LUSH and CITY OF WANNEROO

[2005] WASAT 96

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   LUSH and CITY OF WANNEROO [2005] WASAT 96

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   8 APRIL 2005

DELIVERED          :   8 APRIL 2005

FILE NO/S:   CC 41420 of 2004

BETWEEN:   IAN CLIFFORD LUSH

Applicant

AND

CITY OF WANNEROO
Respondent

Catchwords:

Building work - Local Government - Section 401 Notice

Legislation:

Local Government (Miscellaneous Provisions) Act 1960, 401(1)(b)

State Administrative Tribunal Act 2004, s 60

Result:

Application for review upheld; Decision to issue the 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 Ian Lush ("Applicant") against the requirements of a Notice issued by the City of Wanneroo ("Respondent"), pursuant to section 401(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work which it was alleged departed from plans approved by the respondent in respect of Lot 1300 (7) Honiara Way, Mindarie.

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. During a site inspection the respondent became aware that the building works departed from the approved plans. The respondent issued a notice, dated 29 November 2004 pursuant to Section 401(1)(b) of the Act, to remove the works, or carry out remedial works necessary to ensure compliance with the approved plans.

Consideration

1. On 19 December 2004 the applicant filed an Application for Review with the Minister of Housing and Works. The applicant confirmed that the works (a multi-unit residential development) did depart from the approved plans. Variations included the relocation of storerooms, alterations to kitchens and extensions to studies. The applicant further advised that the respondent had granted retrospective planning approval for the variations on 15 December 2004, and that the works complied with the relevant provisions of the Building Code of Australia.

2. On 5 January 2005 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. They also confirmed that Council had granted a retrospective development approval for the building work, and that the respondent now supported the application for review.

Orders

1. On the basis that the respondent’s concerns have been addressed and the respondent 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 29 November 2004 is set aside and the notice revoked.

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

   _______________________

   M Spillane

   Member