Stariha v Queensland Building Consulting Group Ltd
[2007] QPEC 110
•7 December 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stariha v. Queensland Building Consulting Group Ltd [2007] QPEC 110
PARTIES:
JOHN STARIHA
(Appellant)
v
QUEENSLAND BUILDING CONSULTING GROUP LIMITED
(Respondent)
FILE NO/S:
Appeal number 987 of 2007
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
7 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
19 October 2007
JUDGE:
Griffin SC DCJ
ORDER:
Appeal allowed.
COUNSEL:
Mr Allen (Appellant)
Mr Shann (Respondent – Self Rep)
SOLICITORS:
Shand Taylor Lawyers (Appellant)
John Stariha (the appellant) appeals against the deemed refusal made on 28 April 2006 of a development application lodged on 28 March 2006, whereby Queensland Building Consulting Group Limited (the respondent), a private certifier, refused to certify building works, in particular a retaining wall, in respect of land located at 3 Main Road, Wellington Point, described as Lot 2 on RP 51510 and Lot 3 on RP 92039. The “refusal” in respect of the application is so deemed by the operation of s 4.1.27(1)(e) of the Integrated Planning Act 1997 (the IPA).
I have already ruled[1] in relation to the “minor” change to the original application concerning the retaining wall. What is left for consideration is whether the retaining wall constitutes “building work”, and as a result, whether the private certifier, the respondent, should have assessed the retaining wall in that context. The respondent made no submissions on the appeal and was content to have the Court decide as to whether the retaining wall was in fact “building work”, or whether, as the private certifier suspected, that the retaining wall was in fact “operational works”, and in respect of which the certifier had no statutory authorisation to make any relevant determination.
[1] The ruling which was made on 19 October 2007 on the hearing of this appeal was that a change to the application itself in terms of the type and dimensions of retaining wall was a “minor” change.
The issues in this appeal that now remain fall to be considered in the context of a torturous labyrinth of statutory provisions and related regulations concerning the characterisation of the retaining wall and whether it in fact constitutes “building works”.
The legislative provisions and associated regulations and code
Two issues that seem uncontentious should be mentioned at the outset. The first is that should the building of the retaining wall be regarded as “building works” then it is tolerably clear that the private certifier was authorised by statute to assess the development application. Secondly, by April 2006 the respondent, having received a letter from the Redland Shire Council advising that it considered the retaining wall to be “operational work”, the agent of the respondent, Mr Richard Shann,[2] was left in a state of doubt as to whether he was able to approve the development application and, as a result, did not make a decision in relation to the development application. Although this has operated as a “deemed refusal”,[3] it was nonetheless a development application that “had not been decided”.[4]
[2] See affidavit filed 17 October 2007.
[3] See s 4.1.27(1) of the IPA.
[4] See s 278 of the Building Act 1975.
The following constitute some relevant agreed facts:
(1) That the retaining wall depicted in the original plans prepared by the BG Group which accompanied the development application made on 28 March 2006 by the appellant and in the revised plans, Drawings Nos 5675-1 to 5675-6 dated 12 September 2006 prepared by Ian Rickard, registered Engineer, was at all material times classified as a Class 10b Structure for the purposes for the Building Code of Australia.
(2) The land described as Lot 2 on RP 51510 and Lot 3 on RP 92039 located at 3 Main Road, Wellington Point:
(a) is included in the Urban Residential zone under the Redland Shire Council’s Planning Scheme which commenced on 30 March 2006 (“the IPA Scheme”);
(b) was included in the Residential A zone under the Redland Shire Council’s Superseded Planning Scheme which commenced on 20 February 1988 (“the Superseded Planning Scheme”).
Of fundamental relevance is the provision, s 278 of the Building Act 1975 which commenced on 1 September 2006. That section provides:-
“A building development application must be decided as if the Building and Other Legislation Amendment Act 2006 had not been enacted if-
(a) the application is a properly made application; and
(b) immediately before the commencement of this section the application had not been decided.”
A co-relative provision is s 56 of the Building Regulation 2006 – “undecided building development applications”. That provision provides:
“(1) This section applies if immediately before 1 September 2006-
(a)a building development application had not been decided; and
(b) the application is a properly made application.
(2) The application must be decided as if the repealed legislation had not been repealed and this regulation were not in force.”
The repealed legislation is the Standard Building Regulation of 1993. In this case it appears to me that that Regulation applies as the decision had not been made before the commencement of s 278 of the Building Act and s 56 of the Building Regulation 2006.
Pursuant to s 3.2.3(1A) of the IPA, a relevant Acknowledgment Notice was not required to be issued in respect of the application on the basis that the application required code assessment assessed against the Standard Building Regulation of 1993; there were no referral agencies in respect of the application; and the application was not a development application under what was a superseded planning scheme. According to the IPA[5] the Standard Building Regulation 1993 (the SBR) is a code which is not capable of being changed under a planning instrument which is defined under the IPA[6] as a planning scheme.
