Gerhardt v Queensland Building & Construction Commission (No 2) - [2014] QCAT 686

CITATION:

Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686

PARTIES:	Trevor Gerhardt (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR297-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

17 February 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

24 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the respondent made on 2 August 2013 is set aside.

CATCHWORDS:

BUILDING CERTIFICATION – UNSATISFACTORY CONDUCT – whether applicant’s certification of plans in breach of the Building Act – where plans certified when home owner had obtained prior approvals – whether applicant aware of prior approvals – whether obligation on the applicant to undertake searches and inquiries to ascertain if prior approvals granted – whether the applicant’s approvals “related” to earlier approvals – where applicant was assessment manager and approvals were subject to Demolition Code

Queensland Civil and Administrative TribunalAct 2009 s 20
Building Act 1975 ss 83, 84

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Paul Smith of counsel for the applicant.

RESPONDENT:

Mr Walsh of counsel for the respondent.

REASONS FOR DECISION

Mr Gerhardt is a private building certifier (class A). On 20 August 2012 he provided a Development Application Decision Notice in respect of building work to be carried out at 25 Tamworth Street, Annerley. The subject property was owned by Leon Gibb.
The Notice was provided at the request of Marty Langton, an architect from Martcon Projects Pty Ltd who prepared the plans for the renovation work at Tamworth Street. The Notice included Development Permit No 0002012193 (Building) – Conditions. Also on 20 August 2012 Mr Gerhardt lodged various documents with the Brisbane City Council, including the application (IDAS form 1), the plans and specifications, the decision notice and the appropriate fee.[1]
[1]Statement of Reasons page 186.
On 5 April 2012 the Queensland Building and Construction Commission received a complaint from the Brisbane City Council about the above certifying work carried out by the applicant in respect of the Tamworth St property. The compliant was investigated by the Commission and, on 2 August 2013 the Commission made a decision that Mr Gerhardt had engaged in an unsatisfactory conduct as a registered building certifier because he issued a Development permit without having obtained the required additional approvals, new Development approval and a concurrent Agency approval (Siting application)[2].
[2]
On 23 August 2013 Mr Gerhardt filed an application to review the Commission’s decision in the Tribunal. The function of the Tribunal on a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[3]
[3]QCAT Act s 20.
Prior to Mr Gerhardt’s involvement with the project, on 2 June 2011 the home owner Mr Gibb had been granted and earlier development permit A003030343 by the Council. The aspects of development and type of approval were:
DA – SPA – Carry out Building Work Preliminary Approval under s241 – Single Unit Dwelling, Multi-Unit Dwelling
DA – SPA – Material Change of Use Development Permit – Multi-Unit Dwelling
DA – SPA – Material Change of Use Development Permit – Single Unit Dwelling.
DA – SPA – Reconfigure a Lot Development Permit – Subdivision of Land
The effect of the above approval was for the
a)    relocation of an existing pre-1946 dwelling situated on two lots at 25 Tamworth Street, Annerley;
b)    reconfiguration of the lots to accommodate the existing dwelling on a lot of less than 400m² and
c)    erection of a two unit multi-unit dwelling on the remaining lot.
These approvals were preliminary approvals which did not permit building work to occur. Development permits for the carrying out of building work would be required before Mr Gibb could do any work in accordance with these approvals. However, in or about July/August 2012, Mr Gibb did commence building work in the nature of home renovations but it seems not in accordance with the 2011 preliminary approval.
On 8 August 2012 Council officers inspected the site at 25 Tamworth St and found significant building work had been carried out and on 6 September 2014 issued an Enforcement Notice to Mr Gibb requiring a cessation for all building work. Items of complaint and non compliance were:
a)    a deck had been constructed above the garage;
b)    The single unit dwelling has been enclosed on the lower floor level, which has increased the Gross floor area (“GFA”);
c)    The front and rear stairs of the single-unit dwelling have been removed;
d)    The carport is approximately eleven hundred millimetres (1100mm) from the side boundary in lieu of fifteen hundred millimetres (1500mm);
e)    The front fence has a maximum height of twenty-nine hundred millimetres (2900mm).
It seems the Council proceeded on the basis that the building work it inspected was generally in accordance with the 2011 development approval. It is accepted that before the building work could proceed a building approval for the work was required.
The basis of the Commissions contention that Mr Gerhardt has engaged in unsatisfactory is that he is in breach of s 83(1) and s 84 of the Building Act which provides:
83. (1) The private certifier must not grant the building development approval applied for-
(a)…………
(b)Until all necessary preliminary approvals under the Planning Act are effective.
84. (1) The private certifier must not approve the application if –
(a)The building development application relates to an earlier development approval granted by the local government or an SPA compliance permit; and
(b) the earlier approval or permit has not lapsed;
(c) the application is inconsistent with the earlier approval or permit.
Maximum penalty – 165 penalty units.
It is submitted that contrary to s 83(1) of the Act Mr Gerhardt granted an approval before preliminary approvals under the Sustainable Planning Act were applied for in respect of the deck and the partial demolition of a pre-1946 fabric of the existing dwelling to facilitate the deck. Presumably this is a reference to the 2011 approvals. The approval issued by Mr Gerhardt is inconsistent with the earlier approval issued by the BCC on 2 June 2011. Secondly, Commission contends that construction of the deck above the carport of the existing dwelling triggered a code assessable application to the BCC under the Residential Design – Character Code which applied. This is because the dwelling was within the “demolition control precinct” and was a material change of use.
It is then contended because of this Mr Gerhardt failed to comply with legislative requirements, under section 3 of the Code of Conduct for Building Certifiers, he is guilty of unsatisfactory conduct. Unsurprisingly that section provides that the certifier must comply with legislative requirements. Having found that Mr Gerhardt engaged in unsatisfactory conduct the Commission imposed a penalty of reprimand.
In considering the matter afresh, I have to not only have regard to the material before the decision maker but also any further evidence filed by either party. I should also say that the decision of the Building and Development Dispute Resolution Committee relied upon by the respondent has little evidentiary value in this review application.

