KINGSMITH and CITY OF MELVILLE

[2005] WASAT 74

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   KINGSMITH and CITY OF MELVILLE [2005] WASAT 74

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   11 APRIL 2005

DELIVERED          :   11 APRIL 2005

FILE NO/S:   CC 41877 of 2004

BETWEEN:   DOROTHY NICOLA KINGSMITH

Applicant

AND

CITY OF MELVILLE
Respondent

Catchwords:

Building works - 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 the 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 Dorothy Nicola Kingsmith ("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 ('Act'), with respect to building work at Lot 20 (69) Foss Street, Bicton.

Jurisdiction

1. Prior to 1 January 2005, applications for review under Part XV of the Act were submitted to the Minister for Housing and Works prior to 1 January 2005. 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. It was alleged that alterations and additions had been constructed without the required permission, pursuant to Section 374 of the Act. Those alterations and additions were associated with a dwelling at the above-mentioned property, and are listed in a schedule attached to the notice dated 1 December 2004.

2. The applicant submitted an Application for Review to the Minister for Housing and Works on 24 December 2004.

Consideration

1. The applicant did not submit any supporting documentation with her application, however, on 12 January 2005 the respondent confirmed that the additions and alterations, which were the subject of the notice, appeared to be in compliance with the Building Code of Australia, the respondent's Community Planning Scheme No 5 and local laws. The respondent also confirmed that the applicant had been requested to provide confirmation that the works were structurally sound.

2. By letter of 27 January 2005 the respondent advised that the applicant had provided a report from a structural engineer, and that in the circumstances, the respondent had no objection to the applicant's review being finalised.

Orders

1. On the basis that all of the respondents concerns have been addressed and the respondent has no further objection to the matter being finalised, I order that:

2. The application for review is upheld; and

3. The decision to issue the notice dated 1 December 2004 is set aside and the notice revoked.

   I certify that this and the preceding page comprise the reasons for decision of the Tribunal.

   ______________________

   M Spillane

   Member