Brisbane City Council v Gerhardt - [2016] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Gerhardt [2016] QCA 76

PARTIES:

BRISBANE CITY COUNCIL
(applicant)
v
TREVOR WILLIAM GERHARDT
(respondent)

FILE NO/S:

Appeal No 8728 of 2015
P & E Appeal No 351 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane - [2015] QPEC 34

DELIVERED ON:

1 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2016

JUDGES:

Holmes CJ and Philip McMurdo JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal be granted.

2.   Appeal dismissed.

3.   Appellant to pay the respondent’s costs of the appeal.

CATCHWORDS:

ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – OTHER MATTERS – where the respondent is a building certifier (class A) performing functions under s 48 Building Act 1975 (Qld) (‘Building Act’) – where owners of a house in Wooloowin made a building development application to the respondent under s 6 Building Act – where the development was an assessable development under s 9 of the Sustainable Planning Regulation 2009 (Qld) and under council’s City Plan 2014 – where s 11 Building Act deemed the respondent to be the assessment manager for the building development application – where the respondent referred to the council that part of the building development application within its jurisdiction as a concurrence agency to assess the amenity and aesthetic impact of the application against the City Plan 2014 – where the council indicated that the respondent’s request for a response as a concurrence agency was premature because it first needed to grant preliminary approval under s 83(1)(b) Building Act – where the respondent obtained a declaration that no application for preliminary approval was required – where the council contends that the declaration below contained errors of law – whether, on its correct construction, s 83(1)(b) Building Act requires a separate application to be made to the council as a necessary preliminary approval

Building Act 1975 (Qld), s 6, s 11, s 46, s 48, s 83, s 83(1)(b), s 83(1)(d), s 83(2)
Sustainable Planning Act 2009 (Qld), s 7, s 238, s 241, s 243, s 251, s 254, s 260, s 282, s 283, s 286
Sustainable Planning Regulation 2009 (Qld), s 9

Brisbane City Council v Mamczur & Anor [2010] QPEC 71, distinguished
Gerhardt v Brisbane City Council [2015] QPELR 812; [2015] QPEC 34, approved

COUNSEL:

M D Hinson QC, with J Lyons, for the applicant
P R Smith for the respondent

SOLICITORS:

Brisbane City Legal Practice for the applicant
No appearance for the respondent

HOLMES CJ: I agree with the reasons of Philip McMurdo JA and the orders he proposes.
PHILIP McMURDO JA: In December 2014 the owners of a house at Wooloowin applied to a private building certifier for permission to make additions and alterations to it. The certifier,…

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.

Keep reading for free

Create a free CaseChat account to read Brisbane City Council v Gerhardt and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] QCA 76
Decision Date: 1 April 2016

CaseChat Overview and Summary

The Brisbane City Council initiated legal proceedings against Mr. Gerhardt, a building certifier, challenging the validity of a declaration obtained by him. Mr. Gerhardt had been involved in a building development application for a property in Wooloowin, which required assessment under the Sustainable Planning Regulation 2009 and the City Plan 2014. The council argued that a declaration made by Mr. Gerhardt, which stated that no preliminary approval was required, contained legal errors. The primary concern was whether section 83(1)(b) of the Building Act 1975 necessitated a separate application for preliminary approval to the council before any assessment could take place.

The court was tasked with interpreting the legislative framework surrounding building development applications, particularly the roles and responsibilities of building certifiers and the council. It needed to determine if the declaration made by Mr. Gerhardt was legally sound and whether there was a requirement for a separate application for preliminary approval as asserted by the council. The court's analysis focused on the interaction between sections of the Building Act and the procedural requirements for building developments.

Upon examining the statutory provisions and relevant regulations, the court concluded that the declaration issued by Mr. Gerhardt did not contain errors of law. The court found that section 83(1)(b) of the Building Act did not mandate a separate application for preliminary approval by the council before a building certifier could assess a development. Instead, the court determined that Mr. Gerhardt's role as the assessment manager allowed him to make the declaration without the need for a preliminary approval from the council. Consequently, the appeal was dismissed, and Mr. Gerhardt was granted leave to appeal. The Brisbane City Council was ordered to bear the costs of the appeal.

In summary, the court found in favour of Mr. Gerhardt, clarifying that no separate preliminary approval was required before a building certifier could assess a development under the given statutory framework. The appeal was dismissed, and the council was ordered to pay Mr. Gerhardt's costs associated with the appeal.

Orders

Orders of the court

1. Leave to appeal be granted.

2. Appeal dismissed.

3. Appellant to pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brisbane City Council v Gerhardt [2016] QCA 76
PARTIES:	BRISBANE CITY COUNCIL (applicant) v TREVOR WILLIAM GERHARDT (respondent)
FILE NO/S:	Appeal No 8728 of 2015 P & E Appeal No 351 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Sustainable Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane - [2015] QPEC 34
DELIVERED ON:	1 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	17 February 2016
JUDGES:	Holmes CJ and Philip McMurdo JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal be granted. 2. Appeal dismissed. 3. Appellant to pay the respondent’s costs of the appeal.
CATCHWORDS:	ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – OTHER MATTERS – where the respondent is a building certifier (class A) performing functions under s 48 Building Act 1975 (Qld) (‘Building Act’) – where owners of a house in Wooloowin made a building development application to the respondent under s 6 Building Act – where the development was an assessable development under s 9 of the Sustainable Planning Regulation 2009 (Qld) and under council’s City Plan 2014 – where s 11 Building Act deemed the respondent to be the assessment manager for the building development application – where the respondent referred to the council that part of the building development application within its jurisdiction as a concurrence agency to assess the amenity and aesthetic impact of the application against the City Plan 2014 – where the council indicated that the respondent’s request for a response as a concurrence agency was premature because it first needed to grant preliminary approval under s 83(1)(b) Building Act – where the respondent obtained a declaration that no application for preliminary approval was required – where the council contends that the declaration below contained errors of law – whether, on its correct construction, s 83(1)(b) Building Act requires a separate application to be made to the council as a necessary preliminary approval Building Act 1975 (Qld), s 6, s 11, s 46, s 48, s 83, s 83(1)(b), s 83(1)(d), s 83(2) Sustainable Planning Act 2009 (Qld), s 7, s 238, s 241, s 243, s 251, s 254, s 260, s 282, s 283, s 286 Sustainable Planning Regulation 2009 (Qld), s 9 Brisbane City Council v Mamczur & Anor [2010] QPEC 71, distinguished Gerhardt v Brisbane City Council [2015] QPELR 812; [2015] QPEC 34, approved
COUNSEL:	M D Hinson QC, with J Lyons, for the applicant P R Smith for the respondent
SOLICITORS:	Brisbane City Legal Practice for the applicant No appearance for the respondent