TOLMAN HOLDINGS PTY LTD and CITY OF JOONDALUP - [2005] WASAT 348

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)

CITATION: TOLMAN HOLDINGS PTY LTD and CITY OF JOONDALUP [2005] WASAT 348

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 29 AUGUST 2005

DELIVERED : 30 AUGUST 2005

FILE NO/S: CC 33301 of 2004

BETWEEN: TOLMAN HOLDINGS PTY LTD
Applicant
AND
CITY OF JOONDALUP
Respondent
MULLALOO PROGRESS ASSOCIATION
Applicant for Joinder

Catchwords:

Application for joinder

Legislation:

Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401, Pt XV
State Administrative Tribunal 2004 (WA), s 27, s 29, s 30, s 38(1), s 38(1)(b), s 38(1)(c)

Town Planning and Development Act 1928 (WA), s 38, s 63

Result:

Applicatin for joinder dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr M Hardy
Respondent:     Mr G Owen
Applicant for Joinder     :     Mr M Sideris

Solicitors:

Applicant:     Hardy Bowen
Respondent:     McLeods
Applicant for Joinder     :     Self-represented

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

Allpike v Lang [1991] 82 LGERA 373
Fermanis Investments Pty Ltd v City of Perth [1978] WAR 33, 43 LGRA 1
Grey v Western Australian Planning Commission [2004] WATPAT 42
Griffiths, Re; Ex parte Homestyle Pty Ltd [2005] WASCA 103
Harding v Shire of Chittering [2003] WATPAT 147
Kaard v City of Nedlands [2005] WASAT 2
PT Ltd as Trustee for and on behalf of the Westfield Trust v Western Australia Planning Commission, Appeal 7 of 1996

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

The Tribunal received an application from the Mullaloo Progress Association to be joined as a party to the proceedings.
The proceedings relate to an application by the applicant, Tolman Holdings Pty Ltd, to review a decision made by the respondent, the City of Joondalup, to issue a notice under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) requiring the applicant to alter the building so as to rectify alleged departures from the approved plans and specifications.
Having received both oral and written submissions from all parties, the Tribunal was not satisfied, pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA), that the interests of the Mullaloo Progress Association would be affected by the proceedings or that, for any other reason, it was desirable that it be joined as a party.

Introduction

This is an application by Mullaloo Progress Association, (MPA) pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to be joined as a party to proceedings before the Tribunal namely, an application for review by Tolman Holdings Pty Ltd against the City of Joondalup, in matter no CC 33301 of 2004.
The application for review relates to a decision by the City of Joondalup to issue a notice under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act), dated 21 September 2004. The Notice described the premises in question as "Mullaloo Oceanside Village", 10 Oceanside Promenade, Mullaloo and detailed departures from the approved plans and specifications for Building Licence No BA 03/4061 as being:
"1.The 'Substation' shown on the approved plans as being located in the basement has been constructed 7100 mm nearer the southern side of the Building than shown on the approved plans, contrary to the approved plans.
2.A stairway has been constructed along the western side of the Building contrary to approved plans.
3.The 'Stair 1', 'Lift 1', and 'LMR' (Lift Maintenance Room) shown on the approved plans as being located in the basement have been constructed with a width of 6050 mm and depth of 3600 mm which is contrary to the approved plans which show a width of 9300 mm and a depth of 3850 mm.
4.The 'Pump Room' shown on the approved plans as being located in the basement has been constructed with a width of 7400 mm which is contrary to the approved plans which show the pump room as being 5400 mm wide.
5.The 'Tank' located in the basement and shown on the approved plans to be 8430 mm long and 2400 mm wide has been replaced with 2 smaller tanks, each being 3600 mm long and 3600 mm wide, contrary to the approved plans.
6.Two additional tanks, each between 5000 mm and 6000 mm long and approximately 2500 mm wide have been constructed on the northern side of the 'Substation' contrary to the approved plans.
7.'Store 4' shown on the approved plan has not been constructed, contrary to the approved plans.
8.'Store 3' shown on the approved plans as being between 2400 mm and 2700 mm deep has been constructed with a depth of between 1300 mm and 1700 mm contrary to the approved plans."

