BIENIAWSKI and CITY OF WANNEROO

[2005] WASAT 95

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   BIENIAWSKI and CITY OF WANNEROO [2005] WASAT 95

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   11 APRIL 2005

DELIVERED          :   13 APRIL 2005

FILE NO/S:   CC 38419 of 2004

BETWEEN:   J BIENIAWSKI

Applicant

AND

CITY OF WANNEROO
Respondent

Catchwords:

Building work - Local Government - Section 401 Notice

Legislation:

Local Government (Miscellaneous Provisions) Act 1960

State Administrative Tribunal Act 2004

Result:

Application for review upheld; Decision to issue notice set aside and notice revoked

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Self-represented

Solicitors:

Applicant:     Self-represented

Respondent:     Self-represented

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

MR M SPILLANE (MEMBER):

REASONS FOR DECISION

Application

1. An application for review was lodged by J Bieniawski ("Applicant") against the requirements of a notice issued by the City of Wanneroo ("Respondent"), pursuant to section 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 1 (6A) Woolmers Loop, Landsdale.

Jurisdiction

1. Prior to 1 January 2005, applications for review under Pt XV of the Act were submitted to the Minister for Housing and Works.  On the coming into force of the State Administrative Tribunal Act 2004, jurisdiction for handling those reviews passed to the State Administrative Tribunal ("SAT") and by order of the President of SAT dated 9 February 2005, all applications before the Minister but not determined as of 1 January 2005 were transferred to SAT.  This application was one of those transferred.

2. Furthermore, having considered the matter, I believe that pursuant to Section 60 of the State Administrative Tribunal Act 2004, it is appropriate in this case that the matter be decided on the papers without the need for a hearing.

Facts

1. The applicant purchased the property on the condition that the previous owners sought approval from the respondent for the unauthorised building works (patio) prior to settlement.

2. The respondent advised the applicant that it could not issue a retrospective building licence for the works and subsequently issued a notice to remove the building works on 22 November 2004.

Consideration

1. On 26 November 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  In that submission the applicant advised that the property was purchased on the condition that the previous owners obtain the respondent’s approval prior to settlement.  The applicant further advised that a structural engineer had reported that the patio was structurally sound.  A copy of the report and a copy of a photograph of the patio were included in the applicant’s submission.

2. On 21 December 2004 the respondent advised that the building work, the subject of the notice, did not contravene the Building Code of Australia, the Council’s Town Planning Scheme or local laws and that a practicing structural engineer found the patio to be fit for purpose. The respondent further advised that it now supported the application for review.

Orders

1. On the basis that the respondent has now no objection to the building work, and now supports the application for review, I order that:

2. The application for review is upheld; and

3. The decision to issue a notice by the City of Wanneroo dated 22 November 2004 is set aside and that the notice is revoked.

   I certify that this and the preceding four pages comprise the reasons for decision of the Tribunal.

   ______________________________

   M Spillane

   Member