CITY OF KWINANA -v- LAMONT [2014] WASCA 112 (12 June 2014)

CITY OF KWINANA -v- LAMONT [2014] WASCA 112 (12 June 2014) - WASCA 2014 case summary — Zoe

[49]

The Town contended, in effect, that:
- the word 'alter' should be given its natural and ordinary meaning and that the Shorter Oxford English Dictionary (3rd ed, 1944) defined it to mean 'to make otherwise or different in some respect, without changing the thing itself; to modify';
- the repair of damage to the structure of the wall or roof of a building 'by changing or replacing structural elements' of the wall or roof is an 'alteration' under s 374(1)(b) of the Act;
- regard may be had to reg 11 of the Building Regulations 1989 (WA) to show that the purpose or intent of s 374(1) of the Act (and reg 11) 'was to ensure new buildings were designed so as to be structurally sound and comply with the provisions of the Building Code ... and that any alterations to the structure of an existing building were also designed to be structurally sound and comply with the provisions of the Code'.
- section 374(1) of the Act operates in the same way as the provisions now in force under s 9 of the 2011 Act, and that, in effect, the meaning of s 374(1) of the Act could be ascertained by reference to the language and operation of the latter statute;
- the building work undertaken by the respondent involved 'replacement of structural elements of the roof of the Building' and the roof structure was thereby altered in that tiles, steel angle and tek screws had been used to attach rafters to the new ridge beam, metal brackets and tek screws had been used to attach structural timbers together, additional struts and collar ties had been installed, the 'bird's mouths' in the rafters of the roof did not line up with the top of the framing of the southern wall, and the structure of the southern wall was altered in that it was realigned to a vertical alignment but still contained bowing because the 'bird's mouths' in the roofing rafters were not sitting on top of and attached to the wall plate at the top of the wall framing of the southern wall;
- even if the restoration of the building to its pre-damaged state did not require a building licence under s 374(1)(b) of the Act properly construed, a building licence was required in this instance because the building was not restored to its pre-damaged state; and
- in order properly to determine whether the structure of a building has been altered, it is necessary to compare the structure of the building immediately prior to any works commencing with the structure of the building after the works had been carried out.
The respondent's arguments included arguments which may be summarised to the effect that:
- other provisions in the Act, unlike s 374(1)(b) made express mention of 'repair';
- similarly, in the Building Regulations there is a distinction drawn between 'repair' and 'alteration' and this indicates that s 374(1)(b) is not addressing repair work;
- the Town's submissions conflate the 'structure' to which s 374(1)(b) refers with 'structural repairs', and are tantamount to submissions that the structure of the building is altered where parts of the building are 'molecularly' changed;
- the judge found that the repair work in question in this case had not been shown to constitute an 'alteration' within the meaning of s 374(1)(b);
- any works, such as the installation of additional collar ties and struts in this case, which are added to give the structure additional strength, cannot be alterations under s 374(1)(b) because there can be no law against making a structure safer or stronger;
- section 374(1)(b) requires a comparison between the property as approved under the original licence, with its position after the works have been undertaken, in order to determine whether an 'alteration' has taken place within the meaning of s 374(1)(b); and
- the reference to 'specifications' in s 374(1) refers to the specifications originally approved by the local government when the building was erected and not the specifications which are required if the provisions of s 374(1)(a) or (b) are triggered.
In relation to the third contention above, the respondent, by his written submissions, contended that:

[51]

Section 2 of the Act provides that the Local Government Act 1995 (WA) (the 1995 Act) applies as if the provisions of the Act were in the 1995 Act, but in construing the provisions of the Act, account is to be taken of the meanings they had before the 1995 Act commenced. (In this regard, by s 6 of the Local Government Act 1960 - 1982 (WA), 'building' was defined to include a fence.)
Part XV of the Act is headed 'Buildings'. In addition to s 374(1), pt XV includes the following provisions.
Section 373(4) provides that subject to certain exceptions (irrelevant for present purposes), the provisions of pt XV apply to a building notwithstanding that its roof or covering has been removed or has fallen in, or that the building has not been completed or, having been completed, part of it has been wholly or partly demolished, removed or become ruinous, or that the building is a building of the type that does not have a roof or covering.
Division 1A of pt XV deals with the qualifications and appointment of persons to the office of 'building surveyors' of a local government.
Division 2 contains s 374. Section 374(1) has been set out earlier.
Section 374(1a) provides that a building licence may be issued subject to conditions. Section 374(1b) - (2) address matters concerning the application for a building licence and the submission of specifications, plans and the requirement to give notice of the completion of the work. Section 374(1b) provides, in effect, that a local government may reject an application under s 374(1b) for the amendment, alteration, extension or enlargement of an existing building if the local government has reason to believe that there is something in the construction of the building which would give the local government grounds for issuing a notice under s 401(1). Section 401 is referred to in [39] below.
Section 374(3), in general terms, provides that a person who, having contravened s 374(1), occupies or uses the building or a part of the building before the relevant plans and specifications have been approved commits an offence. Section 374(4) provides that it is a defence to an offence under s 374(3) if the person proves that prior to the occupation or use, a 'building approval certificate' for the work done in contravention of s 374(1) had been obtained. As noted below, a 'building approval certificate', issued under s 374AA, operates, in effect, as a retrospective approval for the work.
Section 374AA deals with work involving the erection or 'amendment, alteration, extension or enlargement of the structure of a building' which has not been approved by the local government. In this regard, s 374AA(1), (2), (4) and (5) provide:

