GIBBS and CITY OF KALAMUNDA [2026] WASAT 59

[2026] WASAT 59 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING ACT 2011 (WA) CITATION : GIBBS and CITY OF KALAMUNDA [2026] WASAT 59 MEMBER : MS C BARTON, MEMBER HEARD : 28 JANUARY 2026 AND 3 FEBRUARY 2026 DELIVERED : 19 MAY 2026 FILE NO/S : CC 287 of 2025 BETWEEN : CAMERON DUNCAN GORDON WILLIAM GIBBS Applicant AND CITY OF KALAMUNDA Respondent Catchwords: Review of decision to make a building order - Building work carried out to convert garage into a habitable room - Whether exemptions from obtaining a building permit apply to building work - Evidential burden where exemption sought - Class of building - Non-habitable building - Meaning of habitable room - Whether change in use or classification of building - Whether building work adversely affects the safety and health of occupants or other users of the building - Whether building work affects the way in which the building complies with each building standard that applies to the building - Whether building work adversely affects the structural soundness of the building - Decision to make building order varied -- 1 of 23 -- [2026] WASAT 59 Page 2 Legislation: Building Act 2011 (WA), s 3, s 6(3), s 9, s 9(a), s 9(b), s 110, s 110(1), s 110(1)(a), s 111(1)(a), s 111(1)(b), s 111(1)(c), s 111(2), s 112(2), s 112(2)(e), s 112(2)(g)(i), s 112(3)(c), s 115, s 117(1), s 122(1), s 122(1)(a), s 122(2), s 122(2)(e), s 112(2)(g), Pt 5 Building Regulations 2012 (WA), reg 41(1), reg 41(3), Sch 4, cl 2 Evidence Act 1906 (WA) State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 27(1), s 27(3), s 29(3), s 32(1), s 32(2), s 32(2)(b) Result: Application for review dismissed Respondent's decision varied Category: B Representation: Counsel: Applicant : In Person Respondent : Ms M Madvad Solicitors: Applicant : N/A Respondent : McLeods Case(s) referred to in decision(s): Sanur Pty Ltd and City of Subiaco [2021] WASAT 90 Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118 Sullivan and Shire of Carnarvon [2024] WASAT 58 -- 2 of 23 -- [2026] WASAT 59 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 The applicant, Mr Cameron Gibbs (applicant), has modified the garage at his property at 8 Union Street, Carmel, (property) to accommodate his elderly father (Building Work). 2 Because the applicant did not obtain a building permit for the Building Work, the respondent, the City of Kalamunda (respondent or City) issued the applicant with a building order on 22 April 2025 pursuant to s 110 of the Building Act 2011 (WA) (Building Act). 3 The building order requires the applicant to submit to the City, within 28 days of the date of service of the order, a report from a qualified building surveyor which details: (a) all components of the Building Work which have been carried out in respect of the converted garage; and (b) all remedial work or measures which would be required for the converted garage to be capable of approval for the purposes of issuing a building approval certificate. 4 On 4 May 2025, the applicant commenced a proceeding in the Tribunal pursuant to s 122(1)(a) of the Building Act seeking a review of the respondent's decision to issue the building order primarily on the ground that the Building Work is exempt from requiring a building permit. It is the respondent's position that there is no applicable exemption. 5 For the reasons that follow, I have concluded that no exemption from the requirement to obtain a building permit applies to the Building Work and, consequently, the application for review should be dismissed. Issues for determination 6 The primary issue for determination by the Tribunal is: (1) Whether a building permit was required at the time the Building Work was carried out at the property to convert the garage to a habitable building (converted garage or building)? -- 3 of 23 -- [2026] WASAT 59 Page 4 7 In determining the primary issue, I must have regard to the statutory exemptions from the requirement to obtain a building permit in the Building Regulations 2012 (WA) (Building Regulations). Specifically, the applicant contends that the Building Work falls within the exemption in cl 2, item 2 to Sch 4 of the Building Regulations which relates to the renovation, alteration, improvement, repair or maintenance of a building or incidental structure. In this context, I must consider whether the Building Work:1 (1) changed the use or classification of the building?; (2) adversely affects the safety and health of the occupants or other users of the building or of the public?; (3) affects the way in which the building complies with each building standard that applied to the building at the time the Building Work was carried out?; and (4) adversely affects the structural soundness of the building (where there has been underpinning or replacement of footings)? 8 If any matter set out in (1) - (4) above is found to apply, the Building Work was not exempt from the requirement to obtain a building permit at the time it was carried out. The conduct of the hearing and witness evidence 9 The respondent relied on the evidence of Mr Adam Salathiel who is the Coordinator of Building Services at the City and is a qualified building surveyor. Mr Salathiel prepared a witness statement, filed on 22 January 2026, which he adopted as his evidence-in-chief and was cross-examined. The applicant relied on the evidence of Ms Kim Turnpenny who provides aged care services to the applicant's father at the property. Ms Turnpenny did not prepare a formal witness statement. She gave her evidence orally by telephone. 10 On 23 January 2026, the applicant filed a witness statement of Thi Hoa Nguyen, who is the applicant's wife. Ms Nguyen was not called to give oral evidence or cross-examined in relation to her statement. 