MASTAGLIA and CITY OF COCKBURN

In Mastaglia and City of Cockburn, the applicants, Daniel and Sindy Mastaglia, sought a review of a written direction issued by the City of Cockburn, which alleged that they had undertaken unauthorised development in the form of a three-storey single dwelling in contravention of the City of Cockburn Town Planning Scheme No 3. The City of Cockburn argued that the unfinished wall on the eastern common boundary of the property constituted unauthorised development requiring approval under the planning scheme. The preliminary issue before the State Administrative Tribunal was whether the dwelling constituted development that required approval under the planning scheme. The Tribunal found that the dwelling did not require development approval under the planning scheme at the time it was constructed, and therefore, there was no unauthorised development to which the direction could properly address. The Tribunal concluded that the City of Cockburn had no jurisdiction to issue the direction, and the proceeding in DR 109 of 2021 was inutile because the Tribunal lacked jurisdiction on the basis that no approval for the dwelling under the planning scheme was required. The Tribunal ordered a directions hearing to determine the necessary orders to give effect to these reasons.