| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING ACT 2011 (WA) CITATION : THOMAS and CITY OF STIRLING [2013] WASAT 110 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 13 MAY 2013 DELIVERED : 11 JULY 2013 FILE NO/S : CC 1215 of 2012 BETWEEN : BRETT THOMAS Applicant
AND
CITY OF STIRLING
Respondent
Catchwords: Building Act 2011 (WA) - Building order to remove encroachment - Criteria to be applied - Whether correct and preferable order on review is that the building order should not have issued Legislation: Building Act 2011 (WA), s 3, s 6(3), s 76, s 86, s 86(2)(a), s 86(3), s 110, s 112, s 122, s 153(2), s 176, s 189, Pt 16
Land Administration Act 1997 (WA), s 46(1), s 144, s 144(1)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374AA, s 400, s 401, s 409A
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Local Government Act 1985 (WA), s 3.25(1)(b)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 55
Town Planning and Development Act 1928 (WA) Result: Application granted
Decision under review and building order set aside
Summary of Tribunal's decision: The applicant applied for a review of a decision by the respondent to issue a building order pursuant to s 110 of the Building Act 2011 (WA) requiring the applicant to remove a boundary wall encroaching on a road reserve.
The applicant firstly contended that, pursuant to an agreement reached in mediation, and in accordance with the terms of the order made by the mediator, the respondent was bound to consent to the building order being set aside. The Tribunal found that the order was not open to the construction for which the applicant contended and rejected this aspect of the application.
The Tribunal examined the legislative scheme and previous decisions of the Tribunal in order to identify the factors which would generally have to be considered in the exercise of a discretion when deciding whether or not to issue a building order. In applying those considerations to the facts of the case, the Tribunal concluded that the correct and preferable decision was that a building order not be issued. Consequently, orders were issued setting aside the decision under review, substituting a decision not to issue a building order and setting aside the building order.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr LE James
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Solicitors:
Applicant : N/A
Respondent : Kott Gunning
Case(s) referred to in decision(s):
ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR
Alcam (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue 239 CLR 27
Dawson and City of Fremantle [2008] WASAT 125
Drake and City of South Perth & Anor [2005] WASAT 271
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Mostamandi and City of Joondalup [2011] WASAT 212
Murrey and City of Stirling [2009] WASAT 156
Perry v Stanborough (Developments) Ltd (1977) 244 Estates Gazette 551
R v Newham Justices, Ex Parte Hunt; R v Oxted Justices, Ex Parte Franklin [1976] 1 ALL ER 839
Re Griffiths; Ex Parte Homestyle Pty Ltd [2005] WASCA 103
Stein and Shire of Chapman Valley [2009] WASAT 113
Western Australian Planning Commission v Dungey [2010] WASC 52
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 As found by the Tribunal, below, in about May 1972, Mr Robert Dawes, then the owner of the residential property known as No 11 Pinaster Street, Menora, in the State of Western Australia, caused to be constructed a swimming pool and surrounding walls on the eastern part of the property adjacent to Pinaster Street. 2 The front eastern wall, which is 13 metres in length, and its northern and southern corners, which join walls running north to south, encroach into the street reserve. The extent of the encroachment, over the 13 metre length, increases from 50 millimetres on the southern side to 90 millimetres on the northern side. The wall is a single leaf brick wall which is 110 millimetres in width. It is common cause that the City of Stirling (City) is responsible for the control and management of the road reserve. On 5 July 2012, the City issued a building order under s 110 of the Building Act 2011 (WA) (Building Act) requiring the current owner, Mr B Thomas, who is the applicant in these proceedings, to remove the wall. The City asserts that in law there is no other course open. 3 Mr Thomas applied to the Tribunal for a review of the City's decision to make the building order, as he is entitled to do under s 122 of the Building Act. 4 The building order originally referred to not only the eastern wall, but the walls running westwards from the northern and southern corners of the eastern wall. 5 At the initial directions hearing held by the Tribunal on 16 August 2012, the matter was referred to mediation. Following the mediation, the dispute, as reflected in the statements of issues, facts and contentions filed by the parties and submissions at the final hearing, has been restricted to the encroachment of the eastern wall. Mr Thomas contends, however, that the effect of an order made by the mediator on 22 October 2012, reflecting the agreement between the parties, is that the City is obliged to consent to the building order being set aside. 6 The matter proceeded to final hearing on the above basis. The issues which arise are discussed in the following section of the decision and the relevant facts will be set out in the discussion of the issues. The facts relied upon are not disputed and have been gleaned from the materials filed by the parties and the oral evidence of Mr Thomas. This course (Page 5)
was agreed with the parties and for that reason no oral evidence was given, except to a limited extent by Mr Thomas. That evidence was principally directed towards the basis upon which he contended that, having complied with the matters agreed in mediation, the City was obliged to consent to the building order being set aside. Once it became apparent that no evidence would be permitted of anything said or done in the course of the mediation, the City curtailed its cross-examination of Mr Thomas and elected to call no evidence. Regard could not be had to such evidence in accordance with s 55 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) because the parties did not agree to the admission of the evidence and the order relied upon is expressed in writing.
