KAVANAGH and CITY OF MELVILLE
[2005] WASAT 78
•15 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT
(MISCELLANEOUS PROVISIONS) ACT 1960
CITATION: KAVANAGH and CITY OF MELVILLE [2005] WASAT 78
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 14 APRIL
DELIVERED : 15 APRIL 2005
FILE NO/S: CC 8769 of 2004
BETWEEN: ASHLEY KAVANAGH
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 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
An application for review was lodged by Ashley Kavanagh ("Applicant") against the requirements of a notice issued by the City of Melville ("Respondent"), pursuant to section 401(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 148 (1) Fielder Court, Kardinya.
Jurisdiction
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.
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
The applicant commissioned a tradesman to construct building work (a shade area being a timber and shade cloth structure), which was subsequently completed by November 2000. The tradesman advised the applicant that the structure did not require council approval.
The respondent became aware of the unauthorised works during a pre-licence application inspection for a proposed gazebo. The respondent then decided to issue a notice to remove the building works on 11 February 2004.
Considerations
On 8 March 2004 the applicant submitted an Application for Review to the Minister of Housing and Works. In that submission, the applicant stated that two independent tradesmen advised him that the shade area did not require council approval. The applicant further advised that his neighbours were of the opinion that the shade structure aesthetically enhances the residence and hence the neighbourhood. The applicant also provided a site plan, locating the shade area on the allotment, and photograph of the shade area.
On 13 April 2004 the respondent advised that the building work, the subject of the notice, did not contravene the Building Code of Australia, but did not comply with the requirements of its Town Planning Scheme and required formal planning approval, based on a variation to the setback requirements prescribed in the Residential Design Codes.
On 15 March 2005 the respondent confirmed that it had issued a retrospective planning approval for the structure, and requested that the application for review be finalised.
Orders
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:
The application for review is upheld; and
The decision to issue a notice by the City of Melville dated 11 February 2004 is set aside and that the notice is revoked.
I certify that this and the preceding three pages comprise the reasons for decision of the Tribunal.
______________________________
M Spillane
Member
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