What Can Enable a Local Government to Withhold/Not Issue a Building Permit?


Section 20 of the Building Act 2011 appears to give the local government no discretion at all. Under Section 20(1) of the Act, a local government must grant a building permit if it is satisfied of no fewer than 19 different matters.  On the other hand, under Section 20(2) it must not grant the application unless it is satisfied as to each of those matters.

Of course, the granting of a building permit can be deferred if further information is sought under Section 18. That is to be required within a specified time of not more than 21 days.  If the time limit passes and the information has not been provided, the local government may refuse to consider the application, although it is not obliged to do so.

Those sections appear quite straightforward, but what of Section 22(1)? This allows the local government to refuse to grant the building permit if it seems to the local government that there is an error in the information provided for them in the application or in a document that accompanied the application.  That seems inconsistent with the obligation of Section 20(1) which states that provided all the boxes are ticked, a building permit must be issued.

Miller and City of Melville (2012) WASAT 156

A strong State Administrative Tribunal consisting of Justice Chaney, the President, and Senior Member Mr C Raymond, considered this very question in the case of Darren Miller and the City of Melville, with the Attorney-General for Western Australia intervening.

In that case, the City of Melville refused to grant a building permit on the ground that although the building surveyor has issued a certificate of design compliance, the City considered that the certificate was incorrect and that some aspects of the proposed building did not comply with the applicable building standards.

The State Administrative Tribunal had to consider the question as to whether it was open to the City of Melville to refuse the application on the grounds that the building did not comply with the building standards applicable, in a situation where the City had been supplied with a certificate of design compliance made in the approved form.

The Attorney-General, on behalf of the State of Western Australia, argued that the scheme of the Building Act is that the question of compliance with building standards is one left entirely to an appropriately-qualified building surveyor. Section 20 of the Act was considered to make no provision for the local government to consider whether the building proposed to be constructed actually complied with applicable building standards or not, that being left entirely to the building surveyor.

However, the State Administrative Tribunal did not agree with the Attorney-General. The primary responsibility rested with the building surveyor, but Section 22 of the Act clearly gave the local government a discretion on the part of the local government, should it form a belief that there was an error as to compliance, that the application may be refused.

If the applicant for the building permit was not satisfied with the decision of the local government, but prefer the opinion of the certified building surveyor, then the applicant could go to the State Administrative Tribunal on review. An error as to compliance fell directly within the scope of Section 22.

It only remains to consider Section 22(2) of the Act. The local government must not grant a building permit if to do so would be inconsistent with the function that the local government has under any other written law.  It is not easy to see what that function could be.

Curiously, in Section 22(2)(b) it is said that the local government could not grant a building permit if to do so would be inconsistent with an agreement between the applicant and the local government. That appears to assume that the applicant is lodging an application for a building permit which contradicts an agreement the applicant already has with the local government.

Conclusion

It is clear therefore that there are circumstances in which a local government can refuse or indeed must refuse to grant a building permit. The local government does not have an obligation to go past the certificate of design compliance, but may notice an error in the application and may therefore elect to refuse it.  It is not obliged to do so, but if a blatant error is detected which may have adverse consequences at a later date, e.g. a possible structural failure, it may be a breach of duty not in that instance to act accordingly under Section 22.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.