The issues 7 The outcome of the application will be determined by the conclusions reached in respect of the following two issues: a) The effect of the order made by the mediator on 22 October 2012. b) Whether, upon the Tribunal's review, by way of a hearing de novo, the correct and preferable decision is to exercise a discretion to issue a building order, or not. 8 The parties defined the issues more widely, with Mr Thomas adopting the issues as expressed by the City. The City defined the issues as follows in its statement of issues, facts and contentions. 1) Whether, pursuant to the order of Senior Member Spillane made on 22 October 2012, the respondent is obliged to consent to the building order the subject of the review being set aside and the matter finalised, given that Mr Thomas has relocated the electrical meter box from the front wall and reinstated the wall. 2) Whether the City is empowered under s 76 of the Building Act to consent to the front wall remaining on the road reserve without the consent of the Minister for Lands also being obtained under that section. 3) Whether the council of the City may, in its discretion, refuse its consent pursuant to s 76 of the Building Act. (Page 6)
4) Whether there is any other legal basis upon which the front wall may remain encroaching upon the road reserve if the applicant has not sought and obtained the consent of the Minister for Lands and the council of the City consenting to the encroachment. 9 The first issue is encompassed in issue a) identified by the Tribunal. Issues 2 and 3 are not real issues, and were not challenged by Mr Thomas. The statutory regime and legal principles applicable to the making of a decision to issue a building order are discussed further below. It is plain that both the Minister for Lands and the City would need to give the consent referred to in s 76(1)(a). Further, insofar as the section does not prescribe any circumstances or criteria in which the consent must be given, it must necessarily follow that there is a discretion vested in the council of the City whether or not to provide consent to an encroachment. 10 The meaning and effect of issue 4 as defined by the City is far from clear, particularly in circumstances in which the reasons for decision provided by the City disclosed no more than the fact that a survey identified the encroachment, that encroachment upon a road reserve without the consent of the Minister for Lands and the City is unlawful under s 76 and was previously so under the legislative regime prior to the Building Act coming into operation. There was no hint of the identification of any factors being considered which might provide a legal basis upon which the City might exercise a discretion not to issue a building order, thereby allowing the encroachment to remain. 11 At the commencement of the hearing, the Tribunal raised with the City's counsel whether or not it was accepted that the City had a discretion enabling it to decide whether or not to issue a building order. Counsel for the City conceded that such discretion existed and, as will appear below, that concession was rightly made. 12 In the absence of any other legal basis being identified upon which the front wall might remain, the true issue to be determined is that identified by the Tribunal whether the correct and preferable decision on review is to exercise a discretion to issue a building order or not.
The effect of the order made on 22 October 2012 13 The order of 22 October 2012 is expressed in the following terms: 1. The mediation is adjourned to 22 February 2013 at 10 am to allow the applicant an opportunity to relocate the electrical meter box from the front wall and reinstate the wall following which (Page 7)
the respondent will confirm whether it will consent to the building order the subject of the review being set aside and the matter finalised. 14 As I understand Mr Thomas' contentions and oral submissions, once he had carried out the agreed work to the front (eastern) wall and had reinstated it, the City would be bound to consent to the building order being set aside. 15 The language of the order does not support Mr Thomas' case. If that was the intention, the order would have needed to read that upon the work being carried out and the wall being reinstated, 'the respondent consents to the building order the subject of the review being set aside and the matter finalised'. 16 The order as it is expressed conveys that the City would have to make a decision after that work had been completed as to whether it would consent to the building order being set aside. The work contemplated by the order would not have addressed the difficulty that the wall encroached into the road reserve, and it is not surprising that the City recognised, as reflected in the order, that a considered decision would need to be made about whether or not the building order could be left to stand. The order did not oblige the City to consent.
