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Gerhardt v Brisbane City Council

 

[2017] QCA 285

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Gerhardt v Brisbane City Council [2017] QCA 285

PARTIES:

TREVOR WILLIAM GERHARDT
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

Appeal No 10289 of 2016

DC No 2023 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

District Court at Brisbane – [2016] QPELR 934 (Bowskill QC DCJ)

DELIVERED ON:

17 November 2017

DELIVERED AT:

Brisbane 

HEARING DATE:

21 March 2017

JUDGE:

Fraser and Morrison JJA and Flanagan J

ORDER:

The application for leave to appeal should be refused with costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the owners of land applied to the applicant for a development permit for building work – where a dispute arose between the applicant and the respondent about the nature of any development approval the applicant was empowered to issue – where the applicant contends that the Council was given the jurisdiction to assess the owners’ application as a concurrence agency upon referral by the applicant as the assessment manager – where the respondent contends that a separate application for development approval was required to be made directly to the respondent in respect of that aspect of the application – where the resolution of that dispute involved the construction and application of provisions of various legislation – where the primary judge refused the declarations sought by the applicant – where the applicant has applied for leave to appeal against that decision – whether the primary judge erred in determining the nature of the respondent’s jurisdiction to assess the owners’ application in so far as it required consideration of the demolition code under the City Plan 2014

Acts Interpretation Act 1954 (Qld), s 14A

Building Act 1975 (Qld), s 7, s 10, s 11, s 30, s 31, s 46, s 48, s 83(1)(b)

Sustainable Planning Act 2009 (Qld), s 21, s 106, s 232(2), s 247, s 251(a), s 254, s 260(1)(e), s 282, s 285, s 286(1), s 287, s 288(2), s 397, s 761A

Brisbane City Plan 2014, s 1.7.4, s 5.3.1(h), s 5.10.21, s 8.2.21

Gerhardt v Brisbane City Council [2016] QPELR 900; [2016] QPEC 48, related

Gerhardt v Brisbane City Council (No. 2) [2016] QPELR 934; [2016] QPEC 50, related

Gerhardt v Queensland Building and Construction Commission [2016] QCA 136, cited

Woolworths Ltd v Kelly (1991) 22 NSWLR 189, cited

Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QCA 147, cited

COUNSEL:

P R Smith for the applicant

M A Williamson, with M J Batty, for the respondent

SOLICITORS:

No appearance for the applicant

Brisbane City Legal Practice for the respondent

  1. FRASER JA:  The applicant is a private certifier (Class A) under the Building Act 1975 (Qld) (“Building Act”).  The owners of land applied to the applicant for a development permit for building work which comprised the demolition of two timber houses constructed on the land before 1946.  Disputes subsequently arose between the applicant and the respondent, including about the nature of any development approval the applicant was empowered to issue.  The resolution of those disputes involved the construction and application of provisions of the Sustainable Planning Act 2009 (Qld) (“Planning Act”), the Sustainable Planning Regulation 2009 (Qld) (“Regulation”), the Brisbane City Plan 2014 (“City Plan 2014”), and the Building Act.
  1. The land falls within the “Traditional building character overlay” under the City Plan 2014, the general purpose of which is to identify areas of the city in which the pre-1946 character is intended to be preserved.  As a result, the application required assessment against the “Traditional building character (demolition) overlay code” (“demolition code”)[1] in addition to assessment against other provisions.
  1. The applicant commenced an application for declarations in the Planning and Environment Court.  The applicant’s case was that he had made a valid concurrence agency referral to the respondent, the respondent failed to respond within the time provided under the Planning Act,[2] and the effect of s 286(1) of the Planning Act was that the applicant, as assessment manager, was required to decide the application as if the respondent had assessed the application and had no concurrence agency requirements.
  1. The primary judge resolved the disputes generally in favour of the respondent, summarising her Honour’s conclusions as follows:

