SOUTI and Anor and Shire of Mundaring

[2005] WASAT 75

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   SOUTI & ANOR and SHIRE OF MUNDARING [2005] WASAT 75

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   9 APRIL 2005

DELIVERED          :   9 APRIL 2005

FILE NO/S:   CC 28572 of 2004

BETWEEN:   JOBI SOUTI

GALINA SOUTI
Applicant

AND

SHIRE OF MUNDARING
Respondent

Catchwords:

Building work - Local Government - 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:    

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 Joby and Galina Souti (‘Applicant’) against the requirements of a notice issued by the Shire of Mundaring (‘Respondent’), pursuant to section 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 51 (12) National Park Road, Swan View.

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 on 4 November 2003 that unauthorised works (re-roofing of dwelling) had been carried out.

2. The respondent issued a notice to remove the roof frame and two attached patios on 29 July 2004.

Considerations

1. On 30 August 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  In the submission the applicant advised that it did not know that re-roofing a dwelling required the Shire’s approval.  The applicant submitted a structural engineer’s certification dated 11 June 2004 confirming the structural adequacy of the roof-frame.  Also submitted was a building inspection report dated 10 October 2001, in respect of the dwelling and associated buildings, commissioned by the applicant prior to purchasing the property.

2. On 22 September 2004 the Shire advised that the building work, the subject of the notice, did not comply with Parts 3.11 and 3.8.2 of the Building Code of Australia (BCA). The Shire also advised that the patios contravened the Shire’s Town Planning Scheme, however, the Shire had received an application for retrospective planning approval.

3. On 22 November 2004 the Shire advised that it was satisfied that the unauthorised works now complied with the requirements of the BCA and referred to further certification from a structural engineer dated 15 November 2004.  On 14 January 2005, the Shire confirmed that retrospective planning approval had been granted.

Orders

1. On the basis that all of the respondents concerns have been addressed I order that:

2. The application for review is upheld; and

3. The decision to issue the notice dated 29 July 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