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 71Mingara 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
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…
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- Case
- [2015] QPEC 34
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework, particularly the Sustainable Planning Act 2009 (Qld), to determine the role of the Brisbane City Council in the approval process. The court found that the Council was not a ‘concurrence agency’ and, therefore, Gerhardt did not need to make a separate application for a development permit or preliminary approval. Instead, Gerhardt was entitled to approve the development application under section 286(1) of the Sustainable Planning Act 2009 (Qld) as if there were no concurrence agency requirements. The court further declared that no application for a development approval was necessary to be made to and approved by the Council for the building work in question.
Consequently, the court ruled in favour of Gerhardt, declaring that no application for a development approval was required to be made to and approved by the Brisbane City Council for the alterations to the dwelling at 105 Lodge Road, Wooloowin. The Applicant was granted the liberty to approve the development application as if there were no concurrence agency requirements. Additionally, the Brisbane City Council was ordered to pay Gerhardt's costs on a standard basis.
Orders
Orders of the court
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.
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
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