Application for review

The application for review titled, "Notice of Appeal" was dated 11 October 2004, and was originally filed with the Minister for Housing and Works, who was responsible for such appeals at that time.
The grounds of the appeal were:
"(a)each of the matters the subject of the Notice were identified on amended plans provided by the consultants to the owner and submitted to the City of Joondalup;
(b)the officers of the City of Joondalup have indicated to the consultants that:
(i)they are satisfied that the amendments have been appropriately documented;
(ii)the amendments comply with the requirements of the Building Code of Australia; [and]
(iii)in every material respect the procedural and substantive elements associated with the matters raised in the Notice have been finalised to the satisfaction of each of the Appellant, the owner and the City of Joondalup."

Jurisdiction

Prior to 1 January 2005, applications for review under Pt XV of the LGMP Act, were submitted to the Minister for Housing and Works. On the coming into force of the SAT Act, jurisdiction for handling those reviews was passed to the State Administrative Tribunal (SAT) and by order of the President of SAT dated 9 February 2005, all applications before the Minister but not determined as of 1 January 2005, were transferred to SAT. This application was one of those transferred.

Submissions

The application was brought pursuant to s 38 of the SAT Act, of which s 38(1)states:
"(1)The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that
(a)the person ought to be bound by or have the benefit of a decision of the Tribunal in the proceeding;
(b)the person's interests are affected by the proceeding; or
(c)for any other reason it is desirable that the person be joined as a party."
Mr Sideris, on behalf of the MPA, filed two documents: one titled "Submissions on standing of the MPA", and a second dated 12 June 2005 titled "Application to be a joinder".
Mr Sideris also made oral submissions and confirmed that the MPA was only relying on s 38(1)(b) and s 38(1)(c) of the SAT Act.
In his written submissions, Mr Sideris dealt with each of the specific matters complained of in the 401 Notice, and stated:
1.'The Substation' This will affect the noise generated from within the building and will affect the amenity of the locality. Also, the change of size will affect the number of and physical size of parking bays, … and this will affect the community access to public car parking in the locality.
2.'The Stairway'  This will affect the noise emitted from within the building and will therefore affect the amenity of the locality. Also, the location of the stairway will affect access for people with disabilities.
3.'The Stair 1', 'Lift 1' and the 'LMR' (Lift Maintenance Room) The location of the stairway will affect access for people with disabilities. This will also affect the number of and physical size of parking bays.
4.'The Pump Room'  This will affect the noise generated from within the building and will affect the amenity of the locality. This will also affect the number of and physical size of parking bays.
5.'The Tank' Unable to make proper comment due to inability to access the construction plans; this is a denial to natural justice.
6.'Two additional tanks' Unable to make proper comment due to inability to access the construction plans, this is a denial to natural justice.
7.'Store 4" This will affect the amenity of the proposed user and functionality of the building. We are unable to make proper comment due to inability to access the construction plans; this is again a denial to natural justice.
8.'Store 3' This will affect the amenity the proposed user and functionality of the building. We are unable to make proper comment due to inability to access the construction plans, this is again a denial of natural justice in this matter."
In his oral submissions, Mr Sideris confirmed that the written submissions dated 30 May 2005 and titled "Submission on study of the Mullaloo Progress Association": may not now be relevant in view of the MPA's reliance on s 38 of the SAT Act as that submission dealt particularly with the matter of "standing".
In his oral submissions, Mr Sideris stated that:
"The matter currently before the Tribunal, will affect our amenity, and will affect the amenity of residents of the locality of Mullaloo and Kallaroo and will affect the amenity of the broader community.
However, if the MPA can be satisfied that the Tribunal will satisfy itself as to the issues, that may in effect be adequate."
Mr Hardy appeared for Tolman Holdings Pty Ltd and, in addition to his oral submissions, filed two documents, namely, "Submissions of the Applicant on the Application for Joinder by Mullaloo Progress Association Inc", dated 9 August 2005, and "Submissions of the Applicant in response to the Application for Joinder", dated 22 August 2005.
Among the submissions Mr Hardy made on behalf of the applicant were:
1.That s 38 of the SAT Act is part of the administrative process to allow, in effect, an even playing field. He submitted the application is misconceived as the applicant's submissions go to matters of planning and not building. The application for review is solely about the physical condition of the building, that is, the structure itself.
2.The MPA does not have an interest over and above the community at large in obtaining the benefit of a decision of the Tribunal, and it is the proper role of the respondent to ensure that any application for review in these circumstances is directed toward a satisfaction of those objectives.
3.There is no, or no proper, suggestion made by or on behalf of the MPA that the respondent is unwilling, unable or incompetent to pursue those objectives.
