North Shore Bayview Street Pty Ltd v Gold Coast City Council
[2008] QPEC 117
•16 December 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
North Shore Bayview Street Pty Ltd v Gold Coast City Council [2008] QPEC 117
PARTIES:
NORTH SHORE BAYVIEW STREET PTY LTD (TRUSTEE)
(Appellant)
v
GOLD COAST CITY COUNCIL
(Respondent)
FILE NO/S:
BD2884 of 2008
DIVISION:
Appellate
PROCEEDING:
Appeal for error of law from Building and Development Tribunal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
16 December 2008
DELIVERED AT:
Brisbane
HEARING DATE:
27 November 2008
JUDGE:
Robin QC DCJ
ORDER:
(made 28 November 2008) Appeal allowed, respondent to issue a Plumbing and Drainage Compliance Permit that does not require compliance with Part 4 of the Queensland Plumbing and Waste Water Code (Water meters for New Premises)
CATCHWORDS:
Integrated Planning Act 1997 s4.1.37(1) - Plumbing and Drainage Act 2002 s 85 Standard Plumbing and Drainage Regulation 2003 – Queensland Plumbing and Waste Water Code Part 4 (inserted as of 1 January 2008) – appellant, having previously obtained approval of a material change of use, in December 2007 obtained a building permit/approval authorising actual construction to podium level of its project for 119 residential units in 6 towers – compliance permit for plumbing not sought from Council until April 2008 – whether the project was “new premises” to which the Code (requiring separate metering for water supplied to each unit) applied – where extensive redesign of 2007 work was required if separate meters were to be installed – Tribunal decided the critical date was that of the request for a compliance permit – held on appeal that the development was not “new premises”.
COUNSEL:
Keliher for appellant
Cooke for respondent
SOLICITORS:
Hynes Lawyers for appellant
McDonald Balanda & Associates Lawyers for the respondent
These are reasons for the court’s decision announced to the parties on 28 November 2008 after a full day hearing the day before in respect of an appeal under s 4.1.37(1) of the Integrated Planning Act 1997 (IPA) from the decision of a tribunal (Building and Development Tribunal) handed down on 19 September 2008. The parties have co-operated in ensuring an early hearing. The central issue is an important one, and not only to the parties. The appellant in particular was anxious to have a quick determination on the basis that “time is money” and that, notwithstanding that the amount in issue from its perspective exceeds $275,000.00, it would probably prefer to comply with an unwelcome condition imposed on its development rather than have its project delayed awaiting a decision.
At issue is a requirement that the appellant install in a large residential development, comprising 119 units in 6 buildings, “sub-meters” for each unit to permit separate monitoring of and charging for water supplied. The requirement for metering comes from the Queensland Plumbing and Waste Water Code:
“Part 4 – Water Meters for New Premises
| PERFORMANCE – CRITERIA | ACCEPTABLE SOLUTIONS | ||
| P1 | The water supply to a meterable premises must be fitted with a device (water meter) to measure the amount of water supplied to the premises. | A1 | Each water supply to a meterable premises is to be fitted with a water meter which— (a) measures only the water supplied by that water supply to that meterable premises; and (b) is approved by the water service provider; and (c) complies with relevant requirements of the water service provider that may be imposed under the Water Supply (Safety and Reliability) Act 2008. |
| P2 | A water meter must be located so it is easy to read and maintain. | A2 | The water meter is located— (a) so that it can be easily maintained and read from a common area, common property or public area; and (b) it is installed— i in a common area; or ii in a common property; or iii less than 3m from a property boundary within a public area. |
| P3 | A water meter must be properly maintained. | A3 | A water meter is to be maintained in accordance with the relevant Australian Standards.[1] |
| P4 | The installation of a water meter includes a device which allows for the restriction of the flow of water from the water service to the water meter. | A4 | The water meter has a complying valve. |
[1]AS3565.1:2004 Meters for Water Supply – Cold water meter
AS3565.2:2004 Meters for Water Supply – Combination Meters
AS3565.3:2004 Meters for Water Supply – Water meters with integral dual check values
AS3565.4:2004 Meters for Water Supply – In‑service compliance testing
AS3565.5:2004 Meters for Water Supply – Water meters with two integral single check values
Part 4 was entirely new and in effect from 1 January 2008. The Code in that form was “published by the Department” for purposes of the Standard Plumbing and Drainage Regulation 2003, s 4A. By s 8B of the Regulation:
“8B Compliance with QPW code
(1)Plumbing and drainage work and on‑site sewerage work must comply with the QPW code.
