Gerhardt v Brisbane City Council - [2016] QPEC 48

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gerhardt v Brisbane City Council [2016] QPEC 48

PARTIES:

TREVOR WILLIAM GERHARDT

Applicant

v

BRISBANE CITY COUNCIL

Respondent

FILE NO/S:

2023/16

DIVISION:

Planning and Environment Court

PROCEEDING:

Hearing

DELIVERED ON:

16 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2016; further submissions on 14 September 2016

JUDGE:

Bowskill QC DCJ

ORDER:

Final orders to be made, once the parties have had an opportunity to consider these reasons

CATCHWORDS:

PLANNING AND ENVIRONMENT – Where a building development application is made to a private certifier (class A) under the Building Act 1975 seeking a development permit for building work comprising the demolition of pre-1946 character houses – Where the building work is assessable development, required to be assessed against the building assessment provisions under the Building Act 1975 and the traditional building character (demolition) overlay code under Brisbane City Plan 2014 – Whether the Council is a concurrence agency for the purposes of assessment against the demolition code – Whether a separate application for development approval is required to be made to the Council – Whether the private certifier may grant a building development approval in the form of a development permit, or a preliminary approval, where the Council has not yet carried out its assessment.

Acts Interpretation Act 1954, s 14A

Brisbane City Plan 2014

Building Act 1975, ss 5, 6, 7, 10, 11, 12, 20, 30, 31, 32, 34A, 46, 48, 51, 52, 83, 86 and schedule 2

Sustainable Planning Act 2009, ss 7, 10, 232, 238, 241, 243, 246, 247, 249, 251, 254, 286, 288, 312, 324, 334, 335, 456, 578 and schedule 3

Sustainable Planning Regulation 2009, s 9 and schedule 3 (part 1, table 1, item 1), s 12 and schedule 6 (table 1, item 1), and s 13 and schedule 7 (table 1, item 17)

Brisbane City Council v Gerhardt [2016] QPELR 485; [2016] QCA 76

Gerhardt v Brisbane City Council [2015] QPELR 812

Gerhardt v Queensland Building and Construction Commission [2016] QCA 136

Woolworths Ltd v Kelly (1991) 22 NSWLR 189

COUNSEL:

P Smith for the Applicant (direct brief)

N Kefford for the Respondent

SOLICITORS:

Brisbane City Legal Practice for the Respondent

Introduction

Mr Gerhardt is a private certifier (class A) for the purposes of the Building Act 1975. In April 2016 a building development application[1] was made to him, by the owners of two pre-1946 houses on land at 32 and 36 Rossiter Street, Morningside, seeking a development permit for “building work”, being the demolition of those houses.[2]
[1]Being an application for development approval under the Sustainable Planning Act 2009, to the extent it is for building work: see s 6 of the Building Act.
[2] See exhibit TG-2 to the affidavit of Mr Gerhardt filed 27 May 2016, in particular at p 3.
In the course of Mr Gerhardt considering this application, a dispute has arisen between Mr Gerhardt and the Council in relation to the assessment of part of it (being…

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

Case: [2016] QPEC 48
Decision Date: 16 September 2016

CaseChat Overview and Summary

Gerhardt v Brisbane City Council is a case that arose from a dispute regarding a building development application made to a private certifier under the Building Act 1975. The applicant sought a development permit for building work that involved the demolition of pre-1946 character houses. The case turned on whether the Brisbane City Council was a concurrence agency for the purposes of assessing the building work against the demolition code under the Brisbane City Plan 2014 and whether a separate application for development approval was required to be made to the Council. Furthermore, the court needed to determine whether the private certifier could grant a building development approval in the form of a development permit, or a preliminary approval, where the Council had not yet carried out its assessment.

The court examined the relevant provisions of the Building Act 1975 and the Planning Act 2016, particularly those relating to the definitions of “development approval,” “preliminary approval,” and “development permit.” It also considered the Building Act’s provisions regarding the process for approving building development applications made to private certifiers. The court found that the Brisbane City Council was indeed a concurrence agency for the purposes of assessing the building work against the demolition code. As such, the private certifier could not grant a building development approval until the Council had carried out its assessment. The court also determined that a separate application for development approval was required to be made to the Council, as the Building Act imposed specific requirements on the approval process for building development applications made to private certifiers.

In light of the court's findings, it was determined that the private certifier could not grant a building development approval in the form of a development permit, or a preliminary approval, until the Council had carried out its assessment. The court held that the private certifier was required to give the Council a copy of the application and the approval documents within five days of approving the application and to pay a fee to the Council. The Council was then required to acknowledge the payment of the fee immediately and only give the approval documents to the applicant if it had complied with the requirements of the Building Act. The court also found that the private certifier must not grant a building development approval until all necessary development permits and compliance permits had been obtained and any required security had been given to the Council.

The final orders in the case are to be made once the parties have had an opportunity to consider the reasons provided by the court. The court's decision highlights the importance of ensuring that all relevant concurrence agencies have assessed building work before a private certifier can grant a building development approval. It also underscores the need for applicants to comply with the specific requirements of the Building Act when making building development applications to private certifiers.

