Gerhardt v Brisbane City Council (No. 2)

[2016] QPEC 50

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

CITATION:

Gerhardt v Brisbane City Council (No. 2) [2016] QPEC 50

PARTIES:

TREVOR WILLIAM GERHARDT

Applicant

v

BRISBANE CITY COUNCIL

Respondent

FILE NO/S:

2023/16

DIVISION:

Planning and Environment Court

PROCEEDING:

Hearing

DELIVERED ON:

5 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers, following judgment delivered on 16 September 2016

JUDGE:

Bowskill QC DCJ

ORDER:

1.        The application is dismissed.

2.        No order as to costs.

COUNSEL:

P Smith for the Applicant (direct brief)

N Kefford for the Respondent

SOLICITORS:

Brisbane City Legal Practice for the Respondent

1. On 16 September 2016 I delivered my reasons for refusing the declaratory relief which Mr Gerhardt had sought under s 456 of the Sustainable Planning Act 2009:  Gerhardt v Brisbane City Council [2016] QPEC 48.

2. At the end of my reasons I indicated that I thought the appropriate order was simply that Mr Gerhardt’s application be dismissed.  But because I had indicated at the hearing that I would give the parties time to consider my reasons before making final orders, I did not make the order at that time.

3. I have now heard from the parties.  The Council submits the appropriate order is that the application be dismissed, with each party bearing their own costs.  Mr Gerhardt submits that the appropriate orders are, firstly, an order that the declarations sought by Mr Gerhardt are refused; secondly, a positive declaration in terms of the construction which I ultimately reached of the relevant provisions (summarised in [100] of the reasons); and consistently with the Council, that there be no order for costs.

4. The reasons advanced on behalf of Mr Gerhardt as to why a declaration, in terms of part of [100] of the reasons, ought to be made, is that this will “provide a clear, concise and unambiguous direction to Mr Gerhardt and indeed other private certifiers, local governments and others who may be following the progress of”
   this and other recent court decisions involving Mr Gerhardt.

5. I am not satisfied that is an appropriate justification for making a declaration in the terms sought by Mr Gerhardt. 

6. Section 456 of the Planning Act confers jurisdiction to hear and decide a proceeding brought by a person seeking a declaration about, inter alia, a matter to be done for the Planning Act, or the construction of the Planning Act or a planning instrument.   Mr Gerhardt made such an application.  I have heard and determined his application, and refused to grant the declarations he sought, on the basis of the reasons.   I do not consider it necessary or appropriate, in those circumstances, to fashion an alternative declaration, reflecting in part the conclusion I reached in refusing the relief sought by Mr Gerhardt.  The reasons speak for themselves, and indeed require consideration in full because the particular factual and legal matrix is important.  I would not wish a declaration, in terms of one part of what is a summary at the end of complex reasons, to be taken out of context.