(2)Plumbing and drainage work or on‑site sewerage work complies with the QPW code only if the work satisfies the relevant performance criteria under the QPW code.
(3)Compliance with the relevant performance criteria can be achieved only by—
(a)complying with the relevant acceptable solution under the QPW code; or
(b)formulating an alternative solution that—
(i) satisfies the performance criteria; and
(ii)is shown to be at least equivalent to the relevant acceptable solution under the QPW code; or
(c)a combination of paragraphs (a) and (b).”
Reference was also made by the tribunal to a third section in the Regulation which came into effect as from 1 January 2008:
“54A Notice to water service provider about installation of meters
(1)This section applies if plumbing work involving the installation of water meters is performed—
(a)on a building other than a building mentioned in section 1414A(2)(d); and
(b)after 1 January 2008 in relation to a compliance request made after 31 December 2007.
(2)The responsible person for the work must, at least 2 business days before the cladding or lining covering the plumbing work is fixed, give the water service provider for the area in which the work is being performed written notice that the water meters are proposed to be installed.
Maximum penalty — 20 penalty units.
(3) In this section —
responsible person, for work, means the person who—
(a)is a licensed person for the work; and
(b)performs, directs the performance of, or supervises, the work.”
as indicating relevantly a commencement date of 1 January 2008; this “begs the question” in the sense that the appellant is not interested in or proposing “work involving the installation of water meters.”
The new provisions mentioned above were part of large scale legislative activity in Queensland in response to shortage of water. The Water and Other Legislation Amendment Act 2007 amended various pieces of legislation, including in part 9 the Plumbing and Drainage Act 2002 by adding in s 85(7) a second “example” relating to water meters and a new s 128 JA penalising tampering with a water meter, among other things.
The Plumbing and Drainage Act 2002 defines “regulated work” to mean plumbing or drainage work that is not minor work or unregulated work. By s 83 regulated work must not be carried out without a compliance permit for the work and compliance with any conditions of that permit. Section 78 provides that a compliance permit authorises regulated work to be carried out, s 79 that a compliance certificate approves regulated work to the extent stated in the certificate. Section 80 identifies the purpose of compliance assessment as being to allow for a plan about proposed regulated work to be assessed for compliance with the Regulation (and a compliance permit to be issued for the plan) and for regulated work to be assessed for compliance with the Regulation (and a compliance certificate to be issued for it). By s 81 regulated work must be assessed for compliance with the Regulation. Section 85 is:
“Division 3Assessing plans
85Process for assessing plans
(1)This section applies, subject to sections 85B to 85E, to a request (a compliance request) for compliance assessment of a plan for regulated work or on‑site sewerage work.
(2)A compliance requestion must be—
(a)in the approved form; and
(b)made to the local government; and
(c)accompanied by the fee fixed by resolution of the local government.
(3)The local government may give the person making the request, a written notice (an information request), requesting further information needed to assess the plan.
(4)An information request must be made within 10 business days after the plan is received.
(5)The compliance request must be decided within 20 business days—
(a)if an information request is not made—after receiving the compliance request; or
(b)if an information request is made—after receiving the information requested.
(6)The local government must in deciding the compliance request—
(a)give the person making the request a compliance permit; or
(b)refuse to give a compliance permit.
(7)A compliance permit may be given on reasonable and relevant conditions decided by the local government for achieving compliance.
