Gerhardt v Brisbane City Council

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gerhardt v Brisbane City Council [2017] QPEC 49

PARTIES:

TREVOR WILLIAM GERHARDT
(Applicant)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

2565 of 2017

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

11 August 2017 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2017

JUDGE:

Kefford DCJ

ORDER:

1.     The application is dismissed.

2.     The Applicant is to pay Council’s costs assessed on the standard basis.

CATCHWORDS:

PLANNING AND ENVIRONMENT – BUILDING WORK – where a building development application is made to a private certifier seeking a development permit for building work – where Council, as concurrence agency, refused the development application – where Council advised that the building work constituted a material change of use – whether the construction of the proposed house constitutes a material change of use – whether a development approval for building work is required from Council

LEGISLATION:

Planning Act 2016 (Qld), s 55, s 62, s 73A, s 288

Planning and Environment Court Act 2016 (Qld), s 60

Sustainable Planning Act 2009 (Qld), s 245A, s 325

Sustainable Planning Regulation 2009 (Qld), Sch 7

CASES:

Carrigan v Goondiwindi Regional Council [2016] QPELR 273; [2016] QPEC 8

Gorrie v Mackay City Council [2003] QPELR 328; [2002] QPEC 74

KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2005] QPELR 28; [2004] QPEC 31

Maroochy Shire Council v Barns [2001] QPELR 475; [2001] QPEC 31; Maroochy Shire Council v Barns [2001] QCA 273

Sunshine Coast Regional Council v Flanigan [2010] QPELR 97; [2009] QPEC 68

COUNSEL:

P R Smith for the Applicant (direct brief)

M A Williamson with M J Batty for the Respondent

SOLICITORS:

No appearance for the Applicant

Brisbane City Legal Practice for the Respondent

Introduction

1. The Applicant is a private certifier.  On 4 May 2017, he received a development application for a development permit for building work (residential dwelling) (“proposed house”) for land situated at 42 Gillan Street, Norman Park.

1. By his Originating Application, the Applicant seeks declaratory and consequential relief that he contended was relevant to his power to assess and decide the application for building work for the proposed house. 

1. The Applicant bears the onus of proof.

1. The Respondent, Brisbane City Council (“Council”), opposes the Originating Application and the relief sought therein.

Relevant background

1. The subject land has an area of 567 square metres and is vacant.

1. The land has not always been vacant.  It was previously improved with a modest dwelling house that was demolished sometime between 15 December 2016 and 11 April 2017, likely around February 2017. 

1. As noted above, the Applicant received an application for a development permit for building work.

1. The development application was referred to Council as a concurrence agency for the purposes of:

(a)        design and siting pursuant to Schedule 7 of the Sustainable Planning Regulation 2009; and

(b)        amenity and aesthetics pursuant to Schedule 7 of the Sustainable Planning…