Gerhardt v Queensland Building and Construction Commission - [2016] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION:

Gerhardt v Queensland Building and Construction Commission [2016] QCA 136

PARTIES:

TREVOR WILLIAM GERHARDT
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NO/S:

Appeal No 2096 of 2015
QCATA No 237 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2015] QCATA 13

DELIVERED ON:

31 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2015

JUDGES:

Morrison and Philippides JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal be granted.

2.   Leave to amend the proposed Notice of Appeal be refused.

3.   Appeal dismissed.

4.   Appellant to pay the respondent’s costs of the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – where an extension of time is required to bring the application for leave to appeal – where the extension is not opposed – whether leave is granted

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – where the Queensland Building and Construction Commission decided the applicant had engaged in unsatisfactory conduct – where the decision was set aside by a member of the Queensland Civil and Administrative Tribunal (QCAT) – where a member of the Queensland Civil and Administrative Appeal Tribunal set aside the QCAT member’s findings – where leave to appeal is restricted to a question of law – where the applicant was a private certifier under the Building Act 1975 (Qld) – where the applicant issued building permits without preliminary approval – where the council was prescribed as a “concurrence agency” in the Sustainable Planning Regulation 2009 – whether the applicant was the assessment manager of the development application and therefore did not require preliminary approval

Brisbane City Plan 2000
Building Act 1975 (Qld), s 11, s 30(1)(a), s 45, s 46, s 83, s 84
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(3)
Sustainable Planning Act 2009 (Qld), s 241, s 247, s 251, s 252
Sustainable Planning Regulation 2009 (Qld), Schedule 7, Table 1, item 17

Brisbane City Council v Gerhardt[2016] QCA 76, applied
Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139, related
Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686, related
Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13, related

COUNSEL:

P R Smith for the applicant
S E Seefeld for the respondent

SOLICITORS:

No appearance for the applicant
Queensland Building and Construction Commission for the respondent

MORRISON JA: Mr Gerhardt is a private certifier in the Brisbane area. In 2012 he issued an approval of building development, for alterations and additions to an existing residential building in Annerley.
In August 2013, the Queensland Building and Construction Commission decided that he had engaged in unsatisfactory conduct, contrary to s 83(1)(b) of the Building Act 1974 (Qld). The basis of that conclusion was that Mr Gerhardt…

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: [2016] QCA 136
Decision Date: 31 May 2016

CaseChat Overview and Summary

The case of Gerhardt v Queensland Building and Construction Commission involved Mr. Gerhardt, a private certifier under the Building Act 1975 (Qld), who issued building permits for a house in Annerley without obtaining preliminary approvals from the Brisbane City Council. The Queensland Building and Construction Commission (QBCC) found that Mr. Gerhardt had engaged in unsatisfactory conduct and reprimanded him. This decision was initially set aside by a member of the Queensland Civil and Administrative Tribunal (QCAT), but later reinstated by a member of the Queensland Civil and Administrative Appeal Tribunal. Mr. Gerhardt sought leave to appeal the Appeal Tribunal’s decision to the Queensland Court of Appeal.

The primary legal issue in this case was whether Mr. Gerhardt was required to obtain preliminary approval from the Brisbane City Council before issuing the building permits. The court had to determine whether Mr. Gerhardt was the assessment manager of the development application and therefore not required to obtain preliminary approval. The court also had to consider whether the Appeal Tribunal’s decision was correct in finding that Mr. Gerhardt engaged in unsatisfactory conduct.

In its decision, the court held that the Appeal Tribunal had correctly interpreted the Sustainable Planning Act and the Building Act. The court found that Mr. Gerhardt was required to assess the work against relevant Codes, including the Character Code and the Demolition Code, and that a preliminary approval was necessary. The court also found that Mr. Gerhardt had engaged in unsatisfactory conduct by issuing building permits without obtaining preliminary approval. However, the court granted leave to appeal on the question of law as to whether Mr. Gerhardt was the assessment manager of the development application and therefore not required to obtain preliminary approval. The court dismissed the appeal and ordered that Mr. Gerhardt pay the respondent’s costs of the appeal.

The court's decision in this case highlights the importance of obtaining preliminary approvals from the relevant council before issuing building permits. The court also emphasised the need for private certifiers to comply with the Building Act and the relevant Codes. The decision provides guidance to private certifiers and councils on the proper interpretation of the Building Act and the Sustainable Planning Act.

Orders

Orders of the court

1. Leave to appeal be granted.

2. Leave to amend the proposed Notice of Appeal be refused.

3. Appeal dismissed.

4. Appellant to pay the respondent’s costs of the appeal.

Background

Background to the litigation

Mr Gerhardt also requires an extension of time within which to bring the application for leave. An extension of time is not opposed, and need not be further considered.Relevant facts The facts are relatively simple and not in contest. They can be restated from the Appeal Tribunal decision. In 2011 the owner of a pre-1946 house, on a double block at Annerley, obtained a series of preliminary development approvals from the Brisbane City Council. The approvals were to relocate the house, reconfigure the lots and build two multiunit dwellings at the rear. None of the Council’s approvals were building permits. In 2012, the Council discovered the owner had carried out building work on the house. It issued an enforcement notice relating to:(a)a deck constructed above the garage;(b)enclosing the lower level of the house;(c)the carport being 1100 mm from the boundary instead of the required 1500 mm;(d)the removal of both the front and rear stairs; and(e)a front fence 2900 mm high. The owner engaged Mr Gerhardt to issue the necessary building permits. Mr Gerhardt did so without reference to the preliminary approvals. The Commission commenced disciplinary proceedings against Mr Gerhardt, found he had engaged in unsatisfactory conduct, and reprimanded him.Approach of the Appeal Tribunal At the outset of the hearing before this Court, counsel for Mr Gerhardt said that certain passages in the reasons of the Appeal Tribunal were at the heart of the contention that leave to appeal was warranted. Those passages are set out below:[3]“[29] The learned Senior Member found[4] that there was no requirement for a preliminary approval because there was no material change of use. QBCC submits that a preliminary approval was necessary and that Mr Gerhardt had no power to issue the preliminary approval.[30]I agree that whether or not there was a material change of use is not the relevant test. The test goes back to the complex definition process referred to at [8] above. The essence of the argument is that Mr Gerhardt can only approve building work and work that requires assessment against the Codes is excluded from that definition. I accept that analysis.[31]I have previously found:[5][32]Section 30(1)(a) of the Building Act 1975 (Qld) states that building assessment work must be carried out under IDAS. IDAS means the system detailed in the Planning Act, chapter 6, for integrating State and local government assessment and approval processes for development. Therefore, s 30 requires a certifier to assess work against the relevant town planning requirements. Mr Gerhardt has not made any submissions in this appeal that would change my view. Therefore, he was required to assess the work against relevant Codes. As I have found, those Codes included the Character Code and the Demolition Code. A preliminary approval was necessary. The learned Senior Member erred in finding to the contrary.”[3][2015] QCATA 13 at [13].[4]Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686 at [29].[5]Gerhardt v QBCC [2014] QCAT 139 at [21].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As those factual findings cannot be the subject of the proposed appeal there is no reason to grant leave to raise the s 84 point. That being so, there is no basis to challenge the Appeal Tribunal’s finding that Mr Gerhardt engaged in unsatisfactory conduct.Conclusion and orders The proposed appeal involved important questions of general application as to the proper interpretation of the Sustainable Planning Act and the Building Act. For the same reasons as expressed in Gerhardt v BCC[40] I would grant leave to appeal. However, for the reasons expressed above I would dismiss the appeal.[40][2016] QCA 76 at [4]. I would propose the following orders:-1.Leave to appeal be granted.2.Leave to amend the proposed Notice of Appeal be refused.3.Appeal dismissed.4.Appellant to pay the respondent’s costs of the appeal. PHILIPPIDES JA: I agree with Morrison JA’s reasons and with the orders proposed. NORTH J: I agree with Morrison JA’s reasons and with the orders proposed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gerhardt v Queensland Building and Construction Commission [2016] QCA 136
PARTIES:	TREVOR WILLIAM GERHARDT (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
FILE NO/S:	Appeal No 2096 of 2015 QCATA No 237 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2015] QCATA 13
DELIVERED ON:	31 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2015
JUDGES:	Morrison and Philippides JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal be granted. 2. Leave to amend the proposed Notice of Appeal be refused. 3. Appeal dismissed. 4. Appellant to pay the respondent’s costs of the appeal.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – where an extension of time is required to bring the application for leave to appeal – where the extension is not opposed – whether leave is granted ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – where the Queensland Building and Construction Commission decided the applicant had engaged in unsatisfactory conduct – where the decision was set aside by a member of the Queensland Civil and Administrative Tribunal (QCAT) – where a member of the Queensland Civil and Administrative Appeal Tribunal set aside the QCAT member’s findings – where leave to appeal is restricted to a question of law – where the applicant was a private certifier under the Building Act 1975 (Qld) – where the applicant issued building permits without preliminary approval – where the council was prescribed as a “concurrence agency” in the Sustainable Planning Regulation 2009 – whether the applicant was the assessment manager of the development application and therefore did not require preliminary approval Brisbane City Plan 2000 Building Act 1975 (Qld), s 11, s 30(1)(a), s 45, s 46, s 83, s 84 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(3) Sustainable Planning Act 2009 (Qld), s 241, s 247, s 251, s 252 Sustainable Planning Regulation 2009 (Qld), Schedule 7, Table 1, item 17 Brisbane City Council v Gerhardt[2016] QCA 76, applied Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139, related Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686, related Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13, related
COUNSEL:	P R Smith for the applicant S E Seefeld for the respondent
SOLICITORS:	No appearance for the applicant Queensland Building and Construction Commission for the respondent