HAWKINS and TOWN OF MOSMAN PARK

[2006] WASAT 291

HAWKINS and TOWN OF MOSMAN PARK [2006] WASAT 291

Last Update :04/10/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 291
Published:
Act:	LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
Case No:	CC:3571/2005	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR M SPILLANE (MEMBER), MR T CAREY (MEMBER)	Delivered:	22/09/2006
No Pages:	9	Judgment Part:	1 of 1
Result:	Application for review successful
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) CITATION : HAWKINS and TOWN OF MOSMAN PARK [2006] WASAT 291 MEMBER : MR M SPILLANE (MEMBER)

MR T CAREY (MEMBER)

HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 SEPTEMBER 2006 FILE NO/S : CC 3571 of 2005 BETWEEN : DAVID HAWKINS

Applicant

AND

TOWN OF MOSMAN PARK
Respondent

Catchwords:

Section 401 Notice – Unapproved retaining wall – Discretion

Legislation:

Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374(1), s 401, s 401(1), s 401(1)(c), s 401(7)
Property Law Act 1969 (WA), s 122
State Administrative Tribunal Act 2004 (WA), s 27, s 29

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Result:

Application for review successful

Category: B

Representation:

Counsel:

Applicant : Mr G Dean
Respondent : Ms Stephenson

Solicitors:

Applicant : Dean & Rowick Barristers & Solicitors
Respondent : McLeods

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

Re Griffiths; Ex Parte Homestyle Pty Ltd 139 LGERA 178, [2005] WASCA 103

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This matter concerned an application to set aside a decision of the respondent to issue a s 401 notice under the Local Government (Miscellaneous Provisions) Act 1960 (WA) to remove a retaining wall erected without approval between No 4 and No 6 The Coombe, Mosman Park.

2 Having considered the circumstances under which the wall was erected and the submissions of the parties, the Tribunal set aside the respondent's decision to issue the notice and revoked the notice.

Introduction

3 This application concerns a retaining wall constructed along or adjacent to the boundary between the applicant's residential lot and that of his neighbours, the Yamanakas. The applicant and his wife have resided at 4 The Coombe, Mosman Park, since their home was constructed in about 1966. The Yamanakas constructed a home on their block in 2003.

4 For a number of years, the applicant had what was described as a "random rubble retaining wall" (applicant's wall) along, or adjacent to, the boundary in question. In the course of the construction of the Yamanakas' house, it appears that the applicant's wall was damaged. In any event, the Yamanakas constructed their own retaining wall (Yamanakas' wall). The applicant then engaged an engineer to design a new free-standing wall adjacent to the Yamanakas' wall to allow the ground to be brought up to the Yamanakas' wall. Ultimately, a concrete wall section of some 10 metres (concrete wall) was constructed adjacent to and in alignment with the Yamanakas' wall. Contrary to what had been understood, it appears that the Yamanakas' wall had been constructed within the boundary of the Yamanakas' block, and was set back variously between 5 millimetres and 386 millimetres from the boundary. As a result, part of the applicant's concrete wall which was constructed adjacent to, and in alignment with, the Yamanakas' wall encroaches to a degree on the Yamanakas' block.

5 The applicant's concrete wall was constructed without a building licence having been granted as required by s 374(1) Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act). On the applicant's evidence, which the Tribunal accepts, this was due to an oversight in the somewhat urgent circumstances leading to its

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construction. Acting upon the Yamanakas' complaint, the respondent issued a notice under s 401 of the LGMP Act requiring the applicant to pull down the concrete wall.

6 The ground for issuing the notice under s 401 of the LGMP Act was as stated in s 401(1)(c) of the 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 —
…

(c) which, where permission of the local government is required for carrying it out, has been carried out without that permission;"

7 The question for the Tribunal is whether the decision to issue the notice was the correct and preferable decision (see s 27 State Administrative Tribunal Act 2004 (WA) (SAT Act)). In considering this question, the Tribunal has identified the following issues as relevant:

1) What were the circumstances leading to construction of the wall?

2) Would a building licence have been granted for the wall had it not yet been constructed?

3) What would the consequences be of allowing the s 401 notice to stand?

4) What is the nature of the respondent's discretion in these matters?

5) How does the apparent encroachment affect the matter?

8 The Tribunal will deal with each issue in turn.

What were the circumstances leading to construction of the wall?

9 The circumstances are conveniently set out in a letter, dated 6 February 2006, from the builder of the wall, BGC Australia Pty Ltd written by Mr Buckeridge. None of the matters referred to in the letter has been the subject of challenge in this proceeding and for the purposes of this proceeding we accept the circumstances set out in that letter. In summary form, the relevant circumstances are:

• The builders constructing the residence on the Yamanakas' block over-excavated at the base of the applicant wall causing that wall to

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partially fall into the Yamanakas' property. The building supervisor of the Yamanakas' residence gave an undertaking regarding reconstruction of the applicant's wall which was not honoured.
• At completion of construction of the Yamanakas' residence, a hole up to 1 metre deep existed between the Yamanakas' wall and the remnants of the applicant's wall.

• The 1 metre deep hole presented a danger to the applicant and his wife, an elderly couple, if they worked in their garden. It also posed a significant risk to the Yamanakas' wall due to the stresses associated with earth and other material impacting upon it over time.

• It was resolved to rectify the situation by constructing a totally self-sustained concrete retaining wall within the applicant's property.

• Structerre Chartered Consulting Engineers (Structerre) who were the engineers who designed the Yamanakas' wall were engaged to design the new wall on the applicant's property. The design agreed upon involved boring piles down to the natural rock, a 280 millimetre thick base slab and a stepped concrete retaining wall.

• The wall was constructed under Mr Buckeridge's direct supervision with substantially more concrete than was required by the engineer's design.

