THE OWNERS OF PINNACLE SOUTH PERTH STRATA PLAN 63919 and CITY OF SOUTH PERTH
[2022] WASAT 25
•23 DECEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION: THE OWNERS OF PINNACLE SOUTH PERTH STRATA PLAN 63919 and CITY OF SOUTH PERTH [2022] WASAT 25
MEMBER: MS P LE MIERE, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 23 DECEMBER 2021
FILE NO/S: DR 78 of 2021
DR 275 of 2021
BETWEEN: THE OWNERS OF PINNACLE SOUTH PERTH STRATA PLAN 63919
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Building Act - Review of building order - Application for extension of time where delay extensive - Glass balustrading failure - Proportionality of evacuation order to risk of harm - Expert evidence evaluates risk but does not support evacuation
Legislation:
Building Act 2011 (WA), s 6(3), s 11(2), s 122(1)(a), s 122(1)(b)
State Administrative Tribunal Act 2004 (WA), s 29(3)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Minter Ellison |
| Respondent | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
Sanur Pty Ltd and City of Subiaco [2021] WASAT 90
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant is the strata company created on the registration of strata plan 63919 on 13 January 2017 in respect of the strata scheme known as 'Pinnacle South Perth' for the 19 storey mixed use building located at 30 - 34 Charles Street, South Perth (Pinnacle Apartments).[1]
[1] The Evacuation Order incorrectly identifies the property address as '53 Labouchere Road, South Perth, WA, 6151' (see page 4 of the application dated 20 April 2021).
The respondent is the permit authority as defined in s 6(3) of the Building Act 2011 (WA) (Building Act).
The parties are also party to a related application, CC 1017 of 2019 (Related Matter), in which both the applicant and respondent have filed a Statement of Issues, Facts and Contentions and supporting documents. The Related Matter concerns the review of a building order(s) requiring rectification work(s) to glass balustrading on various levels of Pinnacle Apartments.
This proceeding concerns an application under s 122(1)(a) and s 122(1)(b) of the Building Act to review the (emergency) building order issued by the respondent on 12 December 2019 and 13 October 2021 (Evacuation Order).
The Evacuation Order required the residents of Pinnacle Apartments not to use their balconies due to safety issues arising from concerns with respect to the glass balustrades.
This proceeding also concerns an application for the Tribunal to exercise discretion under r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) to extend the time fixed under r 9 of the SAT Rules for the applicant to make its application to 20 April 2021.
On 1 November 2021, the Tribunal ordered that it may have regard to any documents filed in the Related Matter referred to by the parties in this proceeding.
As final submissions in this matter were not able to be filed until 10 December 2021 the parties consented to my publishing my decision in this matter before Christmas with the reasons for decision to be provided subsequently.
On 23 December 2021 I made orders:
1)extending the time for the applicant to seek a review of the Evacuation Order; and
2)setting aside the decision of the respondent regarding the Evacuation Order and substituting it with my decision. These are the reasons for my decision.
Background
The balcony balustrade system was designed and installed by KOHL Corporation Pty Ltd (KOHL), a subcontractor of Jaxon Constructions Pty Ltd.
It is not contested, and I find the KOHL balcony balustrades are all comprised of:
a)structural frames affixed to the balconies, which have been classified into five distinct balustrade types (Structural Balustrade) located across the Pinnacle Apartments, being:
i)Balustrade Type 1: Typical Apartment Balustrade (Residential Tower);
ii)Balustrade Type 2: Level 2, Barbeque Area (Residential Tower);
iii)Balustrade Type 3: Level 2, Pool Area and Penthouse Apartments (Residential Tower);
iv)Balustrade Type 4: Level 3 (Commercial Tower);
v)Balustrade Type 5: Level 4 (Commercial Tower); and
b)glazed infill panels, which are certified as either 6 millimetre heat-soaked monolithic toughened safety glass or 10 millimetre heat-soaked monolithic toughened safety glass (depending on the location of the balustrade) (Glass Panels).