The factual background 17 There is limited information about when the offending wall was actually constructed, because, as outlined in the introduction, the construction occurred many years prior to Mr Thomas acquiring the property approximately 14 years ago. 18 It is evident that the City raised its concerns about what was referred to as unauthorised work well prior to the issue of the building order on 5 July 2012. As already mentioned, the building order referred to not only the front eastern wall, but also to two walls which joined it at its northern and southern extremities. A letter from the City dated 20 October 2011 addressed to Mr Thomas refers to a 'BAC form' and 'BAC drawings' from which it can be inferred that an attempt had been made by Mr Thomas to lodge an application under s 374AA of the Local Government (Miscellaneous Provisions) Act 1960 (WA) which was then still operative, for what amounts to retrospective approval for unauthorised building work. Under that provision, the City had power to issue a building approval certificate in respect of unauthorised building work. (Page 8)
19 The letter of 20 October 2011 required Mr Thomas to comply with a number of conditions, including the provision of an engineer's report to certify the as constructed structural drawings. While the history of this application has not been canvassed, it can be inferred that the application was either refused or is being held in abeyance. This can be inferred because the letter expressly stated with reference to the front fence that 'the construction is not authorised and shall be removed' and went on to state that failure to comply with the stated conditions might result in a notice being served pursuant to the Local Government (Miscellaneous Provisions) Act 1960 (WA). Further, that a new building licence was required to rebuild the front fence before the 'BAC' (building approval certificate) could be issued. It is, however, common cause that the applicant has provided engineering reports to the City. 20 At the commencement of the hearing, Mr Thomas indicated that he had in attendance expert witnesses to address the structural integrity of the wall and also any traffic issue. The traffic issue related to a requirement of the City that the front wall, and the wall joining it at its southern extremity, be truncated to improve traffic visibility. However, the City clarified that, for the purposes of these proceedings, it raised no issue concerning those matters. It was explained that if the decision under review was affirmed, the traffic issue would become alive in the consideration of any new application for a building permit. On that basis, the expert witnesses were not called. 21 Subsequent investigation by Mr Thomas reveals that while there is no evidence to directly establish that the walls, as originally constructed, were authorised pursuant to a building licence at the relevant time, it can be inferred that the construction of the walls was carried out pursuant to a building permit at the same time as the swimming pool was constructed in 1972. The walls as originally constructed did not include an electrical meter box subsequently installed by Mr Thomas, who is a licensed electrician. The mediation order reflected Mr Thomas' agreement to remove and relocate the electrical meter box. But for that removal, the installation of the electrical meter box would have been an issue in these proceedings. 22 Mr Thomas asserted in his grounds to the application that the original dwelling was understood to have been constructed in 1969. This has not been challenged by the City. It is apparent there is no record of any building approval for the original dwelling. However, Mr Thomas has provided a copy of building licence no 72/1167 issued by the City (Page 9)
and dated 8 May 1972 for the construction of a concrete swimming pool, by Classic Pools, for 'Mr R Dawes' at No 11 (Lot 36) Pinaster Street. 23 Mr Thomas has also provided a note of a discussion which he had with his neighbours, Mr Colin Hopkins and Mrs Dallas Hopkins of No 7 Pinaster Street, on 16 April 2013. He there records that Mr Hopkins stated that he remembered when the swimming pool and walls were built for 'Bob Dawes'. Mr Hopkins recalled that the walls were built before the swimming pool was filled with water. This suggests that the walls were constructed at or about the same time as the swimming pool and certainly were completed before the swimming pool was filled with water. 24 Mr Thomas has also provided a copy of building licence no 79/2072 issued by the City and dated 23 July 1979. The building licence related to the construction of a brick and asbestos bathroom, a study and a verandah addition for 'Mr and Mrs B Daws' in respect of No 11 (Lot 36) 'Pinasta' Street. An accompanying plan for the proposed extension for 'Mr and Mrs B Daws' of No 11 'Pinasta Street' shows, amongst other structures, an existing swimming pool and the walls the subject of the building order. Although there are differences in the spelling of the persons for whom the building work was to be carried out in respect of the above building licences and the street name is also spelled differently, there can be no question that the building licences relate to the same person and the same property. 25 On this evidence, I find that the walls in question were constructed, in all probability, during a period of some months after 8 May 1972. 26 No plan has been provided which relates to the building licence of 8 May 1972. However, if the walls were not shown in that plan and were therefore not covered by the building licence, it is improbable that the City would not have identified this and taken action when the application for a building licence was made for the extensions in June 1979. In that sense, it is probable that the construction of the walls was authorised, but that would not have permitted walls to be constructed beyond the boundary of the lot. On any basis, the encroachment is therefore not authorised and Mr Thomas did not contend otherwise. 27 The extent of the encroachment is shown in a survey diagram prepared by Property People Surveying dated 8 June 2010. As recorded earlier, the wall encroaches into the road reserve to the extent of 50 millimetres at the southern extremity of the wall to 90 millimetres (Page 10)