4.It has not been demonstrated that the interests of the MPA are affected by this application. It has not been shown that:
(a)those interests are additional to or separate from the interests represented by the respondent; and
(b)whatever interests may be demonstrated to be held by the MPA are not already adequately represented by the respondent.
Mr Hardy further submitted that:
"This application must concern itself only with the factors set out at the onset, namely:
(a)whether or not there has been a departure from the approved plans the subject of a building licence issued by the respondent; and
(b)if so, whether remedial action should follow or, rather, whether the building complies with the performance standards set out in the Building Code of Australia."
and that:
"In relation to those issues, the MPA has nothing to contribute over and above the functions which will be discharged by the respondent."
In the document titled "Submission of Applicant in response to Application for Joinder", Mr Hardy submitted:
"1.The application for joinder does not disclose the nature of the interest claimed to be held by the applicant for joinder, it being generally asserted that 'the matter' will affect the amenity of residents of the locality of Mullaloo and Kallaroo and will affect the amenity of the broader community.
2.The concept of amenity is not a concept which is relevant to the exercise of the jurisdiction of this Tribunal for the purposes of the Local Government (Miscellaneous Provisions) Act 1960.
3.The submissions:
(a)do not provide any [interest] or any sufficient [interest] to support the generalised allegations made;
(b)the submissions [sic] relate to matters not the province of a building licence of the purposes of the application of the Local Government (Miscellaneous Provisions) Act 1960 …;
(c)no particulars are provided to support the allegation that excessive noise will be generated as a consequence of departures from approved plans;
(d)the application [sic] confuses the subject matter of this Application for Review and the process by which planning approval is granted pursuant to the provisions of the Town Planning and Development Act 1928."
Mr Hardy submitted that if the respondent took no active role, it may make the application for joinder more compelling, but in the present case, there is no evidence that the respondent is not going to do its job.
Mr Owen, who appeared for the respondent, made oral submissions along with filing a document titled "Submission by the Respondent as to the Application for Joinder" dated 24 August 2005.
Mr Owen confirmed that the respondent was prosecuting this matter seriously, and he briefly outlined the history of the provisions of the Local Government (Miscellaneous Provisions) Act 1960 (WA). In written submissions, Mr Owen submitted:
"1.The Respondent City of Joondalup ('the Respondent') opposes the request by the Mullaloo Progress Association Inc ('MPA') to be joined in the above appeal.
2.The Notice of Appeal filed in this matter and dated 11 October 2004 ('the Notice') raises issues of compliance with approved plans and (impliedly) the suitability and adequacy of matters said to be "identified on amended plans".
3.The issue before the Tribunal would require an assessment of the Notice against the relevant law and standards, namely the Local Government (Miscellaneous Provisions) Act 1960, the Local Government Act 1995, the Building Regulations 1989, and the Building Code of Australia Volume 2.
4.The Applicant and Respondent may also adduce evidence of an expert nature as to whether the eight items specified in the Notice issued under section 401 of the Local Government (Miscellaneous Provisions) Act 1960 ('the section 401 Notice'):
(i)are structurally adequate;
(ii)do not prejudice public safety; and
(iii)meet the performance requirements in the Building Code of Australia.
5.To the extent that the Application dated 12 June 2005 asserts deviations from approved plans then those matters quite properly fall within the legislative competence of the Respondent which is charged with the proper administration of building law.
It is not the case that the MPA could bring to any determination of the Tribunal any expertise not available to either Applicant or Respondent.
6.The eight numbered paragraphs in the Application to be a Joinder dated 12 June 2005 make numerous reference to 'amenity' and 'noise'. These are issues which fall within the jurisdiction of the Respondent but not within the Local Government (Miscellaneous Provisions) Act 1960. If proceedings are required the Respondent has statutory powers to exercise under the Environmental Protection Act 1986 and the Environmental Protection Act 1986 and the Environmental Protection (Noise) Regulations 1996 and section 10AB(1) of the Town Planning and Development Act 1928.
7.It is the view of the Respondent that the applications by the MPA do not demonstrate how the approval of joinder would benefit a determination.
8.The question of joinder was also considered by the Town Planning Appeal Tribunal of Western Australia in Grey v Western Australian Planning Commission [2004] WATPAT 42. In referring to an earlier decision of the Tribunal, namely PT Ltd as Trustee for and on behalf of the Westfield Trust v Western Australia Planning Commission, Appeal 7 of 1996, the Tribunal held: "such a generalised expression of interest not surprisingly found no favour with the Tribunal which dismissed the application for joinder". The expressions of interest by the MPA can be characterised as generalised, given the lack in detail and the broad sweep of allegations.
9.The membership and financial position of the MPA is not known, however it is submitted that the application to be joined does not fall within any of the criteria in section 38 of the State Administrative Tribunal Act 2004."

