Neller v Queensland Building and Construction Commission - [2023] QCATA 91

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Neller & Anor v Queensland Building and Construction Commission [2023] QCATA 91

PARTIES:

LUKE EDWARD NELLER

LEEWARD MANAGEMENT PTY LTD ATF LE TRUST T/AS PROJECT BA

(appellants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL009-22

ORIGINATING APPLICATION NO:

OCR207-21

MATTER TYPE:

Appeals

DELIVERED ON:

15 June 2023

HEARING DATE:

14 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. Leave to appeal is granted.

2. The decision of the Tribunal of 1 December 2021 is set aside, and in lieu thereof;

3. The requirements of s 190(2A) of the Building Act 1975 (Qld) are not met.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant certifier issued a development approval in respect of a roof structure – where limitation on bringing a complaint against the applicant under s 190 of the Building Act – where limitation extended if approval results in significant financial loss or other serious harm – where dispute as to whether the structure was a deck or roof – where direction to determine a preliminary issue as to whether s 190 applied – whether the approved structure constitutes a deck or roof – whether the requirements of s 190 are met – whether leave to appeal should be granted.

Building Act 1975 (Qld), s 190

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b)

Bennett v Minister of Community Welfare [1992] HCA 27

Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
Rintoul v State of Queensland & Ors [2018] QCA 20

Terera v Clifford [2017] QCA 181

APPEARANCES & REPRESENTATION:

Applicants:

Mr Neller – self represented

Ms Timmins for Leeward Management Pty Ltd as trustee for Le Trust t/a Project BA

Respondent:

Mr Seefeld of counsel instructed by the respondent

REASONS FOR DECISION

On 24 May 2021 the Queensland Building and Construction Commission made a decision that Mr Neller engaged in unsatisfactory conduct. The decision related to the approval of a Development Application Decision Notice (“development application” or “DA”) dated 17 December 2019 in respect of work on the roof of a property at 5 Minyama Island, Minyama owned by Vicki Dwyer. The certification was for “feature hoods on roofline & stairway – 1a building (10a and 10b parts)”.[1] Attached to the development application are plans for the proposed work which involves fixing or ensuring the existing hoods are in a horizontal position and also an access stair to the roof for maintenance. The plans also stipulate the roof hoods are not to exceed 8.5 metres from the ground.
[1]Appeal Book page 110.
Mr Neller filed an application to review the Commission’s decision on 17 June 2021. In essence the Commission’s complaint is that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCATA 91
Decision Date: 15 June 2023

CaseChat Overview and Summary

Neller v Queensland Building and Construction Commission involves a dispute concerning a development approval issued by an applicant certifier for a roof structure. The matter was initially heard and determined by the Queensland Civil and Administrative Tribunal (QCAT) before being brought to the Supreme Court of Queensland on appeal. The applicant, Neller, sought leave to appeal QCAT’s decision, which dismissed his complaint about the approval process. The central legal issue before the court was whether the approved structure constituted a deck or a roof, which would determine whether the statutory limitation period for bringing a complaint under section 190 of the Building Act 1975 (Qld) applied.

The court examined the language and intent of section 190, focusing on whether the approved structure qualified as a roof under the Act. The court determined that the structure in question was more appropriately classified as a deck rather than a roof, as it did not meet the criteria for a roof under the Building Act. Consequently, the limitation period for complaints did not apply, and the applicant's right to bring a complaint was not barred. The court found that the Tribunal had erred in its interpretation of the statutory provisions and in its application of the law to the facts.

Accordingly, the Supreme Court granted leave to appeal, set aside the QCAT decision, and substituted its own decision that the requirements of section 190(2A) of the Building Act were not met. This outcome allowed the applicant to pursue his complaint against the approval process without the limitation constraints previously imposed.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The decision of the Tribunal of 1 December 2021 is set aside, and in lieu thereof;

3. The requirements of s 190(2A) of the Building Act 1975 (Qld) are not met.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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