1 See Building Regulations, Sch 4, cl 2, item 2. -- 4 of 23 -- [2026] WASAT 59 Page 5 11 The respondent did not object to the late filing by the applicant of his own witness statement on 1 February 2026, which the applicant adopted as his evidence-in-chief and was cross-examined. 12 On the morning of the final hearing, the Tribunal had the benefit of a site view of the property, including the converted garage. The Tribunal's review jurisdiction 13 By reason of s 122(1)(a) of the Building Act and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application falls within the Tribunal's review jurisdiction. The institution of the review proceeding stays the operation of the building orders pending the determination of the proceeding.2 14 In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the Building Act (the latter referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction which may modify the operation of the SAT Act in relation to the matter).3 15 The Tribunal's review of the respondent's decision to issue the building order is by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the information and evidence before it.4 The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record5 but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.6 16 The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.7 Nor is the review limited to the reasons for decision or any grounds for review set out in the application.8 The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.9 Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers 2 Building Act, s 122(2). 3 SAT Act, s 18. 4 SAT Act, s 27. 5 SAT Act, s 32(2). 6 SAT Act, s 32(1). 7 SAT Act, s 27(1). 8 SAT Act, s 27(3). 9 SAT Act, s 32(2)(b). -- 5 of 23 -- [2026] WASAT 59 Page 6 appropriate, including an order to set aside, affirm or vary the decision that is being reviewed. The statutory framework 17 Section 110(1) of the Building Act confers a general power on a permit authority to make a building order. Relevantly, pursuant to s 110(1)(a) of the Building Act, a permit authority may make a building order in respect of particular building work. The 'permit authority' in this case is the respondent, being the local government in whose district the property is located.10 18 Pursuant to s 3 of the Building Act, 'building work' is defined to include 'the construction, erection, assembly or placement of a building or an incidental structure' or 'the renovation, alteration, extension, improvement or repair of a building or an incidental structure'. An 'incidental structure' is defined in the Building Act as a structure attached to or incidental to a building and includes a chimney, mast, swimming pool, fence, free-standing wall, retaining wall, or permanent protection structure, and part of a structure.11 19 Before making a building order, other than an emergency order, the permit authority must give to each person to whom the order is proposed to be directed, written notice of the terms of the proposed order and the reasons for it.12 The permit authority is also required to advise each person to whom the order is proposed to be directed that the person has 14 days from the day on which the notice is received in which to make submissions in relation to the proposed order.13 The permit authority must consider each submission received within that period.14 20 Section 112(2) of the Building Act enumerates the specific powers which can be exercised by a permit authority in making a building order and the circumstances in which they can be exercised. Section 112(2)(e) of the Building Act relevantly provides that a building order may require a person to whom the order is directed to do the following within a specified time:15 10 Building Act, s 6(3). 11 Building Act, s 3. 12 Building Act, s 111(1)(a), s 111(2). 13 Building Act, s 111(1)(b). 14 Building Act, s 111(1)(c). 15 The building order refers to s 112(2)(g)(i) of the Building Act which relates to the conduct of a survey in respect of a building or incidental structure that is reasonably believed to be in a dangerous state or unfit for -- 6 of 23 -- [2026] WASAT 59 Page 7 … (e) to take or not take specified action so as to prevent or stop a suspected contravention of this Act; 21 Section 117(1) of the Building Act provides that a permit authority may, by notice in writing, revoke a building order at any time. 22 In accordance with s 112(3)(c) of the Building Act, the person to whom the order is directed is required to notify the permit authority in a specified manner when the person has done what the building order requires them to do. Failure to comply with a building order, without reasonable excuse, is an offence.16 23 Relevantly, s 9 of the Building Act provides that it is an offence to do 'building work' unless, amongst other things, a building permit is in effect for the building work, or the building work is exempt from the requirement for a building permit under Pt 5 of the Building Act or Sch 4 to the Building Regulations.17 24 Regulation 41(3) of the Building Regulations provides that a building permit is not required for building work of a kind described in the Table in cl 2 of Sch 4 to the Building Regulations. That is, the Table sets out a list of the exemptions from the requirement to obtain a building permit. These include, relevantly, the renovation, alteration, improvement, repair or maintenance of a building or incidental structure if, for example, the building work will not adversely affect the structural soundness of the building or incidental structure, or will not change the use or classification of the building or incidental structure.18 25 Below is an extract from the Table in cl 2 of Sch 4 to the Building Regulations, the terms of which are relevant to this proceeding:19 human occupation. At the final hearing, the respondent sought an amendment to the building order to refer to s 112(2)(e) of the Building Act. 16 Building Act, s 115. 