GALLON and CITY OF SWAN

[2005] WASAT 92

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   GALLON and CITY OF SWAN [2005] WASAT 92

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   11 APRIL 2005

DELIVERED          :   11 APRIL 2005

FILE NO/S:   CC 26911 of 2004

BETWEEN:   RUSSELL JAMES GALLON

Applicant

AND

CITY OF SWAN
Respondent

Catchwords:

Building work - Local Government - Section 401 Notice

Legislation:

Local Govenment (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 Russell Gallon ("Applicant") against the requirements of a notice issued by the City of Swan ("Respondent"), pursuant to section 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 3 (69) Bishop Road, Middle Swan.

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 apparent 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 works (modifications to an existing dwelling and large shed) during a routine inspection.

2. The respondent issued a notice to remove the building works on 6 August 2004.

Consideration

1. On 18 August 2004 the applicant submitted an application for review to the Minister of Housing and Works. In his submission the applicant advised that the existing residence required upgrading for reasons of safety and appearance. The applicant submitted; photographs of the completed works, structural engineer certified design plans for the works, the engineer’s report on the structural adequacy of works an energy efficiency assessment as required by the Building Code of Australia and property title details.

2. On 16 September 2004 the respondent advised that it required that the building work, the subject of the notice, be inspected by an independent qualified building surveyor to determine and report on the compliance of the unauthorised works with the Building Code of Australia and the Residential Design Codes of Western Australia. The respondent also advised that the building works did not require planning approval, as they were exempt under the Council’s Town Planning Scheme and local laws. The respondent confirmed that the applicant had submitted structural engineer certified design plans for the works.

3. On 25 January 2005 the respondent confirmed it was satisfied with the structural engineer’s report by Vladich Consulting Structural Engineers, dated 23 August 2004, and a building inspection report by Ray Scarce and Associates dated 26 October 2004.  The respondent further advised that the applicant needed to ensure that all subsequent works carried out would be in accordance with the structural engineer’s report.

Orders

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

2. The application for review is upheld on the condition that a certification by Vladich Consulting Structural Engineers that the completed works comply with its report dated 23 August 2004 is submitted to the respondent; and

3. The decision to issue the notice dated 6 August 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