Miller and City Of Melville

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING ACT 2011 (WA)

CITATION: MILLER and CITY OF MELVILLE [2012] WASAT 156

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR C RAYMOND (SENIOR MEMBER)

HEARD: 16 JULY 2012

DELIVERED : 31 JULY 2012

FILE NO/S: CC 916 of 2012

BETWEEN: DARREN MILLER
Applicant
AND
CITY OF MELVILLE
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

Catchwords:

Building Permit When application made Certified application Permit authority disagreeing with the opinion of certifying building surveyor Whether open to permit authority to refuse permit Whether the meaning of the word 'error' should be read down

Legislation:

Building Act 2011 (WA), s 14, s 16, s 17, s 18, s 19, s 20, s 20(2), s 22, s 24, s 27, s 29, s 143, s 143(3), s 145
Building Code of Australia
Building Services (Registration) Act 2011 (WA), Pt 3, Pt 5
Home Building Contracts Act 1991 (WA)
Local Government Act 1995 (WA), s 9.56(4)
State Administrative Tribunal Act 2004 (WA), s 37(1)

Result:

Preliminary questions answered

Category: A

Representation:

Counsel:

Applicant:     Self-represented
Respondent:     Mr D McLeod
Intervener:     Mr C Bydder

Solicitors:

Applicant:     N/A
Respondent:     McLeods
Intervener:     State Solicitor's Office

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The parties to an application for review of a decision to refuse a building permit raised two preliminary questions. Both were questions of construction of the Building Act 2011 (WA). The first concerned the date upon which an application is made. The second concerned whether it was open to a permit authority to refuse a building permit where it disagreed with an opinion in a certificate of design compliance that the proposed building would comply with all relevant building standards. The Attorney General intervened in the application for the purpose of making submission on the second question.
The Tribunal examined the relevant provisions of the Building Act 2011 and answered the two preliminary questions.

Background

By application lodged with the Tribunal on 15 June 2012 the applicant, Mr Darren Miller, sought a review of a decision of the City of Melville (City) to refuse a building permit in respect to a property at No 40D Waddell Road, Bicton.
The application under the Building Act 2011 (WA) (Building Act) for the grant of a permit was lodged by an agent of Mr Miller at the offices of the City on 30 April 2012. It was made by way of a certified application, which is an application accompanied by a certificate of design compliance which contains a statement by a building surveyor to the effect that, if the building that is the subject of the application is completed in accordance with the plans and specifications that are specified in the certificate, the building will comply with each building standard that applies to it.
On 25 May 2012, the City sent a building permit refusal to Mr Millers' agent. Although the refusal set out a number of grounds upon which the refusal was based, for the present purposes it is relevant only to note that some of the grounds were based on the City's assessment that, contrary to the building surveyor's certificate, some aspects of the proposed building did not comply with the applicable building standards.
At the initial directions hearings it became apparent some questions required determination before the Tribunal could deal with the merits of the application. Accordingly, the Tribunal ordered that the following issues be determined as preliminary issues. The issues were:
1)What was the date upon which a valid application for a building permit was made?
2)Was it open to the respondent to refuse the application for a building permit on the grounds that the building or incidental structure with which the application was concerned did not comply with the building standards applicable to the building or incidental structure when the respondent had been supplied with a certificate of design compliance made in the approved form in compliance with s 19 of the Building Act.
These reasons concern those issues.
The second issue raised for determination is a matter of general importance to permit authorities and to the administration of the Building Act. The City is a permit authority for the purposes of the Building Act. Prior to the introduction of the Building Act, the assessment of applications for building licences (now called permits) fell to the relevant building authority, usually a local government. The introduction of certified applications, accompanied by a specific statutory provision which specified that a permit authority did not have a duty to check the accuracy or soundness of opinions asserted in the certificate of design compliance, or to form its own opinion on matters dealt with by such a certificate, brought about a fundamentally different approach to the issue of building permits. The second issue arises in that context. Because of the general importance of the question, the Attorney General of Western Australia exercised his right under s 37(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to intervene in the proceedings in relation to the second issue.

