Livingstone Shire Council v Hooper and M3 Architecture

[2004] QPEC 40

[2004] QPEC 040

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No BD2625 of 2003

LIVINGSTONE SHIRE COUNCIL   Applicant

And

BRIAN HOOPER and M3 ARCHITECTURE
(ARCHITECTS IN ASSOCIATION)                  First Respondent

and

CAPRICORN COAST INVESTMENTS PTY LTD
AS TRUSTEE FOR THE ANZAC PARADE UNIT TRUST    Second Respondent

And

BRIAN WILKINS
(COASTLINE BUILDING APPROVALS)               Third Respondent

BRISBANE

..DATE 24/02/2004

Catchwords: Integrated Planning Act – Building Act – Standard Building Regulation – development application submitted to private building certifier for approval declared not a valid application for failure to include sufficient material to enable the assessment manager to assess it under the Regulation

ORDER

HIS HONOUR: On the 12th of December last year the Court convened for the purpose of orders being made giving effect to reasons for the Court's conclusions made available to the parties in the previous month: see [2003] QPEC 063.

The Council's application was amended in significant ways from time to time.  The published reasons intimated that orders would be made in accordance with the final form of originating application; however, on 12th of December Mr Lyons for the Council sought to go further, seeking a declaration that a development application which the first and second respondents had made to the third respondent as a private building certifier was not a valid development application.

The respondents for all that appeared had not been given sufficient notice of the Council's intention to seek relief in those terms, although at the outset the originating application had sought relief along those lines on the basis of non-inclusion in the application of certain land.

The matter was adjourned generally so that the respondents could formulate their views.  The third respondent, the private certifier, has not appeared today.  A fax emanating from McDonnells, their solicitors, has been marked "Exhibit 1A".  It records that McDonnells will still accept service of documents but did not intend to appear today, given inability to obtain instructions.

The Court is grateful to Mr MacNaughton of McCullough Robertson, lawyers for the first and second respondents. Although his clients have lost interest in pursuing their proposal for a large development in Yeppoon, the firm has remained in the matter on a non-charging basis for the purpose of assisting the Court.

Mr MacNaughton indicated that paragraphs 2, 3 and 4 of the orders now sought by the Council, which appear in its application filed the 3rd of February 2004, are non-contentious.  The Council, by its solicitor's affidavit, has placed before the Court Mr MacNaughton's letter of 16th of December 2003 indicating the difficulties he saw about the proposed first declaration regarding invalidity of the development application.  As I read the letter it focussed on Council's having abandoned its point about land not included.  Mr MacNaughton has not actively presented any argument today in opposition to Mr Davies' argument in support of such a declaration.

The matters argued last year focussed on the responsibilities of a private certifier and various statutory bases on which the third respondent ought to have declined to proceed with the application. There was no focus on the merits or otherwise of the application itself, so there has been a significant change in the Council's position. The situation is asserted - and I think correctly, by Mr Davies to be analogous with that dealt with by the Court of Appeal in Ace Waste Pty Ltd v. Brisbane City Council [1999] 1 QdR at 233.

At 243 Ambrose J referred to an application as having deficiencies which rendered it "incapable of being treated as an application capable of consideration by the appellant either at the time of its lodgement or indeed at the present time".  The majority judgment of Davies JA and
Moynihan J at 236, for example, seems to involve an approach which is consistent with that of Ambrose J.

The circumstances which in my view precluded the private certifier's proceeding depended on the lack of information in the development application.

It is convenient to set out the heart of Mr Davies' submission, which I will incorporate in these reasons:

• For the development application to be valid, it must be made in the approved form.⁵
• The approval form must contain a mandatory requirements part.⁶
• The approved Form 1 consists of Parts A-M. Part A of Form 1 sets out the common details required for all applications. Part B of Form 1 is the requisite form for development applications that are to be assessed against the Building Act.⁷
• Section 4 of the Building Act relevantly provides as follows:

(1) A regulation (the "Standard Building Regulation") made under the Act may be made about the following -

(a)  building work, the certification of building work and the occupation of buildings;

• To emphasise the importance of and the need for compliance with the Building Act (including the Standard Building Regulation), Part B of Form 1 also contains the following mandatory requirement:
• This application must be accompanied by the plans and other documents prescribed in the Standard Building Regulation. (Emphasis added).
• Guides numbered 1 and 9 reinforce the mandatory nature of this requirement.  These guides have been prepared to assist people making an IDAS development application.⁸
• Section 22 of the Standard Building Regulation prescribes that engineering drawings are required for certain developments and section 23 provides an optional method of certification of technical details, particular plans, drawings or specifications given and certified by a competent person.⁹

FOOTNOTES

⁵ See section 3.2.1(2) of IPA. Section 5.8.1 of IPA provides that the chief executive may approve forms for use under IPA. In accordance with that power, the chief executive has approved certain forms including, relevantly for these purposes, a Form 1 and a Form 2.

⁶ See section 3.2.1(3) of IPA

⁷ See the heading to Part B of the Form 1 in this matter.  It is part of Exhibit 4.

⁸ Guide 9 is Exhibit 20.

⁹ See also the definitions of "certified information" and "competent person" in section 5 of the Standard Building Regulation.

The fate of this application should not be taken as any ruling of general import regarding the development applications that may be considered by private certifiers.  The first declaration which the Court would make today is based on the deficiencies of the particular development application that the Court has had to consider.  That has been made clear by the addition of the part of order number 1, commencing with the word, "because".

The Court makes an order in terms of the initialled draft, which I set out below:

1. The application made by the First respondent on behalf of the Second respondent to the Third respondent as private certifier was not a valid development application, because it did not contain sufficient material to enable the assessment manager to properly assess the application under the Standard Building Regulations;

1. The use proposed for the subject land by the Second respondent was for a "multiple dwelling" within the meaning of that term in the Planning Scheme for the Shire of Livingstone;

1. The "Approval for Building Work to Commence" issued by the Third respondent as "Decision Notice 3961" on or about 4 July 2003 and amended on or about 4 August 2003 is invalid.

Further, it is ordered that:-

1. The "Approval for Building Work to Commence" issued by the Third respondent as "Decision Notice 3961" on or about 4 July 2003 and amended on or about 4 August 2003 is cancelled.

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