Znaor and City of Cockburn

[2005] WASAT 69

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960

CITATION:   ZNAOR and CITY OF COCKBURN

[2005] WASAT 69

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   9 APRIL 2005

DELIVERED          :   9 APRIL 2005

FILE NO/S:   CC 22804 of 2004

BETWEEN:   LUKA AND SANJA ZNAOR

Applicant

AND

CITY OF COCKBURN
Respondent

Catchwords:

Building work - Local government - Section 401 Notice

Legislation:

Local Government (Miscellaneous Provisions) Act 1960, s 40(1)(b)

State Administrative Tribunal Act 2004, s 60

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:     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 Luka and Sanja Znaor ("applicant") against the requirements of a notice issued by the City of Cockburn ("respondent"), pursuant to s 401(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960 (the Act), with respect to building work at Lot 81 Forrest Road, Hamilton Hill.

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. Furthermore, having considered the matter and believe that pursuant to s 60 of the State Administrative Tribunal Act 2004, it is apparent in this case that the matter be decided on the papers without the need for a hearing.

Facts

1. The applicant had applied for a building licence on 11 December 2003 (to construct a 3-bedroom brick and tiled dwelling) and was required by the respondent on 31 December 2003 to provide additional information, which included an application for planning approval.  The applicant submitted the additional information, and was granted planning approval on 5 April 2004 for the works.  The applicant then commenced construction, without the respondent having issued a building licence for the works.

2. The respondent issued a notice to remove the building works on 9 July 2004.

Consideration

1. On 19 July 2004 the applicant submitted an application for review to the Minister of Housing and Works.  In the submission the applicant advised that construction had commenced based on a misunderstanding that building approval had been granted for the works.  The applicant submitted plans and specifications for the dwelling which included; structural engineer’s design for the sub‑structure piling system necessary to protect the public sewerage; the water corporation’s conditional approval; correspondence from the respondent; and a copy of planning approval granted by the respondent.  The applicant believed that approval for the works had been granted, which included approval to construct, as the application for building licence had been submitted prior to the application for planning approval.

2. On 28 July 2004 the respondent advised that the building work, the subject of the notice, did not contravene the Building Code of Australia (BCA), however, the building work were not in accordance with the plans submitted to the respondent. Furthermore, the works were not consistent with the planning approval, and therefore the applicant was required to provide amended plans with the view of obtaining a retrospective planning approval.

3. The respondent further required that the applicant provide: 'as constructed' plans; a structural engineers report and certification for the works; termite protection details and necessary certificates; Water Authority approval; and an energy efficiency assessment and report from an Accredited Firstrate Assessor.

4. On 26 November and 31 December 2004 the respondent confirmed that all its requirements have been satisfied by the applicant, and further advised that the application for review can be finalised.

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:

2. The application for review is upheld.

3. The notice issued by the City of Cockburn dated 9 July 2004 is set aside.

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

____________________________

M Spillane - Member