at the northern extremity. Mr Thomas has described the wall as being 13 metres in length and that has not been challenged. 28 Mr Thomas has taken a number of steps in an attempt to regularise the encroachment, or at least avoid the issuing of a building order requiring him to remove the wall. 29 In order to establish that any services provided through the road reserve were unaffected by the encroachment, Mr Thomas wrote to the relevant utilities by letters all dated 27 March 2013. In each case, the letter requested confirmation that the encroachment (the survey plan was attached) did not impede or hinder the infrastructure belonging to the utility and that the utility had no objection to the encroachment remaining. 30 On 15 April 2013, Mr Thomas sent an email to Western Power Corporation referring to his earlier letter, advising that a reply had not been received and requesting that the email be forwarded to the appropriate department or person. An email response was received on 16 April 2013 advising that the email from Mr Thomas was being forwarded to the Operational Asset Management area and that someone would be in contact with Mr Thomas to advise the outcome. Mr Thomas has received no response. 31 ATCO Gas Australia Pty Ltd responded to Mr Thomas by email dated 15 April 2013 to advise that it had no objection. 32 By letter dated 5 April 2013, Telstra responded to Mr Thomas advising that the site had been inspected and that Telstra is satisfied that the encroachment does not impede or hinder access to Telstra infrastructure and therefore Telstra had no objection to the encroachment. 33 The Water Corporation responded by an email dated 28 March 2013 advising that it was unable to approve the wall. This is because its protection of services guidelines requires that any boundary wall higher than 1.8 metres must be set back a minimum of 600 millimetres from the sewer main with piled footings. The wall in question is 2.7 metres in height. The Water Corporation advises that there is a sewer main along the front boundary of the property parallel with a 900 millimetre setback from the boundary outside the property. The email concludes in the following terms: In a circumstance where an existing wall is situated on top, near or too close to a sewer main and does not comply with our guidelines, we are unable to approve such structure. Furthermore[,] in the event that (Page 11)
the existing structure required restoration works or replacement, then any replacement structure would be required to comply with our current Protection of Services guidelines as delineated above. 34 This response does not convey an objection to the wall remaining. It contemplates that if restoration or replacement works are carried out, the wall would be required to comply with the current guidelines. 35 It can be concluded from the above that none of the utilities concerned have any serious objection to the encroachment. The walls have been in existence for more than 40 years without any difficulty arising. I find that the encroachment does not affect any services provided through the road reserve. 36 On 24 May 2012, Mr Thomas wrote to the City offering a number of points for consideration prior to any decision to issue a building order. Mr Thomas acknowledged that the survey, already referred to, established the existence of an encroachment which could not be disputed. He pointed out that until the survey had been provided to him, the existence of an encroachment was not known and, further, that the encroachment did not cause hardship to 'either landholder or any adjacent landholder'. He referred to a search which revealed the building licences to which reference has been made, and raised the possibility that a building licence was issued for the construction of the front fence which had subsequently been misplaced or lost from the City's records. He suggested that, rather than issuing a building order, efforts be put to good use in the drafting of a deed of agreement between any and all affected landholders or representatives to permit the structure to stand in place 'until some such predetermined timing or event'. 37 Notwithstanding the issue of the building order on 5 July 2012, Mr Thomas persisted with an attempt to obtain consent to the encroachment remaining by requesting that an easement be granted by the Minister for Lands. This was initiated by an exchange of emails with Mr M Pestell, the Acting Team Leader Metropolitan, Department of Regional Development and Lands (Department), commencing on 19 July 2012. Mr Pestell informed Mr Thomas that as local roads were under the care, control and management of the local government, the Department would need to discuss the matter with the City prior to making any decision. On 25 July 2012, Mr Pestell advised Mr Thomas by email: I have discussed the matter of the encroaching wall with a lands officer at the City of Stirling and she has advised that it is unlikely that Council (Page 12)
would approve the issuing of an easement or other land tenure amendments. It is suggested that you comply with the Building Order that has been issued or pursue the matter in writing with the City seeking other options. It has been brought to our attention that several Councils are taking a firm stance with building and structure encroachments into adjoining land. Again, as the subject road is under the care and control of the City of Stirling, their consent is required. In this instance, it would seem that the City will not agree to accept the encroachment. 38 On 27 March 2013, Mr Thomas wrote to the Minister of Regional Development and Lands (Minister) enclosing a copy of the survey showing the encroachment, and referring to his understanding that under s 144(1) of the Land Administration Act 1997 (WA), the Minister was permitted to grant an easement 'for a special purpose or any other purpose the Minister thinks fit' and requesting that the Minister consider that option in order to assist in setting aside the building order and settling the matter. The Honourable Minister's Chief of Staff replied by letter dated 3 May 2013 informing Mr Thomas: Your advice is noted that the matter is currently before the State Administrative Tribunal (SAT). While the issue is being completed by the SAT, the Minister's consideration of a section 144 Land Administration Act 1997 easement should be put on hold until a decision has been made by the SAT.
