of whether the Tiling Work was done without an authority required under s 374(1) of the LGMP Act in the affirmative. However, for completeness the Tribunal will now consider the proper construction of the words 'a building already erected' in s 374(1)(b) of the LGMP Act.
In the Macquarie Dictionary Online (2018) the definition of 'erect' includes 'to build; construct; raise: to erect a house', the definition of 'build' includes 'to construct (something relatively complex) by assembling and combining parts: build a house', the definition of 'construct' includes 'to form by putting together parts; build' and the definition of 'raise' includes 'to build; erect'. The Tribunal notes that in the definitions of 'erect' and 'build' there is reference to the erection or building of a house by constructing it and the definition of 'construct' refers to 'putting together parts', which, in the Tribunal's view, signifies to achieve a completed house, not just the 'structure' of a house.
When the ordinary meaning of 'erect' and, hence, 'erected' is applied to the words 'a building already erected' in s 374(1)(b) of the LGMP Act, the provision should be construed to refer to a building which has already been completed.
Therefore s 374(1)(b) of the LGMP Act should be construed to be concerned with the amendment, alteration, extension or enlargement of the structure of a building which has already been completed.

The Tribunal therefore does not accept Mr Parkin's contention that the Dwelling at lockup stage was 'a building already erected' to which s 374(1)(b) applied and therefore after that stage it was not caught by s 374(1)(a) of the LGMP Act.

The proper construction of the words of s 374(1)(b) of the LGMP Act is that they prohibit the amendment, alteration, extension, or enlargement of the structure of a completed building which has already been erected on land. However, the fact that the prohibition is concerned with the structure of the building and not the building itself does not negate the requirement under s 374(1)(b) that the building in question must have been 'already erected'. That necessarily means that the building must not still be in the process of being erected, or, in other words being built, for s 374(1)(b) of the LGMP Act to apply.

Conclusion

Mr Parkin was required to, but did not have a building licence under s 374(1) of the LGMP Act for the Completion Work, which included the Tiling Work, and therefore the Completion Work, including the Tiling Work, was 'unauthorised work' under s 51(1) of the Building Act for the purposes of reg 5A of the BSCRA Regulations. Therefore the Tiling Work was a 'regulated building service' under the definition of that term in s 3 of the BSCRA Act for the purposes of that Act.

The Preliminary Issue is therefore decided in the affirmative and, accordingly, the following order will be made and the proceeding will be listed for a further directions hearing to program it to a final hearing.

Order

1.The preliminary issue, 'Did the respondent carry out a regulated building service for the purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of the tiling and waterproofing which is the subject of the complaint made by the applicant to the Building Commission in this matter', is determined in the affirmative.

I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D AITKEN, SENIOR MEMBER