SUPREME COURT OF QUEENSLAND
CITATION:
Baxter v Preston & Ors [2022] QCA 146
PARTIES:
STEVEN JOHN BAXTER
(applicant)
v
ANTHONY STEVEN PRESTON AND KYLIE ANN PRESTON
(first respondents)
GRAYA CONSTRUCTION PTY LTD
ACN 158 362 406
(second respondent)
BRISBANE CITY COUNCIL
(third respondent)FILE NO/S:
Appeal No 1196 of 2022
P & E Appeal No 932 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Planning and Environment Court Act
ORIGINATING COURT:
Planning and Environment Court at Brisbane – [2021] QPEC 69 (Kefford DCJ)
DELIVERED ON:
12 August 2022
DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2022
JUDGES:
Morrison and Dalton JJA and Flanagan J
ORDERS:
1. Application for leave to appeal refused.
2. The applicant pay the first, second and third respondents’ costs of and incidental to the application.
CATCHWORDS:
ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the first respondents obtained building permits from both the Council and a private certifier to make extensive renovations and redevelopments of their land but did not obtain an operational works permit – where the applicant sought declaratory relief in the Planning & Environment Court that the first respondents’ development included “operational work” and so was not permitted by the building permits – where the Planning & Environment Court held that the first respondents’ development constituted “building work” and was permitted by the building permits
ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the Council issued an exemption certificate to the first respondents in respect of a proposed swimming pool pursuant to s 46 of the Planning Act 2016 (Qld) (“Planning Act”) – where the applicant challenged the validity of the first respondents’ exemption certificate – where the applicant contended that the exemption certificate misdescribed the swimming pool – where the applicant contended that the Council delegate’s decision to issue the exemption certificate was affected by jurisdictional error – whether the exemption certificate misdescribed the swimming pool – whether the Council delegate’s decision was affected by jurisdictional error
ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the first respondents engaged a private certifier to approve particular work – where the applicant contended that the appropriate assessment manager of that work was the Council – whether the work was properly assessed by the private certifier
ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where s 163 of the Planning Act provides that carrying out assessable development without all necessary development permits is an offence – where the applicant alleged that the respondents committed development offences under s 163 – where the applicant did not properly particularise the alleged offences committed by the respondents
Building Act 1975 (Qld), s 83
Planning Act 2016 (Qld), s 44, s 46, s 47, s 48, s 51, s 163, s 164, s 180
Planning and Environment Court Act 2016 (Qld), s 63
Planning and Environment Court Rules
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- AGLC
- Baxter v Preston [2022] QCA 146
- Case
- [2022] QCA 146
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the respondents' development constituted "building work" or "operational work" under the Planning Act 2016 (Qld), and if the Council's issuance of an exemption certificate for the swimming pool was valid. Additionally, the court considered whether the Council delegate's decision to issue the exemption certificate was affected by jurisdictional error, and if the work was properly assessed by the private certifier. Lastly, the court examined whether the respondents had committed development offences by carrying out assessable development without all necessary development permits.
The court held that the respondents' development constituted "building work" and was permitted by the building permits, and that the Council's exemption certificate for the swimming pool was valid. The court found that the applicant had not provided sufficient particularity with respect to his allegations of unlawful operational work and building work, and that the applicant had not discharged his onus of proving that assessable operational work had been carried out without a development permit. The court further noted that the applicant had not properly particularised the alleged development offences committed by the respondents. As such, the primary judge's decision was upheld.
In conclusion, the court dismissed the applicant's application for leave to appeal and ordered the applicant to pay the respondents' costs of and incidental to the application.