The statutory regime and legal principles applying to the decision to issue the building order 39 The operable sections of the Building Act commenced on 2 April 2012 (see section 2 and p 1033 of the Government Gazette dated 13 March 2012). All references to sections or parts of legislation hereafter are references to sections or parts of the Building Act unless otherwise stated. The following of its provisions are relevant. (Page 13)
(b) unless the encroaching part is placed in accordance with an order under section 86(2)(a); or (c) unless the encroachment is prescribed as a minor encroachment; or (d) unless the encroachment is into, onto, or over Crown land and the encroachment is authorised under the Land Administration Act 1997;or (e) except in prescribed circumstances. Penalty: a fine of $25 000. (2) In subsection (1)(a) - owner -- (a) in relation to Crown land that is a managed reserve, means the Minister for Lands and the management body of that reserve; and (b) in relation to Crown land that is leased under a Crown lease, means the Minister for Lands and the holder of the Crown lease; and (c) in relation to a road, means - (i) the Minister for Lands; and (ii) whichever of the local government in whose district the road is situated, the Commissioner of Main Roads, or the Minister as defined in the Public Works Act 1902 section 2 who, under a written law, has the control and management of the road; and (d) in relation to Crown land that is vested in a person or body under a written law other than the Land Administration Act 1997, means the Minister for Lands and that person or body; and (e) in relation to any other Crown land means the Minister for Lands only. (3) In subsection (2) -- (Page 14)
Crown lease, management body,managed reserve and road have the respective meanings given to those terms in the Land Administration Act 1997 section 3(1). 40 Section 86(2)(a) permits the Magistrates Court, on application to it, to order that a specified part of a specified building or structure may be placed into, onto or over specified land beyond the boundaries of the works land. 41 Section 86(3) provides as follows: In deciding whether to make an order under subsection (2) the court must have regard to - (a) the nature and likely extent of any burden or other detrimental effect to the affected land or inconvenience to an owner or user of the affected land if the order is made; and (b) whether there are reasonable and practicable alternative courses of action available to the person responsible for the work that do not involve the affected land. 42 Section 110 provides that a permit authority may make a building order in respect of, relevantly, a particular building or incidental structure, whether completed before or after the commencement date. 43 A permit authority, relevantly, is the local government in whose district the building or incidental structure is, or is proposed to be, located (s 3 and s 6(3)). 44 A building includes a part of a building and an incidental structure means a structure attached to or incidental to a building and includes a fence or freestanding wall (s 3). 45 The content of a building order is prescribed by s 112, relevantly, as follows: 112. Content of building order (1) In this section -- specified means specified in the building order. (2) A building order may require a person to whom the order is directed to do any one or more of the following within the specified time - (Page 15)
(b) to demolish, dismantle or remove a building or incidental structure that has been, or is being, built or occupied in suspected contravention of a provision of this Act[.] 46 Part 16 contains transitional provisions and, relevantly, s 189 provides: 189. Encroachments over, on, or under streets (1) In this section -- encroachment permission means permission of a local government given under section 400(1)(a), (1b) or (2) of the former provisions. … (6) If, before commencement day there had been a contravention of section 400 of the former provisions but no notice had been given under section 400(3) of the former provisions, a building order may be issued on or after commencement day in respect of the contravention as if the reference in section 112(2)(c) to a contravention of this Act were a reference to a contravention of section 400 of the former provisions. 47 The 'former provisions' are defined by s 176 to mean the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) in force before commencement day. Further, that the commencement day means the day on which s 153(2) comes into operation (2 April 2013). 48 It is therefore necessary to have regard to the relevant provisions of the LGMP Act. 49 Section 400 of the LGMP Act provides, relevantly, as follows: 400. Encroachment over, on or under street (1)(a) Except to the extent permitted, and in the manner prescribed, by any regulations made under this Part, a person shall not, without the permission of the local government granted only with the approval of the Minister – (i) erect a building so as to encroach on, over, or under a street, way, or other public place, in its district; (Page 16)
(b) The local government shall not grant its permission and the Minister shall not give his approval unless each is of the opinion that having regard to the size of the building, and the circumstances of the case it is necessary for the stability of the building that the permission should be granted and the approval should be given. (c) The local government with the approval of the Minister may grant the permission subject to such conditions as the local government and the Minister think fit. (d) A person who so erects or rebuilds a building in purported pursuance of permission so granted but does not observe the conditions, if any, on which it is granted, is to be regarded as having erected or rebuilt the building without the permission of the local government. (1a) For the purposes of subsection (1), a building that has thereon string courses, cornices, copings, eaves or window sills that project not more than 230 millimetres on or over a street way or public place in a district, shall be held not to encroach on or over the street way or public place by reason of that fact only. (1b) Where a local government is of opinion