KARABATICH and CITY OF MELVILLE

[2005] WASAT 88

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   KARABATICH and CITY OF MELVILLE [2005] WASAT 88

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   14 APRIL 2005

DELIVERED          :   18 APRIL 2005

FILE NO/S:   CC 26613 of 2004

BETWEEN:   DENES IVAN KARABATICH

Applicant

AND

CITY OF MELVILLE
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 a 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 Denes Ivan Karabatich ("Applicant") against the requirements of a notice issued by the City of Melville ("Respondent"), pursuant to section 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 439 (50) Whitfeld Terrace, Winthrop.

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. An application for building work (alterations and sunroom) was lodged with the respondent on 16 March 2001.  The respondent advised the applicant that a building licence would be issued for the proposed works subject to the respondent receiving a Home Indemnity Insurance Certificate.  The applicant then constructed the building works.

2. The respondent became aware of the unauthorised works during a scheduled site audit with the applicant on 17 May 2004.  The respondent then decided to issue a notice to remove the building works on 8 July 2004.

Consideration

1. On 27 July 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  In that submission, the applicant advised that a misunderstanding resulted as to who picked up the building licence when the respondent advised that the building licence would be issued upon receipt of the necessary insurance certificate.  The applicant further advised that the building work was minor in nature and valued at $10 ,000.  The applicant also provided a breakdown of the materials used relative to the works completed.

2. On 13 April 2004 the respondent advised that the building work, the subject of the notice, did not appear to contravene the Building Code of Australia, and did not contravene the requirements of its Town Planning Scheme. The respondent further advised that additional information was required, in the form of an inspection report and a structural engineer's certificate.

3. On 3 November 2004 the respondent confirmed that outstanding information had been provided, to the satisfaction of the respondent, and it requested that the application for review be finalised.

Orders

1. On the basis that the respondent has no objection to the building work, and that the respondent requested that the application for review is finalised, I order that:

   1.The application for review is upheld; and

   2.The decision to issue a notice by the City of Melville dated 8 July 2004 is set aside and that the notice is revoked.

   I certify that this and the preceding [2] pages comprise the reasons for decision of the Tribunal.

   ______________________________

   M Spillane

   Member