Lamont v Town of Kwinana [2013] WASC 326

Lamont v Town of Kwinana [2013] WASC 326

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  • Lamont v Town of Kwinana
SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 326
Case No:SJA:1129/20123 JULY 2013
Coram:McKECHNIE J29/08/13
18Judgment Part:1 of 1
Result:Appeal allowed
Judgment of acquittal entered
B
PDF Version

Parties:DEREK IAN LAMONT
TOWN OF KWINANA
Catchwords: Local government and construction
Failure to seek building approval
Whether works alterations or repairs
words and phrases
‘alterations’, ‘repairs’
Whether works undertaken in an emergency
Legislation: Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374, s 374(1)(b), s374AAA, s 374B, s 401A, s 401A(5), s 403, s 408
Case References: Auckland Trotting Club v  Commissioner of Inland Review [1968] NZLR 193
Brew Bros Ltd v Snax (Ross) Ltd (1970) 1 QB 612
Brown (Inspector of Taxes) v Burnley Football and Athletic Co Ltd [1980] 3 All ER 244
Customs and Excise Commissioners v Sutton Housing Trust (1983) STC (Simon Tax Cases) 399
Graham v The Markets Hotel Pty Ltd [1943] 67 CLR 567
In Re The Church of Saint Jude [1956] SASR 46
London County Council v London, Brighton and South Coast Railway Company [1906] 2 KB 72
Lurcott v Wakely & Wheeler [1911] 1 KB 905
O’Grady (HM Inspector of Taxes) v Bullcroft Main Collieries Ltd (1932) 17 TC 93
W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1965] 115 CLR 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL
CITATION : LAMONT -v- TOWN OF KWINANA [2013] WASC 326 CORAM : McKECHNIE J HEARD : 3 JULY 2013 DELIVERED : 29 AUGUST 2013 FILE NO/S : SJA 1129 of 2012 BETWEEN : DEREK IAN LAMONTAppellant

AND

TOWN OF KWINANA
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIACoram : MAGISTRATE D R V TEMBY

File No : RO 9636 of 2010, RO 9637 of 2010
Catchwords:

Local government and construction – Failure to seek building approval – Whether works alterations or repairs – words and phrases – ‘alterations’, ‘repairs’ – Whether works undertaken in an emergency

Legislation:

Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374, s 374(1)(b), s 374AAA, s 374B, s401A, s 401A(5), s 403, s 408

Result:

Appeal allowed
Judgment of acquittal entered
Category: B
Case(s) referred to in judgment(s):

Auckland Trotting Club v Commissioner of Inland Review [1968] NZLR 193
Brew Bros Ltd v Snax (Ross) Ltd (1970) 1 QB 612
Brown (Inspector of Taxes) v Burnley Football and Athletic Co Ltd [1980] 3 All ER 244
Customs and Excise Commissioners v Sutton Housing Trust (1983) STC (Simon Tax Cases) 399
Graham v The Markets Hotel Pty Ltd [1943] 67 CLR 567
In Re The Church of Saint Jude [1956] SASR 46
London County Council v London, Brighton and South Coast Railway Company [1906] 2 KB 72
Lurcott v Wakely & Wheeler [1911] 1 KB 905
O’Grady (HM Inspector of Taxes) v Bullcroft Main Collieries Ltd (1932) 17 TC 93
W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1965] 115 CLR 58

McKECHNIE J:

How this matter comes to court1 Ms Munday is a 95-year-old lady who until May 2010 lived at 18 Medina Avenue, Medina in a house which was falling down.

2 On 14 May 2010 the Town of Kwinana (Kwinana) declared the house unfit for human habitation and found her another place to live.

3 The cost of repairs was $55,000, a sum beyond the reach of Mrs Munday or her son who held power of attorney. So he asked Kwinana to demolish the home.

4 But when they visited the house for inspection 19 October 2010, Kwinana building surveyors found Mr Lamont and some workers busy replacing roof timbers and straightening up external walls. When they asked for his name, Mr Lamont said, ‘La la la, I don’t understand a word you are saying’.

5 Mr Lamont believes he was carrying out work on the house to bring it back into a habitable condition. He did not seek building approval. He quarrelled with Council officers. He failed to comply with a stop work notice.