that for the purpose of making more effective use of any land within its district that is a pedestrian way, or not more than 10 metres in width, or in the interest of attractive development of the area where that land is situated, it is desirable so to do, the local government may, with the consent of the Minister, grant permission to a person to erect a building above or over that pedestrian way at such height as the local government may specify and upon and subject to such conditions as the local government may impose. (2) Notwithstanding the provisions of subsection (1), a person with the permission of the local government and in accordance with plans and specifications settled and approved by the local government may - (a) place in front of his building, an awning or verandah, at least 2.75 metres above the footpath in a street, way, or other public place, in its district, and unless prohibited from so doing by local laws of the local government, may use posts for the support of the awning or verandah provided the posts are placed in such positions close to the outer edge of the footpath as the local government directs; (b) place in front of his building a balcony of cantilever type having a framework constructed of iron securely fixed with iron brackets or other supports to the satisfaction of the building surveyor of the local government, at least 2.75 metres above the footpath in a street, way, or other (Page 17)
public place in its district and so that it does not encroach over the street, way, or public place to a greater distance than - (i) 750 millimetres if the street is in a city; or (ii) the outer edge of the footpath or such lesser distance as is prescribed from time to time by local laws in operation in the district if the street is in a shire or a town; but permission granted under this subsection does not relieve a person from complying with local laws operating in the district and relating to awnings, verandahs, or balconies, generally or to their removal in particular. 50 Section 401 of the LGMP Act gave a local government power to issue a written notice to the builder or owner of a building of anything, in the construction of the building, which, amongst other things, constituted a contravention of that Act or which had been carried out without the required permission of the local government, requiring the work to be pulled down or altered. 51 It is common cause that the land upon which the front wall encroaches is a road reserve, the care, control and management of which vests in the City pursuant to s 46(1) of the Land Administration Act 1997 (WA). 52 Section 144 of the Land Administration Act 1997 (WA) permits the Minister, with the consent of every management body in the relevant Crown land, to grant to any person an easement in, on, over, through or under that Crown land for a specified purpose or any other purpose the Minister thinks fit and, in that grant, express that the easement be subject to specified conditions and the payment of specified consideration. 53 As counsel for the City conceded in response to questioning from the Tribunal, s 110 gives the permit authority a discretion whether or not to issue a building order. That is clearly so for the same reasons as discussed in Re Griffiths; Ex Parte Homestyle Pty Ltd [2005] WASCA 103 in which McLure JA considered the effect of s 401 of the LGMP Act, Dawson and City of Fremantle [2008] WASAT 125 (Dawson) and Murrey and City of Stirling [2009] WASAT 156 (Murrey) in which the Tribunal considered s 409A of the LGMP Act and s 3.25(1)(b) of the Local Government Act 1985 (WA) (LG Act), respectively. (Page 18)
54 Section 110 gives no indication of the criteria which might be applied in the exercise of a discretion whether or not to decide to issue a building order. Section 86 contemplates that a Magistrates Court may authorise an encroachment, but it is framed in prospective terms. The court order may authorise part of a specified building or structure to be placed into, onto or over specified land beyond the boundaries of the works land. This is also evidenced by s 86(3) which specifies that in deciding whether to make an order under s 86(2), the court may have regard to: 55 This language indicates that there would be a burden or detriment only if the order is made. In other words, if the order is not made, the encroachment will not occur. This construction is supported by s 76(1)(b) which absolves a person from responsibility for an encroachment when the encroaching part is placed in accordance with an order under s 86(2)(a). It cannot have been so placed if an order is obtained after placement of the encroaching structure. 56 There is, however, at least some indication within the provisions of s 86(3) of criteria which may be relevant to the exercise of a discretion whether or not to issue a building order. 57 It is also to be noted that the legislature contemplates prescribing that particular forms of encroachment would be regarded as minor encroachments for which a person would be absolved from responsibility under s 76(1). As yet no minor encroachments have been prescribed. When regard is had to the former provisions of s 400 of the LGMP Act, it is clear that there were a number of categories of encroachment to a various extent which were regarded as permissible. Most, if not all, of those permitted encroachments appear to fit within one or other of the categories set out in s 76(1)(a), s 76(1)(c) or s 76(1)(d). And yet, there was still a discretion beyond the permitted forms of encroachment under s 401 of the LGMP Act and there remains a similar discretion beyond the encroachments permitted under s 76. (Page 19)