I have had regard to:
•the application dated 20 April 2021 and supporting documents;
•respondent's submissions dated 9 June 2021;
•Joint Expert Opinion (Version 3) dated 2 September 2021;
•applicant's submissions dated 15 November 2021;
•Supplementary Report of Mr Simon Jewell dated 10 November 2021;
•Supplementary Report of Dr Ignatius Calderone dated 10 November 2021;
•Joint Supplementary Report of Mr Mike Sander dated 11 November 2021;
•respondent's submissions dated 10 December 2021;
•all documents in the respondent's s 24 bundle dated 10 December 2021 not specifically referred to above; and
•Witness Statement of Fiona Louise Mullen dated 9 December 2021.
Applicant's contentions
The applicant contends that:
a)in the circumstances, the Tribunal should exercise its discretion under r 10 of the SAT Rules and extend the time fixed under r 9 of the SAT Rules; and
b)the correct and preferable decision is that the decision to make the Evacuation Order be set aside and substituted with a decision of the Tribunal, or varied with the applicant's proposed building order[2] (applicant's Proposed Building Order) because:
[2] Annexed to applicant's submissions dated 15 November 2021.
i)there was no basis for the respondent to issue a building order (emergency) because there is no imminent and high risk to people, property or the environment;
ii)the respondent has not established that all of the balconies are in contravention of the Building Act;
iii)the respondent has not established that all of the balconies are reasonably believed to be in a dangerous state or unfit for human occupation (indeed, the expert evidence does not support this conclusion);
iv)the Evacuation Order is entirely disproportionate; and
v)the applicant's Proposed Building Order is entirely consistent with the experts' recommendations in the Risk Assessment Report (RA Report).
Extension of time
Length of delay
Both parties in their respective submissions agree the four principal considerations in relation to an extension of time under r 10 of the SAT Rules are:
•the length of the delay;
•the reason for the delay;
•whether there is an arguable case for review; and
•whether the extension would cause prejudice (or the extent of the prejudice) to the respondent.
There can be no dispute the extent of the delay in this matter of 15 months and 12 days, is extensive. If it were not for the other circumstances in this matter, the delay itself might be reason not to grant an extension of time.
Reason for delay
The applicant does not dispute that it requested the respondent issue the Evacuation Order. I do not understand it to be disputed that since the Evacuation Order was issued the parties have been in discussions with a view to resolving the Related Matter or that it was considered likely that a resolution of the Related Matter would probably result in the Evacuation Order being revoked by the respondent.
As of 20 April 2021, the Related Matter had not been resolved and it then became apparent that resolution of the Related Matter may not result in the Evacuation Order being revoked. The applicant then made this application.
The respondent did not challenge this assertion.
The respondent in its submissions dated June 2021 appears to suggest the applicant's challenge to the Evacuation Order is on the basis it had or would go on too long. The applicant has confirmed that is not its position.
The applicant's position is:
… The Applicant does not contend that the duration of the building order is the reason for delay. The Applicant contends that the application was not made sooner due to the procedural history in respect of the Related Matter and the Applicant's understanding (until very recently) that the release of the balconies from the Evacuation Order was imminent. The Applicant's conduct in withholding from making the review application while negotiations between the parties to resolve the Related Matter were being conducted was entirely appropriate and in the interests of efficiency and economy. This is particularly so in the circumstances because the Applicant's current solicitors took carriage of the matter when the Applicant was already out of time.[3]
[3] Applicant's submissions dated 15 November 2021, page 15, para 214.
I accept the applicant's characterisation of the application. I do not read its submissions in the way or in the manner suggested by the respondent.
During a number of directions hearings, the parties informed me they were attempting to resolve the Related Matter. The parties have agreed to amend the building order the subject of the Related Matter and that it will possibly entirely resolve the Related Matter.
I find the parties were genuinely attempting to resolve the Related Matter and that it was reasonable in the circumstances for the applicant to not commence proceedings seeking a review of the Evacuation Order.
It may, however, have been more prudent of the applicant to have filed an application for review of the Evacuation Order and sought the respondent's and the Tribunal's consent to not pursue the matter pending negotiations with respect to the Related Matter.
Arguable case
I find there is an arguable case. I will set out my reasons for finding there is an arguable case in my reasons for setting aside the Evacuation Order and substituting my own decision.
Prejudice to the respondent
The respondent sets out in its submissions that it would be prejudiced if the extension of time was allowed as it has made decisions based on the Evacuation Order being in place.
The applicant denies there is any prejudice as it alleges the respondent has been aware it intended to seek a review of the Evacuation Order since January 2020. It refers to its letter of 21 August 2020 to the respondent where it addresses the issue of the Evacuation Order and reiterates its request that the balconies be released.
