DYSON and CITY OF WANNEROO

[2005] WASAT 94

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   DYSON and CITY OF WANNEROO [2005] WASAT 94

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   8 APRIL 2005

DELIVERED          :   8 APRIL 2005

FILE NO/S:   CC 40093 of 2004

BETWEEN:   MARK DYSON

Applicant

AND

CITY OF WANNEROO
Respondent

Catchwords:

Building work - Local Government - Section 401 Notice

Legislation:

Local Government (Miscellaneous Provisions) Act 1960, 401(1)(c)

State Administration Tribunal Act 2004, s 60

Result:

Application for review upheld; Decision to issue the notice is set aside and the 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 Mark Dyson ("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 524 (22) Meadowbank Way, 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 advised the respondent of the unauthorised building works (construction of a concrete in-ground swimming pool) in November 2004 and submitted a structural engineer’s certification for the design and construction of the swimming pool.

2. The respondent issued a notice dated 16 November 2004 pursuant to Section 401(1)(c) of the Act, to remove the building works.

Consideration

1. On 24 November 2004 the applicant submitted an Application for Review of that decision to the Minister of Housing and Works.  In that submission the applicant advised that an application had been made to the respondent for approval to construct the concrete in-ground swimming pool.  However, a misunderstanding arose after the respondent requested a structural engineer's certification for the design of the swimming pool. The applicant commissioned the necessary design certification from Structerre Consulting Engineers and then proceeded to commence construction.  It was only when the respondent wrote to the applicant on 4 November 2004, advising that the application for a building licence would be cancelled unless the engineer's design certification was forwarded to the respondent, that the applicant realised that the certification had not been submitted.

2. The applicant has since submitted copies of the design certification for the swimming pool dated 29 September 2004, and also certification from the same engineer confirming the adequacy of construction dated 6 December 2004.

3. On 21 December 2004 the respondent advised that the building work, the subject of the notice, did not contravene the Building Code of Australia, or the Council’s Town Planning Scheme and local laws and that following receipt of the engineers certification, the respondent now supported the application for review.

Orders

1. On the basis that all of the respondent’s concerns have been addressed and the respondent now supports the application for review, I order that:

2. The application for review is upheld; and

3. The decision to issue the notice dated 16 November 2004 is set aside and the notice revoked.

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

   ______________________________

   M Spillane

   Member