WEBB and CITY OF STIRLING

[2005] WASAT 87

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   WEBB and CITY OF STIRLING [2005] WASAT 87

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   9 APRIL 2005

DELIVERED          :   9 APRIL 2005

FILE NO/S:   CC 1091 of 2002

BETWEEN:   PETER WEBB

Applicant

AND

CITY OF STIRLING
Respondent

Catchwords:

Building work - Local Government - Section 401 Notice

Legislation:

Local Government (Miscellaneous Provisions) Act 1960

State Administrative Tribunal Act 2004

Result:

Application for review upheld
Notice set aside

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 Peter Webb ("Applicant") against the requirements of a notice issued by the City of Stirling ("Respondent"), pursuant to section 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 26968 (55) Alexander Drive, Menora.

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 constructed pergolas and patios within the rear courtyards of several of the units within the Roy Collins Village – Masonic homes for the Aged, without obtaining the necessary approvals from the respondent.

2. The respondent issued a notice to remove the building works on 4 June 2002.

Consideration

1. On 10 July 2002 the applicant submitted an application for review to the Minister of Local Government.  In the submission the applicant advised that upon learning of the respondent's objection, acceptable structural details were provided to the respondent.  The applicant advised that all the structures, except for the patio in the rear courtyard of Unit 8, complied with the respondent's requirements.  The applicant accepts that constructing the pergolas and patios was incorrect, and that the respondent was not able to issue a retrospective approval, and as a matter of course the respondent issued a notice.

2. On 26 July 2002 the respondent advised that generally the building work, the subject of the notice, did not contravene the Building Code of Australia (BCA), except the patio in the rear courtyard of Unit 8 did not comply with Part 3.7.1.7(c) of the BCA. The respondent further advised that the works did not contravene its Town Planning Scheme or any local law. The respondent required that the applicant submit an application for building licence along with payment of the prescribed fees, together with a structural engineer's report of inspection and certification of the patios and also modify the patio located in the rear courtyard of Unit 8 so as to comply with the BCA.

3. On 17 December 2004 the respondent confirmed that all its requirements have been satisfied by the applicant, and further advised that it supported a decision for the application for review to be upheld.

Orders

1. On the basis that all of the respondent's concerns have been addressed and they now support the application for review, I order that:

   1.The application for review is upheld; and

   2.The decision to issue the notice dated 4 June 2002 is set aside and the notice revoked.

   I certify that this and the preceding 3 pages comprise the reasons for decision of the Tribunal.

   ______________________________

   M Spillane

   Member