The wording of the Evacuation Order is such that a determination as to whether it has been complied with is entirely at the discretion of the respondent. The Evacuation Order requires the balconies to be evacuated and to remain unoccupied until the respondent considers the balustrading is no longer in a dangerous state.
What the applicant has to do to comply with the Evacuation Order is to effectively not use the balconies until the respondent says it may. The criteria upon which the respondent will makes its decision that the balconies are safe is not specified.
There is nothing in the Evacuation Order that requires any particular work to be done.
The respondent does not point to any matter it cannot raise or any evidence it can no longer obtain that may have been available to it had the application been made within time.
The prejudice the applicant is referring to is not to the extension of time but to a decision the Tribunal may make, if it were to extend the time, and revoke or amend the Evacuation Order.
I accept that had the Evacuation Order been reviewed in time and the Evacuation Order revoked or amended the respondent may have made different decisions regarding the substantive matter during the last 15 months.
I am not satisfied however that the actual conduct of the review is prejudiced by the lapse of time. There is not for example an allegation that evidence is no longer available, or witnesses' memories have faded, or witnesses are no longer available.
When considering an application for an extension of time it is always necessary to balance the possible or actual prejudice to a respondent in allowing the extension of time against the interest of justice in allowing the application.
I am satisfied that in these particular circumstances despite the significant and considerable delay I find it is in the interests of justice that the extension of time be allowed.
What is the correct and preferable decision?
The Evacuation Order does not direct that any action be taken by the applicant other than not to use the balconies, possibly on a permanent basis.
The respondent's discretion appears to be absolute. It does not say in the Evacuation Order what is required to be done by the applicant to make the balustrading safe or why it views the balustrading to be in a dangerous state. The applicant cannot know with any certainty what it needs to do to ensure the revocation of the Evacuation Order.
The Evacuation Order makes it possible for the respondent to require the applicant to take any action the respondent deems desirable for the balustrading to no longer be in a dangerous state. Potentially, the action required would not necessarily be one even contemplated when the respondent made the Evacuation Order.
The uncertain nature of the Evacuation Order in itself could, potentially be grounds to consider revoking or amending it.
The issue the respondent says the Evacuation Order was to address was the safety of the balconies due to the breakages of the glass balustrading. However, there were also other issues raised by the respondent about the balustrading's compliance with Australian Standards other than the glass breakages.
Applicant's submissions
The use of the emergency provision to issue the Evacuation Order under s 11(2) of the Building Act as not warranted or applicable.
During the course of the proceeding of the Related Matter the RA Report was undertaken on the balconies with the balustrading concerns.
The Evacuation Order ought to reflect the findings of the experts who carried out the RA Report.
Respondent's submissions
The use of the emergency provision is not a matter that can invalidate the Evacuation Order. The use of the emergency provision only relates to a party's ability to issue a building order without the need for consultation.
There is no dispute that the Evacuation Order was issued after a request was received from the applicant for assistance in keeping occupiers off the balconies until the safety issues could be resolved. There is, therefore, no issue with the lack of consultation.
Even if the likelihood of glass breaking is considered and the impact on safety, the additional issues of the non-glass rectification works will also need to be considered by the Tribunal when assessing the correctness of the Evacuation Order.
Although the RA Report does advise that some balconies can be released with specific conditions put in place to reduce the level of risk, the measures simply reduce the level of risk but do not suggest there is no risk.
The experts, by recommending specified conditions for the opening of the balconies in the RA Report clearly recognise that there is a risk to public safety prior to the remedial action required by the building order issued on 15 November 2021 in CC 1017 of 2019 (building order) occurring.
Adding any increase in risk to either the users of the balconies or footpath underneath the balconies is not acceptable to the respondent and therefore the respondent will not consent to the opening of the balconies prior to the actions required to be taken by the building order.
Where there is any possible safety concern the Tribunal should err on the side of caution,[4] and maintain the Evacuation Order.
[4] Sanur Pty Ltd and City of Subiaco [2021] WASAT 90.
The Evacuation Order is not disproportionate. No action has been taken to replace or film the glass balustrading which remains in the same condition as it was at the time of the issuing of the Evacuation Order.
