Mingara Pty Ltd v Brisbane City Council

[2001] QPEC 52

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Mingara Pty Ltd v. Brisbane City Council [2001] QPEC 052
PARTIES:	MINGARA PTY LTD  Applicant/Appellant And BRISBANE CITY COUNCIL                 Respondent
FILE NO/S:	2195 of 2001
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	26 July 2001
DELIVERED AT:	Brisbane
HEARING DATE:	11 July, 2001;  further submissions 25 July 2001
JUDGE:	Senior Judge Skoien
ORDER:
CATCHWORDS:	Permitting development before appeal decided;  private certification of building work.
COUNSEL:	Mr. S. Ure for applicant/appellant Mr. M. Rackemann for respondent
SOLICITORS:	Lester Manning, Lawyers for applicant/appellant Brisbane City Legal Practice for respondent

1. This is an application by Mingara for an order permitting part of a development to commence before the appeal is decided.

Facts

1. In order to develop land for use as an aged care village, in early October 2000 Mingara applied to the Council for the following development approvals:-

(a)        a development permit for reconfiguring a lot;

(b)        a preliminary approval for the building work; and

(c)        a development permit for the material change of use.

1. A negotiated decision notice was communicated on 1 May 2000 in which it was recorded that the Council had given development approvals of the three types applied for.  The decision was subject to a number of conditions, one of which sought a money contribution for parkland purposes.  Mingara then brought this appeal against the imposition of that condition.

Statutory Provisions

1. Section 3.5.19 of the Integrated Planning Act 1997 (“IPA”) sets out when development approvals take effect.  Where, as here, the negotiated decision notice is subject to an appeal, the development approvals take effect when:-

“(c)if an appeal is made to the court – subject to the decision of the court, when the appeal is finally decided.”

1. However s.4.1.47(2) of IPA mitigates the effect of s.3.5.19 to some extent. The section is:-

“4.1.47(1)         If an appeal (other than an appeal under section 4.1.30) is started under division 8, the development must not be started until the appeal is decided or withdrawn.

(2)  Despite subsection (1), if the court is satisfied the outcome of the appeal would not be affected if the development or part of the development is started before the appeal is decided, the court may allow the development or part of the development to start before the appeal is decided.”

and the application is brought under subsection (2).

1. Mingara has development permits for the lot reconfiguration and for the material change of use but complains that not even work relating to and restricted to those two development permits can proceed because of the effect of s.4.1.47(1) unless dispensation is granted under s.4.1.47(2). There is no suggestion that the outcome of the appeal could be affected if development commenced because the appeal will simply determine the amount (if any) of a money payment.

1. The problem which Mingara has encountered arises out of the fact that the Council has given up to private entities the duty of certifying building work, pursuant to part 3 of section 5 of IPA. Had the Council been the assessment manager for the “building works” application, what would have been applied for from the Council would have been a development permit rather than a preliminary approval.  It is only necessary for applicants to apply for a preliminary approval because the Council does not issue development permits having privatized the building work assessment division of the Council.  Had the building works application been made to the Council, it would have been aware of the progress of the other applications with which it was also dealing, i.e. the application for a development permit for reconfiguration of a lot and the application for a development permit for a material change of use.

1. The building work application requires code assessment rather than impact assessment. Section 31 of the Building Act 1975 applies the provisions of that Act to development applications under IPA and the Standard Building Regulations under the Building Act constitute the code against which the application is assessed. Section 3.5.13 of IPA provides in subsection (4):_

“(4)     The assessment manager may refuse the application only if the assessment manager is satisfied –

(a)        the development does not comply with the applicable code; and

(b)        compliance with the code can not be achieved by imposing conditions.”

1. Those provisions are applied to a private certifier by s.5.3.5(1) of IPA which provides:-

“5.3.5(1)           For the types of development or works for which a private certifier has the qualifications, necessary experience or accreditation, the private certifier may receive, assess and decide development applications as if the private certifier were the assessment manager.

1. Subsection (4) of s.5.3.5 is also important.  It provides, relevantly:-

(4)   However, the private certifier must not decide the application until –

(a)necessary development permits are effective for other assessable development related to the development; and

(b)all necessary preliminary approvals are effective for other assessable aspects of the development; and ….”

1. It is because certification by a private certifier means that the assessment manager role is split, that the provisions of section 5.3.5(4) are required as a safety measure to ensure that there are not development permits issued for building work which would result in the authorization of construction of a building perhaps for a use which had not been approved.  See Aprilia Pty Ltd v. Maroochy Shire Council (1999) QPELR 396. The present form of s.5.3.5(4) results from a 1999 amendment which was thought to be a necessary response to the Court’s decision in Aprilia.

1. Thus had the Council been the assessment manager for all three applications, the building works application would be approved by it unless the provisions of section 3.5.13 (dealt with in paragraph [8]) above were enlivened.

What is the current situation?

1. Section 3.1.5(1) provides that a preliminary approval (in this case, for building work) approves assessable development to the extent stated in the approval, but does not authorise assessable development to occur.  A development permit is necessary for that (ss.3.1.5(3); 3.5.20(1)).  Mingara cannot get that until the requirements of s.5.3.5(4) are satisfied and the private certifier decides the application before him.

1. But at this time not all necessary preliminary approvals are effective for other assessable aspects of the development (s.5.3.5(4)(b)).  While Mingara has both the permits referred to in subsection (4) (a), the example given for subsection 4(b) makes it clear that the preliminary approvals referred to in that paragraph include approvals under the Standard Building Regulations and that, of course, Mingara will not have until the private certifier finishes his work.  I was not told what stage that procedure had reached but the application proceeded on the basis that, as I can well imagine, the process is likely to be a long one.  The effect of s.5.3.5, together with the definition of “Assessment manager” in s.5.3.2 and that of “development approval” in Schedule 10 shows that the private certifier’s approval under s.5.3.5 will result in the issue of a development permit for the building work.

1. I see no basis upon which I could authorise the commencement of building work until the private certifier has given his approval under s.5.3.5 and certified that the plans are in accordance with the Standard Building Regulations.

1. However although the draft order which was handed to me is very wide (too wide, because it encompassed the doing of building work) as Mr. Ure made clear in his reply before me, Mingara does not seek any order relating to the building work.  It seeks only an order relating to the reconfiguration of the land (and I expect that would enable some useful and time consuming work to be done) and to the material change of use.  I am not aware that work there can be under the latter heading which does not fall into the forbidden category of building work but it may be that there is some.

1. I am prepared to order that, despite the currency of this appeal, the appellant Mingara Pty. Ltd. may start the development the subject of the appeal, such development to be limited to work pursuant to:-

(a)        the issued development permit for reconfiguring a lot; and

(b)        the issued development permit for the material change of use.