Orders

Orders of the court

Final orders to be made, once the parties have had an opportunity to consider these reasons

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

In the Planning Act, “development approval” is defined to mean:“(a) a decision notice or a negotiated decision notice that –(i) approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and(ii)is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval; or(b) a deemed approval, including any conditions applying to it.”[39][39] See the definition in schedule 3 to the Planning Act; underlining added. A preliminary approval “approves development, but does not authorise assessable development to take place” (s 241). As already noted, a development permit “authorises assessable development to take place” (s 243). A decision notice, under s 334(1) and (2) of the Planning Act, is required to be given within 5 business days of the decision being made, to the applicant and the local government (if the local government is not the assessment manager). Under s 335(1) of the Planning Act, the decision notice must state a number of things, including:“(g) if the application is approved – whether the approval is a preliminary approval, a development permit or a combined preliminary approval and development permit;…(i) any other development permits or compliance permits necessary to allow the development to be carried out…” Where the decision notice is given by a private certifier, the “decision notice” provisions in the Planning Act (ss 334-337) apply subject to chapter 4, part 6 of the Building Act (which contains ss 82-88). Relevantly, ss 86-88 of the Building Act establishes a different process, to that contemplated by s 334(1) and (2), by requiring a private certifier who approves an application to give the local government a copy of the application, and the “approval documents” within five days and pay a fee to the local government (s 86(1)); requiring the local government to immediately acknowledge the payment of the fee (s 87); and only to give the approval documents to the applicant if they have complied with s 86(1) (s 88). Otherwise, the required contents of the decision notice are not altered by the Building Act.[40][40]Save that an additional requirement is imposed, by s 85, to include in the notice details of any self-assessable code under the Planning Act that the applicant may need to comply with. That part of the Building Act also includes s 83, which imposes some restrictions on the grant of a building development approval. Under s 83(1), a private certifier must not grant a building development approval applied for:“(a) if the building development application includes development other than building work – until under the Planning Act, all necessary development permits and SPA compliance permits are effective for the other development; and(b) until all necessary preliminary approvals under the Planning Act are effective for other assessable parts of the development; and(c)until the building assessment work for the application has been carried out under the building assessment provisions; and(d) if, under the Planning Act, a concurrence agency has jurisdiction for a part of building work –(i) that part has been assessed by the concurrence agency, under the building assessment provisions; and(ii) if the concurrence agency is the local government – any security it has required for the carrying out of the building work has been given; and(e)if proposed works relating to the development include installing or changing on premises an on-site sewerage facility under the Plumbing and Drainage Act 2002 – until a compliance permit under that Act has been given for the installation or change.”[41][41] Underlining added.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gerhardt v Brisbane City Council [2016] QPEC 48
PARTIES:	TREVOR WILLIAM GERHARDT Applicant v BRISBANE CITY COUNCIL Respondent
FILE NO/S:	2023/16
DIVISION:	Planning and Environment Court
PROCEEDING:	Hearing
DELIVERED ON:	16 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	11 August 2016; further submissions on 14 September 2016
JUDGE:	Bowskill QC DCJ
ORDER:	Final orders to be made, once the parties have had an opportunity to consider these reasons
CATCHWORDS:	PLANNING AND ENVIRONMENT – Where a building development application is made to a private certifier (class A) under the Building Act 1975 seeking a development permit for building work comprising the demolition of pre-1946 character houses – Where the building work is assessable development, required to be assessed against the building assessment provisions under the Building Act 1975 and the traditional building character (demolition) overlay code under Brisbane City Plan 2014 – Whether the Council is a concurrence agency for the purposes of assessment against the demolition code – Whether a separate application for development approval is required to be made to the Council – Whether the private certifier may grant a building development approval in the form of a development permit, or a preliminary approval, where the Council has not yet carried out its assessment. Acts Interpretation Act 1954, s 14A Brisbane City Plan 2014 Building Act 1975, ss 5, 6, 7, 10, 11, 12, 20, 30, 31, 32, 34A, 46, 48, 51, 52, 83, 86 and schedule 2 Sustainable Planning Act 2009, ss 7, 10, 232, 238, 241, 243, 246, 247, 249, 251, 254, 286, 288, 312, 324, 334, 335, 456, 578 and schedule 3 Sustainable Planning Regulation 2009, s 9 and schedule 3 (part 1, table 1, item 1), s 12 and schedule 6 (table 1, item 1), and s 13 and schedule 7 (table 1, item 17) Brisbane City Council v Gerhardt [2016] QPELR 485; [2016] QCA 76 Gerhardt v Brisbane City Council [2015] QPELR 812 Gerhardt v Queensland Building and Construction Commission [2016] QCA 136 Woolworths Ltd v Kelly (1991) 22 NSWLR 189
COUNSEL:	P Smith for the Applicant (direct brief) N Kefford for the Respondent
SOLICITORS:	Brisbane City Legal Practice for the Respondent