Independent Review – Weir Legal and Consulting Report

At the 18 April 2023, Ordinary Meeting of Council, a Council resolution directed the CEO to publish the the Weir Legal and Consulting (WLC) - City of Melville Review of Complaints – Building and Planning (Weir Report) on the City's website with a number of redactions made.

The City’s responses to the 15 Recommendations contained in the Weir Report, must also be published for a minimum of two years with periodic updates on those issues which remain on-going during that period.

View the final redacted Weir Report

An application for amendment of personal information under section 45 of the Freedom of Information Act 1992 was received by the City in relation to the Weir Report. The applicant disagrees with certain statements made within this report and the City notes this disagreement.

Background

At the 19 November 2019, Ordinary Meeting of Council, a petition signed by 77 residents and dated 3 November 2019, was received.

The petition requested that the City of Melville Council conduct an independent review, regarding the performance and conduct of the City of Melville in relation to various building and planning related matters, and consequential complaints since 2012.

Council appointed Weir Legal and Consulting (WLC) to undertake the City of Melville Review of Complaints – Building and Planning (Weir Report), working with the City and parties on terms as mutually agreed.

Since November 2019, several related reports have been presented and considered by Council, which has raised the level of public interest. Several presentations have also been made at Elected Member Engagement Sessions on the actions undertaken, in relation to implementing the Weir Report recommendations.

Recommendations

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Weir Report RecommendationsStatus Update (as of 19 March 2024)
1) The City should review its policy on the initial notification of development applications where the CBACP applies and consider revising it to ensure that those notified are told that if they wish to make a submission, their submission will be considered and they will be informed of relevant process that they can participate in. (see question 1A)Completed
  • The suggestions regarding notification of neighbours and their ability to participate in the assessment process have been actioned. This new process has been in place since 2017.
2) The City should provide an explanation to X and X of:
  • ​why the impact of visitor parking and overflow parking from residents from the X development did not need to be considered in the Traffic Impact Report; and
  • how the City took into account the stated objective of the CBACP ‘To ensure that adequate vehicle parking and access is provided for multi-storey development, ensure that off-street parking is linked to pedestrian routes and to ensure car parking and servicing activities to not dominate the street (page 37 of the CBACP). (see question 4A and 5A)
Completed
  • The role of Traffic Impact Reports and the application of CBACP objectives in the development assessment process has been outlined to the stakeholders.
3) The City should not include conditions like condition 14 of the X permit in their planning approvals and instead state more clearly that the approval provides for the use of site sheds and other structures on site to enable construction but that an application for a permit for materials on the verge may be made. (see question 13A)Completed

  • Standard conditions have been revised to respond to the recommendations.

  • Additional clarification has been provided with respect to the approval process for use of verges. It is noted that the assessment process will examine the specific characteristics of the verge and the intended use of the verge in reaching a decision.

4) The City should prepare an information sheet for the public about permits for materials on the verge including:
  • their purposes and when they are issued;
  • that the City is inclined to issue them to enable construction to occur on sites where there are large developments; and
  • setting out the kinds of conditions that are imposed to mitigate impacts on safety and the community.
The information sheet should also state clearly that adjoining neighbours are not consulted as part of the application process. (see question 13A)		Completed

  • Additional information has been compiled with respect to the verge permit process to specifically respond to the items raised in the recommendations, including circumstances where use of verges may be permitted and the notification process for neighbours.

  • Relevant verge permit application forms have also been modified to respond to these matters. Please see our dedicated verge webpage and Materials On Verge or Excavate Near a Street Permit application form which contains the following statement, “please note that adjoining property owners are not required to be consulted as part of the application process.”

5) As a matter of priority, the City should develop Construction Management Plan and Traffic Management Guidelines and related documents in consultation with a range of stakeholders including community representatives. (see question 14A and 15A)Completed
  • A new Construction Management Plan Policy and guidelines responding to the recommendations were adopted by Council in November 2022. The Policy preparation process included stakeholder engagement.
6) The City should resource a construction management compliance team that can respond promptly to complaints and work with the community and industry to address breaches of construction management plans and traffic management plans. (see question 14A and 15A)Completed

  • A directorate restructure and additional resources have been allocated to respond to various compliance matters. A new dedicated Compliance Service Area has been created including a Manager to provide dedicated oversight.

  • The Service Area operates on a placed-based approach to compliance, acknowledging the additional challenges and sensitivities in growth areas such as Canning Bridge.

7) The City should review the enforcement mechanisms available to it to respond to non-compliance with approved construction management plans and traffic management plans. This may include the development of dedicated local laws with provision for the issuing of infringements, notices, orders or offences that may be prosecuted. (see question 14A and 15A)Completed
  • Construction Management Plan Policy reviewed and Complaints Management Procedure and enforcement options have all been completed/actioned.

  • Place-Based Compliance “reset” – to deliver improvements to the way the City manages compliance activities. These improvements include:

    • Restructure undertaken to the Planning Directorate to ensure a consolidated focus on ‘pre-approval’ and ‘post-approval’ planning and compliance related services (Dec 2023).
  • A Construction Management Plan (CMP) internal referral process has been completed as a Compliance Working Group which consists of various members from different departments within the City has been created.

