HARRING and CITY OF KALGOORLIE-BOULDER

[2005] WASAT 82

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   HARRING and CITY OF KALGOORLIE-BOULDER [2005] WASAT 82

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   9 APRIL 2005

DELIVERED          :   9 APRIL 2005

FILE NO/S:   CC 40319 of 2004

BETWEEN:   ASTRID HARRING

Applicant

AND

CITY OF KALGOORLIE-BOULDER
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 Astrid Harring ("Applicant") against the requirements of a notice issued by the City of Kalgoorlie-Boulder ("Respondent"), pursuant to section 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 230 (5) Gouge Street, Kalgoorlie.

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 the unauthorised building works (patio) in October 2004.  The respondent advised the applicant that the patio was erected without a building licence on 25 November 2004 and issued a notice to remove the patio on 25 November 2004.

Consideration

1. On 31 November 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  The applicant advised that the patio existed when the property was purchased.  The applicant submitted a building inspection report by Rapallo Consulting & Contracting Engineers dated October 2004.

2. On 22 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. The respondent also advised that the applicant had supplied a certificate of structural adequacy of the patio from a structural engineer, and that it supported the appeal for the patio to remain on site in this instance.

Orders

1. On the basis that all of the respondents concerns have been addressed and it 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 25 November 2004 is 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