Consideration

To be joined as a party, the MPA relies on s 38(1)(b) and 38(1)(c) of the SAT Act which states that a person may be joined if:
"(1)(b) the person's interests are affected by the proceeding; or
(c)for any other reason it is desirable that the person be joined as a party."
Mr Sideris' submissions largely relied on s 38(1)(b) of the SAT Act, namely, "the person[']s interests are affected by the proceeding", and he submitted, in respect of each of the eight departures from approved plans listed in Item 3 of the notice, that "the interests are affected" because of the possibility of[,] among other things:
1.noise generated from within the building which will affect the amenity of the locality;
2.the change in size and number of the parking bays affecting the community access to public parking in the locality;
3.access for people with disabilities being affected; and
4.changes to approved plans affecting the amenity, the proposed user and functionality of the building.
It was clear that driving the MPA's concerns was that they could not be sure that the respondent would handle the matter properly.
As to Mr Sideris' statement that if the MPA could be fully satisfied that the Tribunal would satisfy itself as to the issues that may be adequate, I can only refer to s 27 and s 29 of the SAT Act which, in effect, states that the Tribunal "stands in the shoes" of the original decisionmaker, has all the functions and discretions exercisable by the original decisionmaker and is charged with producing the correct and preferable decision.
Furthermore, pursuant to s 30 of the SAT Act, the original decisionmaker must use its best endeavours to assist the Tribunal to make its decision.
To properly consider the issues, one must first look at the provisions of s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) which states:
"(1)A local government may, during or after the erection of a building in its district, give to the builder or owner of the building, written notice of anything, in the construction of the building (emphasis added)
(a)which tends to render the building unsafe or prejudicial to the public interest;
(b)which is not in compliance with, or is a departure from, the plans and specifications for the building, of which plans and specifications the approval of the local government has been obtained as required by this Act, or which is a contravention of this Act; or
(c)which, where permission of the local government is required for carrying it out, has been carried out without that permission;
and requiring him to pull down or so alter the building as to remove the cause of the objection and on being served with the notice the builder or owner shall comply with the requisition, unless he applies to the State Administrative Tribunal under subsection (3) for a review of the decision to make the requisition and the State Administrative Tribunal sets aside the decision.
A number of cases have made it clear that s 401 provisions are, in effect, a "system of statutory control" in respect of which the local government are the regulators.

