MCLERIE and CITY OF MELVILLE
[2016] WASAT 4
•1 FEBRUARY 2016
MCLERIE and CITY OF MELVILLE [2016] WASAT 4
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 4 | |
| BUILDING ACT 2011 (WA) | |||
| Case No: | CC:1097/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS L EDDY (MEMBER) | 29/01/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time refused Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK MCLERIE CITY OF MELVILLE |
Catchwords: | Building Act 2011 (WA) Alleged decision to amend condition of building permit Application for review Out of time No relevant decisions exist Turns on own facts |
Legislation: | Building Act 2011 (WA), s 27(3), s 119(c) Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 6(1) State Administrative Tribunal Act 2004 (WA), s 47 State Administrative Tribunal Rules 2004 (WA), r 10 |
Case References: | Nil |
Orders | 1. The application for an extension of time within which to lodge an application for review pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) is refused.,2. The application for review of the purported decision in relation to an application to store building materials is dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) on the basis it is misconceived and lacking in substance. |
Summary | The application for an extension of time within which to apply for review of what was alleged to be two decisions of the respondent in relation to an existing building permit was refused. The Tribunal found that the matters relied upon by the applicant were not relevant decisions that gave rise to any right of review in the Tribunal. On this basis the Tribunal determined that there was no basis to grant the application to extend time. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING ACT 2011 (WA) CITATION : MCLERIE and CITY OF MELVILLE [2016] WASAT 4 MEMBER : MS L EDDY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 FEBRUARY 2016 FILE NO/S : CC 1097 of 2015 BETWEEN : MARK MCLERIE
- Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords:
Building Act 2011 (WA) Alleged decision to amend condition of building permit Application for review Out of time No relevant decisions exist Turns on own facts
Legislation:
Building Act 2011 (WA), s 27(3), s 119(c)
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 6(1)
State Administrative Tribunal Act 2004 (WA), s 47
State Administrative Tribunal Rules 2004 (WA), r 10
Result:
Application for extension of time refused
Application for review dismissed
Summary of Tribunal's decision:
The application for an extension of time within which to apply for review of what was alleged to be two decisions of the respondent in relation to an existing building permit was refused. The Tribunal found that the matters relied upon by the applicant were not relevant decisions that gave rise to any right of review in the Tribunal. On this basis the Tribunal determined that there was no basis to grant the application to extend time.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 This matter comes before the Tribunal by way of an application made pursuant to s 119(c) of the Building Act 2011 (WA) (Building Act) for review of a condition of a building or demolition permit added or varied under s 27(3) of the Building Act. The application for review was lodged on 16 July 2015.
2 The application for review states that the decisions sought to be reviewed are:
1. Extend the time period for lodging the complaint, if it is deemed that the City's decision was given more than 28 days beyond the application.
2. Grant permission to continue to store building material on the verge in front o [sic] 12 Beach Street Bicton on [sic] accordance with Building permit BA-2012-2477 [sic] condition 8 (storage decision).
3. Set aside the City's 9 April decision to revoke building approval for the Patio Structure on the eastern side of the property up to the boundary as shown on BA-2477-2012 [sic] plans (patio structure decision).
3 The storage decision is said by the applicant to have been made on 15 July 2015. The patio structure decision is said by the applicant to have been made on 9 April 2015.
4 At the first directions hearing, the Tribunal ordered that the applicant's application for an extension of time within which to seek review, pursuant to r 10 of the State Administrative Rules 2004 (WA), is to be determined as a preliminary issue to be decided solely on the documents. Provision was made for the applicant and respondent to file submissions and provide any documents relevant to that preliminary issue. In compliance with the orders, the applicant lodged his submissions and a bundle of documents with the Tribunal on 16 September 2015. The respondent lodged its submissions and four attached documents on 14 October 2015. The applicant provided his submissions in response to the respondent's submissions and a further bundle of documents on 28 October 2015.