6 In due course he was prosecuted, convicted and fined. He appeals against his conviction on 37 enumerated grounds plus more, which I have not counted, in the form of annotations to the magistrate’s reasons for decision. Many of the grounds are irrelevant and others are offensive about the magistrate without any factual basis.

7 Mr Lamont is also a discursive advocate. However, from the fog of the grounds of appeal and submissions three issues arise:

• Was the work required to be performed by reason of an emergency, endangering any person, building or structure?

• If so, did he give written notice as soon as practicable after commencement of the building work?

• Was he in contravention of the Local Government (Miscellaneous Provisions) Act 1960 (WA) when he was ordered to stop all work?
• Was Mr Lamont altering the structure of the building already erected so as to require a plan to be approved by Kwinana?

The charge(s)8 Mr Lamont was charged (the charge being amended at hearing):

(2) In respect of the structure of a building already erected on land within the district of the Town of Kwinana proceeded with the alteration of the structure of the building without having caused to be submitted to the Town of Kwinana and the Town having approved by the issue of a building licence in the prescribed form and on payment of the prescribed fee a copy of the specifications of and a plan showing clearly the alteration proposed to be made, contrary to Section 374(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960 (RO 9637/10).
(1) Within the district of the Town of Kwinana caused work to be done on a building in contravention of a notice served on him under Section 401A of the Local Government (Miscellaneous Provisions) Act 1960 requiring him to stop all work on the building, contrary to Section 401A(5) of the Local Government (Miscellaneous Provisions) Act 1960 (RO 9636/10).

The Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act)9 The charges were laid under the LG(MP) Act:

10 The provisions of the LG(MP) Act were repealed upon the enactment of the Building Act 2011 (WA). TheBuilding Act introduces a different regime. Building work includes repair of a building: Building Act s 3. There can be no building work without a building permit: Building Act s 9.

11 Therefore, apart from its obvious importance to the parties, this judgment will otherwise be of historical interest only.

12 The LG(MP) Act s 374(1)(b) relevantly provides:

(1) No person shall –

(1b) A local government may reject an application for a building licence under section 374 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 section 401(1).
Plans of buildings to be approved by local government

  • (b) in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension, or enlargement of the structure of the building,

    until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence in the prescribed form and on payment of the prescribed fee, a copy of the specifications of, and a plan showing clearly, … the amendment, alteration, extension, or enlargement proposed to be made, …, and the area of land to be occupied by … by the amendment, alteration, extension or enlargement of the existing buildings, …, and the position of the privies and drains and unless he complies with the conditions, if any, that are specified in the licence.



13 The LG(MP) Act s 401A relevantly provides:
401A. Stopping unlawful work

  • (2) For the purposes of this section, a notice is deemed to have been served on a builder if it is served upon a person apparently in control of men working on the site of the building referred to in the notice.

(1) Where, in contravention of this Act, a building is being constructed, erected, adapted, amended, enlarged, added to, repaired or taken down, the local government may, by notice in writing served on the builder, order the builder to stop all work specified in the notice as being done in contravention of this Act.

The parties’ contentions14 The prosecution contended that Mr Lamont was altering the building without approval.

15 Mr Lamont has always contended that what he was engaged in was the repair of the house.

16 Whether work can be classified as ‘repair work’ is a question of both fact and law.

17 The prosecution must prove that the work undoubtedly being carried out by Mr Lamont did fall under s 374(1)(b). If there is a reasonable doubt that the work being undertaken was not amending, altering, extending or enlarging the building then the prosecution must fail.
The magistrate’s error

18 The magistrate found:
Clearly the property was being altered. It was not simply a case of replacing like for like. The property was in a considerable state of disrepair and dangerous. There was a need to restore the building by altering it to its pre-damaged state, and that in my view, is within the definition of ‘alter’. Here the southern wall of the building formed part of the structure of the dwelling. The southern wall was altered by it being realigned and reattached to the roof structure and by having new exterior cladding affixed to it, and that again is demonstrated by the photographs, exhibits that have been referred to (ts 23/10/12, pages 9 – 10).
19 The issue however is more nuanced than simply describing the work as an ‘alteration’ and thus within s 374B.20 It does not appear that the magistrate had the advantage of detailed submissions as to the meaning of the word ‘repair’ and the difference between ‘repair’ and ‘alter’. Certainly I had no such assistance. Nevertheless, there are many authorities on the issue. The authorities establish that there is a difference between alteration and repair as legal concepts.

21 The error made by the magistrate was to assume that restoring a building to a pre-damaged state may be classified an alteration. In the context of the LG(MP) Act a repair is not an alteration that requires building approval.
Cases on the difference between ‘alteration’ and ‘repair’
London County Council v London, Brighton and South Coast Railway Company [1906] 2 KB 72

22 The issue was whether the railway company had made an alteration to the bank of the Thames so as to affect the security of adjoining premises from flooding. The railway company in the course of and for the purposes of carrying out the duty imposed on them by the act of repairing a portion of the bank removed certain timbers forming part of the bank in order to replace them by new timbers and in so doing caused the height of the bank during nine days to be two feet lower than the height sanctioned under the Act. Flood water flowed through. Lord Alverstone CJ:
It must be remembered that we are not dealing here with the consequences of a neglect to repair, or of negligent carrying out a mode of repair. We are dealing with a summons for a penalty under s 23 of altering a bank. It is true that if one reads into the word ‘alteration’ in s 23, not the exact words, but words founded upon the definition of ‘flood works’ in s 2, or if one refers to s 24, in order to see what are the powers of the appellants with regard to the repair of banks, it is possible that one might come to the conclusion that the section may have been so framed as to include among the offences for which a penalty is to be inflicted what has been done in this case. I think, however, that that is a wrong way of construing a penal section, when one can see, as I think I can, one very clear purpose for which this penal section is inserted into the statute. The object of the statute is to ensure that there shall be protection against floods, and in this particular instance an eighteen feet bank has been determined on as being a sufficient and proper protection. It is quite clear that all the works, including the repair of old banks, the making up of the new bank, the alteration and reconstruction of old banks, and all the other matters which are mentioned in the section which defines ‘flood works’, are to be carried out in accordance with the plans of the London County Council. It seems to me that s 23 is inserted with a different object altogether, namely, to prevent the unauthorised alteration of the protecting bank in such a way as to affect the security of premises (77).

Lurcott v Wakely & Wheeler [1911] 1 KB 90523 At issue was a lease of a home in London containing a covenant by the lessee to substantially repair and keep in thorough repair and in good condition. Shortly before the expiration of the term the London County Council served a notice on the owner and occupiers requiring them to take down the front external wall of the house to the level of the ground floor as being a dangerous structure. The house was very old and the condition of the wall was caused by old age, and the wall could not have been repaired without rebuilding it. Cozens-Hardy MR:
That being so, it seems to me that we are driven to ask in this particular case, and in every case of this kind, Is what has happened of such a nature that it can fairly be said that the character of the subject-matter of the demise, or part of the demise, in question has been changed? Is it something which goes to the whole, or substantially the whole, or is it simply an injury to a portion, a subsidiary portion, to use Buckley LJ’s phrase, of the demised property? In this case the view taken by the official referee and the Divisional Court is the view which commends itself to me, that this portion of the wall, 24 feet in front, is merely a subsidiary portion of the demised premises, the restoration of this wall leaving the rest of the building, which goes back more than 100 feet, untouched. The restoration of this wall will not change the character or nature of the building, and I am unable to say that the question differs in any way from that which we should have had to consider if by reason of the elements and lapse of time, say, some rafters in the roof had become rotten, and a corner of the roof gave way so that the water came in (914).

O’Grady (HM Inspector of Taxes) v Bullcroft Main Collieries Ltd (1932) 17 TC 93:
Here the Colliery company replaced, by a new chimney, a chimney which had become unsafe. The new chimney was erected on an adjacent site, and was admitted to be an improvement upon the old one. In connection with this Rowlatt J said:
I am of the opinion that the Commissioners were right in both these cases. As regards the chimney, I think it is really very clear. Of course, every repair is a replacement. You repair a roof by putting on new slates instead of old ones, which you throw away. There is no doubt about that. But the critical matter is … what is the entirety? The slate is not the entirety in the roof. You are repairing the roof by putting in new slates. What is the entirety? If you replace in entirety, it is having a new one and is not repair an old one. I think it is very largely a question of degree, but it seems to me that the Commissioners have taken the only possible view here. What was this? This was a factory chimney to which the gases and fumes, and so on, were led by flues and then went up the chimney. It was unsafe and would not do any more. What they did was simply this: They build a new chimney at a little distance away in another place; they put flues to that chimney and then, when it was finished, they switched the gases from the old flues into the new flues and so up the new chimney. I do not think it is possible to regard that as repairing a subsidiary part of the factory, I think it is simply having a new one. And they had them both. Perhaps they pulled down the old one; perhaps they kept it, because they thought it was an artistic thing to look at. There is no accounting for tastes in manufacturing circles. Anyhow, they simply built a new chimney and started to use that one instead of the old one. I think the chimney is an entirety here and they simply renewed it.

Graham v The Markets Hotel Pty Ltd [1943] 67 CLR 56724 Latham CJ:
It is now well established that the repair of a structure may involve renewal or rebuilding of a part of it, and that all repairs involve renewal to some extent (Lurcott v Wakely & Wheeler). There is a difference between repairing a house and building a new house in place of an old house. It is a question of degree whether rebuilding part of a house does or does not fall within the category of repairing a house (579).

In Re The Church of Saint Jude [1956] SASR 4625 At issue was a trust deed containing the words ‘enlarged, altered, repaired and reinstated’. Hannan AJ held:
No single one of the four words conferring authority on the trustees is apposite to describe what the trustees have at present in mind to do. Taking their meaning separately as applied to a building, ‘enlarge’ means to make bigger and more commodious by additions. Twice the church has been ‘enlarged’ in this sense. ‘Alter’ means to modify and change, and it presupposes an existing building of which the fabric will remain substantially unchanged after the alterations have been completed. ‘Repair’ means to renew what is decayed or has deteriorated, and again presupposes an existing building which has fallen into disrepair. According to Murray’s New English Dictionary, ‘reinstate’ means ‘to reinstall or re-establish a person or thing in a place, station, condition, etc’; to restore to or in a proper state; to replace. An example given is ‘reinstate the skirting, papering, etc, where the book-case formerly stood’. Murray also cites Chanbers’ definition – ‘the restoration of a person or thing to its former state or condition’. To reinstate the Church of Saint Jude therefore means to build it up again when it has collapsed or become ruinous or dilapidated past repair, so that it has to be demolished; to put it back as it was before; not necessarily of the same materials, but according to the same design, so as to be easily recognisable by those who knew the fallen or ruined church when it was stable and standing firmly upright (53).

W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1965] 115 CLR 5826 Windeyer J:

The works in question can all be fairly described as repairs to the building. They were done to make good a deterioration that had occurred by ordinary wear and tear or by the operation of natural causes during the passage of time. I was referred to various definitions of the word ‘repair’ and to a number of cases illustrative of its meaning. I need not discuss them. Cases arising between landlord and tenant are only of indirect assistance. And nothing much is to be gained by comparing the particular facts of other cases with the facts of this case. And understanding the concept of ‘repair’ is not much aided by contrasting that word with other words that in themselves gain only by contrast whatever precision of meaning they have in this field. The words ‘repair’ and ‘improvement’ may for some purposes connote contrasting concepts; but obviously repairing a thing improves the condition it was in immediately before repair. It may sometimes be convenient for some purposes to contrast a ‘repair’ with a ‘replacement’ or a ‘renewal’. But repairs to a whole are often made by the replacement of worn-out parts by new parts. Repair involves a restoration of a thing to a condition it formerly had without changing its character. But in the case of a thing considered from the point of view of its use as distinct from its appearance, it is restoration of efficiency in function rather than exact repetition of form or material that is sufficient. Whether or not work done upon a thing is aptly described as a repair of that thing is thus a question of fact and degree (72).
I may say here that in my view the Berry Building is the entirety that is to be considered for the purpose of deciding whether any particular work was or was not a repair. On this aspect I need do no more than refer to what Kitto J said in Lindsay v Federal Commissioner of Taxation. The relevant question is not whether the roof or the floor of some other part of the building, looked at by itself, was repaired as distinct from being reconstructed or replaced. It is whether what was done to the roof or the floor or some other part was a repair of the building (66).