Background

Mr Gerhardt said his first involvement in the project was when he received the application details (IDAS form 1) and plans by email from Mr Langton and the request to provide a certification if appropriate. For Mr Gerhardt to receive instructions in this way, the applicant, says was not unusual because he had an ongoing working relationship with Mr Langton. He would be engaged on a regular basis to examine plans for approval and to issue the Decision Notice (Form 6) with conditions. It was not unusual for him to hand write in some of the detail on the IDAS form 2 with information from the plans. The plans are marked “APPROVAL GECON” (GECON is Mr Gerhardt’s trading name). Mr Gerhardt then lodged the documents with the Brisbane City Council, which is consistent with his usual practice.
He also gave evidence that he had no prior communication with Mr Langton or the owner about the project before receiving the documents on 20 August 2012. At some point, it seems after he received the documents, he was told by the architect that the building work had already commenced. In cross-examination Mr Gerhardt said that it was not unusual for the project works to have already started by the time the plans got to him for approval. There is no evidence that he was aware of the extent of the work that had been carried out. I have no reason not to accept Mr Gerhardt’s evidence about any of this and generally the processes involved undertaking a certification.
Unbeknown to Mr Gerhardt the Council had on two previous occasions issued planning approvals. The first was in 2009[4] and the second in 2011 being the approval referred to in paragraph 5 above. It does not seem to be contested that it is not unusual for the Council to issue one or more development permits in respect of the same land. Importantly, the two previous approvals were for works significantly different to the work undertaken under the plans certified by Mr Gerhardt.
[4]Planning Approval No A002229744.
The 2009 approval involved the partial demolition of the existing house with the construction of five new multi-unit dwellings. The 2011 approval involved the construction of two new multi-unit dwellings on the land[5] it is evident that the 2011 approval involved the shifting of the existing house which was not involved in the subject development.
[5]Bundle of Documents tab 18.
After the Council inspected the property in August it is reasonable to infer that there was some urgency in the preparation of compliant plans and specifications with appropriate certifications so the project could proceed. This is where Mr Gerhardt became involved in the process.
It is unclear what plans, if any, Mr Gibb was working from but by comparing the upper level floor plan certified by Mr Gerhardt to the 2011 plans, the difference is immediately discernable particularly, when one has regard to the upper level which includes the ‘trafficable carport roof’.
Mr Gerhardt certified the plans as a stand alone development with no suggestion, on the face of the plans there was any reliance on the earlier approvals, nor the involvement of the Brisbane City Council because, as Mr Gerhardt has said in his letter attached to his application for review dated 20 July 2013 that:
The building work approved complied with the Queensland Development Code MP1.2(QDC), Brisbane City Council City Plan, House Code, Character Code Acceptable Solution, Minor Building Works and Minor Demolition Work and therefore did not require further development approval from the Brisbane City Council prior to the issuing of a building work approval.