The lack of death or injury which has resulted from these incidents, is in the respondent's opinion, due to no small part to the continuing operation of the Evacuation Order. The respondent is very concerned that death or injury may result if access to the balconies is permitted without the remedial action required by the Building Order.
Consideration
We accept the respondent's submission that an emergency building order is simply a building order issued without a period of consultation. There is nothing in the Building Act that suggests a failure to consult for 14 days invalidates a building order.
Additionally, the applicant did not seek to challenge the Evacuation Order until after the 14 day consultation period would have expired. The issue of the Evacuation Order as an emergency building order rather than a non-emergency building order is not relevant to my consideration as to what is the correct and preferable decision.
I have only set out a brief summation of the respondent's submissions and not referred to the authorities cited. However, I have considered all the respondent's submissions and the cases cited.
At the time of the issuing of the Evacuation Order neither the applicant nor the respondent had the advantage of a safety assessment/audit. The Evacuation Order was made when some glass balustrades were breaking without, in many instances, the cause of the breakages being known, or the likelihood of any further failures known.
The respondent does not challenge that on a review, being a hearing de novo, the Tribunal can have regard to evidence or information that was not made available to the original decision-maker when it made the reviewable decision.
In that respect the RA Report is new or additional evidence that was not available when the Evacuation Order was made.
The experts in the RA Report variously describe the risk of harm to a person(s) on the balconies following a failure of the glass balustrades as ranging from catastrophic to minor.
The safety audit does not factor in any risk(s) posed by the faults or problems with the balustrades unrelated to the problems with the glass breakages. There is no expert evidence however that suggests the balustrades were unsafe to use due to the non-glass faults.
The safety audit is very comprehensive and was carried out by three experts one of which was appointed by the respondent. Whilst the experts did not agree on the level of risk in respect of all areas, the recommendations in the RA Report were agreed upon by all experts.
After the issuing of the RA Report there was a further balustrade glass breakage. As a result of this breakage supplementary reports were issued by the experts, Mr Jewel, Mr Sanders and Dr Calderone. Following a conferral of all the experts a Joint Supplementary Risk Assessment Report dated 11 November 2021 (SJA Report) authored by Mr Sanders, was provided to the parties.
Mr Sanders concurred with Dr Calderone and Mr Jewell that there was a small increase in risk associated with the further breakage. He was also of the view that adding the film (as set out in the RA Report) would ameliorate the risk in line with the actions required for some of the areas with 6 millimetre glassing.
All the experts agreed that consequently a film (as detailed in the RA Report) should also be applied to the glass balustrades on level 19 and level 3 and level 4 of the commercial areas.
Dr Calderone did not agree with Mr Jewel and Mr Sanders that the affected areas could be reopened once warning labels, as recommended in the RA Report were installed.
Mr Jewel provided a short report dated 10 November 2021 in which he gives detailed reasons for his opinion as to the extent to which, and where and why the risk level(s) have increased.
Mr Sanders agreed with Mr Jewel (but did not provide separate reasons) that the impacted areas could be reopened once warning labels were applied.
Dr Calderone provided a short report dated 10 November 2021 wherein he recommended all balconies where 10 millimetres toughened glass is used in the balustrades should not be permitted to be occupied until the remedial works were undertaken. He also recommended all residential balconies where glass could fall on to them from above should not be used until the remedial works were undertaken.
He did not consider that warning labels, as recommended by Mr Jewel and Mr Sanders sufficiently reduced the risk. He did not however, as Mr Jewel had done, look at the different areas and consider if there was an increased risk and if so why and what the increased risk was.
I prefer the evidence of Mr Jewel and Mr Sanders to that of Dr Calderone as to what the increased risk is and that the balconies can be used/occupied, with sufficient warning stickers. Dr Calderone provided insufficient reasons for his opinion that the balconies should not be occupied. He also did not say why his opinion changed from that in the RS Report.
The respondent accepts the recommendations of Mr Jewel and Mr Sanders.
I do not accept the submission of the respondent that because there is still some risk in the balconies being occupied, they should remain closed. Most activities carry some risk, and it is always a question of balancing the risk.
There is expert evidence that the balconies can be used with appropriate warning signage. I find that in consideration of the risk outlined in the SJA Report, the Evacuation Order is disproportionate to the risk.
The correct and preferable decision is that the balconies can be opened subject to conditions.