Auckland Trotting Club v Commissioner of Inland Review [1968] NZLR 19327 Moller J had to consider whether the construction of a substantially new track in place of an existing trotting track was a repair or alteration. At 200 Moller J adopted the Chairman of the Board of Review in respect of the word ‘alterations’:

It is, I think, apparent … that the word ‘alteration’ may well, in appropriate circumstances, refer to a repair or renewal incidental to the making of something ‘otherwise or different in some respect, without changing the thing itself’. The circumstance that the dictionary meaning of ‘alter’ comprehends that the thing itself is not changed is strongly suggestive, however, that the question of alteration must itself in every case be one of degree and that the test to be applied is whether the act done is in substance an alteration in part only or a replacement of substantially the whole.
In the Shorter English Oxford Dictionary ‘alter’ is said to mean ‘to make otherwise or different in some respect, without changing the thing itself; to modify’. It is not surprising that no authority was quoted in these proceedings which would provide a clear indication as to the meaning to be attributed to the word when used in respect of a racecourse. The question has arisen from time to time in regard to buildings and it is clear that a complete or almost complete substitution of a new building for an old one amounts to more than an alteration of the original.
28 In respect of ‘repairs’:
In deciding, therefore, for the purposes of s 113(1), whether the work carried out is a ‘repair’ or an ‘alteration’, or something going beyond both of those concepts, one must first find what constitutes the ‘premises’ upon which that work has been done. Then, when the submission is that the work done was ‘repairs’, one must decide whether it was of such a degree as to amount to a renewal or replacement of defective parts, or such as to amount to the reconstruction of substantially the whole subject-matter. And, when the submission is that the work done was an ‘alteration’, it is necessary to decide whether it amounted merely to a modification making the premises different in some way without changing the thing itself, or was of such a degree as to amount to a replacement of substantially the whole. In saying this I do not overlook that some repairs may carry with them certain of the characteristics of alterations, and that some alterations may incorporate repairs. I do not, however, think that any such overlapping affects the type of approach that should be made to the question I have just been discussing (ts 200 – 201).

Brew Bros Ltd v Snax (Ross) Ltd (1970) 1 QB 61229 This was a case about a repairing covenant in a lease. Phillimore CJ:

It seems to me that the correct approach is to look at the particular building, to look at the state which it is inat the date of the lease, to look at the precise terms of the lease, and then come to a conclusion as to whether, on a fair interpretation of those terms in relation to that state, the requisite work can fairly be termed repair. However large the covenant it must not be looked at in vacuo.

Quite clearly this approach involves in every instance a question of degree, as indeed Mr Blundell was constrained to agree was the correct approach, and I would in this behalf echo the words of Lord Evershed MR in Wates v Rowland [1952] 2 QB 12, 23, when dealing with an analogous problem relating to repairs. After setting out two plain examples, he said:

I agree with the judge, who concluded after reviewing the authorities and particularly the observations of Lord Esher MR in Lister v Lane & Nesham [1893] 2 QB 212, 216 and those of Buckley JL in Lurcott v Wakely & Wheeler [1911] 1 KB 905, 924, that the vital questions in each case is whether the total work to be done can properly be described as repair since it involves no more than renewal or replacement of substantially the whole. It is, as Megaw J held, a question of degree in each case (645 – 646).
From my part I doubt whether there is any definition – certainly not any general definition – which satisfactorily covers the above distinctions: nor will I attempt to provide one. Things which can be easily recognised are not always susceptible of simple definition. Indeed the only observation I need to offer is to reject the submission that if ‘inherent nature’ or ‘inherent defects’ have to be considered, they are confined to a state of affairs due to the age of the premises or to defects that originated when the building was erected.
Between the two extremes, it seems to me to be largely a matter of degree, which in the ordinary case the county court judge could decide as a matter of fact, applying a common-sense man-of-the-world view (640)

Brown (Inspector of Taxes) v Burnley Football and Athletic Co Ltd [1980] 3 All ER 24430 This case involved a spectators’ stand in a football stadium which was no longer safe. It was demolished and replaced with a modern concrete stand in almost the same position, and of approximately the same capacity, as the old stand. Vinelott J quoted Buckley LJ in Lurcott v Wakely & Wheeler (924):