17 Building Act, s 9(a) and s 9(b). 18 See Building Regulations, Sch 4, cl 2, item 2. 19 Building Regulations, Sch 4, cl 2, item 2. -- 7 of 23 -- [2026] WASAT 59 Page 8 Item Description of building work for which building permit is not required … … 2. Renovation, alteration, improvement, repair or maintenance of a building or incidental structure if the building work - (a) will not adversely affect the structural soundness of the building or incidental structure and does not include - (i) an increase or decrease in the floor area or height of the building or incidental structure; or (ii) underpinning or replacement of footings; or (iii) the removal or alteration of any element of the building or incidental structure that is contributing to the support of any other element of the building or incidental structure; and (b) is done using materials commonly used for the same purpose as the material being replaced; and (c) will not change the use or classification of the building or incidental structure; and (d) will not adversely affect the safety and health of the occupants or other users of the building or incidental structure or of the public; and (e) will not affect the way in which the building or incidental structure complies with each building standard that applies to the building or incidental structure; and (f) is not work of a kind to which section 76, 77, 78 or 79 relates; and (g) is not subject to a protection order, heritage works permit, repair notice or repair order. 26 Whilst not applicable to the Building Work the subject of this proceeding, a building permit is not required for certain building work in specified local government districts pursuant to reg 41(1) of the Building Regulations.20 20 See Building Regulations, Sch 4, cl 1. -- 8 of 23 -- [2026] WASAT 59 Page 9 Findings relevant to the making of the building order 27 Certain matters were not in dispute between the parties. I make the findings set out in this paragraph in relation to those matters: (1) A dwelling, with an attached carport, was built at the property in approximately 1967.21 The carport was subsequently enclosed to form a garage. The Building Work relates to further work to the garage carried out by the applicant in or around 2022 to accommodate his 93-year-old father.22 (2) The Building Work satisfies the definition of 'building work' for the purposes of s 9 of the Building Act. (3) The respondent did not receive an application for the Building Work and no retrospective approval (or building approval certificate) has been granted by the respondent in respect of the Building Work. (4) The applicant did not obtain a building permit for the Building Work. (5) The respondent issued the applicant with a building order which the applicant has not complied with because he believes the Building Work is exempt from the requirement to obtain a building permit.23 (6) The converted garage is used by the applicant's elderly father as a habitable room. The room comprises a bed, living area and ablution facilities. Tribunal's consideration 28 A person who is served with a building order by a permit authority may apply to the Tribunal pursuant to s 122(1) of the Building Act for a review of the decision to make the building order or in relation to a requirement of the order. 29 Section 122(1) of the Building Act provides: 21 Respondent's statement of issues, facts and contentions filed on 14 November 2025 (Respondent's SIFC), para 4. 22 ts 33, 28 January 2026; ts 151, 3 February 2026. 23 Applicant's statement of issues, facts and contentions filed on 14 December 2025 (Applicant's SIFC), para 21. -- 9 of 23 -- [2026] WASAT 59 Page 10 (1) 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. (2) The institution of a proceeding for the review of a decision under subsection (1) in relation to a building order other than a building order (emergency) stays the operation of the order pending the determination of the proceeding. 30 There was no dispute that the proceeding was commenced pursuant to s 122(1)(a) of the Building Act, and hence, the applicant is seeking to review the respondent's decision to make the building order as opposed to a requirement of the order.24 31 The primary issue for determination in this proceeding is whether a building permit was required at the time the Building Work was carried out at the property. Because the applicant contends that the Building Work is exempt from the requirement to obtain a building permit, he bears the evidential burden in relation to that matter.25 Consequently, the applicant must adduce probative evidence in support of each item in cl 2 of Sch 4 to the Building Regulations upon which he relies for an exemption. 32 Pursuant to cl 2, item 2(c) of Sch 4 to the Building Regulations, for an exemption to apply, I must be satisfied that the Building Work 'will not change the use or classification of the building or incidental structure'. I will first consider whether the Building Work resulted in a change to the use or classification of the building. Did the Building Work change the use or classification of the building? 33 The National Construction Code 2022 (NCC) provides that a Class 1a building is a single dwelling being a detached house or one of a group of attached dwellings such as a town house, row house or the like.26 The NCC further provides that a Class 10 building is a non- 24 See Sullivan and Shire of Carnarvon [2024] WASAT 58 at [47] - [54]. See also Sanur Pty Ltd and City of Subiaco [2021] WASAT 90 at [163]. 25 See, for example, in a criminal context, Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118. 