58 There are many examples of legislation in which a discretion is granted without any indication of the criteria to be applied in the exercise of the discretion. Unless there is any contrary indication in the legislation, this enables the decision-maker to take into account all of the factors relevant to a particular case without being confined to particular considerations. Examples of this can be found in the provisions of the Town Planning and Development Act 1928 (WA) and the Planning and Development Act 2005 (WA) and as discussed in Drake and City of South Perth & Anor [2005] WASAT 271, as well as in the provisions of the LGMP Act and LG Act discussed in the cases referred to above. In circumstances in which the discretion is not fettered by the legislation, it is inappropriate to attempt to define exhaustively the factors which might inform the exercise of a discretion. The manner in which the discretion is to be exercised is to be gleaned from a consideration of the statutory text and purpose of the legislation. 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: see Alcam (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue 239 CLR 27; Western Australian Planning Commission v Dungey [2010] WASC 52 at [27]. 59 Section 76, read with s 86, demonstrates that there are various forms of encroachment which may be permitted to remain or be placed upon adjoining land. In addition to that, s 110 gives a discretion which allows a permit authority to decide not to take action to remove encroachments, other than those permitted under s 76 and s 86. Section 86(3), as set out above, stipulates factors to be considered by the court in determining whether or not to permit an encroachment to be placed upon adjoining land. 60 In weighing those factors, gleaned from a consideration of the text of the statute and its purpose, as being relevant to the exercise of the discretion, there is also guidance to be found from legal principles applied by the courts and followed in decisions of the Tribunal. In both the Dawson and Murrey decisions, reliance was placed on principles which were applied in Stein and Shire of Chapman Valley [2009] WASAT 113. Firstly, reference was made to Halsbury's Laws of England (4th Ed, Re-issue), Vol 46(2) and Perry v Stanborough (Developments) Ltd (1977) 244 Estates Gazette 551 in relation to the power to issue town planning enforcement notices. While referring to the limited grounds upon which to challenge such a notice (which is not the case in a merits review by way of a hearing de novo by this Tribunal), the important principle was recognised that in the context of a wide discretion conferred (Page 20)
upon the planning authority, the authority is perfectly entitled 'to say simply that they do not propose to take enforcement action'. 61 Further, the principle was accepted that, by reference to R v Newham Justices, Ex Parte Hunt; R v Oxted Justices, Ex Parte Franklin [1976] 1 ALL ER 839 at 843, to the effect that in exercising such statutory discretions, decision-makers 'can use their common sense and are entitled to take into account all the circumstances, and thus avoid the expenditure of public money unnecessary in a [relevant] case …'. 62 Further, in Dawson, the Tribunal accepted the principle stated in ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR at 67, in effect, that enforcement action should not be taken where to do so 'would work such an injustice as to be disproportionate to the ends secured by enforcement …'. 63 In Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301, the Tribunal identified a number of criteria to be considered in the exercise of a discretion relating to the enforcement of planning provisions. Those criteria are consistent with those which are set out in the following paragraph, but with necessary changes consistent with the text and purpose of the Building Act. 64 While therefore deliberately not attempting to define the factors which will need to be considered in the exercise of a discretion whether or not to issue a building order, the following factors will generally be relevant: 1) The public interest in enforcement of building standards requires that there should be compliance with the Building Act and the conditions of any building permit issued thereunder, such that the person responsible for building work must ensure that no part of the building or an incidental structure is placed beyond the boundary of the land upon which the works is being or has been carried out. 2) Regard should be had to the nature and extent of any burden or other detrimental effect to land affected by the encroachment, or inconvenience to an owner or user of the affected land. 3) The factual circumstances in which the encroachment occurred. (Page 21)
4) The time which has elapsed since the encroachment occurred. 5) The expense and inconvenience which would be involved in removing the encroachment or any other proposed course of action. 6) In applying the above factors, sound common sense should be used to avoid the unnecessary expenditure of public funds. The weight to be attached to the above factors, and of any other relevant factors in a particular case, will depend on the circumstances of each case. The starting point is that no encroachment other than as permitted under s 76 and s 86 is lawful. There is a public interest in preventing de facto alienation of public land so that when there is a substantial encroachment for which the applicant is directly responsible, such as in Mostamandi and City of Joondalup[2011] WASAT 212, it is appropriate to require removal of the encroachment. But generally, the issue of a building order may not be justified in any one or more of the following circumstances: a) the encroachment is insignificant and unlikely to cause any practical difficulty; b) the cost of remedying the encroachment is disproportionate; c) if on consideration of relevant factors (which would generally be the same as would apply to the exercise of a discretion to issue a building order), it can reasonably be expected that consent will be given to the encroachment, or that the encroachment will be authorised in accordance with s 76(1)(a) or s 76(1)(d). 65 It is understandable that permit authorities charged with the control and management of such land should wish to be seen to be acting in the public interest and would wish any encroachment to be regularised under s 76 or removed. In cases in which the issue of a building order is not justified, that public interest can be adequately safeguarded by either putting the landowner on notice that if the use of the affected land (Page 22)
is impacted or provision of services through the land is affected, a building order will then issue, or by encouraging the giving of necessary consents or authorisation under s 76 subject to necessary conditions.
