In November 2016, the Victorian Coroner’s Court delivered its findings on the death of a man who had been living in a shed on a rural property for 16 years.
Coroner Jamieson found the man died from smoke inhalation and the effects of a fire after the shed caught fire. The Coroner recommended that the relevant Council:
…conducts an audit of properties within the municipality that are assumed to be uninhabited and considers how it can better use its authority under s 212 of the Building Act 1993 (Vic) and be alert to, investigate and deal with illegal building works within its district…
It is not uncommon in remote locations for people to occupy sheds on a semi-permanent or permanent basis. Moreover, the issue is not one that only affects rural councils. The conversion of garages or sheds to living spaces on domestic properties around Victoria has become more common due housing affordability problems.
The questions raised for councils following the Coroner’s findings include:
- How aware is your council about the extent to which information collected or activities undertaken by one part of the organisation signal a potential breach of a law which council may be expected to act on?
- What internal information sharing practices does your council have to ensure that relevant information collected from one activity is notified to the relevant area of council for action?
The man was 58 years old at the time of his death and lived alone on a property in Kialla. His family say he had lived at the address for approximately 16 years. Originally, the building was an open sided hay shed, in which a caravan was kept. Over some time the man built external walls and removed the caravan. The building was clad with corrugated iron sheeting and lined internally with chipboard. It had one external door and two windows which were located either side of the door. The bedroom, where the man was found deceased, was approximately 20 meters from the door.
In the early hours of 19 September 2015, a fire began in the building. It was found to have been caused by the overheating and ensuing smouldering of the potbelly stove, which ignited the wall or ceiling space. The man was thought to have been asleep at the time of the fire with no way of escape given the fire commenced between where he slept and the only exit.
The Coroner was very interested in how it was that the man could carry on building work and proceed to live in the shed for 16 years without this coming to the attention of Council.
Council gave evidence that it had no record of any building or planning permits being issued for the property. According to its records from valuations the building was classified as a class 10a non habitable building or structure. The land was within the Urban Floodway Zone (UFZ) and subject to a bushfire management overlay. Under the UFZ there were few permissible uses of the land due to flooding and the planning scheme prohibited the construction of a dwelling on the land.
Council’s land valuation contractor gave evidence to the Coroner that it carries out a ‘kerbside inspection’ to gather the information to perform the revaluations. An inspection carried out at the property weeks before the man’s death recorded that the buildings on the property were ‘old sheds and stables’. The evidence was that given the revaluation was a ‘kerbside inspection’ no attempt would have been made to ascertain whether or not someone was living at the property. The valuer would have been aware the planning scheme prohibited the construction of a dwelling and would have assumed that the shed was not inhabited.
The Coroner said she found it:
… difficult to reconcile that [the man] was able to live at [the property] for approximately 16 years, building the structure over time and extending it without applying for a building permit, but did not come to the attention of the authorities. It is concerning that the [Council], with the assistance of LG Valuation Services Pty Ltd, was apparently collecting rates from [the man] throughout this period and conducting kerb side inspections, without any apparent awareness that he was inhabiting what has been deemed a class 10a non habitable building.
Issues raised for consideration
Intelligence collection and sharing within councils
Based on the findings, there was no evidence before the Coroner that Council knew the man was living in this shed. However, the Coroner’s recommendation and comments show that she expected Council to notice building works being carried out illegally through its regular inspections for rate valuations and that this information would be acted on by the appropriate part of Council. This is a reminder to councils of the importance of understanding how information collected from one activity could signal a breach of a law which council has responsibility for acting on.
While there was no evidence that Council had knowledge of the man living in the shed in this case, there may be instances where a council would or ought to be aware of a shed being occupied as a dwelling because of services it is providing to a property. For example, where domestic garbage collection is requested from a property that has no record of a dwelling or where a property with a single dwelling requests a second garbage bin, this could indicate that there has been a conversion of a garage or shed to a second dwelling on a lot. It may also be the case that a valuation inspection does detect changes to a structure or the addition of new structures on land which council has no other records of.
Information sharing within councils must of course be subject to compliance with privacy laws. However, in most cases, sharing information for the purposes of taking enforcement action or to comply with a duty at law will be allowed.
The recommendation of Coroner Jamieson is that the Council concerned audit properties which are assumed to be uninhabited and ‘use its authority’ under s 212 to ‘be alert to, investigate and deal with illegal building works within its district’.
It may be possible to detect illegal building work from a kerbside view of a property. However, in many instances the change of use of a building from a shed to an dwelling will occur without any noticeable change to the outside of the building. In these circumstances, the only way to confirm the change of use may be to inspect the inside of the property.
Under the current provisions of the Building Act 1993 unless there is an emergency, an authorised person may only enter a property if there are ‘reasonable grounds for suspecting’ that there may be evidence of the commission of an offence against the Act or the Regulations. In those circumstances the authorised officer must not enter the land except with the written consent of the occupier or under the authority of a search warrant. The Building Amendment (Enforcement and Other Measures) Bill 2016 (which is yet to be passed) provides councils with a ‘monitoring’ power of entry which means authorised officers will be able to seek entry to a property to check whether the building is safe and compliant. However, entry to a building used for ‘residential purposes’ will still require an occupiers consent. It is likely a shed that is being used a person’s residence, whether or not legally, would be considered to be a building used for ‘residential purposes’.
What options are there for council to audit sheds
As noted above under the Building Act, councils currently have limited powers to inspect inside sheds. This does not mean that a council cannot request consent to inspect. However, councils also need to be mindful of their obligations to ensure the health and safety of their officers who attend on people’s properties for inspections. Often people resort to living in sheds because they have nowhere else to live and they feel strongly about their right to occupy their own land as they see fit. In these cases the person is unlikely to consent to entry and if the matter is to be pursued, a search warrant will be necessary.
A starting point for councils to ‘audit’ the sheds in their municipality could be for them to consider what information they hold across various parts of the organisation which might signal that a shed or garage has been converted to a dwelling. If there are no procedures in place to record such information or to trigger notifications within council, some work may need to be done to set up procedures which are based on an understanding of what information collected by one part of a council might be of interest to another part.
Of course the level of resources any council will have to dedicate to ‘proactive’ auditing will vary and the Coroner’s recommendation only relates to the Council concerned in that case. However, the findings she makes are relevant to all councils given the widespread issue of people living in sheds and garages.
It is important that councils act on complaints made to it or suspicions which arise from the information it holds. Where information held by council reveals that there may have been illegal building work or a change of use from a shed to a dwelling, this may present a risk if the conversion has resulted in an unsafe building which people are living and sleeping in. Local government is given responsibility for the administration and enforcement of the Building Act and therefore where councils know or ought to know of a risk they are expected to exercise their powers competently to mitigate those risks posed to the persons living in unsafe buildings and to the public generally.