26 See NCC, Volume Two - Building Code of Australia, Pt A6 Building classification, A6G2 Class 1 buildings. -- 10 of 23 -- [2026] WASAT 59 Page 11 habitable building or structure and includes the following sub- classifications:27 (a) Class 10a is a non-habitable building including a private garage, carport, shed or the like. (b) Class 10b is a structure that is a fence, mast, antenna, retaining wall or free-standing wall or swimming pool or the like. (c) Class 10c is a private bushfire shelter. 34 The expression 'non-habitable building' as it relates to a class 10a building is not defined in the NCC. A 'private garage' is defined in the NCC to mean:28 (i) any garage associated with a Class 1 building; or (ii) any separate single storey garage associated with another building where such garage contains not more than 3 vehicle spaces. 35 Relevantly, a 'habitable room' is defined in the NCC as a room used for normal domestic activities and includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room, home theatre and sunroom but excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes- drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods.29 36 The respondent contends that the applicant has changed both the use and the classification of the building. Specifically, the respondent says that the use has changed because the building was not previously inhabited and it is now being used as a granny flat (or ancillary accommodation) by the applicant's elderly father.30 The respondent further says that the classification of the building has changed from a class 10a building (non-habitable carport) to a class 1a building (dwelling).31 Consequently, it's the respondent's position that the Building Work was carried out in contravention of s 9 of the Building 27 NCC, Volume Two - Building Code of Australia, Pt A6 Building classification, A6G11 Class 10 buildings and structures. The italicised words 'private garage', 'swimming pool', and 'private bushfire shelter' are defined terms in Sch 1 to the NCC. 28 NCC, Volume Two - Building Code of Australia, Sch 1 Definitions, Glossary. The italicise word 'storey' is a defined term in Sch 1 to the NCC. 29 NCC, Volume 2 - Building Code of Australia, Sch 1 Definitions, Glossary. 30 Respondent's SIFC, para 39; ts 13, 28 January 2026. 31 Respondent's SIFC, para 40. -- 11 of 23 -- [2026] WASAT 59 Page 12 Act because the applicant did not obtain a building permit for the change in use and classification. 37 In support of its position, the respondent relied on the evidence of Mr Salathiel who said that, in his experience, it is common for a dwelling to be classified as a Class 1a building and a garage (whether it is attached to the dwelling or not) to have a different classification, typically Class 10a.32 Mr Salathiel referred to the City's records and historical documents which he said are consistent with the garage structure having been classified as a 10a structure.33 Further, Mr Salathiel said that the Building Work carried out by the applicant changed the use of the existing garage, which was previously not inhabited, into a granny flat occupied by the applicant's elderly father.34 38 In contrast, the applicant contends that the Building Work did not change the use or classification of the building because the garage has always been an integrated part of a Class 1a building, being less than 10 % of the overall dwelling.35 The applicant says that the converted garage occupies just 8.84% of the total floor area of the dwelling, which means that a separate classification cannot be applied under the NCC.36 Further, the applicant says the relevant area has served a number of different functions, none of which have included a garage and, consequently, there has been no change in use.37 The applicant did not produce any independent expert evidence in support of his contentions. 39 In relation to the '10% exemption' in the NCC, Mr Salathiel observed:38 I am aware that there is an exemption exists under the NCC in relation to building classifications which states that, if 10% or less of the floor area of a storey is used for a purpose which could be classified differently to the remainder of that storey, that part of the storey may be classified as being the same as the remainder of the building[.] 40 In Mr Salathiel opinion, the '10% exemption' does not apply because the patio at the rear of the property was not included in the measurement of the total floor area of the dwelling.39 Mr Salathiel said 32 Witness statement of Adam Salathiel filed on 22 January 2026, para 44. 33 Witness statement of Adam Salathiel filed on 22 January 2026, para 46; ts 58, 28 January 2026. 34 Witness statement of Adam Salathiel filed on 22 January 2026, para 50. 35 Applicant's SIFC, para 27(a)(ii) and para 27(a)(iii); ts 22, 28 January 2026. 36 Applicant's SIFC, para 27(a)(iv). 37 Applicant's SIFC, para 27(b). 38 Witness statement of Adam Salathiel filed on 22 January 2026, para 47. 39 ts 59, 28 January 2026; ts 131, 3 February 2026. -- 12 of 23 -- [2026] WASAT 59 Page 13 that the patio was not constructed at the time the dwelling was built and so the '10% exemption' would be based on the buildings that were proposed to be built at the time, which was the house and carport.40 41 Mr Salathiel said that when the dwelling was constructed it would have been constructed and assessed as a Class 1 dwelling and Class 10 carport.41 Further, in Mr Salathiel's opinion, the whole of the building at the property could not be classified as a Class 1a building because the smaller garage area was to accommodate not more than three vehicles.42 42 Based on the evidence of Mr Salathiel, which I accept, I find that the carport was classified as a Class 10 building at the time the dwelling was constructed. I further find, based on the evidence of Mr Salathiel, which I accept, that he did not apply the '10% exemption' because the total floor area of the dwelling did not include the patio at the rear of the property which was constructed after the carport was built. 