Gerhardt v Brisbane City Council - [2017] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

Gerhardt v Brisbane City Council [2017] QCA 285

PARTIES:

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

FILE NO/S:

Appeal No 10289 of 2016
DC No 2023 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

District Court at Brisbane – [2016] QPELR 934 (Bowskill QC DCJ)

DELIVERED ON:

17 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2017

JUDGE:

Fraser and Morrison JJA and Flanagan J

ORDER:

The application for leave to appeal should be refused with costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the owners of land applied to the applicant for a development permit for building work – where a dispute arose between the applicant and the respondent about the nature of any development approval the applicant was empowered to issue – where the applicant contends that the Council was given the jurisdiction to assess the owners’ application as a concurrence agency upon referral by the applicant as the assessment manager – where the respondent contends that a separate application for development approval was required to be made directly to the respondent in respect of that aspect of the application – where the resolution of that dispute involved the construction and application of provisions of various legislation – where the primary judge refused the declarations sought by the applicant – where the applicant has applied for leave to appeal against that decision – whether the primary judge erred in determining the nature of the respondent’s jurisdiction to assess the owners’ application in so far as it required consideration of the demolition code under the City Plan 2014

Acts Interpretation Act 1954 (Qld), s 14A
Building Act 1975 (Qld), s 7, s 10, s 11, s 30, s 31, s 46, s 48, s 83(1)(b)
Sustainable Planning Act 2009 (Qld), s 21, s 106, s 232(2), s 247, s 251(a), s 254, s 260(1)(e), s 282, s 285, s 286(1), s 287, s 288(2), s 397, s 761A
Sustainable Planning Regulation 2009 (Qld), s 13, sch 3, sch 7
Brisbane City Plan 2014, s 1.7.4, s 5.3.1(h), s 5.10.21, s 8.2.21

Gerhardt v Brisbane City Council [2016] QPELR 900; [2016] QPEC 48, related
Gerhardt v Brisbane City Council (No. 2) [2016] QPELR 934; [2016] QPEC 50, related
Gerhardt v Queensland Building and Construction Commission [2016] QCA 136, cited
Woolworths Ltd v Kelly (1991) 22 NSWLR 189, cited
Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QCA 147, cited

COUNSEL: P R Smith for the applicant
M A Williamson, with M J Batty, for the respondent

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

FRASER JA: The applicant is a private certifier (Class A) under the Building Act 1975 (Qld) (“Building Act”). The owners of land applied to the applicant for a development permit…

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: [2017] QCA 285
Decision Date: 17 November 2017

CaseChat Overview and Summary

Gerhardt and the Brisbane City Council were involved in a legal dispute over the Council’s jurisdiction to assess an application for a development permit for building work. The applicants sought a development permit for their property, which the Council was required to assess. The Council asserted that it was not the appropriate authority to consider the application, contending that a separate application for development approval was required to be made directly to it. The applicants argued that the Council had the jurisdiction to assess the application as a concurrence agency upon referral by the applicants as the assessment manager.

The primary issue for the court was to determine the nature of the Council’s jurisdiction to assess the applicants’ application, particularly in relation to the demolition code under the City Plan 2014. The resolution of this issue required the court to interpret and apply provisions of various legislation. The court had to examine the legal framework governing the roles and responsibilities of the Council and the applicants in the development approval process. The court also had to consider whether the Council had the authority to assess the application as a concurrence agency or if a separate application was necessary.

The court concluded that the primary judge did not err in determining the nature of the Council’s jurisdiction. The court found that the Council did not have the authority to assess the application as a concurrence agency and that a separate application for development approval was required to be made directly to the Council. The court held that the primary judge correctly interpreted the relevant legislation and applied it to the facts of the case. The court further held that the applicants’ arguments were not persuasive and did not warrant a different outcome.

The court refused the applicants' application for leave to appeal against the primary judge’s decision and ordered that costs be paid by the applicants.

Orders

Orders of the court

The application for leave to appeal should be refused with costs.

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:	Gerhardt v Brisbane City Council [2017] QCA 285
PARTIES:	TREVOR WILLIAM GERHARDT (applicant) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	Appeal No 10289 of 2016 DC No 2023 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Sustainable Planning Act
ORIGINATING COURT:	District Court at Brisbane – [2016] QPELR 934 (Bowskill QC DCJ)
DELIVERED ON:	17 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2017
JUDGE:	Fraser and Morrison JJA and Flanagan J
ORDER:	The application for leave to appeal should be refused with costs.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the owners of land applied to the applicant for a development permit for building work – where a dispute arose between the applicant and the respondent about the nature of any development approval the applicant was empowered to issue – where the applicant contends that the Council was given the jurisdiction to assess the owners’ application as a concurrence agency upon referral by the applicant as the assessment manager – where the respondent contends that a separate application for development approval was required to be made directly to the respondent in respect of that aspect of the application – where the resolution of that dispute involved the construction and application of provisions of various legislation – where the primary judge refused the declarations sought by the applicant – where the applicant has applied for leave to appeal against that decision – whether the primary judge erred in determining the nature of the respondent’s jurisdiction to assess the owners’ application in so far as it required consideration of the demolition code under the City Plan 2014 Acts Interpretation Act 1954 (Qld), s 14A Building Act 1975 (Qld), s 7, s 10, s 11, s 30, s 31, s 46, s 48, s 83(1)(b) Sustainable Planning Act 2009 (Qld), s 21, s 106, s 232(2), s 247, s 251(a), s 254, s 260(1)(e), s 282, s 285, s 286(1), s 287, s 288(2), s 397, s 761A Sustainable Planning Regulation 2009 (Qld), s 13, sch 3, sch 7 Brisbane City Plan 2014, s 1.7.4, s 5.3.1(h), s 5.10.21, s 8.2.21 Gerhardt v Brisbane City Council [2016] QPELR 900; [2016] QPEC 48, related Gerhardt v Brisbane City Council (No. 2) [2016] QPELR 934; [2016] QPEC 50, related Gerhardt v Queensland Building and Construction Commission [2016] QCA 136, cited Woolworths Ltd v Kelly (1991) 22 NSWLR 189, cited Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QCA 147, cited
COUNSEL:	P R Smith for the applicant M A Williamson, with M J Batty, for the respondent
SOLICITORS:	No appearance for the applicant Brisbane City Legal Practice for the respondent