Examples—
1A condition of a compliance permit for on‑site sewerage work may require the owner of the relevant premises to install a grease arrester for the premises.
2A condition of a compliance permit for regulated work on premises that involves the installation of water meters may require the person carrying out the work to notify the water service provider for the premises that a particular stage of the work has been reached.
(8)If the local government gives a compliance permit, the local government must also give a copy of the permit to—
(a)the owner of the premises to which the permit relates; and
(b)if the permit is for a plan for work involving the installation of water meters on premises—the water service provider for the premises, if the water service provider is not the local government; and
(c)if the permit relates to a greywater use facility that is or includes a large greywater treatment plant—the regulator.
(9)If the local government does not decide the compliance request within the time stated in subsection (5), the request is taken to have been refused.
(10)If the local government refuses to give a compliance permit or gives a compliance permit on conditions, the local government must give the person who made the request an information notice about the decision.[2]
[2]For appeals against the decision, see the Integrated Planning Act 1997, chapter 4 (Appeals, offences and enforcement), part 2 (Building and development tribunals), divisions 4 to 6.
(11)If an information request is made and the local government does not receive the information requested within the following period, the compliance request lapses—
(a)generally—1 year after the request was made;
(b)if, within the year, the local government agrees to a longer period—the longer period.
(12)If the compliance request lapses under subsection (11), the fee that accompanied the application is not refundable.”
Section 86 requires that a request for compliance assessment must be made in the approved form to the local government which by sub-section (5) must assess work at the stages prescribed under the Regulation. Section 89(1) commands each local government to administer the Regulation for its area.
The appellant applied for compliance assessment (compliance permit) in form 1 on or before 10 April 2008 indicating on form 2 by ticking a box that the nature of the work was “new”, as opposed to Alteration, Disconnection or Other (Specify). The Council issued an information request requiring amendment of defects indicated in red on hydraulic plans supplied and seeking advice as per the Code about the proposed sub-meters to be installed. After new plans had been prepared and submitted the Council issued a compliance permit containing conditions 22 and 25, which the tribunal has upheld:
“22.Water sub-metering shall be installed for all community title scheme properties in accordance with Water Sub-metering and Billing for Community Titles Scheme Properties Policy.
25.The sub-meter component of the application is approved subject to the following conditions:
●The Automatic Meter Read (AMR) system must be of a type that is approved by Gold Coast City Council (GCCC).
●The Automatic Meter Read (AMR) ‘Meter Data Reading Panel’ shall not be obscured by any form of obstruction (e.g. security access, vehicle movement, overgrown vegetation). Furthermore the meter data reading panel shall be easily accessible and readable 24 hours a day, seven days a week and housed in a lockable enclosure as per GCCC specifications.
●All cold water sub-meters within the development are required to be read by the AMR system to allow meter reading data to be obtained from a central point (meter data reading panel).
●Sub-meters must be a type that is approved by GCCC for use in sub metering applications. For any other meter make or model, the developer shall seek written approval from GCCC prior to installation.
●Sub-meter assemblies must incorporate lockable ball valves on each side of the water sub-meter as per GCCC specifications.
●All sub-meters shall have unique serial numbers on them and be tagged as per GCCC specifications.
●When a sub-meter cabinet is to be used for the housing and installation of sub meters the cabinet shall be located in a common area and follow specifications as set out in GCCC specifications.
●When sub-meters are to be contained within a water meter box in ground the installation shall follow GCCC specifications.
●An audit of the connectivity of sub-meters to their respective units will form part of the GCCC Plumbing and Drainage inspections. In the event that any part of the development fails the connectivity audit, Council or its representative will test connectivity throughout the whole development at the applicant’s expense.
●On completion of the installation of sub-meters the responsible person shall submit as constructed plans to GCCC accompanied by a completed ‘Assessment Checklist – Sub-Meters’ providing information such as cabinet location, sub-meter serial numbers and other equipment details and the unit number confirmed as being supplied by that meter.
