Gerhardt v Brisbane City Council

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gerhardt v Brisbane City Council [2015] QPEC 34

PARTIES:

TREVOR WILLIAM GERHARDT

(Applicant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE:

351/15

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

31 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2015

JUDGE:

Searles JDC

ORDER:

1. Declare that no application for a development approval (including either a preliminary approval or a development permit) for carrying out building work is required to be made to and approved by the Respondent for the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling located at 105 Lodge Road, Wooloowin.

2. Declare that the Applicant be at liberty to approve the development application within the Sustainable Planning Act 2009 (Qld) s 286(1) as if there were no concurrence agency requirements.

3. The Council pay the costs of the Applicant on a standard basis.

CATCHWORDS:

PLANNING AND ENVIRONMENT – BUILDING WORK – EXISTING RESIDENTIAL DWELLING - Applicant a private certifier who received a building development application from homeowners for alterations to an existing residential dwelling – Alterations require assessment against Dwelling House code and Traditional Building Character (Design) Code – Where development permit required before alterations can go ahead – Where Applicant applied to Respondent for amenity and aesthetic assessment for purposes of obtaining approval – Whether Respondent is a ‘concurrence agency’ – Whether Applicant must make separate application to Respondent for development permit or preliminary approval.

Building Act 1975 (Qld) ss 10, 11, 36, 45, 47, 48, 83
Brisbane City Plan 2014 s 1.7.4
Sustainable Planning Act 2009 (Qld) ss 238, 241, 243, 244, 246(1), 247, 251, 252, 254, 260, 270, 282, 283, 284, 285, 286(1), 288, 456(1), 456(7), 457
Sustainable Planning Regulation 2009 (Qld) regs 9, 12, 13, 15 and Schedules 3, 6, 7, 15
Brisbane City Council v Mamczur [2010] QPEC 71

Mingara Pty Ltd v Brisbane City Council [2002] QPELR 88

COUNSEL:

Applicant - Mr P Smith of Counsel

Respondent - Mr J Lyons of Counsel

SOLICITORS:

Applicant - Direct brief

Respondent - Brisbane City Legal Practice

Application before the Court

1. The Applicant seeks the following declarations pursuant to s 456(1) of the Sustainable Planning Act 2009 (Qld) (SPA):

[A]       That the Respondent is a concurrence agency by the operation of City Plan 2014 s 1.7.4, for assessing the amenity and aesthetic impact of the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling located at 105 Lodge Road, Wooloowin.

[B]       That no application for a development approval (including either a preliminary approval or a development permit) for carrying out building work is required to be made to and approved by the Respondent for the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling…