A common misconception is a cause for great concern in the sector.
For many years, local governments, builders and developers have assumed that approvals and permits for various activities could be granted retrospectively – so that the local government’s approval could cure earlier wrongdoing.
Unfortunately, like time machines, the retrospective approval is more often fantasy than reality, and local governments should steer clear of treating things as retrospective unless the law is very clear.
Under section 9 of the Building Act 2011 (WA), a building permit is required for a range of work– everything from the construction of buildings to any work preparing the site so that the buildings can be constructed.
Under s.23(2)(a) of that Act and s.20(2) of the Building Regulations 2012 (WA), an application for a permit must be determined within 10 working days, but this can be extended to request more information or documentation. If the application is not determined within the required time, it is deemed to be a refusal.
Some builders take it upon themselves to assume that their application will be accepted. In most cases they are correct, as the local governments have very little discretion once the requirements in the Act have been met.
However, some builders also assume that the application will be granted in time and that no request for further information will be made. These builders may commence work prior to the actual grant of the permit. In some cases, they may have even only made their application after commencing work.
These builders are making a commercial calculation: that the risk of delaying a project and being liable to the person who retained them is greater than the risk of being prosecuted by the local government. In our dealings with local governments, we have heard of people making the claim that the permit being granted cures their “early start”.
This is incorrect. The law is clear that no work should start until permits have been obtained. A later grant of approval or permit does not mean that a penalty should not be levied against the builder who commenced work without a permit.
The Supreme Court dealt with this issue in Caruso v Shire of Augusta-Margaret River [2016] WASC 379. In that case, Caruso had moved to Margaret River and purchased a heritage listed building in 2004 to use as a restaurant. After noticing that the floors needed repairing, he commenced a project of repairing the floor and added a basement extension. He knew he would need building and planning approval and a building permit but decided to go ahead and later seek retrospective approval. Caruso later did get that approval, but was still successfully prosecuted by the Shire for his failure to obtain a permit (and approvals).
Once the local government is aware of the contravention, the building permit application should still be considered against the requirements in the Act.
However, the local government should also be considering its obligations to prosecute. In doing so, it should not assume that the permit reaches back in time and fixes the builder’s wrongdoing.
Local governments will be familiar with cases where a development has been undertaken and, for some reason, the development does not have planning approval or is contrary to the approval granted. The starting point is that the building is at risk of needing to be removed.
Under the Planning and Development Act 2005 (WA), section 164 permits a local government to approve a development that has already been started – or even finished. However, it does not provide for ‘retrospective’ approvals. It does not mean that the local government has approved of the earlier conduct that would otherwise be a contravention of that Act. The approval does not ‘reach back in time’; it is not ‘retrospective’ in the true sense.
In Bright Image Dental Pty Ltd v City of Gosnells [2017] WASC 229, the Supreme Court concluded that not levying penalties in these cases would undermine the policy of the Act that local governments should approve developments before they occur to ensure they comply with safety requirements and orderly and proper planning in the area (at [88]-[89]).
The approval of existing developments offers the option to stop an ongoing offence without demolishing the structure, rather than to forgive the offence entirely.
Builders and developers will be quick to take advantage of local governments who treat breaches as ‘no harm, no foul’ if the builder and developer later seek forgiveness through a permit or approval after the fact.
Local governments have a number of complex factors they need to consider when deciding whether to prosecute – from costs to prioritising certain matters to maintaining the general good government of the district. However, using a later permit or approval as though it resolves the issue would be a mistake. The question of whether or not to prosecute is separate from the later approval of the structures or development.
Local governments are not capable of time travel and neither are their permits and approvals.
Managing Principal
9200 4900
Disclaimer: This article provides a general summary of subject matter and does not constitute legal advice. The law may change and circumstances may differ. Therefore, you should seek legal advice for your specific circumstances.
