Gold Coast City Council v GMA Certification Group Pty Ltd
[2011] QPEC 29
•22/02/2011
[2011] QPEC 29
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 1477 of 2010
| GOLD COAST CITY COUNCIL | Appellant |
| and | |
| GMA CERTIFICATION GROUP PTY LTD and DAPHNE CUTHBERT, | Respondent Co-Respondents |
BRISBANE
..DATE 22/02/2011
JUDGMENT
Sustainable Planning Act 2009 s 245(2), s 464(2)(e) s 479 Building Act 1975
Building and Development Resolution Committee lacked jurisdiction to order a private certifier to decide a development application as if there were no concurrence agency requirements of the Council - Council had approved a reconfiguration according to a plan of development requiring its consent to any retaining structure exceeding 1.2 metres - Committee erred in determining that the condition did not survive the reconfiguration - private certifiers approving developments contrary to the condition would commit an offence
HIS HONOUR: Mr Lyons, representing the appellant Gold Coast City Council, was the only person standing at the hearing of this appeal which is against a building and development resolution committee's decision in Appeal Number 4 of 2010 dated 19 April 2010. It proceeded “ex parte”.
The appeal is brought under section 479 of the Sustainable Planning Act 2009 (SPA). Such appeals are limited to the ground of an error or mistake of law on the part of the committee or that the committee had no jurisdiction to make its decision or exceeded its jurisdiction in making the decision.
The committee's decision pursuant to section 464(2)(e) of the SPA was to set aside the decision of the respondent private certifier and to direct the private certifier, as assessment manager, to decide a development application for building works as if there had been no concurrence agency requirements of the council.
Five conditions were stipulated in respect of the retaining wall which was the subject of the development application, and those ultimately found their way into the building works approval which the respondent company issued pursuant to the committee's order.
The co-respondents had applied for approval to construct a retaining wall on Lot 400 SP206391 at 137 Wunburra Circle, Pacific Pines. That is one of more than 1,000 residential allotments created pursuant to the council's approval of a reconfiguration application in 2006.
The large subdivision was located in problematic terrain in consequence of which the council's approval for reconfiguration of a lot contained, in condition 6, a requirement that retaining structures, such as a retaining wall, not exceed 1.2 metres in height without the approval of the chief executive officer.
The structure which the co-respondents were desirous of establishing ranged in height to two metres. It may be accepted that the purpose of that structure was to enhance the stability of the residence that had been erected on Lot 400 and presumably pursuant to proper authorisation. There also may be a factor of protecting neighbouring properties.
Although the council has gone to considerable trouble by prosecuting this appeal to establish that the committee lacked jurisdiction or power to make the decision it did, it has been persuaded in an independent application made to it to grant the authorisation which the co-respondents seek. That's been done by a lot-specific change to the reconfiguration of lot approval. The court understands that the works had been carried out and probably in or not long after May 2010, when the private certifier issued the development approval.
In the circumstances the non-appearance of the co-respondents when called today is unsurprising. Likewise the non-appearance of the respondent is unsurprising. Its original decision was one of which the council approved. It was constrained by the committee's decision to act against its own best judgment and issue the development approval in question.
There's no appearance for the committee in the appeal. That is the way things typically work in appeals against decisions of tribunals or courts. If there's to be any defence of a decision under appeal that has to come from one of the parties: The court or tribunal whose decision is called into question has, in the usual case, as here, published reasons, and those stand as its defence, whatever the line of attack in a subsequent appeal might be.
The committee did publish reasons which took some trouble to distinguish a decision of a differently constituted Building and Development Tribunal in file number 03.08.026 which was decided in the way the council says was correct. A decision of the same private certifier to refuse a development application for proposed building works, namely a retaining wall, was confirmed on appeal.
The reasons supporting the decision now under appeal to this court distinguish the earlier decision of 21st May 2008, if that had been necessary, on the basis that the relevant site there at 2 Wunburra Circle, being Lots 147 and Lot 926 on SP180469, was still vacant land.
The reasons contain the following:
"The committee is of the opinion that the POD [Plan of Development] conditions relate to the subdivision of the land and possibly to any subsequent proposal that requires an operational works or other approval from Council, but is not relevant to filling that is incidental to and necessarily associated with the building of a residence on the land. In the committee's opinion, the intention of the Act is to facilitate the ordinary and sensible development of the land once it is subdivided. For example, it would be reasonable to expect, because of the nature of the site's topography and that occurring in other areas of this estate, that a normal residential building may be stepped as it extended over the sloping ground to minimise overall height and that retaining walls may form part of that building. Depending on building design, such a wall could reasonably exceed the height specified in the POD in particular cases."
The council's view, which in my opinion is obviously the correct one, is that condition 6 is one which attaches to the land to which the approval containing it relates, and binds the owner, the owner's successors in title and any occupier of the land. The principle is now set out in section 245 of the SPA, but has long been part of the law of the State in respect of planning and development. Subsection (2) speicailly enacts that “to remove any doubt, it is declared that subsection () applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured”.
The consequence is that under the Building Act 1975 as amended, a private certifier is constrained in issuing development approvals.
Section 84 of the Building Act 1975 provides in subsection (1) that, "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; and (c) the application is inconsistent with the earlier approval or permit. Maximum penalty - 165 penalty units."
...
HIS HONOUR: The substance of that Building Act provision was formerly part of the Integrated Planning Act 1997 (IPA) in section 5.3.4 in a milder form: "If the application a private certifier is assessing relates to an earlier development approval that has not lapsed and was given by the assessment manager, the application must not be inconsistent with the earlier approval". Liquorland (Australia) Pty Limited and Gold Coast City Council [2002] QCA 248; 121 LGERA 197 which considered s 3.5.32 of IPA established that a condition in a second approval may not be inconsistent with a condition of an earlier approval still in effect for a development.
It would seem basic that it was not within the committee's power to make a decision that the private certifier could not have made so much, is established by Woolworths Limited and Maryborough City Council [2005] 2 Queensland Reports 203, [2005] QCA 62, especially at [19] and Flamingo Enterprises Pty Limited v. Sunshine Coast Regional Council [2010] QPELR 207 at 210, paragraph [19].
In fairness to the committee, it ought to be noted that this argument, referring to the Building Act, was not made to them. The council elected not to take an active role as a party in the committee and did not attend the hearing, but it did provide some submissions which alluded to the difficulty in another way by advising that, "Because the proposal is for a retaining wall greater than 1.200 metres in height, the correct process to consider such an application is via a change to conditions of the POD in which the application would be considered on its merits. As noted in the letter by council on 14 December 2009: 'It should be noted that it is an offence under IPA to conduct any work that is contrary to an existing Development Approval such as for subdivision of the land'".
The council, sought to be brought in as a concurrence agency when first approached in relation to this issue, declined to express any view, adhering to the line which I consider is correct, that given the 2006 approval (which, in my view could not be seen as having lapsed or ceased to have effect, notwithstanding that it has been fully implemented), the co-respondent ought to have made application for a favourable decision of its chief executive officer.
That approach led the committee to its view that there were no concurrence agency conditions, in light of which it set conditions of its own which are doubtless sensible enough. But this matter is essentially about process. It is an important issue likely to be replicated again and not only in the Saltwater Precinct Estate plan of development, which covers the co-respondent's site.
It must be a jurisdictional error for the Committee to have made a decision which amounts to the commission of an offence under section 84.
For those reasons the court will now allow the council's appeal and order that the co-respondent's development application for building works on Lot 400 SP206391 considered in the building and development dispute resolution committee's decision in Appeal Number 4 of 2010 be refused.
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