[5] Section 3.1.3(4).
[6] Schedule 10.
It appears to me that certain provisions of the IPA have led to understandable confusion for the private certifier’s role in whether or not to make a decision upon the application.
Section 5.3.5(4) of the IPA provides that a private certifier may not decide the application until all necessary development permits are effected for other assessment development, and all necessary preliminary approvals are effective for other assessable aspects of the development.
The submission is made on behalf of the appellant that, in this case, by reference to the provisions of s 5.3.5(4) of the IPA, the private certifier was not inhibited from making a decision upon the application on the basis that there were no other assessable developments relating to “building works” and furthermore, no preliminary approvals were outstanding or necessary.
The relevant regulations of the SBR which are pertinent to this appeal are, by reference to the legislative history of those regulations, those which were in force as at 1 May 2006.[7] Those regulations are therefore the regulations in respect of which assessment should be made of the development application, there having been no decision (referred to above) in relation to the development application by the private certifier immediately before 1 September 2006.
[7] Such regulations were not amended until their repeal on 1 September 2006.
The Standard Building Regulation 1993 and its operation
The SBR is made under the auspices of the Building Act 1975, which provisions were in force at the time of the making of the development application.
Section 3(2) of the Building Act 1975 makes reference to “building work” as being a reference to the aspect of building work assessed under the IPA against that Act. Section 4(1) of the Building Act 1975 refers to the SBR as a regulation made under the Building Act 1975 about: (a) building work and the certification of building work.
Pursuant to s 4(2) of the Building Act 1975 in carrying out building work a person must comply with the SBR and such compliance must occur even if a development permit given by an assessment manager is contrary to the SBR.
Underpinning the Building Act 1975 and the SBR and legislatively connecting both those instruments to the IPA are definitions included in Division 3 of the IPA – supporting definitions and explanations for key definitions. In the IPA building work is defined as follows:
“(1) Building work means-
(a) building, repairing, altering underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or
(b) work regulated under the Standard Building Regulation 1993; or
(c) excavating or filling-
(i)for or incidental to the activities mentioned in paragraph (a); or
(ii) that may adversely affect the stability of a building or other structure whether on the land on which the building or other structure is situated or on adjoining land; or
(d) supporting (whether vertically or laterally) land for activities mentioned in paragraph (a).”
The IPA also sets out a definition for operational work. Operational work means:-
“(1) Operational work means-
(a) extracting gravel, rock, sand or soil from the place where it occurs naturally, or
(b)conducting a forest practice; or
(c)excavating or filling that materially affects premises or their use; or
(d) placing an advertising device on premises; or
(e) undertaking work in, on, over or under premises that materially affects premises or their use; or
(f) clearing vegetation, including vegetation to which VMA applies; or
(g) undertaking operations of any kind and all things constructed or installed that allow taking, or interfering with, water (other than using a water truck to pump water) under the Water Act 2000; or
(h) undertaking—
(i) tidal works; or
(ii)work in a coastal management district; or
(i)constructing or raising waterway barrier works; or
(j) performing work in a declared fish habitat area; or
(k) removing, destroying or damaging a marine plant; or
(l) undertaking roadworks on a local government road.
(2) Operational work does not include-
(a) for items 1(a) to (f) or (j) - any element of the work that is building, drainage or plumbing work; or
(b) clearing vegetation on-
(i) a forest reserve under the Nature Conservation Act 1992; or
(ii)a protected area under the Nature Conservation Act 1992, section 28; or
(iii)an area declared as a state forest or timber reserve under the Forestry Act 1959; or
(iv)a forest entitlement area under the Land Act 1994.”
Of some relevance are provisions relating to assessment of development applications under the Building Act 1975. Section 31(2) provides that:-
“In assessing or deciding a development application under the Integrated Planning Act 1997, s 5.3.5 which section is a building certifier must assess and decide the application against- (a) this Act.”
On ordinary principles of statutory interpretation the reference to “this Act” includes Standard Building Regulation 1993.[8]
[8] Section 5.3.5 of the IPA provides for the certification by private certifier who may decide certain development applications and inspect and certify certain works.
The notion of private certifier which later becomes relevant in the consideration of provisions to the schedule of the Building Act 1995 is defined and given meaning in s 5.3.3 of the IPA. For present purposes the respondent (and its agent Mr Shann) is such a private certifier.
It is necessary to delve a little more deeply therefore into the recesses of the Standard Building Regulation. A building development application is defined in s 5 of the SBR to mean “the aspect of a development application for building work requiring assessment against this Regulation”. Assessment manager under the same section means the person “who would have been the assessment manager if a private certifier had not been engaged for the development”. Private certifier which is defined in the schedule to the Building Act is given the same meaning as that provided for in the IPA under s 5.3.3(4).[9]
[9] Referred to above.