Orders
Orders of the court
1. Application for leave to appeal refused.
2. The applicant pay the first, second and third respondents’ costs of and incidental to the application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Her Honour found that there were not sufficient particulars provided with respect to the applicant’s case:“[371] With respect to the allegation regarding the building work for the pool, the deck and the rear stairs, the Third Further Amended Originating Application does not draw any distinction between each of these aspects of building work. The same description and particulars are used for all aspects.[372]The potential difficulty to the other parties and the Court occasioned by the lack of precision can be explained by reference to the allegations in relation to the works described by Mr Baxter as the ‘Commenced Operational Works’.[373]Paragraph 1(b) of the prayer for relief in the Third Further Amended Originating Application describes that work as follows:‘operational work under the PA in the rear of the Subject Premises involving filling on the Subject Premises (the “Commenced Operational Works”), being the operational work in the area of operational work approved by the Operational Works Approval issued by Council on 16 July 2021 (the “Operational Works Approval”)’[374]The operational works permit includes an approved earthworks plan that depicts areas of cut in yellow and areas of fill in green. Is the area that is coloured yellow and green the ‘area of operational work’ to which Mr Baxter refers? If so, given the coloured area covers almost all the subject land, what part of it is to be regarded as ‘the rear of the subject land’?[375]The need for precision is highlighted by the allegation in paragraph 4A of the Third Further Amended Originating Application that:‘the Commenced Operational Works are not excavation or filling for, or incidental to, work approved by the Building Approval’.[376]Is it Mr Baxter’s case that even the filling beneath the dwelling slab that is required to facilitate a slab-on-ground construction is not filling that is for, or incidental to, the construction of the extension to the dwelling? If not, what part of the fill is accepted to be building work and what part of the fill is alleged to constitute operational work? This is not clear from the Third Further Amended Originating Application.[377]In the circumstances, Mr Baxter has not provided sufficient particularity with respect to his allegation of unlawful operational work.[378]Mr Baxter’s particulars about the unlawful building work would have also been inadequate if, as the Council submitted, the pool was building work that was categorised as assessable development under City Plan.” (footnotes omitted). I can find no fault with the primary judge’s reasoning in this regard. In fact, the primary judge’s decision did not rest upon want of particularity alone. She went on to consider whether or not there was evidence of any operational works having been undertaken at the site. She noted that she received a “lack of assistance” from the applicant on this issue – [386]. The evidence relied upon by the applicant below was that there is a pile of dirt visible in one of the photographic exhibits at the trial. At the time the pile of dirt was photographed there were works relating to demolition and building associated with renovating and extending the dwelling house which were approved. Of this her Honour said:“[389] Mr Catchlove said that he considered there was assessable operational work occurring on the subject land as at 21 April 2021, being the date of his first Affidavit and the interlocutory enforcement order, because there was an area of dirt that was purportedly greater than one metre and he assumed it was intended to permanently change the ground level. He assumed that because a greater level of fill was shown on plans attached to the second certifier building permit.[390]There are two reasons that this evidence is not sufficient for Mr Baxter to discharge his onus with respect to an allegation that assessable operational work has been carried out without a development permit.[391]First, the pile of dirt has not been proved to be ‘filling or excavation’ as that term is defined in City Plan. It is clear from the photographs that the construction works on the subject land remain a work in progress. There will be earthworks, including excavation and filling, that is incidental to the building work and that will occur in the process of performing the building work.[392]Mr Baxter has not proved that the pile of dirt visible in the photos is assessable ‘filling’. There is no proof it has changed the ground level of the subject land. There has been no evidence about the ground level of the subject land at the location where the dirt appears to be piled either before or after the dirt was put there. Further, at the time of the photographs, it is simply a pile of dirt that may be moved as the development progresses. There is no proof that it was intended to stay in that location, or that it was even placed in that location in the first instance. There may have been reasons that the dirt was not intended for final use in that location. There is no permanency to the dirt’s location. As such, there is no evidence that it involves the importation of material that will change the ground level of the subject land.”[7] (footnotes in the original omitted).[7]The primary judge continued at [393]-[397] to say that having regard to her views discussed at [14] and [20] above, the applicant failed to prove that the pile of dirt was not part of building work approved by the first Council building permit. As I have not found it necessary to deal finally with those views expressed by the primary judge – see [23] above – I have not included or relied upon this part of the primary judge’s reasoning.