10 The Tribunal attended on-site to inspect the wall. The inspection enabled a better understanding or the significant features of the topography of the land at the boundary between the two blocks, the Yamanakas' excavation works, the earth being retained, the section of wall constructed and the reasons proffered for the construction method employed.

Would a building licence have been granted for the wall had it not yet been constructed?

11 The applicant filed statements of a director of Structerre and of a town planning consultant, which included evidence of those witnesses that:

a) construction of the wall was the only reasonable solution to the problem which had arisen;

b) the wall is structurally sound and sufficient to properly act as a retaining wall; and

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c) there is no reason why the respondent would not have issued a building licence had it been applied for prior to construction.

12 Of this evidence, only (c) is the subject of any dispute. The respondent has contended that a building licence would not have issued for the sole reason that the wall encroaches on the Yamanakas' land. We deal with this issue in our discussion below on encroachment.

What would the consequences of allowing the s 401 notice to stand be?

13 Mr Buckeridge gave evidence that removal of the 10 metre section of concrete wall would require removing the entire wall along the boundary, including the section constructed for the Yamanakas. Substantial damage to both blocks, but in particular the applicant's block, would result. The retaining wall would then need to be rebuilt. None of this would affect the erection of a dividing fence on the correct boundary line, which was the subject of an offer by the applicant to the Yamanakas at his cost, but which was not accepted.

14 This evidence of Mr Buckeridge is again uncontested and we accept it. In our view, it demonstrates that to proceed in terms of the notice would be a wholly futile and pointless exercise which is bound to cause significant expense and inconvenience to one if not both the applicant and the Yamanakas.

What is the nature of the local government's discretion under s 401 of the LGMP Act?

15 The question of whether s 401 gives the local government a discretion to issue or not to issue a notice was the subject of comment by McLure JA in Re Griffiths; Ex Parte Homestyle Pty Ltd 139 LGERA 178, [2005] WASCA 103 at [22] in the following terms:

"It was conceded that on a proper construction of s 401(1) of the Act, a local government has a discretion to issue a notice if the matters in paras (a), (b) or (c) are satisfied. In my opinion, the concession is correctly made for a number of reasons. Firstly, by virtue of s 56(1) of the Interpretation Act 1984 (WA) there is a presumption that the word 'may' imports a discretion. Secondly, the power is activated by a variety of conduct which may differ significantly in nature and degree. Thirdly, there would be little need for an appeal if the City was under an obligation to issue a notice. Fourthly, this Court has held that the Court of Petty Sessions has a discretion under s 401(7):

(Page 7)

Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72; 100 LGERA 376."

16 Her Honour's reference to s 401(7) of the LGMP Act is to the powers of the then Court of Petty Sessions, now the Magistrates Court, in cases where a notice under s 401(1) has not been complied with nor been the subject of a review application, to order compliance with the requisitions in the notice. Once again, s 401(7) uses the word "may" in describing that power.

17 The Tribunal is satisfied therefore, that the respondent did have a discretion as to whether or not to issue a notice under s 401(1) of the LGMP Act, in consequence of the wall having been constructed without the necessary permission of the local government by way of a building licence. It is noted that the Tribunal, in the exercise of its review jurisdiction, has the functions and discretions corresponding to those of the decision-maker; s 29 SAT Act and therefore, can determine whether the s 401 notice should stand.

What is the effect of the encroachment issue?

18 In its Statement of Issues, Facts and Contentions, the respondent argued that an application for a building licence, made prior to construction of the wall, would not have been approved because the wall encroaches onto the Yamanakas' block. Be that as it may, the Tribunal is satisfied that, to the extent that there is any encroachment, the encroachment is directly attributable to a combination of circumstances starting with the damage to the applicant's wall, the erection and location of the Yamanakas' wall and the requirement for a second retaining wall adjacent to, and in alignment with, the Yamanakas' wall as dictated by topographical considerations.

19 In respect of the encroachment itself, the Tribunal also notes that an encroaching owner may apply to the Supreme Court for relief including vesting in the encroaching owner that part of the adjoining land the subject of the encroachment, or an easement or right to retain possession of that part. Relief may be granted provided the Court is satisfied that the encroachment was not intentional and did not arise from gross negligence and where the Court considers it is just and equitable to do so: s 122 Property Law Act 1969 (WA) . The Yamanakas' also have recourse to make application regarding the encroachment if they see fit to do so.

20 It is unnecessary for present purposes to consider how this possibility sits with the respondent's assertion that no building licence would be

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granted, but it does indicate that if any continuing problem existed for the applicant in terms of his right and/or title over the concrete wall, where it encroaches the adjoining property, the opportunity exists to regularise the position.

Conclusion and order

21 The Tribunal is satisfied that the respondent had a discretion as to whether or not to issue the notice it did. After considering the factors relevant to the exercise of that discretion, namely;

1) What were the circumstances leading to construction of the wall?

2) Would a building licence have been granted for the wall had it not yet been constructed?

3) What would the consequences be of allowing the s 401 notice to stand?

4) What is the nature of the respondent's discretion in these matters?

5) How does the apparent encroachment affect the matter?

the Tribunal concludes that the correct and preferable decision is that the decision to issue the notice be set aside and the notice revoked.

22 The encroachment of the concrete wall on the neighbour's land on its own is not, in the Tribunal's view, a sufficient basis to justify retention of the notice given the circumstances of the construction of the wall and the land owner's ability to deal separately with that issue.

23 The Tribunal therefore orders as follows:

1. The decision of the respondent to issue the notice under s 401 Local Government (Miscellaneous Provisions) Act 1960 (WA) to the applicant, dated 11 October 2005, is set aside.

2. The notice is revoked.



I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.


___________________________________

MR M SPILLANE, MEMBER

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