THOMAS and CITY OF STIRLING

The case before the court involved Thomas, the appellant, and the City of Stirling, the respondent. Thomas appealed against a decision of the Shire of Mundaring to issue a building order, under the Building Act 2011, requiring Thomas to remove an encroachment of a garage and shed on his property. The dispute was heard in the Supreme Court of Western Australia. Thomas contended that the Shire's decision to issue the building order was unlawful, and the court was required to determine whether the Shire had applied the correct criteria in deciding to issue the order and whether the order was the correct and preferable course of action.

The legal issues before the court were whether the Shire had correctly applied the criteria for issuing a building order under the Building Act 2011 and whether the court should set aside the Shire's decision and the building order as not being the correct and preferable course of action. The court found that the Shire had not applied the correct criteria in issuing the building order, as it had failed to consider the principle of proportionality, which requires that the remedy be appropriate and not excessive in relation to the problem to be addressed. The court also found that the building order was not the correct and preferable course of action, as it was not necessary to achieve the objective of removing the encroachment.

The court concluded that the Shire's decision to issue the building order was unlawful and that the building order itself should be set aside. The court granted Thomas's application and set aside the decision under review and the building order. This decision highlights the importance of correctly applying the criteria for issuing a building order under the Building Act 2011 and the need for proportionality in the remedy chosen.