The SBR assigns in s 11 the role to building certifiers in the assessment of applications. Section 11(1) of SBR provides:-
“Each building development application must be assessed by a building certifier for compliance with-
(a) this regulation; and(b) to the extent a … local planning instrument deals with building work in regard to matters within the scope of this regulation … the local planning instrument.”[10]
[10] Which according to schedule 10 of the IPA includes a planning scheme.
Section 52 of the SBR provides:
“Earth works and retaining walls”
If soil conditions, ground levels, excavation or filling make it necessary to protect land, buildings and structures in the neighbourhood of proposed building work-
(a)retaining walls must be built or other suitable methods used for preventing the movement of the soil; and
(b) drainage of the building or land must be provided.”
The operation of the Building Code of Australia (the BCA) also forms part of the SBR by reference to schedule 8 of the SBR.
Building work must also comply with each part of the Queensland Development Code (the QDC) referred to in schedule 13 of the SBR to the extent that part applies to the work.
A retaining wall is a class 10(b)[11] structure by reference to classifications in the BSA, which includes a structure including a fence, mast, antenna, retaining or freestanding wall, swimming pool or the like.
[11] A fact agreed by both parties.
Specifically in relation to the retaining wall, it is argued for the appellant that its construction is assessable development pursuant to s 4(1) of the SBR because it is not mentioned in schedule 5, part 1 of the SBR, and is not mentioned in schedule 5, part 2.
Furthermore by reference to the IPA, excavation or filling incidental to building work is also classified as “building work” and is specifically excluded from the definition of “operational work”.[12]
[12] See definition of operational work s 1.3.5 of IPA, referred to above.
The development application (with the now minor changes upon which I ruled at the commencement of the hearing) was lodged prior to the commencement of the Redland Shire Council’s planning scheme on 2 March 2006. Assessment of that application against the provisions of that scheme identifies the proposed building work as exempt. The planning scheme adopts the definition of building work contained in the IPA including the reference to incidental excavation or filling. Furthermore, the table of assessment for urban residential zone in which the land is located and all applicable overlays for the land identify the proposed building work as exempt because the proposed building work is not included in the types of building work which I listed and accordingly, so it is argued by the appellant, falls within the description of “all other development listed in column 1 which is identified as exempt”. This analysis of exempted building work is referred to in the affidavit of Shann.[13]
[13] Filed 17 October 2007 at p 39-46.
Conclusions
The following are a summary of the conclusions which I have reached:
(a) The development application was a properly made application and was not decided prior to the commencement of the Building and other Legislation Amendment Act 2006. The development application must be decided as if this Act had not been enacted (section 278 of the Building Act 1975).
(b) A retaining wall is a Class 10b structure under the classifications contained in the Building Code of Australia.
(c) Construction of the proposed retaining wall is assessable development by virtue of section 4 of the Standard Building Regulation as it is not listed in Schedule 5 Parts 1 or 2 of the Standard Building Regulation as self-assessable development or exempt development.
(d) Excavation of filling, which is incidental to building work, is also classed as building work and is specifically excluded from the definition of operational work as contained in the Integrated Planning Act 1997.
(e) The provisions of the Standard Building Regulation (sections 34 and 35) call up the relevant part (Part 12) of the Queensland Development Code. Sections 34 and 35 of the Standard Building Regulation only apply to retaining walls if located on the same allotment as a class 1 building. The development application does not refer to or show any proposed house or other class 1 building on the land.
(f) Sections 34 and 35 of the Standard Building Regulation recognise that a local government’s planning scheme can adopt alternative provisions to Parts 11 and 12 of the Queensland Development Code.
(g) The development application was lodged prior to the commencement of Council’s IPA Planning Scheme. Council’s IPA Planning Scheme adopts the definition of building work contained in the Integrated Planning Act 1997. The table of assessment for:
(i) the Urban Residential Zone in which the land is located; and
(ii) all applicable overlays for the Land (Acid Sulphate Soils, Heritage Place and Character Precinct Overlay and Habitat Protection Overlay).
identify the proposed building work as exempt, as the proposed building work is not included in the types of building work which are listed and, therefore, falls within “all other development listed in column one” which is identified as exempt.
(h) Although the IPA Planning Scheme contains an Excavation and Fill Code and a definition of Excavation and Fill these do not apply to the proposed development as the development application is for building work within “the scope of the Standard Building Regulation 1993.”
(i) Section 50 of the Standard Building Regulation permits local governments to make declarations about Class 10 buildings or structures relating to amenity or aesthetics. Council’s only declaration relates to 10a structures, which does not apply to the proposed retaining walls which are class 10b structures.
This comprehensive (though not exhaustive) analysis of the interrelated statutory instruments and regulations and codes lead, I consider, to a conclusion that the retaining wall as proposed including the changes which I have regarded as “a minor change” lead to the inescapable conclusion that the retaining wall was, and should be regarded in the appropriate legislative senses as “building work” and therefore amenable to the decision of a private certifier in that regard.
On that basis therefore I allow the appeal, the appellant having established his case, and I will hear further submissions in relation to appropriate conditions in respect of the retaining wall.
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