Should the sub-meters not be of an approved brand, or the sub-meters are installed in an unapproved location and not in accordance with GCCC installation guidelines, then they will be deemed unauthorised water connections and penalties will apply under the Water Act 2000.”
Although several grounds in the notice of appeal of 16 October 2008 refer to excess of jurisdiction by the tribunal, the essential point made is that the tribunal erred in law in ruling that the regulation “legislates the commencement date for a compliance request for plumbing and drainage work involving the installation of water meters. The application for compliance assessment (compliance request) of plumbing and drainage work lodged with Gold Coast City Council on 9 April 2008 the subject application of this appeal must therefore comply with Pt 4 of the … Code.” The tribunal attached significance to the mention of 1 January 2008 in s 54A(1)(b) of the Regulation and also to amendments to the Plumbing and Drainage Act that commenced on the same day, relating to water meters. There was reference to three “Newsflashes” issued by the Department of Infrastructure and Planning, 298 of 13 December 2007, 311 of 8 April 2008 and 314 of 2 May 2008. The usefulness of such publications in informing the industry and placing participants on notice of aspects of important changes in the regulatory regime was acknowledged in the tribunal, as it had been by a tribunal differently constituted in appeal 3-08-034 Dennis Cairns & Associates as Agent for Grocon Constructions Pty Ltd, 7 July 2008, a closely similar matter running some months ahead of the present. It was one in which the Council officers gave contradictory advice to the developer and it was unable to make a timely decision, resulting in an appeal against a deemed refusal of a compliance permit under s 4.2.12A of the IPA.
The appellant relies on a 2005 development approval given in respect of a material change of use application to permit its project and, more pertinently in my view, on a building approval or permit issued by a private certifier on 5 December 2007 for “all structural works up to podium level”. It was expressly stated that all other building works outside this scope must not start without a further building approval. That came on 29 April 2008, extending to “all building works associated with this Development”. Both approvals expressly recorded “Plumbing Approval from Local Authority” as among the “Further Development Permits required”.
Mr Cooke, for the Council, mounted a simple and powerful argument to the effect that his client’s concern was simply to do the right thing, as the entity charged with administering the provisions set out above. From its point of view, the 2005 approval represented ancient history; it might have been that nothing ever occurred in reliance on it. Although presumably kept informed of approvals issued by the private certifier, the Council came back into the picture afresh when confronted with the compliance request of April 2008. Following ordinary principles, it would apply the law as it stood at the time when the application (request) for a compliance permit was made; that would point to insistence upon the requirements of Pt 4 of the Code, requiring separate metering for all 119 lots here, as well as for the common property. It was accepted that each was a “meterable premises” as defined. Going further, there is much to be said for the view that matters in the plumbing and drainage sphere, in particular to do with reticulation of water to and within a development, are dealt with under the Plumbing and Drainage Act, separately from those matters which are dealt with under other legislation (here by the private certifier). If the appellant chooses (or has no option but) to lodge its compliance request after 1 January 2008, on this approach, it is stuck with the Regulation and Code as they then stand. It does not appear to be suggested that an earlier application could not have been made by the appellant. Subject to the “defects” corrected by replacement hydraulic drawings in August 2008, it appears from Mr Robinson’s affidavits that everything to do with the project by way of hydraulics design, architectural design, electrical re-design, building certification re-assessment, in-ground drainage redesign and installation, above ground water service redesign and installation, provision of water meter access cupboards to all foyer areas, provision of drainage entrapment in access cupboards, installation of slab in-cast pipe lagging and fire proofing and fire enclosure of pipe penetrations in foyer areas had been “designed prior to 1 January 2008”; it is easy enough to accept his proposition that such areas would be directly affected and require revisiting and likely changing if sub-meters had to be installed.
