Livingstone Shire Council v Brian Hooper & M3 Architecture

The Livingstone Shire Council sought a declaration of invalidity in relation to a decision made by a private building certifier to approve a development application for a 12-storey building at Yeppoon. The developer claimed that the proposal was for an accommodation building, specifically “serviced apartment(s)”, which was an as-of-right use under the planning laws. The Council, however, argued that the proposal constituted a multiple dwelling, a use requiring Council consent. The central issue before the court was the proper characterisation of the proposed development and whether the Council was indirectly seeking to achieve what it could not directly through the application of a local Planning Policy, which the Council incorrectly believed established a height limit.

The court examined the legal framework provided by the Integrated Planning Act 1997 and the Standard Building Regulation 1993. It found that the private building certifier had decided the application prematurely without obtaining other necessary approvals, in breach of specific sections of the Building Regulation and the Integrated Planning Act. Furthermore, the certifier failed to involve the Queensland Fire and Rescue Service, an advice agency, in the decision-making process, resulting in insufficient information to assess the proposed building against the Building Code of Australia. The court concluded that the certifier's decision was invalid due to these procedural errors, and the purported certificates under section 23 of the Standard Building Regulation were ineffective as there was no "certified information" available.

Upon finding that the certifier's decision was invalid, the court cancelled the development approval. The court also noted that the site cover and the nature of the "landscaping" at the podium level did not meet the regulatory standards, and the meaning of "deep planting" was not adequately addressed. The court did not find it necessary to consider discretionary grounds for refusing the declaration, as the primary issues were procedural in nature. The court ordered the private building certifier's decision to approve the development application to be declared invalid and the development approval to be cancelled.