AUSCON PTY LTD and TOWN OF CAMBRIDGE

The case before the court involves AUSCON PTY LTD and the TOWN OF CAMBRIDGE. AUSCON PTY LTD, a building contractor, sought an extension of a building permit issued by the TOWN OF CAMBRIDGE. The dispute centres on the statutory framework governing building permits and development applications, specifically the Building Act and Building Regulations, and the extent to which the town planning authority can be estopped from enforcing statutory deadlines for the commencement of works. The matter was adjudicated in the State Administrative Tribunal of Western Australia.

The primary legal issues revolved around whether the respondent, the TOWN OF CAMBRIDGE, could be estopped from enforcing the requirement for substantial commencement of works within the specified timeframe of the building permit. The court had to determine whether estoppel could prevent the exercise of a statutory discretion and if the range of considerations for extending a building permit was limited to those specified in the Building Regulations. The court also needed to address whether the Building Regulations could limit the operation of the Building Act.

The court concluded that estoppel by representation could not prevent the performance of a statutory duty or the exercise of a statutory discretion. This principle was derived from the English case Southend-on-Sea Corporation v Hodgson (Wickford) Ltd and applied in Western Australia in Enoka v Shire of Northampton. The court held that the respondent could consider the matters identified in s 20(1) of the Building Act when reviewing an application for an extension of a building permit. The court further found that the Building Regulations could not limit the operation of the Building Act and that the requirements set out in s 20(1) of the Building Act must be considered each time an application to extend a building permit is made.

The court's decision was that the TOWN OF CAMBRIDGE was entitled to consider the statutory requirements for granting a building permit extension, and the applicant could not rely on estoppel to prevent enforcement of the statutory deadlines. The court's reasoning was grounded in the statutory framework and the principle that estoppel cannot extend statutory powers beyond the law that creates them.