[57]

Section 374AAD gives a right to apply to the State Administrative Tribunal for the review of:
- a refusal to approve plans and specifications under s 374(1);
- a refusal to issue a building approval certificate under s 374AA; and
- the conditions imposed under s 374 or s 374AA.
Section 374A deals with demolition licences.
Section 374B permits, in effect, 'building work' (not a defined term) to be performed without approval where there is an emergency endangering any person, building or structure, provided that as soon as practicable after commencement, written notice is served on the local government.
Section 375 provides, in effect, inter alia that no person shall 'build', 'take down', 'amend, alter, extend, enlarge', or 'add to' or 'repair' a building, or make an excavation in connection with the doing of those things, or do anything by which a street, way or other public place may be obstructed or rendered dangerous or inconvenient to persons passing on or near it, without giving the local government three days written notice of the person's intention and putting up a proper hoarding or fence to the satisfaction of the local government.
Division 3 of pt XV contains s 378 and s 379. Section 378 provides, inter alia, that the local government may pull down a hoarding or fence which is not kept in 'good repair'. Section 379 addresses the situation where a person has erected a hoarding or fence which damages, for example, a footpath and where there has been a failure to 'make good and repair' the footpath.
Section 399(4) provides, inter alia, that despite anything in the Act to the contrary the local government may by a written licence permit the 'erection' of a building under such restrictions and for such time as it specifies.
Division 9 of pt XV is headed 'Notice of required alteration'. Section 401(1) provides, in general terms, that at any time during, or after, the erection of a building, the local government may give written notice of anything in the construction of the building:

[64]

The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
A number of observations may be made about s 374(1)(b) of the Act. First, the words 'amend, alter, extend or enlarge' are ordinary words of common usage. Neither party contended that they should be given any technical meaning or anything other than their ordinary meaning. Also, neither in the context in which those words appear in s 374(1)(b) nor in the context of the Act as a whole, would there appear to be any reason to assign a meaning to the word 'alter' in s 374(1)(b) other than its natural and ordinary meaning.
As noted earlier, the Town referred to the Shorter Oxford English Dictionary (3rd ed), which defines 'alter' to mean 'to make otherwise or different in some respect, without changing the thing itself; to modify'. Similarly, the Macquarie Dictionary (5th ed) defines the word 'alter' to mean 'to make different in some particular; modify' and the word 'alteration' to mean 'a change; modification'.
When the ordinary meaning of 'alter' is applied to s 374(1)(b), the provision relevantly means, in effect, that in respect of the structure of a building already erected, no person shall change or modify the structure of the building, or commence or proceed with a change or modification of the structure of the building, until the requisite application has been made and approval given.
Secondly, s 374(1)(b) emphasises, by its opening phrase, that it is the 'structure' of the building and not the building itself, with which the prohibition is concerned.
Thirdly, the word 'structure' is also an ordinary word of common usage and neither party contended that it had some technical meaning. The Shorter Oxford English Dictionary definition of 'structure' includes 'the arrangement and mutual relation of the constituent parts of a whole; composition, make-up, form'. The Macquarie Dictionary definition includes 'arrangement of parts, elements or constituents'. As applied to a 'building already erected', the word 'structure' in s 374(1)(b) seems to denote the essential constituent elements or parts of the building which, in combination, give it its essential form and nature. It would seem to us to include, in relation to a building with a roof, the roof of the building.
Fourthly, where Parliament has preceded the word 'alter' by the word 'amend', and followed it by the words 'extend or enlarge', read as a whole the language of the provision tends to indicate that its intended ambit was not a narrow one (although its scope could not, of course, exceed that derived from a proper construction of the collocation of words used).
Fifthly, by virtue of s 373(4), the terms of s 374(1)(b) apply to a building notwithstanding that its roof or covering has been removed or has fallen in, or that the building has not been completed or, having been completed, part of it has been wholly or partly demolished, removed or become ruinous, or that the building is a building of a type that does not have a roof or covering.
Sixthly, the Act thereby contemplates that a building without a roof, or a ruinous building, including a building where the roof has fallen in, may have a 'structure' which may be 'amended, altered, extended or enlarged' for the purposes of s 374(1)(b).
Seventhly and consequently, in relation to a building of a type without a roof or a ruinous building, including one where the roof has fallen in, s 374(1)(b) invites a comparison between the 'structure' of the building in that state or condition, and the structure of the building as a result of the execution of the works said to constitute the alleged 'amendment, alteration, extension, or enlargement'. For example, there would seem to us to be little doubt that if the building were of a type without a roof at all, then to construct and erect a roof for it would be to 'alter' the structure of that building. It is difficult to see why the same conclusion would not also ordinarily follow if, for example, the building in question had a roof which had fallen in, and the works involved the construction and erection of a new roof. (This point is addressed further in dealing with the respondent's particular submissions in [68] below.)
Eighthly, s 374(1), where it applies, requires, amongst other things, the provision of a copy of the 'specifications of, and a plan showing clearly, the building ... or the amendment, alteration, extension or enlargement proposed to be made'. The word 'specification' in its ordinary meaning includes 'a statement of particulars; a detailed description setting forth the dimensions, materials, etcetera, for a proposed building, engineering work or the like' (Macquarie Dictionary).
Having made those initial observations as to the meaning of s 374(1)(b) of the Act, it seems to us, with respect, that the primary judge erred in approaching his construction of the provision on the basis that the provision creates a necessary dichotomy between 'repairs' and 'alterations'. It may be accepted that as a matter of language, the word 'repair' is not a synonym for the word 'alter', and the provision should not be read as if it were. However, the provision is to be construed having regard to the actual language used. A construction of the word 'alter' which necessarily excludes any work which may be described as repair from the scope of its operation has no foothold in the actual language used. The statutory question, relevantly, is whether the work alters the structure of the building, not whether the work is by way of repair. Although the word 'repair' appears in other sections of the Act such as s 401A(1), this context does not require the word 'alter' in s 374(1)(b) to be construed as though an exception were carved out for works in the nature of 'repairs'.
When, properly construed, the provision is applied to the subject matter in question in any particular case, the work, even though in the nature of repair, may be of such a nature or character that the structure of the building is altered by the execution of the work. Whether or not that is so will, at least in marginal cases, require close attention to the precise facts and circumstances of the particular case (cf W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 54; (1965) 115 CLR 58, 72). On the other hand, other works which involve repairs to the building may never constitute an alteration of the structure of the building.
As noted earlier, his Honour said that s 374 is 'principally' a 'planning measure rather than a building supervision measure'. He also said the 'power over the construction of buildings which tend to render the building unsafe or dangerous is in s 374(1)(b)' [36] - [37]. It might perhaps be thought that those two propositions do not sit comfortably together. In any event, it appears to us that s 374 is not 'principally' concerned with planning measures (in the sense of setbacks and the like), as opposed to building supervision measures. If it were, it would be unlikely that the 'specifications' for the works would be required. As noted earlier, 'specification', in its ordinary meaning, signifies, in this context, a detailed description setting forth the dimensions and materials of the proposed works. Also, when s 374(1) is read in the context of pt XV as a whole (including s 374(1b) read with s 401(1)), it would appear to us that s 374(1)(b) includes substantial considerations in the nature of 'building supervision measures' (to use his Honour's terminology). At least one of its primary objects appears to be the supervision of building work to ensure its quality, reliability and safety insofar as the work changes or modifies the structure of the building.
In determining whether any particular works constitute an alteration of the structure of a building, the works should, at least ordinarily in our view, be viewed as a whole and consideration be given to the impact of the totality of the works in question.
In this case, the works in question involved a modification of the existing structure of the building judged from the position of its ruinous state immediately prior to the commencement of the works, in that the works involved the elevation of a section of the roof, and the repositioning of one of its walls. The work was plainly not insubstantial and the magistrate found that in the building's state of disrepair and dangerous condition 'it was not simply a case of replacing like for like' (see [15] above). The work also included the installation of additional vertical struts and additional collar ties within the roof which had not previously been there even before it began to fall into its ruinous state.
In our respectful opinion (and subject to a consideration of the respondent's particular submissions referred to below), these matters indicate that the magistrate was not shown to be in error in concluding that there was an alteration within the meaning of s 374(1)(b) by the execution of the works in question.
We now turn to the respondent's specific submissions referred to in [23] above. It is correct to say that s 374(1)(b) does not expressly mention the word 'repair' and for that reason, the word 'alter' in s 374(1)(b) should not be read as if it did. Nevertheless, as indicated earlier, close attention may be required to the facts and circumstances, in marginal cases, to determine whether certain work in the nature of repair work is of a nature and character that alters the structure of the building.
As to the Building Regulations 1989 (WA), both the respondent and the appellant sought to draw upon the terms and language of the Building Regulations to construe the Act. That course is impermissible as the Building Regulations are subordinate to the Act. As to the contention that the Town's submissions conflate the 'structure' to which s 374(1)(b) refers with 'structural repairs', it is evident from the foregoing reasoning that we do not accept the Town's contention that every repair to the structure of a building necessarily involves the alteration of the structure of a building within the meaning of s 374(1)(b).
Although the primary judge said that the work in question, including by admission from the Town, was repair work and had not been shown to constitute an 'alteration' within the meaning of s 374(1)(b), it seems to us, with respect, that his Honour's starting point was that the provision contains a distinction between repair work and alterations. As we have indicated, that, with respect, seems to involve a preconception of the meaning of the provision which is not grounded in its language.
Insofar as the respondent contends that the works included the installation of additional vertical struts and collar ties within the roof which had previously not been there in order to improve or strengthen the structure of the roof, we are unable to accept that, as a matter of construction, the word 'alteration' necessarily excludes any changes or modifications of the structure which the owner or builder considers to be beneficial or an improvement. If the works do alter the structure of the building, the section requires approval subject to the provision of the plans and specifications, even if the builder or owner might consider the works to be beneficial.
As to the point at which a comparison is to be made when judging whether the works alter the structure of a building, we are unable to accept the respondent's contention that s 374(1)(b) requires comparison between the property as shown to be approved under its original licence with its position after the works have been undertaken. That is essentially for three reasons. First, it does not refer to 'amend, alter, extend or enlarge' the structure of the building as shown in the 'approved plans for the building'. Rather, it simply refers to amending, altering, extending or enlarging the 'structure' of the 'building' which is 'already erected' on land in the district. Secondly, the respondent's submissions seem to us to be inconsistent with the intended operation of s 374 having regard to the provisions of s 373(4) of the Act. Thirdly, in circumstances where much of the housing stock in Perth may be taken to have been constructed or altered from time to time even before the commencement of the Act in 1961, it would seem unlikely that Parliament would have intended that earlier licences (if any) should provide the relevant comparator for the purposes of s 374(1)(b).
Nor do we accept the respondent's contention that the word 'specifications' in s 374(1) refers to the specifications provided to a local government when the building was originally constructed or amended, altered, extended or enlarged at some earlier time in the life of the building. It seems to us to be plain on any ordinary reading of s 374, that the word 'specifications' refers to the specifications which must be accompanied by an application for a building licence which the requirements of s 374(1)(a) or s 374(1)(b) have triggered.
Having read carefully all of the respondent's written submissions, there is nothing in them which would lead us to any different conclusion from the one referred to in [63] above. Many of the submissions are expressed in intemperate language involving a criticism of the motives of the Town and do not directly address issues as to the proper construction and application of s 374(1)(b). However, one final matter should be noted. In the course of oral submissions, the respondent impliedly suggested, or perhaps hinted, that he had undertaken the works on behalf of the elderly lady in late October 2010 because the Town had issued a notice to her dated 14 May 2010 under s 139 of the Health Act 1911 (WA) which required certain repairs to be carried out to the house, including the roof. The point, if any, of this implied suggestion was not developed formally through a notice of contention, or otherwise informally developed. It is not clear whether and to what extent it was raised before the learned primary judge. Certainly, his Honour's reasons make no reference to it. However, we are satisfied that the implied suggestion can have no bearing on the proper disposition of the appeal.
In this regard, having examined the transcript before the magistrate, the evidentiary position with respect to the notice dated 14 May 2010 appears to be as follows. The Town's health department had issued the notice under s 139 of the Health Act dated 14 May 2010. The elderly lady's son contacted the Town having ascertained the likely cost of carrying out the works. The estimated cost was $55,000 and the son said that they could not afford the repairs. He requested the Town to have the building demolished. The Town agreed to do so at its expense, but subject to taking a charge over the property. The demolition notice was issued dated 14 October 2010. The respondent wrote to the Town on 14 and 15 October 2010. His letters of 14 October 2010 and 15 October 2010 referred to the demolition notice. Although the respondent did not give evidence at the hearing before the magistrate (nor did he call the elderly lady or her son), it appears from the evidence of one of the Town's officers that the demolition notice was challenged in the State Administrative Tribunal and that the respondent was involved in that matter before the Tribunal. The cross-examination by the respondent of the Town's officer in this regard was as follows.

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Judgment (67 paragraphs)

CITY OF KWINANA -v- LAMONT [2014] WASCA 112 (12 June 2014)

Legislation Cited (3)

Cases Cited (4)