Orders
The Tribunal orders:
1.Pursuant to rule 10 of the State Administrative Tribunal Rules 2004 (WA) the time fixed under rule 9 for the commencement of a proceeding under sections 122(1)(a) and 122(1)(b) of the Building Act 2011 (WA) in respect of application DR 78 of 2021 and DR 275 of 2021 be extended to 20 April 2021 and 22 December 2021 respectively.
2.Pursuant to s 29(3) of the State Administrative Tribunal Act 2004 (WA) the Building Order dated 12 December 2019 and the Building Order dated 13 October 2021 are set aside and substituted with the following building order as attached in appendix A.
Appendix A
You are required to take the following specified actions so as to prevent or stop a suspected contravention of the Building Act 2011:
i.In respect of the level 4 to 18 residential balconies, and the level 19 penthouse balconies, affix a decal sticker to all doorways that lead to a balcony (identified as areas '4-18_R13N', '4-18_R13E', '4-18_R13S', '19_R15' in the Risk Assessment Report dated 2 September 2021 annexed to this order) in a typeface and size so as to ensure it is clearly visible to all potential occupants of the particular balcony areas, composed of the following wording:
'THE GLASS INFILL PANELS ON THIS BALCONY MAY SPONTANEOUSLY SHATTER
All persons having access to the balcony should bear in mind the risks that may result from shattering glass including:
-THE RISK OF INJURY FROM SHATTERING GLASS.
-THE RISK OF FALLING FROM THE BALCONY due to the loss of the protective barrier of the glass infill panels.
-RISK CAUSED BY THE SHOCK OF BEING IN PROXIMITY TO SHATTERING GLASS PANELS.
DO NOT lean on the glass or the balustrade and minimise the time spent any closer than one metre from the balustrade.
DO NOT lean heavy items such as furniture against the glass or the balustrade and where possible maintain a gap of at least half of a meter between any such objects and the balustrade.
It is strongly recommended that children are not permitted onto the balcony. If they are permitted on the balcony:
-children under 15 must be in the company of an adult and should not in any event approach within 1 metre of the balustrade.
-children under 7 must be closely supervised and within an arm's length of an adult at all times.
Furniture or loose items should be removed from the balcony or secured during periods of extremely windy or stormy weather. It is recommended that balconies remain closed during poor weather conditions.
This warning label must not be removed. If the label is showing signs of deterioration, contact the Owner's Corporation for a replacement.
ii.Cause the following areas of the Building to remain unoccupied until the action specified is undertaken:
a)Level 3 commercial balcony (eastern) to remain unoccupied until the non- compliant glass panels have been replaced or remediated and the decal sticker referred to at [i] is placed on the balcony entrance (identified as area '3_C04' in the Risk Assessment Report)
b)Level 2 residential common barbeque area to remain unoccupied until:
i.the non-compliant glass panels on the Level 3 commercial balcony (eastern) have been replaced or remediated (area '3_C04' in the Risk Assessment Report, see above at [i]); and
ii.a film is applied to the apartment balustrade glass above,
(identified as areas '2_R06' and '2_R07' in the Risk Assessment Report).
c)Level 2 gymnasium balcony to remain unoccupied until the non-compliances are remediated (identified as area '2_R08' in the Risk Assessment Report).
d)Level 2 residential barbeque area within the swimming pool area to remain unoccupied until the non-compliances are rectified (identified as area '2_R09' in the Risk Assessment Report) (the swimming pool area is not required to remain unoccupied).
e)Level 3 residential balconies not covered by slab to remain unoccupied until a film is applied to the balcony balustrade glass above this area (identified as area '3_R10' in the Risk Assessment Report).
f)Level 3 residential balconies not covered by slab to remain unoccupied until a film is applied to the balcony balustrade glass directly above area '3_R10' above (identified as area '3_R12' in the Risk Assessment Report).
g)Level 3 R 12 Balcony described 3_R12 in the Risk Assessment Report must remain unoccupied and isolated until R10/R11 can be reopened.
h)Level 19 (described as 19_R15) balcony must remain unoccupied until the film is applied to the balustrading and the agreed warning decal is affixed to the balcony entrance door.
For the avoidance of doubt, consistent with the Risk Assessment Report's recommendations, the balcony areas of the Building not listed above at [2(a)] to [2(h)] may be accessed and are not required to remain unoccupied.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
11 APRIL 2022