STIPINOVIC and CITY OF MELVILLE

[2005] WASAT 89

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   STIPINOVIC and CITY OF MELVILLE [2005] WASAT 89

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   15 APRIL 2005

DELIVERED          :   18 APRIL 2005

FILE NO/S:   CC 32205 of 2004

BETWEEN:   MATE MIRO STIPINOVIC

Applicant

AND

CITY OF MELVILLE
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:     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 Mate Miro Stipinovic ('Applicant') against the requirements of a notice issued by the City of Melville ('Respondent'), pursuant to section 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 ('Act'), with respect to building work at Lot 702 (38) Central Avenue, Ardross.

Jurisdiction

1. Prior to January 1 2005, applications for review under Part XV of the Act were submitted to the Minister for Housing and Works prior to 1 January 2005. 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. An application for building licence to construct a metal patio was lodged with the respondent.  During a general inspection, by the respondent, it was revealed that metal patio, had already been erected.

2. The respondent subsequently decided to issue a notice to remove the metal patio on 7 September 2004.

Consideration

1. On 1 October 2004 the applicant submitted an Application for Review to the Minister of Housing and Works.  In that submission the applicant advised that builder assigned to erect the patio was responsible for obtaining the necessary respondent's approval.

2. The applicant further advised that the patio had been constructed in accordance with the necessary structural design, and, in the applicant's opinion, complied with necessary planning requirements.  The applicant provided copies of photographs of the patio; detailed construction drawings; and a site plan, which was signed by the adjoining owners as not objecting to the proposed patio.

3. On 28 October 2004 the respondent advised that the building work, the subject of the notice, appeared to comply with the requirements of the Building Code of Australia, however, formal planning approval was required to allow a boundary setback variation in accordance with the Residential Planning Codes. The respondent further advised that it had written to the applicant outlining the statutory requirements associated with the patio.

4. By letter of 22 February 2005 the respondent advised that the applicant had provided outstanding information, which satisfied the respondent's requirements.  The respondent requested that the application for review be finalised.

Orders

1. On the basis that all of the respondent's concerns have been addressed and the respondent has no objection to the matter being finalised, I order that:

   1.The application for review is upheld; and

   2.The decision to issue the notice dated 7 September 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