The powers of the State Administrative Tribunal (SAT) to make orders that effectively enable building work to continue despite the expiry of the building permit issued by the local government was considered and applied by the Deputy President His Honour Judge Parry in Fero Group Pty Ltd and City of Nedlands [2018] WASAT 78 (Fero) heard and determined on 19 July 2018.
The SAT held that the effect of the discretionary power of SAT to grant stays of the City of Nedland's (City) refusal to extend the term of the building permit concerned enabled the building work to continue beyond the approval period of the building permit.
In Fero, the applicant was undertaking works in relation to large dwellings on each of the properties within the building site, under building permits granted by the City on 9 June 2016. The building permits had effect for a period of two years and the applicant had made applications to the City to extend the time for which the building permits would have effect. The applications were made prior to the time that the building permits were due to expire, but the applications to extend the building permits were refused by the City.
The applicants lodged SAT proceedings for review of the City’s refusal to extend the building permits, and made an urgent application to SAT for stays against the City’s refusal which would otherwise have prevented any building works from continuing. The evidence before the SAT was that a large number of workers were on the site who were reliant on the continuation of the project, and of the significant costs that were likely to be incurred through demobilisation and removal of equipment from the site.
It was common ground between the parties, and agreed by Parry J, that the effect of a stay granted by the SAT would be that the building permits would continue to have effect and therefore the building work could continue. Parry J also held that the exercise of the discretionary power to grant such a stay needed to be based on the ‘balance of convenience’ as between the parties and also take into account the interest of persons who may be affected by the grant of such an order.
Parry J held that the balance of convenience favoured the grant of the stays to enable the building work to continue, in view of the substantial financial consequences to the applicant and to the contractors and employees who were engaged on the building site.
The Fero case underlines the need for developers and builders to be alert to the possibility that building works may overrun the approval period of the building permits, and the risk that the local government concerned may refuse to extend the period of the building permit. The Fero case also underlines the importance of making an application for the extension well before the expiry of the currency of the building permit in order to be able to take appropriate proceedings in the SAT in the event that the local government refuses such an application.
Please contact Lavan's Planning and Environment Team if you have any comments or questions in relation to this case or the choice of appropriate expert witness in SAT proceedings.
