Gerhardt v McNeil

[2015] QDC 270

DISTRICT COURT OF QUEENSLAND

CITATION:

Gerhardt v McNeil [2015] QDC 270

PARTIES:

TREVOR GERHARDT

(Appellant)

and

LEA-ANN MCNEIL

(Respondent)

FILE NO/S:

4256/14

DIVISION:

Appellate

PROCEEDING:

Appeal under s222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 November 2015

DELIVERED AT:

District Court at Brisbane 

HEARING DATE:

24 July 2015 and 5 August 2015

JUDGE:

Devereaux SC DCJ

ORDER:

Appeal dismissed - the orders of the learned magistrate are confirmed. 1.     

I will receive written submissions as to costs by close of business on 9 November 2015. 2.     

CATCHWORDS:

APPEAL: Where the appellant was a private certifier (Class A) under the Building Act 1975; where appellant granted a development permit for building work; where Brisbane City Plan 2000 applied to the site; where the application was not assessed against the City Plan; whether appellant properly convicted of two charges of, being a private certifier, granting a development permit without all necessary preliminary approvals being effective.

Legislation:
Acts Interpretation Act 1954 (Qld) ss 14D, 35C,
Building Act 1975 (Qld) ss. 5, 6, 7, 8, 9, 10, 11, 30, 32, 33, 34A, 46, 48, 83, 160, 230, 240
Justices Act 1886 (Qld) ss. 222, 223, 225
Sustainable Planning Act 2009 (Qld) ss. 7, 10, 232, 246, 247, 285, 286, 324
Sustainable Planning Regulation 2009 (Qld) s. 9

Cases:

Gerhardt v BCC [2015] QPEC 34

COUNSEL:

P.R. Smith for the appellant

D. O’Brien QC for the respondent

SOLICITORS:

Counsel appeared on direct brief
Brisbane City Legal Practice for the respondent

1. The appellant was a private certifier (class A) under the Building Act 1975. On 20 August 2012, he granted a development permit for building work at a house at Annerley. The work was assessable development.[1] The Brisbane City Plan 2000 applied to the site.[2] The application was not assessed against the City Plan. The appellant was convicted of two charges of, being a private certifier, granting a development permit without all necessary preliminary approvals being effective. He appeals against those convictions, under s. 222 of the Justices Act 1886.

   [1]Sustainable Planning Act 2009 Schedule 3 – Definition of assessable development; s. 232(1)(c); Sustainable Planning Regulation 2009 s. 9 and Schedule 3. This was not in issue: see, for example, Appellant’s Outline of Argument paragraph 54.

   [2]The subject property was a house in the Demolition Control Precinct subject to assessment against the Residential Design – Character Code and the House Code: City Plan Chapter 3 Part 5 Section 5.2.3

1. The learned magistrate found beyond reasonable doubt that:

a)   The defendant is a private certifier;

b)   He granted a building development approval which had been applied for and which included for charge 2 the addition of a deck and for charge 3 the partial demolition of the eastern wall of the house;

c)   At the time of granting the same, a preliminary approval under the Planning Act was not effected for other assessable parts of the development, i.e. to say this work needed also in a preliminary…