Essentially, Mr Keliher’s argument is that Pt 4 of the Code does not apply generally, but is limited to “Water Meters for New Premises” as its heading proclaims. He argues it is wrong to identify the premises under construction as “new”. There is no definition of new premises. In popular understanding, the six buildings and their podium are “new”, none yet being completed; a photograph in evidence appears to show some of the buildings at full height. A more subtle approach is required, as it is reasonable to acknowledge the impracticability, even unfairness, of retrospectively creating an obligation to destroy and replace work done in good faith in order to be in a position to comply with a new requirement for sub-meters. The appellant would say that even being required to redesign would be seen as unacceptable – unless, of course, the Code and Regulation, etc. plainly require that outcome. The explanatory notes for the Water and Other Legislation Amendment Bill 2008 tell us, apropos s 85:
“Amendment of s 85 (Process for assessing plans)
Clause 38 amends section 85 of the Plumbing and Drainage Act. Section 85 provides the process for the compliance assessment of a plan for regulated plumbing or drainage work. Local government assessment and approval of plumbing plans is required before a local government issues a compliance permit to enable plumbing work to commence. A plan includes any documentation that supports the plan for the work (that is, a certificate about elements of the design prepared by a competent person, or technical details of products proposed to be used in the installation).
The mandatory installation of sub‑meters is proposed throughout Queensland from 1 January 2008 in new multi‑unit developments to allow for the delivery of personalised information on water use to households and businesses. A sub‑meter will be required to be installed in each sole occupancy unit where there is to be an exclusive reticulated water supply. Where the configuration of sole‑occupancy units in a multi‑storey office building is known at the time of construction, meters must be installed for each unit. Where the configuration is not known, a minimum requirement will be that one sub‑meter is installed to measure consumption for each floor. In a building that has common water facilities, for example, a swimming pool in a multi‑unit residential complex or common gardens, a sub‑meter will be required for the common supply in addition to an individual meter for exclusive supply.
Proposed amendments to the Standard Plumbing and Drainage Regulation 2003 will require plans, submitted with a compliance request for plumbing work, to include details of the type and positioning of the sub‑meters according to advice provided by the water service provider. If this information is not provided, the local government may issue an information request to the applicant and the assessment of the application will stop until the information is received.
The local government may issue a compliance permit, with or without reasonable relevant conditions, or refuse to issue a compliance permit within 20 days of receiving the request.
Subclause (1) amends section 85(7) to provide an example of a reasonable and relevant condition which requires the person carrying out the regulated work to notify the water service provider that a particular stage of the work has been reached for the installation of water meters.
Subclause (2) inserts new subsection (8) to require the local government to give a copy of the compliance permit to the owner of the premises to which the permit relates and if the permit is for a plan for work involving the installation of water meters on the premises, a copy to the water service provider, if the water service provider is not the local government.” (Italics added)
In my opinion, the natural reading of the italicised words does not suggest that there is to be any imposition on a multi-unit development approved to the point of the actual construction of it being authorised. I think it reasonable to take from the third paragraph that the explanation extends to what is intended by the foreshadowed amendments to the Regulation.
In the second reading speech in the Legislative Assembly on 16 October 2007, the Minister said:
“Another measure will make it mandatory, from 1 January 2008, to install meters on each individual unit in new multi-unit developments. This would allow for the delivery of personalised water use information to households and businesses. This will be achieved through amendments to a suite of relevant Acts, regulations and codes. Water service providers will own and maintain the meters, and be able to directly charge the owners of separate lots in all new community title schemes for their actual water consumption. For multi-unit buildings under single title, this measure will enable an itemised bill to be issued based on individual meter readings, so that the owner may pass on the cost of water used to the individual water user.”
Mr Cooke referred the court to the Minister’s peroration which emphasised “that everyone in Queensland should be responsible for saving water, there should be no exceptions. These proposed demand management measures are a necessary element of the Government Strategy to achieve the water savings that are required to see us through the worst drought on record. To this end the Government is committed to ensuring that the responsibility for achieving water savings is shared across all sectors. The Bill ensures that appropriate demand management and water efficiency measures are implemented in Queensland. These measures will contribute to the Government’s existing strategies to ensure that the essential water needs of Queensland continue to be met through the current drought and into the future.”