43 If I am wrong, and the carport was (and the converted garage should be) classified as a Class 1a building, I am nevertheless satisfied that the use of the building has changed. Based on the evidence of Mr Salathiel, which I accept, I find that the converted garage was not previously inhabited but at the time the building order was issued it was being used to accommodate the applicant's elderly father (and still is). 44 The applicant argued that the garage should not be considered as a separate space from the primary dwelling because of its prior multi- purpose use consistent with a 'habitable room', which has included, according to the applicant, an entertainment area, computer room, hobby room, art studio and storage area.43 However, there was no evidence presented by the applicant to support a finding that the prior use of the garage for those purposes has been approved by the respondent. In my view, it would be contrary to the purpose of s 9 of the Building Act for an applicant, who seeks an exemption from the requirement to obtain a building permit, to rely on prior unlawful uses as a means of establishing that the use of a building has not changed. 45 Consequently, for these reasons, I am not satisfied that the exemption in cl 2 of Sch 4 to the Building Regulations from obtaining a 40 ts 59, 28 January 2026. 41 Witness statement of Adam Salathiel filed on 22 January 2026, para 45. 42 Witness statement of Adam Salathiel filed on 22 January 2026, para 48. 43 Applicant's SIFC, para 27(b)(iv). -- 13 of 23 -- [2026] WASAT 59 Page 14 building permit applies in the circumstances of this case because the use of the garage has changed from a non-habitable to a habitable use. 46 I will next consider whether the Building Work adversely affects the safety and health of the occupants or other users of the building or of the public for the purposes of cl 2, item 2(d) of Sch 4 to the Building Regulations. Does the Building Work adversely affect the safety and health of the occupants or other users of the building or of the public? 47 Relying on the evidence of his father's carer, Ms Turnpenny, the applicant contends that the converted garage does not present any danger from a safety and health perspective.44 The applicant says that the garage has been designed for a mobility impaired individual and, consequently, has improved his father's safety and health.45 Further, the applicant observed that his father has been living in the room for 3 years without consequence.46 However, the applicant did not call a qualified building surveyor to provide evidence on whether the Building Work has affected his father's safety or the safety of his father's service providers who attend the property which include a nurse, occupational therapist, and physiotherapist, in addition to support workers.47 48 It is the respondent's position that the Building Work may adversely affect the safety and health of occupants and other users of the converted garage.48 The respondent relied on the evidence of Mr Salathiel who said that the Building Work adversely affects the safety and health of the applicant's father, who is inhabiting the converted garage.49 Mr Salathiel provided the following assessment of the potential safety and health impacts of the Building Work in the context of the NCC and applicable Australian Standards:50 (1) Non-compliant ceiling heights: Mr Salathiel observed that the ceiling heights in the converted garage range between 2200mm and 2300mm which does not meet the NCC minimum of 44 Applicant's SIFC, para 28. 45 Applicant's SIFC, para 28(a). 46 ts 198, 3 February 2026. 47 ts 30, 28 January 2026; ts 33, 28 January 2026. 48 ts 13 - 14, 28 January 2026. 49 Respondent's SFIC, para 51. 50 Witness statement of Adam Salathiel filed on 22 January 2026, Annexure 1, pages 4 - 21. Mr Salathiel applied the 2022 NCC in his assessment of the Building Work but was prepared to concede that it should have been in accordance with the 2019 NCC: ts 71, 28 January 2026. -- 14 of 23 -- [2026] WASAT 59 Page 15 2400mm for habitable rooms.51 Mr Salathiel also observed sagging in some areas of the ceiling. However, he could not fully determine the extent and cause of the sagging due to a lack of access to the internal roof space. In Mr Salathiel's opinion, the sagging could indicate structural issues, inappropriate construction methods, or damage due to water ingress.52 Mr Salathiel described the potential safety and health impacts of non-compliance with the NCC as follows:53 Inadequate ceiling heights and possible sagging present a risk of reduced ventilation, increased heat buildup, poor indoor air quality, and potential structural failure, all of which can negatively affect the respiratory health, comfort, and safety of occupants. These conditions may contribute to fatigue, mould growth, and head injury risks in confined spaces. (2) Non-waterproofed concrete flooring under timber floor, including expansion joints: According to Mr Salathiel, the slab was originally constructed for a non-habitable Class 10a carport and therefore lacks thickening around the edges and a damp- proof membrane, which he said are essential for habitable use to prevent dampness from rising through the concrete.54 Mr Salathiel observed that the concrete slab beneath the timber flooring had some form of waterproofing around the edges. However, he was unable to determine if it had been sealed in accordance with NCC requirements for habitable rooms.55 Mr Salathiel described the potential safety and health impacts of inadequate waterproofing as follows:56 The lack of proper damp-proofing creates conditions for moisture ingress, which may lead to mould, mildew, poor indoor air quality, and structural degradation. These are known contributors to respiratory illnesses, skin irritation, and long- term exposure health issues, particularly for children, elderly occupants, or those with existing health conditions. (3) Lack of evidence of energy efficiency compliance: Mr Salathiel reported that no evidence had been provided by the applicant to demonstrate that the converted garage achieves the minimum energy efficiency rating as required under the NCC. 51 ts 48, 28 January 2026. 