In the case of Fermanis Investments Pty Ltd v City of Perth [1978] WAR 33, 43 LGRA 1, Brinsden J, at 6, stated:
"A local authority has extensive powers conferred upon it by statute to regulate building construction), to oversee the preservation of buildings so that they remain fit and habitable and to see that buildings which may become unsafe or prejudicial to the public interest are repaired or altered or demolished or that they do not constitute a danger to those using them or other members of the public. Local authorities employ building surveyors and other qualified staff to enable them to carry out the obligations imposed on them by statute. Indeed the particular statute in question contemplates that a local authority will have staff to enable it to carry out these duties: see for example the reference to building to building surveyor in ss 6, 73(3), 375(1), and other sections where the building surveyor is specifically referred to, eg s 401(4). It therefore seems to me not to be unreasonable to assume that the legislation is so framed as to require local authorities to equip themselves with expert assistance to enable them to make proper recommendations and directions to remedy the mischief complained of. Owners and builders are protected from notices lightly issued by local authorities by the system of review provided … ".
In the case of Allpike v Lang [1991] 82 LGERA 373, Franklyn J states:
"Section 401(1) is concerned with buildings in the construction of which something exists which falls under either pars (a), (b) or (c) of the subsection. It authorises the relevant council to give to the builder or to the owner of the building written notice of that thing and requiring him to either pull down or so alter the building as to remove "the cause of the objection". The cause of the objection is the thing in the construction of the building which gave rise to the giving of the notice and is identified therein. Such notice may be given either during or after the erection of the building. The "owner of the building" there referred to is the owner at the time of the giving of the notice. … ".
Section 401(1) does not authorise a notice which requires anything other than the pulling down of the building or its alterations so as "to remove the cause of objection".
If the builder or owner on whom a notice under s 401(1) has been served does not comply with its requisitions, a Court of Petty Sessions, on the council's complaint, may order that he do so, and, if the order then made is not complied with, the council may enter onto the land upon which the building is erected or in the course of being erected and give effect to the requisitions of the notice and recover the costs of so doing from the owner or builder on whom the notice was served (s 401(7) and s 401(8)). Failure to comply with the requisition of the notice is an offence for which the owner or builder (as the case may be) may be fined (s 670)."
Recently, in the case of Griffiths, Re; Ex parte Homestyle Pty Ltd [2005] WASCA 103 (3 June 2005) McLure JA, at par 25, stated:
"A local government's discretion is enlivened by matters of safety, prejudice to the public interest and non‑compliance with the Act. Securing compliance with the Act would ordinarily be a very weighty consideration in the exercise of the discretion and may itself justify the exercise of the power."
Furthermore, s 401 specifically states that "a local government may … ". In the circumstances, s 401 and the cases referred to make it abundantly clear that s 401 is to be enforced by local governments.
If a local government was refusing to take action, then it may well be open to ratepayers to seek redress. However, this is clearly not the case here.
In dealing with joinder in planning matters, the Tribunal in the case of Kaard v City of Nedlands [2005] WASAT 2 cited with approval the test set out in Harding v Shire of Chittering [2003] WATPAT 147 which stated:
"There is power to join persons as parties to an appeal before the Tribunal in circumstances where it is necessary to do so for the proper disposition of the appeal or in order to ensure that the material before the Tribunal is sufficient to enable the Tribunal to dispose of the appeal on an informed, insightful and critically analysed basis …
Indeed, it should be noted that s 27(2) of the SAT Act provides the purpose of a review is to produce the correct and preferable decision at the time of the decision upon review."
What must be decided in the present case is whether the MPA's interests are affected or if for any other reason it is desirable that the MPA be joined as a party.

Conclusion

There is no evidence before the Tribunal to suggest that the Council does not intend to actively defend its decision to issue the s 401 Notice. Furthermore, there is no evidence that the MPA, if joined as a party, will add anything to assist the Tribunal in adequately dealing with the proper disposition of the application for review.
Indeed, the matter is before the Tribunal because the respondent was proactive and issued a 401 Notice and the respondent has confirmed that it intends to prosecute the matter diligently.
The Tribunal is not satisfied on the evidence before it that joining the MPA as a party will in any way assist the proper determination of the matter, or that it is desirable for any other reason.
Furthermore, although the members of the MPA may be interested in the outcome, the Tribunal is not satisfied, on the evidence, that any particular person's interests will be affected, and apart from general dissatisfaction, no other reason has been offered as to why the MPA should be joined as a party.
The Tribunal is vested with the responsibility to produce the correct and preferable decision and the Tribunal is not convinced on the evidence before it that joining the MPA as a party will further that objective.
Because the local authority is the body vested with the statutory power to regulate building construction, and in this case is carrying out that function, there is, in the Tribunal's opinion, an onus on the party wishing to be joined to show in far more particularity than has been in this case:
1)what precise interests are affected by the application for review;
2)that the local authority is not prosecuting the matter properly; and
3)how, by being joined, the applicant for joinder could assist the Tribunal in arriving at the correct and preferable decision.
This has not been done in this case, and in the circumstances, the Tribunal is not satisfied that the orders applied for should be made.

Order

1.The Application for Joinder is dismissed.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER