1. Mr Williams expressed the opinion that 'there is sufficient measured results and circumstantial evidence to suggest [that the building, including the façade wall at Nos.] 424 [­ 436] Hay Street has continued to move since my initial inspection on 28 January 2021'[158] and gave the following evidence: [159]

Such evidence for [Nos.] 424 [­ 436] Hay Street includes the regularly measured movement by the tell­tales, the ceiling collapse of 8 February 2021, the gas pipe leak of 8 March 2021, the additional cracking of 10 February 2021 and 26 March 2021 and the measured movement by the surveyor from 12 March 2021 to 6 April 2021.

In my opinion, all of these indicators suggest movement is still occurring in [Nos.] 424 [­ 436] Hay Street building.

1. In relation to 'the measured movement by the surveyor from 12 March 2021 to 6 April 2021' referred to by Mr Williams in his evidence set out in the preceding paragraph, BMS recorded a total of 11 movements, each of between 1 and 2 millimetres, at particular reflective targets on the façade of Nos. 424 ­ 436 Hay Street. However, as Mr Pizzi said in evidence, at each of the relevant reflective targets where a movement of 1 to 2 millimetres was previously found, the subsequent survey was 'back to the original'.[160] Mr Pizzi also agreed in cross­examination that 'environmental factors can cause small movements in the building in the order of [1] to [2] millimetres'.[161] Furthermore, and significantly, Mr Pizzi also acknowledged in cross­examination that the accuracy of the particular surveying instrument used by BMS during the relevant surveying, referred to as 'Topcon PS', is, 'according to the manufacturer', 2 millimetres.[162] Thus, all of the survey results are within the margin of error for the relevant equipment.
2. Mr Pizzi gave the following evidence during cross­examination:[163]

And do you agree that the survey data shown here is consistent with there being no movement of the facade of 424 to 436 Hay Street during the survey period?---That's right. That's also taking into consideration that there's multiple - those points were observed from multiple locations as well, so, yes, we were able to - to say that there was no movement as well, yes.

1. Similarly, in re­examination, Mr Pizzi gave the following evidence:[164]

Well, the question is, I suppose, should this [T]ribunal understand the accuracy of the instrument by reference to the manufacturer's specifications or the calibration process and the redundancy that you've described?---It would be as per the - the manufacturer's - the manufacturer's specifications, yes. If we had to go purely by the instrument, as - as such, yes, the Topcon series, that would have to be by the - the manufacturer's.

And so the measurements that you've taken that you refer to measurements or differences between the original coordinates and the date on, say, 19 March of less than two millimetres, that's within the margin of error, is it?---That's right. Yes.

1. Thus, the extensive surveying over multiple (38) survey points on numerous (18) occasions during the period February and March 2021 did not show any movement of the façade of the building at all.[165] Contrary to Mr Williams' evidence, 'the measured movement by the surveyor from 12 March 2021 to 6 April 2021' (or over any period) is not evidence suggesting that the façade of the building is moving.
2. Mr Williams explained that he installed tell­tales over five cracks on party walls at Nos. 424 ­ 436 Hay Street, which he placed 'reasonably high up' as 'the cracks open more at the top than at the bottom'.[166] While Mr Williams acknowledged that there are limitations on the accuracy of gauging crack movement by tell­tales, because 'the optics of a photograph aren't perfect',[167] and in particular are subject to 'parallax error [which] means that if an observation is not taken directly at the perpendicular when measuring an object, that will cause an error in the recording of the measurement',[168] and 'in some cases, the bricks are not perfectly aligned because the crack has opened up'.[169] However, Mr Williams said that the 'purpose of the crack gauges installation originally was to just gauge global movement, overall movement'[170] and he expressed the opinion that 'the overall reading was reasonable to indicate movement'.[171] Mr Williams gave evidence that, 'in total, the measurements [at] the [former] Telstra tenancy is about [5] millimetres, and [at] the [former] Flight Centre [tenancy] was up to [8.5] millimetres'.[172] However, he agreed that the consequence of parallax error and the non­perfect alignment of bricks is that the measurements of '[5] and 8.5 millimetre movements can't be accepted as accurate movements', adding 'that wasn't the intention'.[173] Dr Katz is of the opinion that 'the survey results [are] a more reliable measure [than the tell­tales] given the limitations of the poorly installed crack width gauges',[174] although he acknowledged that, even with the limitations on accuracy, recorded movements in the order of 5 and 8.5 millimetres shows that there is some movement in the party walls in the location of the cracks.
3. However, significantly, the survey evidence clearly shows that any movement in the party walls in the location of the cracks has not translated to any movement of the façade wall of the building at Nos. 424 ­ 436 Hay Street.
4. Furthermore, whatever movement or other cause resulted in the partial collapse of the ceiling in the former Commonwealth Bank tenancy in early February 2021, it has not translated to any movement of the façade wall as shown by the survey results.
5. Finally, in relation to 'the gas pipe leak of 8 March 2021' referred to by Mr Williams in his evidence set out at [140] above, he said that 'although I wasn't directly involved', he understood that '[because of] a gas leak in the ground at the ... pipework', the gas to the former restaurant tenancy was cut off.[175] Mr Williams then gave the following evidence:[176]

So whilst not conclusive in any way, just sort of indicating potentially that there is some movement happening that has manifested itself in the ground with the pipework as well as in the building.

1. However, in the absence of any further evidence, Mr Williams' opinion in this respect is speculative.
2. The applicants also rely on the evidence of Mr Paul Race, who is a quantity surveyor with over 40 years' experience in the construction industry and who has been Regional Director of Multiplex Constructions Pty Ltd (Multiplex) for the past 20 years. Mr Race states in a letter to Sanur dated 8 April 2021, which is attached to his witness statement, that 'there is movement in the building facade [sic] [of the building at Nos. 424 ­ 436 Hay Street] as observed through survey'.[177] However, as is apparent from the analysis set out above, Mr Race is incorrect in his understanding of the survey results. In his letter to Sanur dated 8 April 2021, Mr Race also states that 'Muliplex would require further investigation by an appropriate engineer and an heritage specialist to inform the OHS Risk Assessment process' and 'Multiplex confirms that without further investigation (by subject matter experts noted above or others) undertaken along with a comprehensive risk assessment, Multiplex will not be proceeding with the [installation of the temporary support structure]'.[178]
3. However, Mr Race's witness statement was tendered by the applicants 'as a statement of fact as to what Multiplex will do ­ or would or would not do'.[179] As the City submits, Mr Race's witness statement is 'just evidence of the fact that Multiplex wouldn't do these works without conducting further investigations[,] but it's not taken to create any more broad inference about the industry practice or engineering opinion about safety matters'.[180] As the City also submits, '[Mr Race's] letter is based on an incorrect assumption [about the survey results]'.[181] The incorrect assumption underlying Mr Race's letter and evidence limits its weight.
4. Furthermore, while Muliplex is not willing to install the temporary support structure without further investigation by experts and a comprehensive risk assessment, it appears that JV Scaffolding and Scaf­West are willing to carry out that work.
5. For the reasons set out above, we find on the evidence that the façade wall of the building at Nos. 424 ­ 436 Hay Street is not in an active state of movement or rotation and that it is both physically possible and safe to carry out the works required by the building orders and the heritage conservation notices.

Does the Tribunal have power in the circumstances of this case to vary the building orders to require demolition of the buildings?

1. Section 110 and s 112 of the Building Act are set out at [60] ­ [61] above. As the City submits, '[s] 110 [of the Building Act] ... confers a general power upon a permit authority to make a building order and s 112(2) [of the Building Act] enumerates the specific powers which can be exercised in making a building order and the circumstances in which they can be exercised'.[182]
2. Section 122(1) of the Building Act confers a right of review in the following terms:

A person who is served with a copy of a building order may apply to the State Administrative Tribunal for a review of the decision of the permit authority -

(a) to make the building order; or

(b) in relation to a requirement of the order.

(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.

(1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.

(2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.

(3) The Tribunal may -

(c) set aside the decision that is being reviewed and -

(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

and, in any case, may make any order the Tribunal considers appropriate.

(4) The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.

(5) The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker's decision -

(a) is to be regarded as, and given effect as, a decision of the decision-maker; and

(b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.

(6) Without limiting subsection (5)(a), the decision-maker has power to do anything necessary to implement the Tribunal's decision.

(7) Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision-maker.

(8) Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.

(9) To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.

1. The applicants submit that the Tribunal has power in these proceedings under s 110, s 112 and s 122(1) of the Building Act, in particular under s 112(2)(g) of that Act, and under s 27 and s 29 of the SAT Act, to vary the City's decisions to make the Nos. 424 ­ 436 Hay Street building order and the No. 440 Hay Street building order (or to set aside the decisions to make those building orders and substitute its own decisions to make building orders) to require demolition of the buildings (under s 112(2)(g)(vi) of the Building Act). This is because, the applicants submit, 'the power to make the [building] orders [in this case] arise[s] under [s] 112(2)(g) [of the Building Act] and not under the subparagraphs to that subsection'.[183] The applicants submit:[184]

[Section] 112(2)(g) of the [Building Act] provides a decision[­]maker with various options as to how to make safe a building that is 'in a dangerous state or unfit for human occupation'. Once they 'reasonably believe' that the building satisfies that description, the decision[­]maker may choose a preferred course of action from between the various sub­paragraphs of the sub­section. That choice represents the exercise of a discretion which the Tribunal has on review.

1. In contrast, the City submits that the Tribunal does not have power in these proceedings to vary the building orders (or to substitute its own decisions) to require demolition of the buildings, for essentially two reasons. First, the City submits:[185]

... [T]he nature of the power that has been exercised [by the City in making the reviewable decisions] is a power under in this case [s] 112(2)(g)(iv) [of the Building Act] in respect of [Nos.] 424 [­ 436] Hay Street and [s] 112(2)(g)(v) [of the Building Act] in respect of [No.] 440 Hay Street. And in these proceedings, the applicant is inviting the [T]ribunal to make an order under [s] 112(2)(g)(vi) [of the Building Act], demolition. So it's ... a different power to the one that has actually been exercised ... [.]

... [T]he proper construction of [s] 122(1) [of the Building Act] limits the scope of this [T]ribunal's review to the question of whether the building order should have been made at all and whether the individual requirements of that order should have been made or should be varied within the scope of the power that was actually exercised.

So ... [s] 122(1) does not confer a jurisdiction upon the [T]ribunal to impose additional requirements which go beyond the scope of the building order that was made. The purpose of [s] 122(1) ... is to allow a person who is the subject of a building order to seek review of the building order that was made and not to, in effect, apply for a different building order.

1. In our view, the Tribunal does not have power in these proceedings to vary the building orders (or set them aside and substitute its own decisions) to require demolition of the buildings. Significantly, as indicated earlier, these proceedings come within the Tribunal's review jurisdiction under s 17(1) of the SAT Act. These proceedings do not come within the Tribunal's original jurisdiction. Thus, in these proceedings, the Tribunal is a review decision­maker, not an original decision­maker, under the Building Act. As the Tribunal[187] said in Dunbar and Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318 at [19]:[188]

... [N]othing in s 29, or any other provision of the SAT Act, places the Tribunal in the shoes of the [original] decision­maker for any purpose other than dealing with the decision under review. It is not open to the Tribunal to exercise some other discretion vested in the decision­maker where a decision in the exercise of that discretion is not the subject of the review ... [.]

1. Ultimately, this issue turns on the proper characterisation of the reviewable decisions in this case and the particular authority under which they were made. This is because the Tribunal's jurisdiction and power in these proceedings is to re­exercise the authority under which the original decision­maker made the reviewable decisions and to make fresh decisions exercising that authority. The reviewable decisions in this case are not simply decisions of the City to make building orders in respect of particular buildings under s 110(1)(c) of the Building Act or even decisions of the City to make building orders in respect of buildings that are reasonably believed to be in a dangerous state or unfit for human occupation under s 110(1)(c) and s 112(2)(g) of the Building Act. Rather, the reviewable decisions in this case are decisions of the City, having formed what it considers to be a reasonable belief that the buildings in question are each in a dangerous state or unfit for human occupation, to:
   • make a building order requiring Sanur to shore up the building at Nos. 424 ­ 436 Hay Street in a specified way for the protection of persons, of other property or the environment, under s 110(1)(c) and s 112(2)(g)(iv) of the Building Act; and
   • make a building order requiring Wintermist to repair the building at No. 440 Hay Street in a specified way so as to prevent or stop the building from being a danger to persons, to other property or to the environment or to render it fit for human occupation, under s 110(1)(c) and s 122(2)(g)(v) of the Building Act.
2. Section 122(1) of the Building Act confers a right on a person who is served with a copy of a building order to apply to the Tribunal for a review of 'the decision of the permit authority ... to make the building order ... or ... in relation to a requirement of the order'. As the City submits, this provision 'limits the scope of this [T]ribunal's review to the question of whether the building order should ... [be] made at all and whether the individual requirements of that order should ... [be] made or should be varied within the scope of the power that was actually exercised'.[189] Section 122(1) of the Building Act does not confer jurisdiction or power on the Tribunal to make a different building order to the building order that was served by the permit authority on the relevant applicant and, in particular, does not confer jurisdiction or power on the Tribunal to vary the building order (or set it aside and substitute a building order) requiring the relevant applicant to demolish the building to which the building order relates under s 110(1)(c) and s 112(2)(g)(vi) of the Building Act when the City made a building order requiring the applicant to shore up the building in a specified way under s 110(1)(c) and s 112(2)(g)(iv) of the Building Act or to repair the building in a specified way under s 110(1)(c) and s 112(2)(g)(v) of the Building Act. That would go beyond the review of ' of [the City] ... to make [which it made and a copy of which it served on the relevant applicant] ... or ... in relation to '.
3. Furthermore, the 'purpose of the review' under s 27(2) of the SAT Act, namely 'to produce the correct and preferable decision at the time of the decision upon the review', does not confer power on the Tribunal in these proceedings to vary the building order (or set it aside and substitute a building order) requiring the relevant applicant to demolish the building to which the building order relates. The 'correct and preferable decision' must be in respect of the reviewable decision made by the original decision­maker, not a different decision that the original decision­maker did not make. As indicated earlier, these are review, not original, proceedings. In particular, the Tribunal is a review tribunal conferred with jurisdiction under s 122(1) of the Building Act in relation to a decision of the permit authority, not the permit authority itself.
4. Finally, s 29(1) of the SAT Act does not confer power on the Tribunal in these proceedings to vary the building order (or set it aside and substitute a building order) requiring the relevant applicant to demolish the building to which the building order relates. Whilst s 29(1) of the SAT Act refers to 'functions and discretions corresponding to those exercisable by the decision­maker in making the reviewable decision',[191] not to functions and discretions exercised by the original decision­maker in making the reviewable decision, the following submission made on behalf of the City, when the Tribunal drew s 29(1) of the SAT Act to Mr Sharpe's attention, is correct:[192]

The submission is that the source of power is not [s] 110 [of the Building Act] at large. The submission is that ... the functional power is to be identified by reference to the actual function exercised - or actual function performed or power exercised [by the City] which is to be identified as [s] 112(2)(g)(iv) and [s] 112(2)(g)(v) [of the Building Act].

1. We conclude that the Tribunal does not have power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings.

What are the correct and preferable decisions in these proceedings?

1. It follows from our determination that the heritage conservation notices cannot be lawfully issued that the correct and preferable decisions at the time of the decisions upon the review are to set aside the decisions of the City to issue the heritage conservation notices and substitute decisions that no heritage conservation notices are issued.
2. It follows from our determination that the Tribunal does not have power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, that the correct and preferable decisions at the time of the decisions upon the review cannot be to vary the building orders (or set them aside and substitute building orders) to require the demolition of the buildings. Rather, having regard to the state of the buildings and the possibility, safety, benefit and cost of carrying out the works required by the building orders, the correct and preferable decisions at the time of the decisions upon the review are to require the applicants to install and carry out the works required by the building orders.
3. In particular, for the following reasons, the correct and preferable decision at the time of decision upon the review of the decision of the City to make the Nos. 424 ­ 436 Hay Street building order is to require Sanur to install the temporary support structure at Nos. 424 ­ 436 Hay Street in accordance with the amended plan and elevations of the temporary support structure dated April 2021 reproduced at Attachment A to these reasons.[193] As we found earlier, it is physically possible and safe to install the temporary support structure. As Dr Katz said in his evidence, which we have accepted, while there is no imminent risk of collapse of the façade wall of Nos. 424 ­ 436 Hay Street, bearing in mind its lean towards the street, the façade wall may at least partially collapse in the event of high winds, earth tremor or earthquake. We accept Dr Katz's evidence that the installation of the temporary support structure 'mitigates the risk of collapse to a level acceptable by Australian standard AS1170.2 (Structural design actions Part 2: Wind actions; Appendix F) and will allow for a structural engineer to develop a design to permanently restrain the façade and parapet'.[194] As Dr Katz also said, if the temporary support structure is installed, 'it will be safe to enter, inspect and repair the building'.[195] In particular, as he said, 'a structural engineer can complete a detailed assessment of the façade, return walls and roof structure so that remedial works can be specified' and carried out.[196] Furthermore, the cost of installation of the temporary support structure and the ongoing cost of scaffold and concrete block hire specified in the quotations from JV Scaffolding and Scaf­West is not disproportionate to the public and private (to Sanur) benefits of preventing the collapse of the façade wall and enabling entry, inspection and repair of the building.
4. For the following reasons, the correct and preferable decision at the time of the decision upon the review of the decision of the City to make the No. 440 Hay Street building order is to require Wintermist to carry out the remedial works at No. 440 Hay Street. Mr Williams and Dr Katz agree that the structural integrity of the upper storey façade of the building at No. 440 Hay Street has been compromised by the cracks in the return walls and that the remedial works will, in Dr Katz' words, 'reinstate the structural integrity of the façade and ensure the long­term stability and durability of the façade'.[197] Furthermore, as Mr Williams said in evidence, which was not questioned or contradicted and we accept, the remedial works are 'not considered unusual'[198] and 'are not considered disproportionate in return for reinstating the opportunity to safely reoccupy the building'.[199]
5. Although the applicants originally contended in the proceedings that both building orders should be varied to require demolition of the building in question, in opening and again in the final submissions made on behalf of Wintermist, Mr Jackson, properly recognising the common position of the engineering expert witnesses, did not argue that the Tribunal should require demolition of the building at No. 440 Hay Street. Although Wintermist does not ultimately contend that the correct and preferable decision in relation to the No. 440 Hay Street building order is other than to affirm the City's decision, it contends that 'because an order to carry out repair works to [No. 440 Hay Street] might end up being inconsistent with the determination ... granting ... demolition [approval]', 'the operation of the [building order] [should] be suspended pending the determination of the demolition [application]'.[200]
6. Sanur submits that the correct and preferable decision at the time of the decision upon review in relation to the Nos. 424 ­ 436 Hay Street building order is to vary that building order to require the demolition of the building on that property. Consequently, both parties addressed the issue of what is the correct and preferable decision in relation to Sanur's application for review of the City's decision to make the Nos. 424 ­ 436 Hay Street building order on the basis that the Tribunal has power to vary that building order to require demolition of the building. On the assumption that the Tribunal has power to vary the building order to require demolition of the building, Sanur submits that the correct and preferable decision at the time of the decision upon the review is to vary the building order in that way, whereas the City submits to the contrary. Given that the parties made their respective submissions on the assumption that the Tribunal has power to vary the building order to require demolition of the building, for completeness and if we are wrong in relation to our determination that the Tribunal does not have power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, we will now proceed to address the issue of what is the correct and preferable decision on the assumption (contrary to our determination) that the Tribunal has power to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings. In our view, for the reasons which follow, even assuming that the Tribunal has power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, the correct and preferable decision at the time of the decision upon the review is to not vary the Nos. 424 ­ 436 Hay Street building order (or set it aside and substitute a building order) to require demolition of the building, but rather to require Sanur to install the temporary support structure at Nos. 424 ­ 436 Hay Street in accordance with the amended plan and elevations dated April 2021 reproduced at Attachment A to these reasons.
7. Sanur submits that the assessment of whether the correct and preferable decision is to affirm the Nos. 424 ­ 436 Hay Street building order or to vary it (or set it aside and substitute a building order) to require the demolition of the building involves a 'question ... of proportionality'.[201] It submits that '[e]ffectively, ... the [T]ribunal ought to balance the benefits of the [building] order if it's made against the burden suffered by the owner'.[202] In particular, Sanur submits that 'the balance of benefits [of its preferred outcome of requiring demolition of the building by the building order] outweighs the burdens and disbenefits and that can't be said for the respondent's preferred outcome [of requiring installation of the temporary support structure by the building order]'.[203]
8. We accept that proportionality and balancing benefits and burdens is relevant in assessing whether to make a building order and in relation to its requirements. However, it is common ground between the parties - and clearly the case from the terms of s 110 and s 112(2)(g) of the Building Act - that the primary focus and consideration in relation to whether to make a building order referred to in s 112(2)(g) of the Building Act and its requirements is public health and safety. Other considerations may also be relevant in the circumstances of a case and, as we discuss below, a relevant consideration in the particular circumstances of this case is the heritage conservation significance of the building at Nos. 424 ­ 436 Hay Street. For the reasons which follow, we do not accept Sanur's submission that the benefits of its preferred outcome (requiring demolition of the building by the building order) outweigh the burdens and disbenefits of that outcome and we find that the benefits of the City's preferred outcome (requiring installation of the temporary support structure by the building order) outweigh the burdens and disbenefits of that outcome.
9. As Sanur submits, a benefit of its preferred outcome is 'the complete resolution of the safety issues'.[204] However, the City's preferred outcome would also appropriately address the safety issues by preventing the collapse of the building façade and enabling entry, inspection and repair of the building. As we found earlier, it is both physically possible and safe to install the temporary support structure.
10. In terms of cost, Sanur submits that its preferred outcome involves 'considerably lower [cost] burden on the owner'.[205] However, Sanur did not present any evidence of the cost of demolition of the building. In contrast, the City presented evidence as to the cost of installation of the temporary support structure and continuing hire of the scaffold and concrete blocks. As indicated earlier, one quotation is for $59,000 (plus GST) for installation and hire for 13 weeks and then a continuing cost of $260 (plus GST) per week for scaffold hire and $1,800 (plus GST) per week for concrete block hire and the second quotation is for $35,500 (plus GST) for installation and hire for two weeks and $750 (plus GST) per week for scaffold and concrete block hire after this period. As the City submits, the amounts in these quotations are 'a proportional cost in the context of a regime which [is] primarily concerned with achieving building safety'.[206]
11. Sanur also referred in its submissions to 'costs such as ongoing traffic management' and to 'holding costs'.[207] However, Mr Jackson subsequently clarified that the applicants are now only 'paying for some elements of the traffic management'[208] and, in any case, once the temporary support structure is installed, there will no longer be any traffic management cost, because the northern traffic lane and the northern parking bays on Hay Street abutting Nos. 424 ­ 436 Hay Street and No. 440 Hay Street will be available for public use. Furthermore, as Dr Katz explained, the design of the temporary support structure is such that pedestrians will also be able to traverse the northern footpath on Hay Street abutting Nos. 424 ­ 436 Hay Street. In terms of 'holding costs', as indicated earlier, the tenancies in both buildings have progressively ended in anticipation of redevelopment by the applicants and the DA proposing redevelopment, although made to the SDAU in mid­2020, is currently in abeyance, because the City has refused to give owner's consent for the development of Burley Lane.
12. We also note that, although Mr Williams was invited in the letter of instruction from the applicants' solicitors to respond to the question '[I]s the condition of the building such as it can be positively said, at this time, that demolition is the only option?',[209] he did not express such an opinion. Rather, Mr Williams expressed the opinion that 'the lean is cause for concern and it would be appropriate to consider at least partial demolition and rebuilding of the façade to reinstate the verticality'.[210] Mr Williams added that 'I would also note that this does not address the cause of the ongoing movement'.[211] However, as we found earlier, the 'ongoing movement' to which Mr Williams referred has not translated to any movement of the façade wall of the building.
13. Mr Williams also expressed the opinion that 'further assessment, investigation and monitoring would be required in order to understand and address the cause of the ongoing movement and assess the condition of the existing structural building fabric, before it would be possible to even consider any solution - and, as noted above, at least partial demolition will be required in any event due to the lean of the facade [sic]'.[212] However, the installation of the temporary support structure will enable the further 'assessment, investigation and monitoring' to take place. Furthermore, 'at least partial demolition' of the façade wall in order to address the lean is not the same as complete demolition of the building (as sought by Sanur).
14. The applicants initially advanced the following contention:[213]

... [W]hether the buildings are in an [h]eritage [a]rea and the heritage value of a building are irrelevant to the question of whether a [b]uilding [o]rder should be made in that the scope, subject matter and purpose of the [Building Act] is limited to the identification and compliance with relevant standards for the construction and demolition of buildings and the associated question of whether buildings are safe and fit for human occupation[.]

1. In opening the applicants' case, Mr Jackson initially advanced a similar position. However, when the Tribunal asked whether the applicants' submission is that heritage conservation significance is a legally irrelevant consideration, in the sense discussed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39­40, in relation to whether a building order should be made and as to its requirements, Mr Jackson said 'I'm not sure whether I can express the view that the Building Act says that you must not have regard to anything other than safety because plainly the discretion is very, very broad'.[214] Counsel agreed that the City would make its closing submissions prior to the applicants. When Mr Sharpe addressed the Tribunal on this aspect, Mr Jackson stated that he was 'not going to put' the submission that heritage conservation significance is a legally irrelevant consideration,[215] and when he then came to address the Tribunal, Mr Jackson said that the applicants do not submit that 'it's impermissible for this [T]ribunal to take into account matters other than safety' and that 'I say that the [T]ribunal ought not to have regard to those things [that is, cultural heritage significance] not that it must not'.[216]
2. The applicants' concession was appropriately made. In order for a matter to be a legally irrelevant consideration in the exercise of a statutory power, 'it must be established that the [matter] ... was one which the decision­maker was prohibited from considering, either by the express terms of the statute, or by implication arising from the subject matter, scope and purpose of the power being exercised'.[217] Moreover:[218]

It must be recognised that, between matters that a decision[­]maker is bound to take into account, and those irrelevant considerations that the decision­maker is prohibited from considering, there may be a wide range of permissible considerations which the decision­maker may weigh or disregard without committing an error of law.

1. As we said earlier, it is clear from s 110 and s 112(2)(g) of the Building Act that the primary focus and consideration in relation to whether to make a building order referred to in s 112(2)(g) of the Building Act and its requirements is public health and safety. However, the Building Act does not either expressly or by implication arising from the subject matter, scope and purpose of the power being exercised indicate that public health and safety is the only legally permissible consideration or that heritage conservation significance is a legally irrelevant consideration in relation to whether to make a building order referred to in s 112(2)(g) and as to its requirements. Rather, in our view, heritage conservation significance is a permissible consideration which the decision­maker may weigh or disregard without committing an error of law.
2. Furthermore, in our view, heritage conservation significance is a relevant matter for consideration in the circumstances of this case. As Mr Jackson observed during closing submissions, a 'disbenefit [from Sanur's preferred outcome of demolition] is that there would be no chance to save the façade'.[219] In contrast, as the City submits, the Nos. 424 ­ 436 Hay Street building order that it made and its preferred outcome in the proceedings will 'allow for the preservation of the heritage value of [the] buildin[g] for the time being, while allowing the development application process that is underway [involving assessment of the demolition application] to continue'.[220] Moreover, as the City also submits, 'it would not be correct and preferable to make [a building order requiring demolition] under [the Building Act, in the circumstances of this case,] because it would prevent the proper consideration of the planning and heritage implications of the demolition of [the] buildin[g]'.[221]
3. The Tribunal had the benefit of heritage expert evidence from Ms Dewar and Mr Stephen Carrick, who is an architect with over 30 years' experience in the conservation and management of heritage sites and who was called by the City. Mr Carrick expressed the opinion that the building at Nos. 424 ­ 436 Hay Street 'has some cultural heritage significance'.[222] Mr Carrick emphasised, in particular, the 'aesthetic value'[223] of the building within the streetscape of the Rokeby Road and Hay Street Heritage Area, because of the 'regular ... rhythm of the facade [sic]', including 'the recessed shop entries which are reflective of the period', and, 'tying it together', the 'parapet and pediment' together with the 'architectural detailing'.[224]
4. Ms Dewar expressed the opinion that the building at Nos. 424 ­ 436 Hay Street 'is considered to be of limited heritage value'.[225] She emphasised that '[t]he authenticity of [the building] is low due to the degree of non­original fabric introduced to repair the buildin[g] and the alteration to the internal planning to create open plan retail spaces rather than distinct retail spaces and residential accommodation'.[226] In particular, repair works were undertaken in 1986, which, Ms Dewar said, 'replaced much of the original fabric to the façades including the shop windows, the stained glass windows, doors and decorative urns',[227] although, as indicated earlier, the preliminary review report prepared by the Heritage Council states that 'some original fabric has been replaced' and 'this has been done in a sympathetic manner so that the place has retained its original form and appearance'.[228] Ms Dewar also said that '[w]hilst the shops still present with recessed entries, a regular rhythm and elements of the original design, some have been further altered to accommodate former occupants' requirements including installation of ATMs, changing doors to sliding doors, changing the position of doors and altering internal planning of the buildings'.[229]
5. Thus, both heritage expert witnesses are of the opinion that the building at Nos. 424 ­ 436 Hay Street has some heritage conservation significance. Their evidence is broadly consistent with the Heritage Area assessment, which, as indicated earlier, states that the building is considered to make 'some/moderate contribution' to the Rokeby Road and Hay Street Heritage Area. As also indicated earlier, the Heritage Council considers that 'the place has local heritage significance through its contribution to the City of Subiaco's Rokeby Road and Hay [Street] Conservation [that is, Heritage] Area'[230] and the preliminary review report prepared by the Heritage Council identifies the building as having the following cultural heritage 'values':[231]
   • The place is an aesthetically pleasing and cohesive example of an inter-war row of seven shops with residences at the rear.
   • Although some original fabric has been replaced this has been done in a sympathetic manner so the place has retained its original form and appearance.
   • The place is a representative example of the type of shops, including residences, constructed in small and medium suburban shopping areas during the inter-war period.
   • The place may have some rarity value as an intact row of a number of single­storey shops (seven) in the same design, and the presence of the complimentary residential properties at the rear.
   • The place makes a pleasing contribution to the Hay St and Rokeby Rd streetscapes.
6. The heritage expert witnesses disagree in relation to the impact that the demolition of the building at Nos. 424 ­ 436 Hay Street would have on the Rokeby Road and Hay Street Heritage Area. Ms Dewar considers that the demolition of the building 'would [have] a minimal impact'.[232] In contrast, Mr Carrick considers that 'there would be a negative impact on the streetscape with the loss of the building ... and I would rate it a fairly high loss ...'.[233] However, while we have said that heritage conservation significance is a relevant matter for consideration in these proceedings, this is plainly not the appropriate forum for the planning, including heritage planning, assessment of the impact that the demolition of the building would have on the cultural heritage significance of the Rokeby Road and Hay Street Heritage Area. This is because the primary focus and consideration in this case is public health and safety, not cultural heritage. In contrast, the demolition application is the appropriate forum for the determination of whether, having regard to the contribution made by the building at Nos. 424 ­ 436 Hay Street to the cultural heritage significance of the Rokeby Road and Hay Street Heritage Area and other relevant planning considerations, the demolition of the building should or should not be allowed. Unlike these proceedings, in the assessment of the demolition application by the planning consent authority (which may, of course, ultimately be the Tribunal on review), the primary focus and consideration is planning, including heritage planning, issues. Moreover, when Ms Dewar was asked by Mr Jackson 'Can the streetscape contribution or aesthetic contribution [of the building at Nos. 424 ­ 436 Hay Street] be provided by a new building?', she replied '[a] new building can contribute positively to a heritage area if the design has been informed by the surrounding architectural styles ...'.[234] Mr Carrick considers that a replacement building would make 'a lesser contribution ... for the items that I've identified in terms of the specific building that's there ... [a]nd in conservation terms, we always look to work with the existing fabric as much as possible'.[235] Ms Dewar's and Mr Carrick's evidence in this regard indicates that a planning assessment as to whether, having regard to the contribution made by the building to the cultural heritage significance of the Rokeby Road and Hay Street Heritage Area and other relevant planning considerations, the demolition of the building should or should not be allowed, is most appropriately made concurrently with a planning assessment of the proposed replacement building, which may be found to contribute sufficiently positively to the Rokeby Road and Hay Street Heritage Area such that, in the exercise of planning discretion, the demolition of the existing building (in whole or in part) may be considered to be acceptable. As the City submits, a building order requiring the installation of the temporary support structure is preferable to a building order requiring the demolition of the building, because the former would, and the latter would not, 'preserve [the] heritage building and allow proper planning processes to be carried out'.
7. We note that during cross­examination, Dr Katz gave the following evidence:[237]

JACKSON, MR: ... Can the risk - is the risk managed by the current hoarding?

WITNESS, KATZ: Yes.

JACKSON, MR: So, there's no - - -

WITNESS, KATZ: Sorry, is the risk managed by the current hoarding? Sorry, I misheard that. Yes, in should the, in the unlikely event of collapse, it won't affect people or property other than the building and the road.

JACKSON, MR: So, there's no need for the temporary support structure to protect against any collapse, in your view.

WITNESS, KATZ: I don't know if you're happy for collapse to occur in the unlikely event.