The relevant statutory provisions concerning the grant of a permit

Section 14 of the Building Act enables a person to apply, by way of either a certified application or an uncertified application, for a building permit.
Section 16 describes the requirements associated with the making of an application. It provides:
Making an application
An application
(a)must be made in an approved manner and form; and
(b)must name, and be signed by, each owner of the land on which the building or incidental structure is, or is proposed to be, located; and
(c)must name, and be signed by, the person who proposes to be named as the builder on the building permit, or the demolition contractor on the demolition permit; and
(d)must provide prescribed information about the building or incidental structure and the persons mentioned in paragraph (b) or (c); and
(e)if a certified application, must be accompanied by a certificate of design compliance for the building or incidental structure that is the subject of the application, that is signed by a building surveyor and complies with section 19; and
(f)if a certified application, must be accompanied by the plans and specifications that are specified in the certificate of design compliance for the building or incidental structure that is the subject of the application; and
(g)if a certified application, must be accompanied by a copy of each technical certificate signed by a specialist that the building surveyor has relied on to sign the certificate of design compliance; and
(h)if an uncertified application, must be accompanied by the plans and specifications for consideration by a building surveyor under section 17; and
(i)must be accompanied by each technical certificate that is prescribed to accompany the application; and
(j)must be accompanied by evidence that the applicable provisions of the Home Building Contracts Act 1991 requiring insurance or corresponding cover have been satisfied; and
(k)must be accompanied by evidence that the applicable provisions of the regulations mentioned in the Building Services (Complaint Resolution and Administration) Act 2011 Part 7 Division 2 requiring payment of a building services levy have been satisfied; and
(l)must be accompanied by the prescribed fee, if any, for the application; and
(m)must be accompanied by each other thing that is prescribed to accompany the application.
Section 17 requires that an uncertified application must be referred to a building surveyor who must decide whether to sign a certificate of design compliance. A certificate of design compliance is explained in s 19. Section 19 provides:
Certificate of design compliance
(1)In this section
certificate means a certificate of design compliance for a building or an incidental structure that is the subject of a certified application or an uncertified application.
(2)A certificate must be in an approved form.
(3)A certificate must contain a statement of the building surveyor signing the certificate to the effect that if the building or incidental structure that is the subject of the application is completed in accordance with the plans and specifications that are specified in the certificate, the building (including each incidental structure associated with the building) or incidental structure will comply with each building standard that applies to the building or incidental structure.
(4)A building surveyor may, in a certificate, specify such of the inspections and tests listed in regulations mentioned in section 36(2)(b) that the building surveyor thinks should be conducted during or at the completion of the building work.
(5)A certificate must contain each other thing that is prescribed to be in the certificate.
Section 20 of the Building Act deals with the grant of a building permit, and, relevantly for present purposes, provides:
Grant of building permit
(1)A permit authority to which a certified application or an uncertified application is made must grant the building permit if it is satisfied
(a)that the applicant has complied with section 16; and
(b)that the person mentioned in section 16(c)
(i)is a building service contractor who is entitled under the Registration Act section 11 to be named as the builder on the building permit; or
(ii)has ownerbuilder approval under the Registration Act to carry out that work; or
(iii)is a person or in a class of persons prescribed for the purposes of the Registration Act section 7(2)(c) who may be named as the builder on the building permit,
unless the building work is of a kind specified by the regulations;
and
(c)that a certificate of design compliance for the building or incidental structure that is the subject of the application complies with section 19; and
(d)that the building surveyor who signed the certificate of design compliance
(i)is entitled under the Registration Act to sign certificates of design compliance for buildings or incidental structures of the kind that is the subject of the application; and
(ii)is an independent building surveyor in relation to the application;
and
(e)that the certificate of design compliance is issued by a person who
(i)is a building service contractor who is entitled under the Registration Act section 11 to issue the certificate; or
(ii)is a person or in a class of persons prescribed for the purposes of the Registration Act section 7(2)(c) who may issue the certificate;
and
(f)that each technical certificate mentioned in section 16(i) is
(i)signed by a person prescribed as a person who may sign the certificate; and
(ii)issued by a person prescribed as a person who may issue the certificate;
and
(g)if a part of a building or incidental structure is proposed to be placed beyond the boundaries of the land on which the building work is proposed to be done, that there is compliance with section 76; and
(h)if the building work may adversely affect land beyond the boundaries of the land on which the work is proposed to be done, that there is compliance with section 77; and
(i)that either
(i)a policy of insurance is in force in respect of the building work under the Home Building Contracts Act 1991 Part 3A Division 2; or
(ii)corresponding cover, as defined in the Home Building Contracts Act 1991 section 25A, is provided in respect of the building work; or
(iii)the policy of insurance mentioned in subparagraph (i) or the cover mentioned in subparagraph (ii) is not required under the Home Building Contracts Act 1991 in respect of the building work;
and,
(j) to (s) which are not relevant for present purposes and do not need to be set out in full.
(2)A permit authority to which an application is made must not grant the building permit unless it is satisfied as to each of the matters mentioned in subsection (1)(a) to (s).
It can be seen that, in its terms, s 20(2) prohibits the grant of a building permit if the matters set out in subsection (1) are not met to the satisfaction of the permit authority. That is not the only basis upon which a permit authority is able to refuse a building permit. Section 22, which is critical for present purposes, provides as follows:
Further grounds for not granting an application
(1)A permit authority to which an application is made may refuse to grant the building permit or demolition permit applied for if it appears to the permit authority that there is an error in the information provided for the application or in a document that accompanied the application.
(2)A permit authority to which an application is made must not grant a building permit or demolition permit if to do so would be inconsistent with
(a)a function that the permit authority has under any other written law; or
(b)an agreement between the permit authority, or the local government in whose district the building or incidental structure is, or is proposed to be, located and the applicant.
Section 24 requires the permit authority to record the grounds on which a decision to refuse the grant of a building permit is based, and the reasons for the decision, and to give notice to the person to whom the decision relates of the decision together with the grounds and reasons for it.
Section 27 enables a permit authority to impose conditions on the grant of a building permit subject to certain limitations, including that conditions cannot modify the applicable certificate of design compliance or the plans and specifications that are specified in that certificate.
Section 29 requires that the person named as the builder on the building permit must ensure that the building is completed in accordance with the plans and specifications that are specified in the applicable certificate of design compliance and all conditions of the building permit are met. Failure to comply with s 29 constitutes an offence.
Section 37 makes it an offence if a builder fails to ensure that a building, when completed, complies with each building standard that applies to that building.
Section 143 provides protection from liability for persons acting in good faith in the performance of a function under the Act. That protection does not extend to the local government itself s 143(3) of the Building Act; s 9.56(4) of the Local Government Act 1995 (WA) (LG Act).
There is, however, protection from liability, either civil or criminal, for actions taken in compliance with a requirement of the Building Act s 145.