5 Although the orders did not contemplate any other material being provided to the Tribunal, the applicant also lodged, on 9 November 2015, a copy of email correspondence between the applicant and officers of the respondent with some attached documents. On 10 January 2016 the applicant lodged with the Tribunal a 'supplementary submission request to amend application'. The Tribunal reviewed these documents in order to determine if there was anything contained therein that would affect the decision the Tribunal has reached in relation to the preliminary issue. The Tribunal has determined that they do not. As such, no further regard was had to those documents.
Background
6 The applicant, Mr Mark McLerie, owns property at No 12 Beach Street, Bicton. In 2012, the applicant's builder obtained a building permit (No BA2011-2477) to build a 'two-storey dwelling with undercroft' at the applicant's property. The copy of that permit provided by the applicant has attached to it five plans of the proposed dwelling. The applicant submits that these plans show a patio structure between the dwelling and one of the side boundaries and therefore the building permit includes the patio structure.
7 The building permit is specified to be subject to a number of conditions, including condition 8, which states:
No person shall store or allow being stored on any road verge reserve or right of way within the City of Melville, site sheds or site toilets without the prior written permission of the Principal Building Surveyor.
8 An amended building permit (No BA-2011-2477/A) was issued on 27 October 2014 and was subject to the same conditions as the original building permit.
9 Building work commenced at the applicant's property pursuant to the building permit but has not yet been completed.
Patio structure decision
10 Of the two matters identified in the application for review, it is the patio structure decision that is identified by the applicant as having occurred more than 28 days prior to the lodging of the application for review. As this is the matter for which an extension of time within which to lodge the application is required, I turn to this matter first.
11 Apparently, in March 2015, Mr Russel, for the respondent, advised the applicant that he did not believe that there was a building permit that allowed construction of a patio roof structure at the applicant's property. The applicant forwarded a copy of the plans attached to building permit No BA20112477 and requested, in effect, that the respondent confirm that the patio structure was covered by that building permit. By letter dated 9 April 2015, Mr Hitchcock, for the respondent, advised the applicant that planning approval had been given for the construction of a patio and parapet wholly contained within the applicant's lot but a search of the records of the City of Melville (City or respondent) failed to find any building approval for such a structure. The applicant alleged in response that the respondent had made a decision to revoke the building approval for the patio structure. In an email dated 17 July 2015, Mr Hitchcock stated:
The City has not issued a building permit, nor altered or withdrawn a building permit, in respect of the patio, as alleged by you. You would need to apply for the relevant permit which application will be assessed on its merits on receipt thereof.
12 In its submission, the respondent says that the plans attached to building permit No BA-2011-2477 do not indicate detail for the construction of a patio. It is implicit in the respondent's submissions that it takes the view that building permits No BA-2011-2477 and No BA2011-2477/A do not authorise the construction of the patio structure. The respondent says that no building permit for the construction of the patio structure has been applied for and therefore no decision has been made as to whether or not to grant such a permit.
13 The applicant asserts that the letter sent on behalf of the respondent on 9 April 2015, and possibly also the email of 17 July 2015, convey a decision made by the respondent to revoke, or to vary a condition of, building approval for the patio structure. The applicant's argument is misconceived. Both communications sent on behalf of the respondent are plainly intended to advise the applicant of the respondent's position in relation to whether the respondent had ever given approval, by way of a building permit, for the construction of the patio structure on the respondent's property. There is, plainly, a dispute of fact between the applicant and the respondent as to whether the building permit No BA2011-2477 (and subsequently permit No BA-2011-2477/A) includes, and thereby authorises, the building of the patio structure. There is also a dispute as to whether or not the applicant (or his builder) has ever applied for a building permit in relation to the patio structure. However, the existence of these disputes does not change the character of the communications relied upon by the applicant in his application for review.
14 In his submissions, the applicant has correctly identified that in considering an application for an extension of time within which to lodge an application for review in the Tribunal it is relevant to take into account the length of the delay, the reason(s) for delay, any prejudice that would be caused to the respondent and whether the applicant has an arguable case.
15 In this matter, the Tribunal is satisfied that the applicant has no arguable case in relation to the application for review of the purported decision of the respondent to revoke or vary building permit No BA20112477 (or No BA-2011-2477/A) in relation to the patio structure. For that reason alone, the Tribunal is satisfied that the application for an extension of time with respect to this aspect of the application should not be granted.
16 It is noted that in terms of the applicant's underlying position, there is no prejudice to his position by refusing to allow the requested extension of time. If the applicant is correct and the respondent has already granted a building permit in relation to the patio structure, that position would not be affected by anything that this Tribunal can do in a review under s 119(c) of the Building Act. If the respondent is correct and no building permit for the patio structure has ever been applied for, given that planning approval exists, the applicant may now apply for the relevant building permit and, if that application is unsuccessful, he would have a right of review in the Tribunal.
Storage decision
17 On 25 May 2015 the applicant sent a letter to the respondent's Building Compliance Officer requesting that the respondent grant permission for him to 'continue to use the 12 Beach St verge to store our building material and allow us to erect appropriate safety barriers until we have completed all the building work'. The applicant says that this letter and subsequent communications made it clear that he had applied for permission to store building materials on the verge as contemplated by condition 8 of the building permit. On 15 July 2015 the applicant was served with a prosecution notice alleging breach of reg 6(1) of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) by obstructing a public thoroughfare without lawful authority. The applicant submits that the prosecution notice was notice to him of the respondent's storage decision. He further contends that this decision was in fact a decision to amend the permit by revoking condition 8 of the permit.
18 On 21 July 2015 the applicant's builder sent an email request to the respondent for permission to store building materials and equipment on the verge at 12 Beach Street, Bicton. By email dated 3 August 2015, the builder was advised that such an application should be made on a 'BA02 form, with a site plan showing the part of the verge (in square metres), with a time period in months, written justification why you need to store material on the verge … show a 2.0 metre clearance from the road, crossovers, and street trees of 1.5 metres clearance'. It also advised of the fees involved. This information was forwarded to the applicant by the builder on the same day. It is not clear why the respondent did not advise the applicant of the same information when the applicant raised the same issue in his letter of 25 May 2015; however, nothing turns on this.
19 The respondent says that no application for a building permit to store materials on the verge at 12 Beach St, Bicton has been received by the City. It submits that it is willing to consider any application for storing materials on the verge if an application in the appropriate form is received. The applicant does not allege that he, or anyone on his behalf, has submitted an application in the form required by the respondent or provided the accompanying information required. The Tribunal is not satisfied that a completed application, containing the required information in support and payment of any necessary fees, has been made by or on behalf of the applicant.
20 As stated above, the application for review of the storage decision relies on the serving of the prosecution notice on the applicant as notice of the 'decision'. The application for review was lodged on the following day. Although no question of extension of time to apply for review arises in relation to the storage decision, it is clear that the application for review is misconceived. The prosecution notice is not a decision to grant or refuse to grant an application for permission to store materials on the verge; nor is it a decision to amend an existing building permit. There does not exist any relevant decision that could be the subject of the application for review.
21 In the circumstances, the Tribunal is satisfied that the application, insofar as it relates to review of the storage decision, is misconceived and lacking in substance and should be dismissed. Although the orders of the Tribunal in relation to the preliminary issue do not expressly refer to the question of whether the application with respect to the storage decision should be dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA), the Tribunal is satisfied that no procedural fairness issue arises. The submissions of both parties fully canvas the storage decision.
Orders
22 The Tribunal orders:
1. The application for an extension of time within which to lodge an application for review pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) is refused.
2. The application for review of the purported decision in relation to an application to store building materials is dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) on the basis it is misconceived and lacking in substance.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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