ELDER and TOWN OF VINCENT

[2005] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   ELDER and TOWN OF VINCENT [2005] WASAT 79

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   8 APRIL 2005

DELIVERED          :   8 APRIL 2005

FILE NO/S:   CC 41375 of 2004

BETWEEN:   JAMES GILLESPIE ELDER

Applicant

AND

TOWN OF VINCENT
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 the notice set aside and the notice revoked

Category:    B

Representation:

Counsel:

Applicant:     Self Represented

Respondent:     Self Represented

Solicitors:

Applicant:    

Respondent:    

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 James Elder ("Applicant") against the requirements of a notice issued by the Town of Vincent ("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 (86) Bourke Street, Leederville.

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. When the respondent became aware of the building works (two patio/awning structures) it advised the applicant on 8 November 2004 that it had no record of a building licence having been issued for the building work. The respondent subsequently issued a notice dated 6 December 2004 pursuant to Section 401(1)(c) of the Act, to remove the building works.

Considerations

1. On 21 December 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  The applicant advised that the two patio/awning structures were built to replace a structurally unsound pergola.  The applicant further advised that the patio/awning structures were small, structurally sound and posed no impact on neighbours and he had been unaware that the structures required council approval.

2. On 20 January 2005 the respondent advised that the building work, the subject of the notice did not require planning approval, did not contravene the Building Code of Australia, and complied with the Respondent's Town Planning Scheme and local laws.

3. The respondent also commented that if the applicant had made application for a building licence prior to commencing the work, the respondent may have issued a building licence subject to appropriate conditions and compliance with relevant building standards.  Furthermore, photographs of the works demonstrate that what has been constructed is far smaller and less intrusive than what was there previously.

Orders

1. On the basis that all of the respondent's concerns have now been addressed I order that:

2. The application for review is upheld; and

3. The decision to issue the notice dated 6 December 2004 be set aside and the notice revoked.

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

   ______________________________

   M Spillane

   Member