HOLL and Ors and City of Wanneroo

[2005] WASAT 76

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   HOLL & ORS and CITY OF WANNEROO [2005] WASAT 76

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   9 APRIL 2005

DELIVERED          :   9 APRIL 2005

FILE NO/S:   CC 36490 of 2004

BETWEEN:   ROBERT FRANZ HOLL

RAYMOND BABB
SUSAN BABB
Applicant

AND

CITY OF WANNEROO
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 notce set aside and 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 Robert Franz Holl and Raymond and Susan Babb ("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 210 (48) Rigali Way, Wangara.

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 had issued a building licence for the construction of five commercial units and discovered the unauthorised building works (mezzanine, staircase and stud walls) during an inspection to ascertain whether the respondent could assign a classification to the building, as required by Section 374C of the Act.

2. Following the inspection the respondent issued a notice dated 29 October 2004 to remove the works.

Considerations

1. On 25 November 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  The applicant advised that the building was constructed in accordance with the plans and specifications approved by the respondent.  During the course of construction, amended plans detailing the proposed mezzanine, staircase and stud walls, were submitted to the respondent for approval.  Once planning approval was granted for the proposed amendments, the applicant assumed that the respondent had consented to the construction of the mezzanine, particularly as the works were internal and didn't compromise the structure of the building.

2. The applicant has submitted copies of the relevant planning approvals granted by the respondent, and the building licence issued by the respondent dated 28 August 2003.  Also submitted is a copy of a structural engineer's certification confirming the structural adequacy of the mezzanine and associated structures.

3. On 2 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 it is willing to support the appeal subject to receiving a satisfactory report from a structural engineer for the unauthorised works. On 11 January 2005, the respondent confirmed receipt of a satisfactory structural engineer's report, and that the respondent supports the appeal.

Orders

1. On the basis that all of the respondents concerns have been addressed I order that:

2. The application for review is upheld; and

3. The decision to issue the notice dated 29 October 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