In this Alert, Partner Adam Carlton-Smith, Special Counsel Karen Browne and Associate Olivia Williamson consider the implications the Court of Appeal’s decision City of Kwinana v Lamont  WASCA 112 handed down on 12 June 2014 in relation to whether a building licence is needed for undertaking repair work.
- While considering a regime that has now been repealed, the Court’s statutory construction of the words “repair” is relevant to building approvals required pursuant to section 9 of the Building Act 2011 given the definition of “building work” in section 3 includes “alteration”.
- ‘Alter’ should be afforded its natural and ordinary meaning. Repair work may amount to an alteration of the structure of the building.
- Works to restore a damaged building to its pre-damaged state may amount to an alteration depending on their nature and extent. Works beyond replacing like for like are more likely to constitute an alteration.
- In considering if the structure of a building has been “altered” the comparison is done by reference to the building as erected on the land and not to the approved plans for the building.
On 12 June 2014, the Western Australia Court of Appeal restored the decision of a Magistrate who convicted Derek Ian Lamont on a prosecution brought against him by the City of Kwinana (City). This decision had the effect of overturning the judgment of the Supreme Court of Western Australia who acquitted Mr Lamont.
- A 95 year old lady lived in a house in the suburb of Medina until it (the house) was declared uninhabitable by the City in May 2010.
- The cost of repairs to the home was a sum beyond the capacity of the resident or her son Mr Lamont.
- Mr Lamont requested the City to demolish the house and the City agreed to do so subject to taking a charge over the property.
- In October 2010, the City inspected the house and found Mr Lamont replacing roof timbers to elevate a section of the roof and also repositioning external walls.
- The City issued a stop work notice pursuant to section 401A(5) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (Act), which Mr Lamont ignored.
- Mr Lamont was prosecuted in the Magistrates Court and fined for undertaking the works without approval pursuant to section 374(1)(b) of the Act and for failing to comply with the stop work notice.
- Mr Lamont appealed his conviction to the Supreme Court of Western Australia.
Whether Mr Lamont was in contravention of the Act turned on whether his work resulted in the “amendment, alteration, extension, or enlargement of the structure of the building” for the purposes of section 374(1)(b) of the Act. A key question for the Supreme Court was whether Mr Lamont was altering the structure of the building so as to require a building licence.
The Supreme Court of Western Australia at first instance quashed Mr Lamont’s convictions on the basis that the City had not proved beyond reasonable doubt that the work undertaken constituted an “alteration” of a structure of a building within the meaning of section 374(1)(b) of the Act. The Court disagreed with the Magistrate’s determination that to restore a building to a pre-damaged state may be classified an alteration and did not equate “repair” with “alter” so that in every case of repair, building approval would be required.
The City appealed against the decision of the Supreme Court and contended:
- the primary judge erred in finding that it was necessary to distinguish between ‘repair’ and ‘alteration’ for the purposes of section 374(1)(b);
- the primary judge erred in finding that a repair which constitutes the restoration of a damaged building to its pre-damaged state is not an alteration of the building within the meaning of section 374(1)(b); and
- in order to determine whether the structure of the building had been altered, for the purposes of section 374(1)(B), it was necessary to compare the structure immediately prior to the works carried out with the structure after the works had been carried out.
After consideration of the relevant provisions of sections 374 to 408 of the Act, the common law in respect to construction of the statutory text and the submissions of the City and Mr Lamont, the Court of Appeal concluded (relevantly) that:
- The words ‘amend, alter, extend or enlarge’ and ‘structure’ are ordinary words of common usage and in the context in which the words appeared in section 374(1)(b) of the Act and the Act as a whole. There did not appear any reason to assign a meaning to the word ‘alter’ other than its natural and ordinary meaning.
- In determining whether any particular works constitute an alteration of the structure of the building, the works should be viewed as a whole and consideration be given to the impact of the totality of the works in question. Here, the works involved were considered to be substantial. The Court of Appeal endorsed the Magistrate’s finding that in the building’s state of disrepair and dangerous condition “it was not simply a case of replacing like for like”.
- The Supreme Court erred in drawing a distinction between “repair” and “alter” for the purposes of Section 374(1)(b) of the Act. The Magistrate was correct in concluding that the execution of Mr Lamont’s works amounted to an alteration to the structure of the building.
- Section 374(1)(b) of the Act requires a comparison between the structure immediately prior to the works being carried out and the structure of the building after the works have been carried out. It is incorrect to draw a comparison between the property as shown to be approved under its original licence with its position after the works have been undertaken.
It is to be noted that section 374(1)(b) of the Act has since been repealed by virtue of section 153 of the Building Act 2011. The section was subsumed into the Building Act which, as noted by the Full Court “that successor statute involves a substantially different regime from the regime under Part XV of the Act, with which this appeal is concerned”.
While the case did not concern the construction and operation of the Building Act 2011, the Court’s statutory interpretation of “repair” and “alter” are relevant to the Building Act regime where ‘building work’ is defined to include the “renovation, alteration, extension, improvement or repair of a building or an incidental structure”.
The conclusion to be taken away is that works to a building, even if in the nature of a repair, if they constitute an alteration to the structure of the building a building licence may be required. Although each case will turn on its own facts and circumstances, the Lamont case indicates that works to restore a damaged building to its pre-damaged state which go beyond replacing like for like (such as elevating a sunken roof and repositioning walls) is more properly to be considered an alteration to rather than a repair of the building.