Again, there is nothing to suggest that developers with approved plans as at 1 January 2008 may be forced to change them. The materials quoted above may be resorted to to ascertain the meaning of the heading reference to “new premises” in Pt 4 of the Code which is part of a statutory instrument by s 14 of the Acts Interpretation Act 1954: see s 14B. Both sections apply to statutory instruments: see Schedule 1 to the Statutory Instruments Act 1992 (s 14(1)). Section 7 of the Statutory Instruments Act explains the meaning of ‘Statutory Instrument”. The extrinsic material that may be looked to does not include the “Newsflashes”: cf Tolocorp Pty Ltd v Noosa Shire Council [2006] QPEC 033 at [24].
The argument that the amended Code should not be given retrospective effect to disadvantage the appellant made reference to
· section 4(3)(g) of the Legislative Standards Act 1992, which acknowledges a fundamental legislative principle that whether legislation has sufficient regard to the rights and liberties of individuals depends on whether it “does not adversely affect rights or liberties, or impose obligations, retrospectively”; and
· the common law’s disposition to find an intention to legislate retrospectively only when that intention is clear (Maxwell v Murphy (1957) 96 CLR 261 at 267, cited in Australand Corporation (Qld) Pty Ltd v Johnson [2007] QSC 013 at [75]); and
· section 20(2)(b) of the Acts Interpretation Act 1954 (comprehended in the Statutory Instruments Act schedule) whereby amendment of an Act does not affect the previous operation of the Act or anything suffered, done or begun under the Act.
As was noted in Kentlee Pty Ltd v Prince Consort Pty Ltd [1996] QCA 087, the Queensland provision is unusual in the inclusion of “begun”, which one would expect to give it wider protective effect than its predecessor and its counterparts in other jurisdictions. Finally, to deal with the lack of any application/request to the Council before 1 January 2008, reference was made to Resort Management Services Ltd v Council of the Shire of Noosa [1996] QCA 441, especially the judgment of Fryberg J. That case was concerned with s 20(1)(c). The case was said to support the proposition that, to gain from the Acts Interpretation Act protection against a retrospective imposition on the project which it had “begun”, etc before 1 January 2008, the appellant did not need to have made a compliance request to the Council before 1 January 2008.
It is unclear to me whether the tribunal was, in the end, influenced by the “Newsflashes”, to which reference ought not to have been made as an aid to interpretation, in particular the third of them which proclaimed that “irrespective of the date of lodgement of the development application or the building development application (building application/BA) any plumbing assessment applications lodged on or after 1 January 2008 for new premises in a reticulated water supply area will require a sub-meter for each separate lot and common property in a community title scheme (CTS) or for each sole occupancy unit in the building.” The tribunal did not consider the heading to Pt 4 of the Code (which like the new example in s 85(7) was part of the Act/statutory instrument) or the assistance that the legitimate s 14A materials might give.
I have concluded that there is nothing in those materials to indicate an intention to legislate retrospectively. I have also concluded, although by a somewhat narrow margin, that on the evidence, conditions 22 and 25 imposed pursuant to the Code as amended from 1 January 2008 do retrospectively adversely affect the appellant’s position by requiring costly revision of elements that had been approved by the private certifier before 1 January 2008.
In any event, I think that the class of “new premises” to which Pt 4 of the Code applies does not include premises whose construction was approved before Pt 4 existed.
There was some discussion about the relevance and reasonableness of conditions 22 and 25, an issue raised by the notice of appeal by reference to s 3.5.30 of the IPA. The reference ought to have been to s 85(7) of the Plumbing Drainage Act 2002. The “example” added in the legislation the subject of the explanatory memorandum (part of the Act by s 14 of the Acts Interpretation Act) is pertinent only as from 1 January 2008. For “regulated work” in a “new building” in respect of which a compliance request is made after that date, it is difficult to see what objection could be made to conditions 22 and 25. In the view I take, the appellant’s request did not relate to a “new building” and the conditions could not be regarded as relevant and reasonable.
