ANTHONY STEVEN PRESTON AND KYLIE ANNE PRESTON (First Respondents)
and
GRAYA CONSTRUCTION PTY LTD (ACN 158 362 406) (Second Respondent)
and
BRISBANE CITY COUNCIL (Third Respondent)
FILE NO/S:
932 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
9 December 2021
DELIVERED AT:
Brisbane
HEARING DATE:
24 September 2021 (site inspection), 6, 7, 8 and 12 October 2021, further written submissions received 22 and 25 October 2021 and further evidence received 26 October 2021
JUDGE:
Kefford DCJ
ORDER:
The application is dismissed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant says the private certifier was not the appropriate assessment manager – whether the local government was the appropriate assessment manager
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says other development permits were required for development other than building work that may affect the form or location of the building work or the use of the building or structure – whether the private certifier had power to give the approval under s 83 of the Building Act 1975 (Qld) – whether the requirement in s 83 of the Building Act 1975 (Qld) is a jurisdictional fact – whether there was a jurisdictional error that affected the decision
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says there was an inconsistency between the building permit and an earlier development approval – whether the private certifier had power to give the approval under s 84 of the Building Act 1975 (Qld)
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about the Council’s decision to give an exemption certificate under s 46 of the Planning Act 2016 – where the applicant challenged the validity of the Council’s decision to give an exemption certificate and the accuracy of the notice of its decision – where the decision was challenged on the basis of jurisdictional error – whether the notice of the decision was inaccurate – whether the Council failed to take into account relevant considerations – whether the Council’s opinion, for the purposes of s 46(3)(b) of the Planning Act 2016 was legally unreasonable
PROCEDURE – STATE COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – ADVISORY OPINIONS AND HYPOTHETICAL QUESTIONS – where the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Baxter v Preston [2021] QPEC 69
Case
[2021] QPEC 69
Decision Date
CaseChat Overview and Summary
The applicant, Baxter, initiated proceedings against Preston and others, seeking declaratory relief concerning the legality of a building permit issued by a private certifier. Baxter argued that the private certifier was not the appropriate assessment manager and that the local government should have been responsible for the permit issuance. The applicant further contended that other development permits were necessary for the development, which might affect the form, location, or use of the building or structure. The crux of the legal issues revolved around whether the private certifier had the authority to grant the building permit under section 83 of the Building Act 1975 (Qld) and if there was a jurisdictional error impacting the decision. Additionally, Baxter challenged the validity of the Council's decision to issue an exemption certificate under section 46 of the Planning Act 2016, arguing that it was based on a jurisdictional error and that the notice of the decision was inaccurate. The Court meticulously examined the jurisdictional boundaries of judicial power and the nature of declaratory relief, drawing from precedents such as Bass & Anor v Permanent Trustee Company Limited & Ors. The Court highlighted the distinction between advisory opinions and declaratory judgments, noting that the latter must be based on a concrete situation and aim to resolve a real controversy. In its reasoning, the Court concluded that the application for declaratory relief was not appropriate because it did not pertain to a concrete, established situation but rather involved a hypothetical scenario. Consequently, the Court dismissed the application, finding that the relief sought did not meet the criteria for judicial determination.
The Court ruled that the Council, not the private certifier, should have been the assessment manager for the building work in question. It found that the proposed building work required referral to the Council due to its non-compliance with specific codes, as outlined in the City Plan. The Court also noted that the Council's assessment was to be conducted against certain codes and criteria, and its referral agency response indicated that the building work did not have an extremely adverse effect on the locality or conflict with its character. The Court concluded that the private certifier did not have the power to issue the building permit under the circumstances and that the Council's decision to grant the exemption certificate was legally sound. The Court's decision was based on a thorough analysis of statutory provisions and relevant planning codes, leading to the dismissal of the application.