The date of the application

When the preliminary questions were identified, the question as to the correct date of the application was raised by the respondent, apparently on the basis of some argument that, although the application itself had been lodged on 30 April 2012, payment of all fees associated with the application, and in particular a kerb deposit fee was not paid until 1 May 2012. The significance of the different dates was apparently connected to the coming into force of certain building standards on 1 May 2012, which may have altered the extent of compliance of the proposed building with the standards as they applied as at 1 May 2012.
In the City's written submissions, and in the course of the oral hearing, contentions in respect to that matter fell away. In the written submissions, the City did not place any reliance upon the question of when relevant fees were paid. Rather, it argued that because the requirements of s 16(j) of the Building Act had not been met, in that the applicant had not provided evidence that the insurance requirements of the Home Building Contracts Act 1991 (WA) (HBC Act) had been satisfied, there was no application capable of supporting the grant of a building permit. The Tribunal was advised that that deficiency remained, (notwithstanding that the respondent had proceeded to determine the application), and therefore that the Tribunal could not grant a building permit on review. That submission is not dependent upon the question as to when, for the purpose of the Building Act, an application is made. As a result, it is unclear whether an answer to the first question is required to enable the Tribunal to deal with the merits of this matter, but, since the question has been raised, we will deal with it.
The requirements for making an application are set out in subparagraphs (a) to (d) of s 16 of the Building Act. The balance of the subparagraphs in that section deal with materials which must accompany the application. In our view, when an application which is in the approved manner and form is accepted by the permit authority, it is thereupon 'made'. In this case, it is an agreed fact that the application was lodged with the City on 30 April 2012, and was accepted by counter staff on that date. The prescribed fees were paid, and the receipt issued for payment on 30 April 2012. The answer to the first question is, therefore, 30 April 2012.
The fact that a kerb deposit was required to be paid after the application was accepted does not lead to the conclusion that the application had not been made on 30 April 2012. The kerb deposit was not a prescribed fee, and there is no basis for saying that the application had not effectively been made prior to payment of a deposit.
Nor do we think that a failure to provide a document or information which is required by s 16(e) to (m) alters the date upon which an application is made. Section 18 clearly covers a position where an application is not accompanied by the necessary documents or information. That section contemplates that the permit authority may need to obtain such information or documents before determining the application before it. The section necessarily implies that an application has been made, notwithstanding that further information is required before the permit authority is in a position to make a decision on the application. On the facts of this case, the fact that the evidence required by s 16(j) had not been provided with the application, does not mean that the application was not made on 30 April 2012.
That is not to say that the permit authority is able to grant a building permit if all of the information and documents required to accompany the application have not been provided. Indeed, s 20(2) makes it clear that the permit authority must not grant the permit unless it is satisfied as to each of the matters mentioned in subsections 20(1)(a) to (s). Section 20(1)(a) requires that an applicant must have complied with s 16. If, therefore, the documents which are required to accompany an application have not been provided, then the permit authority cannot be satisfied that the applicant has complied with s 16. In this case, if the proposed works are of a type which require insurance under the HBC Act, then a building permit cannot be granted in the absence of the provision of evidence that the applicable requirements of the HBC Act have been met.