Should the decision under review be affirmed? 66 It is clear from the City's reasons for decision that it has given no consideration to the exercise of any discretion. The City's position is simply that there is an encroachment upon the road reserve without the consent of the Minister, which is unlawful under s 76 and under the LGMP Act, and therefore it was decided to issue a building order. 67 Under s 27 of the SAT Act, the Tribunal must arrive at the correct and preferable decision at the time of the decision upon review. By virtue of the provisions of s 29 of the SAT Act, the Tribunal effectively stands in the shoes of the City in making that decision. It is therefore necessary to have regard to such of the above and any other factors as are considered relevant to the exercise of the discretion whether or not to decide to issue a building order. 68 The encroachment is insignificant. It has remained for some 40 years without causing any known difficulty with regard to the provision of gas, water or electricity services located within the road reserve. None of the utilities providing those services have raised any objection to the wall remaining. 69 It appears from information provided through the Minister's office that, consistent with the reasons for decision given by the City, the City and other local authorities are 'taking a firm stance with building and structure encroachments into adjoining land'. If that means that any encroachment is being dealt with by the issue of a building order for its removal, then that is a wrong exercise of the powers granted by s 110. 70 While the Minister should no doubt be fully informed as to the position of the local authority in relation to any application made for the Minister's consent to the encroachment, or for the grant of an easement, the Minister is required to make an independent decision whether or not to consent. Although the Minister's office originally deflected Mr Thomas' request for the grant of an easement and suggested that he comply with the building order, when Mr Thomas renewed his request, the Minister has deferred making any decision, pending the outcome of these proceedings. (Page 23)
71 Given the above findings to the effect that none of the service providers have suffered any detriment by reason of the encroachment, and that the encroachment is insignificant, together with the findings which follow, there is no reason to think that Mr Thomas would be unsuccessful in his request for an easement to be granted, subject to any necessary conditions. 72 Mr Thomas has not contributed in any way to the offending encroachment which has existed for some 40 years. 73 While there is no evidence of what it would cost to remove and replace the brick wall, Mr Thomas has described the cost as being 'a considerable additional unexpected financial burden'. It is evident from the response from the Water Corporation that if the wall were to be removed and replaced, the replacement wall would require underpinning. Given the minimal encroachment of the wall, it can be inferred that the cost of removal and replacement is disproportionate to the ends secured by enforcement of the legislation. 74 On any common sense consideration of the matter, it is evident that the correct and preferable decision at this stage is that a building order should not issue, and consequently, that the building order should be set aside. 75 In this case, on the material before the Tribunal and on the findings made, even if the consent or authorisation contemplated under s 76 were not to be forthcoming, it would not be appropriate to require removal of the wall. It is a minimal encroachment. It should be sufficient for the City to give Mr Thomas notice that if, at any time in the future the encroachment should affect the provision of services, or in any other real sense impact upon the use of the road reserve, he will be given notice to remove the encroachment. It should be clear therefore that the orders made by the Tribunal are not preconditioned in any way by or subject to Mr Thomas procuring such consent or authorisation. He may well, of course, prefer to bear whatever costs are involved in ensuring that the encroachment is regularised in accordance with the relevant provisions of s 76. (Page 24)
Orders 76 For the above reasons, orders will issue as follows: |