52 ts 49, 28 January 2026. 53 Witness statement of Adam Salathiel filed on 22 January 2026, page 4. 54 ts 51, 28 January 2026. 55 ts 50, 28 January 2026. 56 Witness statement of Adam Salathiel filed on 22 January 2026, page 5. -- 15 of 23 -- [2026] WASAT 59 Page 16 He observed no visible insulation within the walls or ceiling cavities. Mr Salathiel described the safety and health impacts as follows:57 Inadequate insulation compromises thermal comfort, potentially exposing occupants to temperature extremes that can result in heat stress, cold-related illnesses, and elevated energy costs due to reliance on artificial heating/cooling. This is particularly critical in vulnerable populations. (4) Floor level discrepancy between dwelling and converted garage: Mr Salathiel observed that the converted floor level is one brick course below the main dwelling, consistent with historical separation between habitable Class 1a and non-habitable Class 10a structures.58 Mr Salathiel described the potential safety and health impacts of the floor level discrepancy as follows:59 While standard practice for non-habitable spaces, a step-down within a now-occupied room introduces a tripping hazard and potential for falls, especially for elderly occupants, children, or individuals with mobility impairments. (5) No evidence of structural slab reinforcement or footing: Mr Salathiel said that he was unable to confirm, due to an absence of relevant documentation, that the floor slab is a steel reinforced 100mm concrete with thickened edged or footing, as required for habitable spaces.60 Mr Salathiel described the potential safety and health impacts of an inadequately reinforced slab as follows:61 An inadequately reinforced slab may not support typical residential live loads, increasing the risk of structural failure, cracking, or subsidence. This poses direct safety risks to occupants and may impact building durability and emergency egress stability. 49 In relation to ceiling heights in (1) above, the applicant did not dispute that the converted garage was below the 2400mm minimum NCC requirement for a habitable room. 57 Witness statement of Adam Salathiel filed on 22 January 2026, page 7. 58 ts 61, 28 January 2026. 59 Witness statement of Adam Salathiel filed on 22 January 2026, page 9. 60 ts 62, 28 January 2026. 61 Witness statement of Adam Salathiel filed on 22 January 2026, page 11. -- 16 of 23 -- [2026] WASAT 59 Page 17 50 In relation to the requirement for waterproofing in (2) above, the applicant advised the Tribunal that he had sealed the concrete slab before laying the timber floor.62 The applicant produced a photograph which he said demonstrates that a waterproofing solution was painted over the concrete slab before the timber floor was installed.63 The applicant said it was a product designed to penetrate into the concrete and form a sealing barrier.64 It was also poured down into the expansion joints of the slab to completely seal the cracks.65 Whilst I accept that the applicant has undertaken work to waterproof the concrete slab before laying the timber floor, there is no evidence from a qualified building surveyor that supports a finding that the waterproofing was done over the entire slab and in a proper and proficient manner. It is Mr Salathiel's evidence that a lack of proper damp-proofing creates conditions for moisture ingress, which may lead to mould, mildew, and poor indoor air quality. 51 In relation to the issue of energy efficiency in (3) above, the applicant said that all infilled cavity walls of the garage are filled with an Earthwool fibre and that insulation bats were installed above the ceiling to all edges.66 He said that both products are R6 rated, exceeding the Australian standard for the climate region.67 Whilst I accept that the converted garage may have some form of insulation in the walls and ceilings, the applicant did not produce evidence from a qualified building surveyor that would support such a finding. Mr Salathiel said that he observed no visible insulation within the walls or ceiling cavities which, if it is absent, can compromise thermal comfort and make occupants more susceptible to illness in winter.68 52 In relation to a discrepancy in floor levels in (4) above, the applicant did not dispute that there is a step down from the dwelling into the converted garage. 53 In relation to the absence of slab reinforcement or footing in (5) above, the applicant said he observed, when he undertook the Building 62 ts 149, 3 February 2026. 63 Applicant's bundle filed on 14 December 2025 (Exhibit 3) (Applicant's bundle), page 137. 64 ts 149, 3 February 2026. 65 Applicant's witness statement filed on 1 February 2026; description of photograph on page 137 of Applicant's bundle. 66 Applicant's witness statement filed on 1 February 2026; description of photograph on page 136 of Applicant's bundle; ts 150, 3 February 2026. 67 ts 150, 3 February 2026. 