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
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
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
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.
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 content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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