SMITH and CITY OF WANNEROO

[2005] WASAT 73

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT:   LOCAL GOVERNMENT

(MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   SMITH and CITY OF WANNEROO [2005] WASAT 73

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   14 APRIL 2005

DELIVERED          :   14 APRIL 2005

FILE NO/S:   CC 41988 of 2004

BETWEEN:   RONALD THOMAS SMITH

Applicant

AND

CITY OF WANNEROO
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 Ronald Thomas Smith ("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 6 (22) Tapping Way, Quinns Rocks.

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. At the time the applicant purchased the property the unauthorised works (pergola and spa) were already constructed.  The previous owners had assumed that the contractor assigned to erect the pergola had taken care of any building permits required.

2. The respondent became aware of the unauthorised works during a pre-licence application inspection (lodged by the new owners with the respondent on 12 October 2004) for the pergola and spa, When it discovered that the structure had already been constructed the respondent issued a notice to the new owners to remove the building works dated 16 November 2004.  Subsequently the application for building licence was refused as the work had already been completed.

Considerations

1. On 20 December 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  In that submission the applicant included: 'as constructed' plans of the pergola and spa drafted by a building designer; and an inspection report from a building consultant on the pergola which provided qualified observation that the pergola was structurally acceptable.

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. The respondent further advised that it would support the application for review if the applicant provides structural engineers details and favourable neighbours comments, for the pergola.

3. On 30 March 2005 the respondent confirmed that favourable adjoining owners comments had been received and on 12 April 2005 confirmed that it had received, and was satisfied with, a copy of an engineer's report on the unauthorised works.

Orders

1. On the basis that the respondent has no further objection to the building work, and now supports the application for review, I order that:

2. The application for review is upheld; and

3. The decision to issue a notice dated 16 November 2004 is set aside and that the notice is revoked.

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

   ______________________________

   M Spillane

   Member