Was the applicant in breach of s 84(1) of the Building Act by approving an application that related to an earlier development approval?

The Commission contends that the certification related to the 2011 approval. No evidence has been lead from the Commission to show how the current development relates to the 2011 approval. It may be that Mr Gibb was working from or partly working from those plans but there is no specific evidence, other than the approval itself, that the plans certified by Mr Gerhardt relate to the 2011 approval. In addition, I am left with the evidence of Mr Gerhardt that he was not aware of any prior approval.
It was submitted on behalf of the Commission that it was Mr Gerhardt’s responsibility, when undertaking the certification, to firstly, make enquiry of the home owner as to whether any earlier approvals had been granted and secondly to undertake a search of the Council’s website to ascertain whether any earlier approvals had been granted. There is no legislative requirement on a certifier to do this and, here, there was nothing to specifically alert Mr Gerhardt that such approvals did exist. The best that can be said in support of this submission is that knowing that building work had already commenced he should have been on alert that some prior approval must have had been granted.
The Commission submits that s 84 of the Building Act imposes an obligation on a certifier to make enquiries about earlier approvals, but on a plain reading of the section, no such obligation can in my view be implied. It seems open on the evidence that upon the Council attending Mr Gibb’s property, Mr Gibb realised that he needed to have a development approval for the building work and sought that through the architect who subsequently contacted Mr Gerhardt. There is nothing to indicate that Mr Gerhardt knew or ought to have known of the previous approvals. Neither Mr Langton or Mr Gibb has provided any evidence of their involvement in the process.
I have therefore come to the conclusion that Mr Gerhardt is not in breach of s 84 by approving the building application that, in the terms of section, related to an earlier development approval which had not lapsed.

Did the approval trigger a code assessable application to the Brisbane City Council under the Residential Design – Character Code?

The second particular of unsatisfactory conduct relates to Mr Gerhardt’s approval of the construction of the deck above the carport which, the Commission says, ‘triggered a code assessable application to the BCC under the Residential Design – Character Code’. This is because the house is within the demolition control precinct and it involves assessing a material change of use and/or building work involving decks not at the rear of the dwelling. Therefore the Building Development Application required building assessment work against the Demolition Code.
The deck above the carport is referred to on the plans as a ‘trafficable deck’. To gain access to the deck part of the outside wall had to be opened up for a doorway. This is what is referred to as the demolition of the external fabric. Because the building is pre-1946, it is contended that the Character Code and any interference with the external fabric required approval and therefore by not doing this and not complying with the legislation Mr Gerhardt was in breach of the Code of Conduct.
The submission of the Commission is put as follows:
The building development application required building assessment work against the Demolition Code.
A partial demolition of the pre-1946 fabric of the existing dwelling to facilitate use of the deck triggered a code assessable application to the BCC under the Demolition Code which applied to the existing dwelling because the dwelling:
(a)is within the demolition control precinct.
(b)was substantially constructed in or prior to 1946.
There is no dispute that the building was constructed before 1946. However, it is contended by Mr Gerhardt that the approval was unrelated[6] to the previous approvals issued by the BCC, the carport and trafficable deck complied as the character code did not apply to carports (with no garage doors) located between the building and the side boundary.
[6]In terms of s 84 of the Building Act.
In addition, Mr Gerhardt submits that s 83(1)(b) of the Building Act has no application to this approval because there was no requirement to obtain any preliminary approvals under the Sustainable Planning Act for parts of this development. That is because, under s 11 of the Building Act Mr Gerhardt, as a private certifier (class A) was engaged to assess the application and therefore he is the assessment manager. He therefore, has the authority, as the assessment manager to give both the preliminary approval and grant the development permit. Section 241(2) of the Sustainable Planning Act but this only applies if there is a material change of use. Mr Gerhardt, as the only person with expertise to give evidence on this point that this approval did not involve a material change of use, which seems obviously to be correct because this work was, essentially a residential renovation. There is no reason not to accept his evidence on this point.
I also accept the applicant’s submission that the complaint here that is the partial demolition of the fabric of existing house to allow for doors on to the trafficable deck could only be construed as minor building work and in all other respects the application complies with the Building Act.
I am not satisfied, on the basis of the applicant’s submissions, that there has been a breach of both s 83 and s 84 of the Building Act as contended for by the Commission. Therefore, the applicant can not be said to have engaged in unsatisfactory conduct and therefore the decision of the Commission made on 2 August 2013 is set aside.