The central propositions are that the question whether work is work of repair ‘turns’ on identifying ‘the entirety’, and that what constitutes the entirety is a commercial problem to be answered by the test: is there a single profit earning undertaking, a single profit-earning entity? The language in which this test is framed clearly reflects the language used by Lord Cooper in the Samuel Jones case 1952 SC 94 at 100, where he said that the chimney there in question was ‘physically, commercially and functionally an inseparable part of the ‘entirety’, and part of ‘a single industrial profit-earning undertaking’ (255).
Repair is restoration by renewal or replacement or subsidiary parts of a whole. Renewal is distinguished from repair is reconstruction of the entirety meaning by entirety not necessarily the whole but substantially the whole subject matter under discussion.

Customs and Excise Commissioners v Sutton Housing Trust (1983) STC (Simon’s Tax Cases) 39931 This was an excise case. The general facts are similar to the present case in that what was under consideration was work to an old roof. The Sutton Trust owned land on the Sheffield Estate consisting mainly of semi-detached two storey houses. The roofs were initially constructed of continental slate pinned or nailed to wooden battens. Over the years the slate deteriorated and became brittle and began to break. The Trust determined to re-roof all the buildings on the estate over a period of time, replacing the slates by tiles. The old slate tiles and wooden battens were replaced by new clay tiles, new battens and under-slating felt. This affected the visual appearance of the buildings. A tribunal came to the view that re-roofing was an alteration not work for repair or maintenance.

32 It was conceded on appeal that the work was an alteration but argued that the re-roofing work was work of repair or maintenance. Woolf J held:
The situation here is that, although different materials were provided to what existed previously, what exists now is basically the same. The roof needed repair. The whole of the roof of the houses needed repair. The practical and sensible way of carrying out that repair was to do what in fact was done by the trust. But the fact that different materials were used, and the fact that to some extent, particularly in relation to the Sheffield houses, the houses had a somewhat different appearance because of the different materials afterwards from that which existed previously does not, in my view, alter the fact that what occurred was irrefutably repair or maintenance as appears in note (2) (402).

Principles extracted from the cases33 The principles to be extracted are:

• ‘alter’ means to modify or change;

• ‘repair’ means to renew what is decayed or has deteriorated;

• the use of different materials may be a repair not an alteration;

• a different appearance after the work may still mean the work was a repair;

• work that does no more than renewal or replacement of substantially the whole may be a repair;

• some repairs may carry with them certain characteristics of alteration;

• some alterations may incorporate repair;

• a repair of a structure may involve renewal or rebuilding a part of it;

• every repair is a replacement.
• the difference between a repair and an alteration is a question of fact and degree in every case;

The statutory context34 The legislation which applied at the time of the prosecution was the LG(MP) Act. Much of the law relating to local government was moved into the Local Government Act 1995 (WA) but many provisions remained in the LG(MP) Act.

35 Section 374 is to be found within pt XV div 2 headed Submission of plans, installation of electricity for lighting, depositing of materials, protective hoarding. Section 374 is headed Plans of buildings to be approved by local government.

36 The requirement for a building licence under s 374 is principally a planning measure rather than a building supervision measure. Building supervision falls more easily under the power to make Building local laws: s 433 and s 433A Building regulations. The prohibition under s 374(1)(a) is against laying out or commencing a building without a building licence. The matters which must be submitted are:

• copy of the plan showing clearly the building proposed etc;

• the area of land to be occupied;

• the position of privies and drains.
• copy of specifications;
37 The power over the construction of buildings which tend to render the building unsafe or dangerous is in s 374(1)(b).38 The person to whom licences can be issued is restricted: s 374AAA.

39 It is easy to see why anything which changes the nature of the building – by amending, altering, extending or enlarging also requires approval as the plans of the building have changed.

40 However, repairs to a building which has been built to plan does not necessarily require the same prohibition.

41 The LG(MP) Act has specific requirements to repair: s 403, s 408.

42 Significantly, there is a requirement to repair if the owner is served with a notice to do so. The authority to undertake the work is in the notice not a building approval.

