Queensland Building and Construction Commission v Gerhardt

CITATION: Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13

PARTIES:	Queensland Building and Construction Commission (Applicant/Appellant)
v
Trevor Gerhardt (Respondent)

APPLICATION NUMBER: APL237-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 27 January 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 24 April 2014 is set aside.

4. The application for review of the QBCC decision dated 2 August 2013 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – BUILDING CERTIFIER – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Gibb owned a pre-1946 house on a double block at Annerley. In 2011, Brisbane City Council gave him a series of preliminary development approvals to relocate the house, reconfigure the lots and build two multi-unit dwellings at the rear. He did not have any building permits.

2. In 2012, the Council discovered that Mr Gibb had carried out building work on the house. It issued an enforcement notice relating to:

   a)    A deck constructed above the garage;

   b)    Enclosing the lower level of the house;

   c)    The carport being 1100 mm from the boundary instead of the required 1500 mm.

   d)    The removal of both the front and rear stairs.

   e)    A front fence 2900 mm high.

3. Mr Gibb engaged Mr Gerhardt to issue the necessary building permits. Mr Gerhardt did so without reference to the preliminary approvals. The Queensland Building and Construction Commission (QBCC) commenced disciplinary proceedings against Mr Gerhardt, found he had engaged in unsatisfactory conduct, and reprimanded him.

4. Mr Gerhardt applied for a review of the QBCC decision. A Senior Member of the tribunal set aside the QBCC decision.

5. The QBCC wants to appeal that decision. It submits that the grounds of appeal are errors of law but concedes that some errors may be errors of mixed fact and law for which leave is required. I will deal with the grounds of appeal in the order in which they appear in QBCC’s submissions.

6. Mr Gerhardt objects to QBCC adducing fresh evidence about the application of the Codes, the City Plan and the Regulations that apply. The Codes were before the learned Senior Member. Even if they were not before the learned Senior Member, this material is not “evidence” but law, which was publically available and to which the learned Senior Member could have referred in his decision. Mr Gerhardt’s objection, although noted, is overruled.

Ground 4 – Mr Gerhardt could not be the assessment manager for the building work

1. QBCC submits…