Orders
Orders of the court
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The High Court subsequently re-examined the considerations which mark out the boundaries of judicial power in Bass & Anor v Permanent Trustee Company Limited & Ors.[62]In a joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed:[63] [62][1999] HCA 9; (1999) 198 CLR 334.[63]Bass & Anor v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, 355-7 (citations omitted, emphasis added).“[45] The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. …[47]Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that: “a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.” By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case. [48]It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say: “If … the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”
Ratio Decidendi
Legal Principle Established
The first referral agency jurisdiction of the Council related to the amenity and aesthetic impact of the proposed building work. Pursuant to s 54 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 1 of the Planning Regulation 2017 (Qld), City Plan contains a declaration that the following building work requires referral to the Council:“1.7.4 Declaration for amenity and aesthetic impact referral agency assessmentFor the purposes of Schedule 9, Division 2, Table 1 of the Regulation, building work for a building or structure which is a single detached class 1(a)(i) building, class 1(a)(ii) building comprising not more than 2 attached dwellings or a class 10 building or structure in a locality identified in Table 1.7.4 that does not comply with the acceptable outcomes in the codes identified in Table 1.7.4, is declared to:a.have an extremely adverse effect on the amenity or likely amenity of the locality; orb.be in extreme conflict with the character of the locality.Table 1.7.4–Declared locality and building form for amenity and aesthetic referral agency assessment The subject land is in the Low-medium density residential zone. It is also in the Traditional building character overlay and in the Hillside character precinct of the Ithaca district neighbourhood plan area. The proposed building work did not comply with all the acceptable outcomes in the Dwelling house code, the Dwelling house (small lot) code,[41] the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code. As such, that part of the building work that was assessable by the private certifier against the building assessment provisions also required assessment by the Council as a referral agency in relation to its amenity and aesthetic impact.[42] [41]Assuming it applies. The subject land comprises two lots, each of which is less than 450 square metres and, as such, individually are defined as a “small lot” under City Plan. However, the area of the subject land as a whole is 810 square metres.[42]Pursuant to s 54 of the Planning Act 2016 and s 22 and sch 9, table 1, item 1 of the Planning Regulation 2017. The Council’s referral agency assessment with respect to amenity and aesthetics was required to be carried out against the Dwelling house code, the Dwelling house (small lot) code,[43] the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code.[44][43]Assuming is applies. See footnote 41 above.[44]See s 55 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 1, item 4 of the Planning Regulation 2017, and s 1.6 4.b. and Table 1.6.2, item 1 of City Plan. The relevant criteria for the Council’s referral agency assessment included performance outcome PO24 and acceptable outcomes AO24.1 and AO24.2 of the Ithaca district neighbourhood plan code. They state: On 6 August 2020, the Council gave the first amenity referral agency response. It was an early referral agency response.[45] The first amenity referral agency response states:“This is an early referral agency response for amenity and aesthetic impact of particular building work (Schedule 9, Part 3, Division 2, Table 1 of the Planning Regulation 2017). This advice is to be provided to the Building Certifier issuing the development permit for carrying out building work.This advice has been triggered due to non-compliance with acceptable outcome/s of codes identified in Table 1.7.4 of the Brisbane City Plan 2014.It has been determined that the proposed building will not:(i)have an extremely adverse effect on the amenity or likely amenity of the locality; or(ii)be in extreme conflict with the character of the locality.[45]In accordance with s 57 of the Planning Act 2016, the amenity referral agency response was provided before the development application was made to the private certifier under the Building Act 1975. where the proposed building work complies with the requirements set out in the decision notice for Council development approved (sic) A005140139 (this includes the approved drawings, conditions and accepted development subject to compliance with identified requirements).Advisory NotesThis response does not constitute an approval to start building work. A development permit to begin construction of the proposed building work must be obtained from an appropriately licensed Building Certifier.No further referral agency response (amenity and aesthetics) is required for the building work development permit.Any variation to the proposal will require a new request for a referral agency response and the applicable fees to be submitted for assessment by Council.”