43 The Stopping unlawful work provision is s 401A. Oddly, the contravention in s 401A(1) lists a number of activities in relation to a building for which a stop work notice may be issued. Altering the building is not one but repairing is.
Conclusion on statutory context

44 The conclusion I draw is that a contextual reading of s 374 does not necessarily require ‘repair’ to precisely equate with ‘alter’ so as to require that in every case of repair, building approval is required. This will be so especially in a case where written notice under s 403(4) requires the owner or occupier to forthwith repair the building.
Application of the law to the issues in the appeal

45 The prosecution’s case was advanced on the basis that the work undertaken by Mr Lamont at 18 Medina Street constituted an alteration of the building so as to require a building approval notice. The prosecution did not differentiate between repair and alteration. The first Schedule to the stop work notice served on Mr Lamont pursuant to s 401A reads:

Works already undertaken, including repairs to the collapsed roof of the building and repairs to the southern wall of the building.
Repair works are proceeding on the subject house without the Town of Kwinana having approved by the issue of a building licence in the prescribed form a copy of the specification of and a plan showing clearly the repair works proposed to the building contrary to s 374(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960.
46 This notice constitutes an acknowledgement by Kwinana that the work being undertaken was repair work. The evidence led at trial, particularly the photographs which were put into evidence, show that the work was ‘repair work’.47 The magistrate accepted:
[T]hat the uncontroverted evidence of Galbraith and Holdsworth is that the building works to the roof and the southern wall of the dwelling were being carried out between 19 October 2010 and 1 December 2010, including the installation of new ridge beams, new tile batten, new struts, new collar ties, as well as new brackets, screws to the roof structure and the realignment and recladding of the southern wall (ts 9/10/12, page 8).
48 The notice being an acknowledgement by the prosecution that the work was repair work, the magistrate erred in failing to consider as a matter of fact and degree whether the prosecution had established beyond reasonable doubt that the work being undertaken was an alteration requiring building approval. In the light of the First Schedule and the evidence of the Kwinana building surveyors and photographs tendered as exhibits, it could not be safely concluded beyond reasonable doubt that the works were an alteration within LG(MP) Act s 374. There is at least a reasonable doubt that the works may have been repair works not requiring a building approval.

There was no emergency

49 As an alternative defence, Mr Lamont asserted that he was acting in an emergency under s 374B. The LG(MP) Act s 374B provides:
374B. Performance of building work in emergency

  • (2) If the condition referred to in subsection (1) is not complied with the owner of the land on which the building work is performed shall be guilty of an offence and liable to a penalty not exceeding $5 000.

(1) Where by reason of an emergency endangering any person, building or structure any building work must be performed without approval as required by this Act, it shall, notwithstanding any other provision of this Act, be lawful to perform the building work subject to the condition that as soon as practicable after its commencement written notice of the building work is served upon the local government.50 Contrary to Mr Lamont’s expansive assertions, the work being performed could not be classified as an emergency. There is a temporal consideration to the word in the context of the LG(MP) Act.51 An emergency is a sudden and unforeseen occasion for action. The LG(MP) Act allows action to remedy the occasion provided notice is given as soon as practicable after its commencement.

52 By any measure, the passage of months between the house being condemned and the commencement of the works was beyond what could be called an emergency.

53 Nor is there any evidence that Mr Lamont gave notice as soon as practicable after commencing work. The evidence is to the contrary.
Disposition
Charge 2 (RO 9637/10): No building approval

54 In these circumstances, the conviction under charge 2 should be set aside and a judgment of acquittal entered.
Charge 1 (RO 9636/10): Failure to stop work

55 As a consequence, the prosecution in respect of charge 1 must also fail. It is an element of the offence that the work was being carried out in contravention of the LG(MP) Act. The contravention relied on by the prosecution is a breach of s 374. As there is no contravention the conviction on charge 2 must also be set aside and a judgment of acquittal entered.

56 Ground 36 reads:
Magistrate erred in failing to acknowledge in respect that there is no legislation that offers the municipality the right to demand a licence in respect of repair. Other than the original licence to build the building and this is because the original licence is sufficient.
57 On this ground, I grant leave and allow the appeal. Leave to appeal on the other grounds of appeal should be refused as they are vexatious and disclose no arguable prospect of success. I set aside the convictions and enter a judgment of acquittal.

 

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