Is a permit authority required to accept the certificate of design compliance?

This question arises in this case because, in several respects, the City considers that, contrary to what is contained in the certificate of compliance, the proposed building will not comply with all relevant building standards. The building refusal appears to have been based on a failure to provide further information, but the matter proceeded on the basis that the City considered that the proposed building did not meet all requirements in relation to fire protection and disability access found under the Building Code of Australia. Whether or not the City's view is correct is not to the point in dealing with this preliminary question, and we note that its correctness is disputed by the applicant. What is important is that the certificate of design compliance provided by an appropriately qualified building surveyor certified compliance in all relevant respects, but the City disagrees with that certification and would refuse to issue a building permit on that basis. The applicant, and the Attorney General, argue that it is not open to the City to go behind the terms of the certificate of compliance.

The City's position is that, although a permit authority has no duty to check the accuracy of the certificate of compliance, if it comes to its notice that the certificate of compliance contains an error, it may refuse the application pursuant to s 22 of the Building Act. It argues that 'error' in s 22 includes an error in the opinion as to whether or not the proposed building complies with relevant standards.
The City contends that, to conclude that it is obliged to issue a building permit notwithstanding its view that the building will ultimately not comply with the relevant standards, would leave it in an invidious position. That is so, it argues, having regard to its role as the body charged with prosecution for offences of failing to ensure that, when a building is completed, all relevant building standards are complied with see s 37 of the Building Act. The City notes that s 29 of the Building Act requires that the nominated builder must ensure that a building is completed in accordance with the plans and specifications specified in the applicable certificate of design compliance. It argues that it would be contrary to the public interest for there to be requirement for it to issue a building permit knowing, or least believing, that the nominated builder would then be required to build a building which does not comply with the required building standards, including standards relating to safety.
The Attorney General takes a different view. In essence, he argues 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. He notes that, if an application is uncertified, the Building Act requires that the permit authority refer the uncertified application to a building surveyor s 17(1) of the Building Act. Thus, it is said, consideration of every application by a building surveyor is an essential part of the process of determining whether to grant a building permit. He notes that s 27 enables a permit authority to impose conditions on the grant of a permit, but that a condition 'cannot modify the applicable certificate of design compliance or the plans and specifications that are specified in the certificate' s 27(2)(b) of the Building Act.
Furthermore, the Attorney General points out that s 20 of the Building Act makes no provision for the permit authority to consider whether the proposed building will comply with the applicable building standards. Rather, he argues, that is a matter left entirely to the building surveyor to be dealt with in the certificate of design compliance. The matters under s 20(1) of which a permit authority must be satisfied are only that:
•a certificate of design compliance from the proposed building complies with s 19 s 20(2);
•the building surveyor who signed the certificate of design compliance was both properly qualified to do so and independent s 20(1)(c);
•the certificate of design compliance was issued by a person who is entitled by law to issue the certificate s 20(1)(d) (and is thus susceptible to the regime the registration and discipline found in Pt 3 and Pt 5 of the Building Services (Registration) Act 2011 (WA)); and
•each technical certificate upon which the building surveyor relied to sign the certificate of design compliance was signed and issued by a person prescribed as a person who could do so s 20(1)(f).
The Attorney General acknowledges that s 22 provides a power for a permit authority to refuse to grant a permit if there is an error in information provided for the application or a document that accompanies the application. He argues, however, that the word 'error' does not readily extend to mistaken opinions, on the basis that 'neither information or documents can hold them'.
That approach requires that the ordinary meaning of the word 'error' must be read down. The Attorney General noted two dictionary definitions of the word 'error'. Those definitions, which we accept as representing, in the relevant context, the ordinary natural meaning of error, were as follows:
(a)The Macquarie Dictionary Online
1. Deviation from accuracy or correctness; a mistake, as in action, speech etc.