1. We do not consider that 'management' of the risk caused by the potential collapse of the façade of the building in the event of high winds, earthquake or earth tremor by the current hoarding is the correct and preferable decision in this case. While the current hoarding would prevent harm to people and damage to property if the façade wall collapsed, it is preferable to require the temporary support structure to be installed, because it will prevent potential collapse of the façade wall and enable entry, inspection and repair of the building, and because the current hoarding precludes public access to the northern traffic lane, parking bays and footpath on Hay Street abutting the building, whereas the temporary support structure would enable public access to that land.
2. Finally in relation to this issue, we note that Mr Mackay expressed the opinion that what he characterises as 'the City's intent to force the [a]pplicants to stabilise and retain the buildings' at Nos. 424 ­ 436 Hay Street and No. 440 Hay Street 'is contrary to' certain planning considerations.[238] In particular, Mr Mackay considers that retention of the buildings is contrary to '[a]n existing planning framework that anticipates significant development of up to 8 storeys in height and a plot ratio of 3 within the overall precinct, and redevelopment potential of up to 4 storeys on the subject site', '[a] draft planning framework ... that anticipates development on the site up to 11 storeys in height and with unlimited plot ratio', '[a] draft planning framework that anticipates partial demolition of [Nos.] 424 [­ 436] Hay Street' and the 'architectural inappropriateness of new development wearing the skin of an old building façade, and of a scale that would be discordant with the scale of the new development, and incompatible with the scale of shopfront demanded by contemporary and discerning retailers'.[239] However, these matters are appropriately the subject of the planning assessment in relation to the demolition applications and the pending DA in which planning, including heritage planning, considerations are the primary focus of the process. Mr Mackay's evidence in relation to what Mr Jackson termed in his submissions 'planning difficulties'[240] involved in retention of the existing buildings does not satisfy the Tribunal that the correct and preferable decision is to vary the Nos. 424 ­ 436 Hay Street building order (or the No. 440 Hay Street building order) (or set aside the building order (or building orders) and substitute a building order (or building orders)) to require the demolition of the building (or buildings).
3. We conclude that, even assuming (contrary to our determination) that the Tribunal has power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, the 'correct and preferable decision[s] at the time of the decision[s] upon the review', under s 27(2) of the SAT Act, are to:
   • not vary either or both of the building orders (or set them aside and substitute building orders) to require the demolition of the building or buildings;
   • require Sanur to install the temporary support structure at Nos. 424 ­ 436 Hay Street in accordance with the amended plan and elevations dated April 2021; and
   • require Wintermist to carry out the remedial works at No. 440 Hay Street.
4. The applicants did not present any evidence or make any submissions to the effect that the periods for compliance with the building orders specified by the City, namely five weeks for the Nos. 424 ­ 436 Hay Street building order and 10 weeks for the No. 440 Hay Street building order, are inadequate to carry out the work specified. We also note that Dr Katz estimated that it would in fact only take 'three to five days' to carry out the installation of the temporary support structure.[241] Dr Katz's estimate was not questioned or contradicted and we accept his evidence in this regard. As indicated earlier, Quoin has received two quotations to install the temporary support structure. As also indicated earlier, Ms Dewar described the specified crack stitching in the No. 440 Hay Street building order as 'standard works and ... specified regularly for heritage and non­heritage buildings'[242] and said that '[t]he installation of the lateral restraint to the façade at roof level is also considered to be standard works'.[243] We are satisfied that the periods for compliance specified in the building orders made by the City are appropriate and reasonable to carry out the work. However, the periods for compliance should be varied to be effective from the date of the Tribunal's final order (subject to any suspension of the building orders).

1. For the reasons set out above, we have determined that:
   1. The building orders can be lawfully made on the basis that each of them satisfies one or more of the statutory preconditions necessary for their making.
   2. The heritage conservation notices cannot be lawfully issued, because we are not satisfied that the properties have not been 'properly maintained', within the meaning and for the purposes of cl 13 of the deemed provisions, and further, in the case of the Nos. 424 ­ 436 Hay Street heritage conservation notice, the installation of the temporary support structure does not constitute 'specified repairs', within the meaning and for the purposes of cl 13 of the deemed provisions (although we also determined that the properties are each a 'heritage place', in that they are located in a 'heritage area', within the meaning and for the purposes of cl 13 of the deemed provisions).
   3. It is physically possible and safe to carry out the works required by the building orders and the heritage conservation notices.
   4. The Tribunal does not have power under s 110, s 112 and s 122 of the Building Act and s 27 and s 29 of the SAT Act in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings.
   5. The 'correct and preferable decision[s] at the time of the decision[s] upon the review', under s 27(2) of the SAT Act, are:

(a) in relation to the decisions of the City to make the building orders, even assuming (contrary to our determination) that the Tribunal has power in the circumstances of this case to vary the building orders (or set them aside and substitute building orders) to require demolition of the buildings, having regard to the state of the buildings, the possibility, safety, benefit and cost of carrying out the works required by the building orders, and the heritage conservation significance of the building at Nos. 424 ­ 436 Hay Street, to -

• not vary either or both of the building orders (or set them aside and substitute building orders) to require the demolition of the building or buildings;
• require Sanur to install the temporary support structure at Nos. 424 ­ 436 Hay Street in accordance with the amended plan and elevations dated April 2021; and
• require Wintermist to carry out the remedial works at No. 440 Hay Street; and

(b) in relation to the decisions of the City to issue the heritage conservation notices, to set aside those decisions and substitute decisions that no heritage conservation notices are issued, because the heritage conservation notices cannot be lawfully issued.

1. As we said earlier, Wintermist contends that the building order in relation to No. 440 Hay Street should be 'suspended pending the determination of the demolition [application]'.[244] Similarly, Sanur contends that, if the Tribunal determines (as we have) that the correct and preferable decision is to require Sanur to install the temporary support structure at Nos. 424 ­ 436 Hay Street, then the Nos. 424 ­ 436 Hay Street building order should be 'suspended until a decision is made on the demolition permit'.[245] The applicants said that a suspension of the building orders is appropriate, because the building orders would be 'inconsistent'[246] with decisions made in the planning assessments concerning the demolition applications to allow the demolition of the buildings. However, as the parties did not address this matter in detail, we will hear any submissions the parties wish to make in relation to the terms of the final orders in these proceedings, including whether the building orders should be suspended pending the determination of the demolition applications.

Attachment A - Temporary support structure

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Amended respondent's section 24 bundle of documents dated 1 April 2021, Volume 2 (Exhibit 1.2), tab 73, page 758 (original emphasis).

[2] Exhibit 1.2, tab 73, page 759 (original emphasis).

[6] Exhibit 1.2, tab 74, page 764 (original emphasis).

[7] Exhibit 1.2, tab 71, page 709 (original emphasis).