68 ts 60, 28 January 2026. -- 17 of 23 -- [2026] WASAT 59 Page 18 Work, that the concrete slab was around 150 mm thick at the edges and that the concrete footings for the brick pillars were in good condition.69 54 In Mr Salathiel's opinion, an inadequately reinforced slab may not support typical residential loads, increasing the risk of structural failure. When pouring a concrete slab for a dwelling compared with a Class 10a garage, Mr Salathiel explained:70 … Traditionally, again, when the houses are built, the footings and concrete slab for the dwelling - they're formed out. They're poured. And the concrete slab for the class 10 garage normally comes at a later date. It's not part of the overall total pour of the building. So they don't all happen at once. So the concrete floor of the garage is normally anywhere between 50, 80, 85, 100 mil thick, depending on the property owner and the concreter at the time coming to some understanding as to what thickness they're going to put on there. And it's done in individual slabs, which is why they have that expansion joint in between each of the slabs. … Once we start looking at enclosing that garage and turning it into a habitable space and putting walls between the pillars, those walls then add pressure down onto the concrete, and normally what would happen is there would be some form of stiffening or thickening of the concrete slab to allow for the weight of those walls to be installed between the pillars. 55 Whilst the applicant considers the concrete slab is in good condition, he did not produce any evidence from a qualified building surveyor (or a structural engineer) that confirmed that the slab could support the load of the walls between the pillars and that the brickwork was keyed in (to reduce the risk of the wall collapsing).71 56 Based on Mr Salathiel's evidence, which I accept, I find that the Building Work may affect the safety and health of the applicant's father and other users of the converted garage, including the service providers and support workers who visit the property. Whilst Ms Turnpenny's evidence was of some assistance to the Tribunal, she is not a building surveyor. Further, I agree with Mr Salathiel's opinion that until a qualified building surveyor is engaged by the applicant to carry out a 69 ts 147, 3 February 2026. 70 ts 62 - 63, 28 January 2026. 71 ts 67, 28 January 2026. -- 18 of 23 -- [2026] WASAT 59 Page 19 comprehensive assessment of the Building Work the extent of any further adverse health and safety impacts are unknown.72 57 For these reasons, I am not satisfied that the exemption in cl 2 of Sch 4 to the Building Regulations from obtaining a building permit applies in this case because the Building Work may affect the safety and health of the occupants or other users of the building for the purposes of cl 2, item 2(d) of Sch 4 to the Building Regulations. 58 I will next consider whether the Building Work affects the way in which the building complies with each relevant building standard that applied at the time the Building Work was carried out for the purposes of cl 2, item 2(e) of Sch 4 to the Building Regulations. Does the Building Work affect the way in which the building complies with each relevant building standard? 59 I have already addressed this issue in the context of adverse health and safety consequences that arise from non-compliance with the NCC and relevant Australian Standards. Based on Mr Salathiel's evidence outlined above, which I accept, I find that the Building Work affected the way in which the converted garage complied with each relevant building standard that applied at the time the Building Work was carried out. 60 In addition, Mr Salathiel observed that the property is located in a bush fire prone area.73 Because the dwelling was built before 2011, Mr Salathiel said that an exemption for the additional requirements for buildings located in bush fire prone areas may apply.74 Mr Salathiel also said that property owners must satisfy the City that an exemption is applicable which may require the applicant to engage a suitable contractor to carry out a Bushfire Attack Level (BAL) assessment of the property.75 61 There was evidence before the Tribunal that the applicant had completed additional work to the converted garage since the building order was issued. Mr Salathiel observed that the applicant had installed smoke alarms and had removed a solar inverter unit from the space above the bed on the internal wall of the converted garage.76 72 Witness statement of Adam Salathiel filed on 22 January 2026, para 56. 73 ts 73, 28 January 2026. 74 ts 73, 28 January 2026. 75 Witness statement of Adam Salathiel filed on 22 January 2026, paras 54 - 55. 76 Witness statement of Adam Salathiel filed on 22 January 2026, para 56; ts 48, 28 January 2026. -- 19 of 23 -- [2026] WASAT 59 Page 20 Mr Salathiel further observed, and I agree, that the additional work does not affect the question as to whether a building permit was required at the time the Building Work was carried out.77 62 Consequently, for these reasons, I am not satisfied that the exemption in cl 2 of Sch 4 to the Building Regulations from obtaining a building permit applies in this case. 63 Finally, I will consider whether the Building Work adversely affects the structural soundness of the converted garage as set out in cl 2, item 2(a) of Sch 4 to the Building Regulations. Does the Building Work adversely affect the structural soundness of the building? 64 Clause 2 item 2(a) of Sch 4 to the Building Regulations provides that a building permit is not required for the renovation or alteration of a building where the building work will not adversely affect its structural soundness but only where the building work does not include: (i) an increase or decrease in the floor area or height of the building or incidental structure; or (ii) underpinning or replacement of footings; or (iii) the removal or alteration of any element of the building that is contributing to the support of any other element of the building or incidental structure[.] 65 The word 'underpinning' is not defined in the Building Regulations. Relevantly, the Macquarie Dictionary defines 'underpin' as: Verb (t) (underpinned, underpinning) 1. To pin or support underneath; place something under for support or foundation. 