A photo of a building facade with light brown bricks and windows. The windows have red bricks at the top as a design feature.

Sanur Pty Ltd and City of Subiaco [2021] WASAT 90

This was an appeal to the State Administrative Tribunal considering the issues of whether the City of Subiaco could lawfully issue two building orders and two heritage conservation notices with respect to two neighbouring properties that were not fit for human occupation, in a dangerous state and located within a heritage area under the town planning scheme.

Background
The applicant, Sanur Pty Ltd (Sanur), engaged a builder to install hoardings to the facade of their building on land in Subiaco (Property). The builder noticed cracks in the masonry and that the façade was leaning towards the street. Sanur engaged an engineer to inspect the Property and provide recommendations in a report (Report). An inspection at Sanur’s neighbouring property (Wintermist Property) also showed signs of similar cracking. Subsequently, Sanur lodged a development application for the demolition of both the Property and the Wintermist Property. The City issued a building order to Sanur (Building Order) requiring the design and installation of a temporary support structure for the Property’s façade. The City also issued a notice of proposed building order for the Wintermist Property.

Sanur applied to the State Administrative Tribunal (Tribunal) for review of the City’s decision to issue the Building Order. During the proceedings the parties agreed that the City would procure the design of a temporary structure to support the Property’s façade and that Sanur would install it.

The City subsequently issued a heritage conservation notice to Sanur (Conservation Notice) in respect of the Property on the basis that it was not being properly maintained and required repairs. Shortly thereafter, the City also issued a building order (Wintermist Building Order) and a heritage conservation notice in respect of the Wintermist Property (Wintermist Conservation Notice). Both notices in respect of the Wintermist Property required the erection of a temporary support structure for the façade. Sanur also sought review of the City’s decision to issue both conservation notices.

Issues

There were two issues in dispute. The first issue was whether both building orders could be lawfully made under section 112(2)(g) of the Building Act. The second issue was whether under clause 13(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) Sch 2 (Deemed Provisions) the Property and Wintermist Property were a ‘heritage place’ that were not being ‘properly maintained’.

Held

In respect of the first issue, the Tribunal considered whether the Property and the Wintermist Property were ‘not fit for [human] occupation’ as per s 112(2)(g) of the Building Act. The Tribunal held that expert evidence stating that the façades may collapse at least in part, due to high winds and earth tremors, was sufficient to establish that the properties were not fit for human occupation and in a dangerous state.

There were two limbs to the second issue: (1) whether the properties were a ‘heritage place’; and (2) whether they were not ‘properly maintained’. In respect of the first limb, Sanur argued both heritage conservation notices were not lawfully issued because the properties were not a ‘heritage place’ as defined in cl 13(1) of the Deemed Provisions. That is because the properties were not ‘on the heritage list or located in a heritage area’. The City argued the properties were both a ‘heritage place’ because of a Council resolution which declared the ‘Rokeby Road and Hay Street Heritage Area’ as a ‘conservation area’ under the town planning scheme. The Tribunal accepted the City’s argument held that because both properties were within a heritage area under the town planning scheme they were therefore both a ‘heritage place’.

In respect of the second limb, the City argued Sanur had not ‘properly maintained’ the properties by not acting on the building notice, which resulted in some deterioration on the roof and prompted Sanur to apply for the demolition of both properties. Sanur submitted that the requirement for the properties to be ‘properly maintained’ was intended to prevent ‘demolition by neglect’ which is a longer term failure to maintain the properties. Both parties’ heritage experts agreed that the properties had been well maintained. As a result, the Tribunal found that the properties had been ‘properly maintained’ within the meaning of clause 13 of the Deemed Provisions. Because the second limb could not be made out, the Tribunal held that the heritage conservation notices for both properties were not lawfully issued.

As a result, the Tribunal affirmed both building orders, but set aside both heritage conservation notices.