FERGUSON and CITY OF WANNEROO

[2005] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   FERGUSON and CITY OF WANNEROO [2005] WASAT 91

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   8 APRIL 2005

DELIVERED          :   8 APRIL 2005

FILE NO/S:   CC 498 of 2005

BETWEEN:   IAN BROWN FERGUSON

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 Administrative Tribunal Act 2004, s 60

Result:

Application for review upheld; Decision to issue notice 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 Ian Brown Ferguson ("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 652 (38) Accra Way, Quinns Rocks.

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 Respondent became aware of unauthorised building work, namely a limestone retaining wall, during a site inspection following which a Section 401 notice to remove the limestone retaining wall was issued on 9 December 2004.

Consideration

1. On 29 December 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  The applicant advised that a request for a building licence for a retaining wall, along with all necessary fees, had been submitted to the respondent for approval prior to the commencement of the wall.  The request included all plans and specifications, together with a structural engineer’s design.

2. However, time constraints relating to the construction of the proposed dwelling on the site, necessitated that the retaining wall was in place before the builder could commence construction of the dwelling.  As a consequence, the wall was constructed before the respondent approved the plans and specifications and issued the necessary building licence.

3. On 11 January 2005 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 it supported the appeal as the works had been carried out in accordance with the engineer’s specifications.

Orders

1. On the basis that all 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 9 December 2004 is set aside and the notice is revoked.

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

   ______________________________

   M Spillane

   Member