  • A planning condition to be applied when a CMP is required from a development application has been completed and is now being applied when required.

8) The City should complete its review of all ramps within its municipality that may be non-compliant due to the previous misinterpretation of the relevant Australian Standard by the City without delay. The City will also need to provide for any future maintenance plan, for example to ensure signage and footpath markings are maintained over the longer term. (see question 20A)In Progress
  • All ramp sites have been inspected and improvements identified.
  • Implementation of the required improvement actions are underway.
  • The effectiveness of these improvement actions are being monitored.
  • Review of Local Planning Policy 1.6 – Parking and Access (mid 2024) will clarify interpretation of Australian Standards and application of requirements to vehicle ramp gradients and sight lines.
9) The City should advise X of the outcome of his complaints regarding the following matters concerning X:
  • the unauthorised spa and lack of safety barrier around the spa (see question 15B);
  • the stone deck around the pool constructed without a building permit (see question 16B);
  • the non-complying ground levels and fence heights required under planning approvals issued by the City. (see question 12B).
Completed
  • The required responses have been provided to X.
10) The City should take steps to require the outer side of the screen fence at X to be finished to the extent necessary having regard to the proposed construction of a fence by X on X (which may remove the need for some or all of the X screen fence to be finished on the outer side facing X). This may require the City to insist on X and X availing themselves of the processes under the Dividing Fences Act or other legal processes to reach agreement on the way that the screen is to be finished. (see question 14B) Completed
  • A Council resolution provides for owners to be advised of Dividing Fences Act or other legal processes to resolve this matter.
11) If Building and Energy amend its information sheet on works affecting adjoining property, the City should immediately change its practices and require BA20 consent or court order in any circumstances where building work ‘may affect adjoining property’. This should include situations where:
  • half of a duplex is proposed to be demolished (see question 5C); and
  • excavations for basement construction are proposed close to boundaries (see question 22A)
The City should err on the side of requiring BA20 consent so as to encourage transparency and cooperation between adjoining owners.		Completed
12) Consistent with the advice of Building and Energy, the City should require owners that wish to demolish half of a duplex dwelling to apply for a building permit to demolish as well as a building permit in relation to the make good works. (see question 5C).Completed
  • The City acknowledges this advice and ensures that the relevant demolition and building approvals are obtained by the property owner, applicant or builder.
13) The City should review its Compliance and Enforcement Policy to include:

a) commentary on its approach to escalating enforcement action. This might include a policy for escalating the enforcement response where:
  • the conduct of an alleged offender is repetitive or ongoing and giving rise to an unacceptable risk to public safety; and
  • the alleged offender has been educated, requested to comply, issued warnings or notices to comply and has failed to do so without reasonable excuse.
b) a policy on its communication with complainants when enforcement action is taken and where there are appeals or proceedings relating to those actions. The intention is to provide complainants with an opportunity to attend or initiate their own actions if they choose to do so and to leave it up the relevant court or Tribunal to manage the actions of complainants. (see questions 2B, 3B, and 4B)		Completed
  • The Compliance and Enforcement Policy CP-114 was reviewed and amendments adopted by Council on 21 June 2022. See item M22/5916.
  • Reference is made to Officer recommendation and Council Resolution (UP24/31) – Ordinary Council Meeting, 20 February 2024 t
    hat the Council:

  1. ​Request the Chief Executive Officer prepare Compliance Matrices to guide the operational implementation for all compliance related services; and

  2. Request a review of CP-114 - Compliance and Enforcement Policy be undertaken to incorporate the Compliance Matrices; and
  3. Request a briefing at an Elected Member Engagement Session and that the review be completed and presented for consideration no later than the November 2024 Ordinary Meeting of Council.

14) Where a person applies to the City for a BAC for retrospective approval of building work, and where it has been alleged or it is suspected that the subject work may be non-compliant, the City should undertake a substantive review of the application material and conduct its own inspection of the work to confirm the documentation is consistent with as built conditions and the work appears to be compliant with applicable building standards. Where the City does not have the resources, it should engage an independent consultant to undertake the checks of the application material and/or conduct the inspection. Completed

  • It is standard procedure for City officers to review retrospective building approval applications to ensure compliance is achieved.

  • City officers carry out site inspections in response to alleged unauthorised building works and as part of the retrospective building approval application assessments.

15) Where there is a failure to comply with a building permit or demolition permit or applicable building standards during construction and the owner is required to provide a new design or a CDC or CBC (new material), the City should undertake a substantive review of the new material and conduct its own inspections to confirm the non-compliance is remedied. Where the City does not have the resources, it should engage an independent consultant to undertake the checks of the new material and/or conduct the inspection.Completed

  • It is standard procedure for City officers to review retrospective building approval applications to ensure compliance is achieved.

  • City officers carry out site inspections in response to alleged unauthorised building works and as part of the retrospective building approval application assessments.

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The City of Melville acknowledges the Bibbulmun people as the Traditional Owners of the land on which the City stands today and pays its respects to the Whadjuk people, and Elders both past and present.

City of Melville nagolik Bibbulmen Nyungar ally-maga milgebar gardukung naga boordjar-il narnga allidja yugow yeye wer ali kaanya Whadjack Nyungar wer netingar quadja wer burdik.

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