[8] Exhibit 1.2, tab 71, page 710 (original emphasis). Although not raised by the parties, the reference in paragraph 2 to 'paragraph 1(b)' is a typographical error and should be a reference to 'paragraph 1(a)', which sets out the remedial works.

[12] Exhibit 1.2, tab 72, page 735 (original emphasis).

[13] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135 [121]-[124] (Buss P and Murphy and Mitchell JJA).

[14] The Site Visit Plan (Exhibit 7) is reproduced at [20] below.

[18] Amended respondent's section 24 bundle of documents dated 1 April 2021, Volume 1 (Exhibit 1.1), tab 1, page 116.

[19] Exhibit 1.1, tab 1, page 117 (based on external inspection only).

[25] Exhibit 1.1, tab 1, page 116 (original emphasis).

[26] Exhibit 1.2, tab 47, pages 639-640.

[27] Witness statement of Malcolm Alexander Mackay dated 9 April 2021 (Exhibit 13) [19].

[31] Exhibit 1.1, tab 1, pages 114-115 (based on external inspection only).

[32] Exhibit 1.2, tab 67, page 688 (original emphasis).

[36] Exhibit 1.1, tab 1, page 112 (original emphasis).

[37] Exhibit 1.2, tab 67, pages 689-690.

[38] Mr Meir was not called to give evidence. In the evidence before the Tribunal, Mr Meir's surname is also spelled as 'Mier'.

[42] Statement of evidence of David Alexander James Williams dated 9 April 2021 (Exhibit 14) [11].

[58] Exhibit 1.1, tab 28, page 411 (original emphasis).

[59] Witness statement of David Katz dated 9 April 2021 (Exhibit 8) [10].

[64] Exhibit 1.2, tab 44, page 617 (original emphasis).

[67] Springmist Pty Ltd and Shire of Augusta­Margaret River [2005] WASAT 143; (2005) 41 SR (WA) 207 [14] (Judge Chaney DP, Mr DR Parry SM and Ms M Connor M).

[69] These issues are based on the parties' respective statements of issues and contentions (respondent's statement of issues and contentions dated 19 March 2021 (Exhibit 4), applicants' statement of issues and contentions dated 31 March 2021 (Exhibit 5) and respondent's statement of contentions in reply dated 12 April 2021 (Exhibit 6)) and the parties' opening statements at the hearing. The principal issues for determination, in essentially these terms, were then distilled by the Tribunal and agreed by counsel in a document that became Exhibit 17.

[76] ts 234 (Mr Jackson) and ts 221­222 (Mr Sharpe), 16 April 2021.

[80] Bolded and italicised emphasis original and underlined emphasis added.

[82] Outline of additional submissions on behalf of the applicants dated 23 April 2021 (applicants' further submissions) [42].

[83] Respondent's additional submissions dated 30 April 2021 (respondent's further submissions) [43].

[84] Respondent's further submissions [44] (emphasis added in respondent's further submissions).

[87] Respondent's further submissions [53].

[88] Applicants' further submissions [19].

[89] Respondent's further submissions [43].

[90] See Puma Energy Australia and City of Cockburn [2016] WASAT 36 [40] ­ [47] (Judge Parry DP and Mr P de Villiers M).

[91] Respondent's further submissions [56].

[92] Exhibit 1.1, tab 18, pages 320­321.

[100] Applicants' further submissions [34].

[101] Applicants' further submissions [44].

[102] Applicants' further submissions [45].

[103] Applicants' further submissions [48].

[104] Applicants' further submissions [49].

[105] Applicants' further submissions [50].

[109] Applicants' further submissions [22].

[110] We note that the heading of reg 80 of the LPS Regs is 'Planning instruments in course of preparation'. However, we do not have any regard to this heading in interpreting the meaning of reg 80 of the LPS Regs, because s 32(2) of the Interpretation Act states that ' ... a heading to a ... regulation ... shall be taken not to be part of the written law'.

[111] Applicants' further submissions [23].

[112] Applicants' further submissions [33].

[120] Exhibit 13 [22]; ts 176, 15 April 2021.

[131] Exhibit 1.1, tab 14, pages 272 and 273.

[133] Supplementary statement of evidence of David Katz dated 13 April 2021 (Exhibit 9) [7].

[142] Macquarie Dictionary Online (original emphasis).

[149] Statement of evidence of Gemma Rose Dewar dated 9 April 2021 (Exhibit 15) [72] and [73].

[165] We also note that during this period the City carried out road works on Hay Street.

[177] Statement of evidence of Paul Kim Race dated 9 April 2021 (Exhibit 12), Attachment PR­2, page 1.

[178] Exhibit 12, Attachment PR­2, page 2.

[179] ts 190, 16 April 2021 (Mr Jackson).

[180] ts 190, 16 April 2021 (Mr Sharpe).

[188] Referred to with approval in The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 [18] ­ [19] (Pullin JA, Newnes and Murphy JJA agreeing).

[193] Sanur did not contest the substitution of the amended plan and elevations of the temporary support structure if the Tribunal determines that Sanur should be required to install it.

[217] A v Corruption and Crime Commissioner [2013] WASCA 288 [100] (Martin CJ and Murphy JA), referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd 39­40 (Mason J).

[218] A v Corruption and Crime Commissioner [90] (Mason CJ and Murphy JA).

[222] Witness statement of Stephen Carrick dated 9 April 2021 (Exhibit 10), page 20.

[228] Exhibit 1.2, tab 47, page 639 (emphasis added).

[231] Exhibit 1.2, tab 47, pages 639­640.

[239] Exhibit 13 [37]. Although Mr Mackay refers to the properties in question having 'redevelopment potential of up to 4 storeys', we note that the DA submitted by the applicants to the SDAU seeks approval for development of a 2 to 3 storey presentation to the street rising to 7 storeys in the eastern part of the combined site (Exhibit 3, tab 2).

[244] ts 30, 14 April 2021; see also ts 261, 16 April 2021.