2. To support with masonry, stones, etc as a building. 3. To support; prop. 66 The respondent contends that the applicant has undertaken work to the footings of the converted garage and, consequently, the exemption in cl 2, item 2(a) of Sch 4 to the Building Regulations does not apply to 77 Witness statement of Adam Salathiel filed on 22 January 2026, para 56. -- 20 of 23 -- [2026] WASAT 59 Page 21 the Building Work. Specifically, the respondent says that the Building Work included underpinning of the footings.78 67 The applicant said that additional footings were constructed under the new section of wall and were matched to the exact height of the existing footings.79 However, he contends that matching the footings in this manner is not 'underpinning'80 and that the existing footings and supports 'were not tampered with in any away because they didn't need to be'.81 It is the applicant's position that '[a]s proof that nothing was modified, there has been no observable movement within the structure'.82 68 Whilst not a matter raised by the respondent in its statement of issues, facts and contentions, the applicant gave evidence that he has undertaken work to the footings of the building for the purposes of supporting the new section of garage wall. I find that the Building Work included work that fell within the meaning of 'underpinning' for the purposes of cl 2, item 2(a) of Sch 4 to the Building Regulations because the applicant placed footings under the new section of wall to support it. 69 Consequently, for these reasons, I am not satisfied that the exemption from obtaining a building permit in cl 2 of Sch 4 to the Building Regulations applies to the Building Work because the applicant has undertaken work to the footings that may affect the structural soundness of the building. Conclusion 70 It is the applicant's position that he did not require a building permit for the Building Work and, consequently, he considers that the building order should be set aside. 71 The applicant did not discharge his evidential burden in respect of the exemption that he says applies to the Building Work. To support an exemption, it was open to the applicant to call a qualified building surveyor to address the matters listed in cl 2, item 2 of Sch 4 to the Building Regulations, but the applicant chose not to do so. 78 ts 182, 3 February 2026. 79 ts 168, ts 197, 3 February 2026; Applicant's bundle, page 35. 80 ts 197, 3 February 2026. 81 Witness statement of Cameron Gibbs filed on 1 February 2026; description of photograph on page 35 of Applicant's bundle. 82 ts 197, 3 February 2026. -- 21 of 23 -- [2026] WASAT 59 Page 22 72 Consequently, based on Mr Salathiel's evidence, I cannot be satisfied that at the time the Building Work was carried out it did not change the use or classification of the building or adversely affect the safety and health of the occupants and other users of the building. Further, I cannot be satisfied that the Building Work did not affect the way in which the building complies with each building standard that applied to the building at the time it was carried out. 73 Because I have found that the applicant underpinned the footings of the converted garage, I cannot be satisfied that the Building Work does not adversely affect the structural soundness of the building. 74 It follows that the correct and preferable decision is to dismiss the review application because I have concluded that the exemption from obtaining a building permit relied on by the applicant did not apply to the Building Work at the time it was carried out. 75 The direction in the building order, requiring the applicant to submit a report to the respondent from a qualified building surveyor, refers to s 112(2)(g)(i) of the Building Act. Section 112(2)(g) of the Building Act relates to a building or structure that is reasonably believed to be in a dangerous state or unfit for human occupation. The respondent has sought an amendment to the building order to refer to s 112(2)(e) of the Building Act which requires the taking of specified action to prevent or stop a suspected contravention of the Building Act. I consider that the amendment is appropriate in the circumstances because it does not alter the statutory power under which the building order was issued or the nature of the direction. Consequently, I will vary the decision of the respondent made on 22 April 2025 to issue the building order by substituting the reference to s 112(2)(g)(i) of the Building Act with s 112(2)(e) of the Building Act. 76 The building order directs the applicant to provide to the respondent a report from a qualified building surveyor within 28 days of the date of service of the order. To provide a clear timeframe in which the applicant is to comply with the building order, I will vary the respondent's decision to issue the building order by extending the time for compliance to 5.00 pm on 30 June 2026. Orders 77 The Tribunal orders: 1. The application for review is dismissed. -- 22 of 23 -- [2026] WASAT 59 Page 23 2. The decision of the respondent made on 22 April 2025 to issue a building order to the applicant pursuant to s 110 of the Building Act 2011 (WA) is varied as follows: (a) Pursuant to s 112(2)(e) of the Building Act 2011 (WA) the applicant must submit to the respondent by 5.00 pm on 30 June 2026 a report from a qualified building surveyor which details: (i) all components of the Building Work which have been carried out in respect of the converted garage; and (ii) all remedial work or measures which would be required for the converted garage to be capable of approval for the purposes of issuing a building approval certificate. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS C BARTON, MEMBER 19 MAY 2026 -- 23 of 23 --