MASON and CITY OF WANNEROO

[2005] WASAT 80

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   MASON and CITY OF WANNEROO [2005] WASAT 80

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   9 APRIL 2005

DELIVERED          :   9 APRIL 2005

FILE NO/S:   CC 38228 of 2004

BETWEEN:   JOANNE MASON

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 notice set aside and 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 Joanne Mason (‘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 162 (3) Corkwood Street, Banksia Grove.

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 applicant advised the respondent of the unauthorised building works (patio) following which the respondent issued a notice to remove the works dated 22 November 2004.

Consideration

1. On 25 November 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  In her submissions the applicant advised that a contractor was commissioned to attach a colourbond patio to the dwelling.  The contractor was paid for all of the cost of materials, 50 per cent of the cost of labour, and shire approval.

2. The contractor completed 75 per cent of the patio and left the site, never to return.  The applicant sought copies of the approval from the respondent, and discovered that the contractor had not in fact sought approval prior to constructing the patio.  The applicant has now submitted plans along with a structural engineer’s certification of the structural adequacy of the patio, which was confirmed in a follow‑up inspection, dated 5 November 2005.

3. On 10 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. The respondent also advised, that it had received a structural engineers certification for the patio, and now supported the review and recommended that the Application for Review be upheld.

Orders

1. On the basis that all of the respondents requests have been met 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 22 November 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