2. Belief in something untrue, the holding of mistaken opinions" and
(b)Oxford English Dictionary Online
3.a The condition of erring in opinion; the holding of mistaken notions and beliefs; an instance of this, a mistaken notion or belief; false beliefs collectively … .
4.a Something incorrectly done through ignorance or inadvertence; a mistake, e.g. in calculation, judgement, speech, writing, action, etc … b. A mistake in the making of a thing; a miscarriage, mishap; a flaw, malformation.
Thus it can be seen that error includes a mistaken opinion or the holding of a mistaken belief. A statement in a certificate of design compliance that a building will comply with all relevant standards is a statement of opinion or belief.
In our view, there is no need to read down the natural meaning of the word 'error' in order to meet the statutory scheme of the Building Act. The Act undoubtedly places primary responsibility for determination as to the question of compliance with building standards upon the building surveyor who provides the certificate of compliance under s 19. It can be accepted that the Act contemplates that is not the function of the permit authority to review a certificate of design compliance, and that in the normal course no such review will be undertaken. There is, however, a power given to the permit authority to refuse the grant of a building permit where an error is detected in information provided for the application. It is difficult to accept that, no matter how blatant an error of opinion contained in a certificate of design compliance may be, a permit authority is obliged to issue a building permit knowing that the building must be constructed in accordance with the plans and specifications the subject of the certificate of design compliance.
The Attorney General argued that, where such an error of opinion is detected by a permit authority, the practical reality is that the permit authority is likely to bring the error to the attention of the certifying building surveyor who would then be likely to withdraw the certificate. While that may be so, it does not provide a basis for depriving the permit authority of its power to refuse to issue a building permit where it believes information provided to it contains an error, including an error in the nature of opinion. We do not accept that an opinion expressed in a certificate of design compliance should not be considered 'an error in information provided for the application or in a document that accompanies the application' for the reason that information or documents cannot hold opinions. The information provided for an application includes the certificate of design compliance, and there is, in our view, no reason why an erroneous opinion contained within that information cannot be said to be an error the purposes of s 22 of the Building Act.
The fact that s 20 of the Building Act makes no provision for the permit authority to consider whether the proposed building will comply with all relevant building standards is not surprising. Undoubtedly the Building Act contemplates that applications for the issue of the building permit will not be subjected to more than one analysis to ascertain compliance with relevant building standards. The provisions of s 144 of the Building Act make that position quite clear. Mostly, therefore, the terms of a certificate of design compliance will not be subjected to review, and a permit authority will confine itself to considering whether it is satisfied of those matters of which s 20 requires it to be satisfied before the obligation to grant the building permit arises. Where, however, in the course of that analysis, for any reason the permit authority forms a genuine belief that there is an error as to compliance, we do not consider it inconsistent with the scheme of the Act that the power under s 22 to refuse to grant the application is enlivened. Mostly that is likely to occur where the non-compliance is clear and might be corrected by the certifying building surveyor when it is drawn to his or her attention. But where there is simply a difference of opinion between the permit authority and the certifying building surveyor, the matter can be determined by review by this Tribunal under s 119. The Building Act is clearly designed to ensure adherence to applicable building standards, and that objective is better served by resolution of differences of opinion through an orderly review system, rather than by a requirement that obliges a permit authority to grant a permit notwithstanding a belief that the structure to be constructed will not comply with the required standards Pollution.

Conclusion

For those reasons, our answer to the two questions are as follows:
Question 1:The application was made on 30 April 2012.
Question 2:It was open to the respondent to refuse the application on the basis that the proposed building did not comply with the building standards applicable to it notwithstanding that it had been supplied with a certificate of design compliance made in the approved form in compliance with s 19 of the Building Act.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT

[2012] WASAT 156

31 JULY 2012

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