It would have been possible for the Parliament and the Governor-in-Council to legislate to require retrospectively that projects such as the appellant’s provide sub-meters; in my view this is not what was done (or intended to be done) here.
Against the background of the principles consulted when it has to be determined whether changes in legislation have retrospective effect in the sense of taking away from the rights persons have to conduct their affairs in a particular way, I detect nothing which indicates a legislative intent for such a result here. What is occurring is the introduction of a new regime for developments in the future; there is no suggestion of any attempt more generally to require sub-metering in established multi-storey developments. In the total scheme of things, the impact on the mischief sought to be addressed (namely, that prolific water users not be allowed to hide within a larger group of consumers) of a few projects in transition not being caught will be minimal. In years to come, it may be that the retro-fitting of sub meters will become mandatory; the appellant’s project will be caught at that time.
It seems to me that the test for what is a “new building” is whether complying with Pt 4 would force changes in or frustrate the implementation of approved plans authorising actual construction (assuming that everything has been regularly done, that the approval of such plans is valid: cf Livingstone Shire Council v Brian Hooper& M3 Architecture [2005] QPELR 203). A building is not new for relevant purposes if authority has been obtained to embark substantially on its actual construction before the commencement of the present Pt 4 of the Code on 1 January 2008.
As W S Gilbert had Koko say to the Mikado of Japan:
“When your Majesty says, ‘Let a thing be done’ it’s as good as done practically, it is done – because your Majesty’s will is law.”
It is reasonable to treat an approved building as already there, and not as a new building which may have to be redesigned, or rebuilt.
I invited Mr Keliher to provide information from the bar table to the effect that units had been sold “off the plan”. Either the developer or the purchasers would have to meet the additional costs if the tribunal’s decision stands. No doubt, sales will have been occurring through 2008, with the appellant arguably on notice that there may be an issue. On the assumption that marketing units would be important, if only to give comfort to the financier of the project, it would be difficult for the developer to know how to deal with such an issue. In the result, I attach no weight to this factor (or to construction that may have proceeded after the Council issued the compliance permits containing the impugned conditions).
Mr Keliher made reference to s 37 of the Building Act 1975:
“37 Provision for changes to building assessment provisions
(1)This section applies to building work if—
(a)the lawful carrying out of the work starts before a building assessment provision is amended; or
(b)the building development approval was given before a building assessment provision is amended, but the work does not start before the amendment commences; or
(c)a building development application is made for the work before a building assessment provision is amended, but the application is not decided before the amendment commences; or
(d)planning for carrying out the work started before a building assessment provision is amended and the building certifier for the building development approval is satisfied that to require the work to be replanned to comply with the amended provision would cause financial hardship to the person for whom the work is to be carried out, having regard to—
(i) the stage the planning has reached; and
(ii) the nature of the work; and
(iii) the person’s means and circumstances.
(2)Despite the amendment, a building development approval for the work may be given if the approval is given under the building assessment provisions in force immediately before the amendment, and IDAS.
(3)For subsection (1)(a) the work is lawfully carried out it if is carried out under the building assessment provisions in force immediately before the amendment.
(4)For subsections (1) and (3), an amendment of the building assessment provisions includes an amendment of a document adopted by, or to which a reference is made in, ay of the provisions.
(5)In this section—
building assessment provisions does not include IDAS.”
No claim was or could be made that this provision applies to “regulated work” within the Plumbing and Drainage Act. The omission from that Act of any counterpart of s 37 cannot be taken as an indication that a developer is not to have the general protection available against legislative changes prejudicial to its interests having retrospective effect, where that is not the necessary or apparently intended outcome. The extent of protection the court contemplates in this appeal of construing “new buildings” as it does is less sophisticated and less comprehensive than what s 37 offers.
In the result, the appeal should be allowed and conditions 22 and 25 removed from the compliance permit.
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