“In summary then, for the reasons outlined above, where an owner makes a building development application to a private certifier, for approval for building work which, in addition to assessment against the building assessment provisions under the Building Act, is also required to be assessed against the demolition code, and the Council has not yet carried out that assessment:

  1. Upon being satisfied the application complies with the building assessment provisions, and approving the application (s 34A Building Act), the private certifier may proceed to grant a building development approval (s 48 Building Act), in the form of a preliminary approval (definition of “development approval”, ss 241, 324 and 335(1)(g) of the Planning Act), which must state that another development permit is required to allow the development to take place (s 335(1)(i) of the Planning Act), namely a development permit from the Council following its assessment of the development against the demolition code.

In this scenario, once the Council has carried out its assessment, if satisfied the application should be approved, the Council would grant a development permit, which would be subject to the preliminary approval granted by the private certifier, and which would then authorise the assessable development to take place.

  1. However, the private certifier may not grant a building development approval in the form of a development permit, because if what is proposed is a development permit, having regard to the effect of s 243 of the Planning Act, there would be a “necessary preliminary approval under the Planning Act” for another assessable part of the development (namely, the part assessable against the demolition code) that would be required before a development permit could be granted (s 83(1)(b) Building Act).

Of course, if the Council has carried out its assessment, against the demolition code, before the private certifier comes to assess and decide the application made to him or her, and the Council has granted its approval, in the form of a preliminary approval, then the private certifier, upon being satisfied the application complies with the building assessment provisions, would be free to grant a building development approval, in the form of a development permit.  In that instance, the development permit granted by the private certifier would be subject to the preliminary approval granted by the Council.”[3]

  1. The primary judge refused the declarations sought by the applicant.[4]  The applicant has applied for leave to appeal against that decision.  The central issue in the application concerns the nature of the respondent’s jurisdiction to assess the owners’ application in so far as it required consideration of the demolition code under the City Plan 2014.  The applicant contends that the Council was given that jurisdiction as a concurrence agency upon referral by the applicant as the assessment manager, whereas the respondent contends that a separate application for development approval was required to be made directly to the respondent in respect of that aspect of the application.

The regulatory scheme

  1. It is an offence against the Planning Act to carry out assessable development without a development permit.  The demolition of the houses is “building work” as defined in the Planning Act and the Building Act and “assessable development” under the Planning Act.  The level of assessment under the Regulation is code assessment.  The applicable codes are the “building assessment provisions” under the Building Act[5] and the demolition code under the City Plan 2014.[6]
  1. By s 247 of the Planning Act, the person or entity which “administers and decides” an application for development approval is the “assessment manager”, but the assessment manager “may not always assess all aspects of development for the application.”  Under ss 11 and 48 of the Building Act, the applicant was the assessment manager for the building development application made to him by the owners of the houses.  Under s 7 of the Building Act, the “building assessment work” of a private certifier acting as a building certifier empowered to issue development approvals is assessment under the “building assessment provisions” of a building development application “for compliance with those provisions.”
  1. The building assessment provisions are set out in s 30(1) of the Building Act.  It is common ground between the parties that they do not include the demolition code.  It is also common ground between the parties that because the demolition code, whilst part of the planning scheme, is not an aspect of the building assessment provisions, only the respondent can assess the proposed development against the demolition code.  At issue is whether the respondent possessed jurisdiction to make that assessment as a concurrence agency.
  1. A concurrence agency is one of two kinds of “referral agencies” in which jurisdiction may be vested by regulation under the Planning Act for assessing and responding to the part of an application giving rise to a referral to it.[7]  In such a case, a concurrence agency’s broad powers would extend to telling the assessment manager, for example, the conditions that must attach to any development approval or that the private certifier ought to refuse the application.[8]
  1. The Regulation provides, in Schedule 7, Table 1, item 17:[9]

Column 1

Application involving

Column 2

Referral agency and type

Column 3

Referral jurisdiction

17 Building work for a building or structure if it is –

  1. a single detached class 1(a)(i) building, class 1(a)(ii) building comprising not more than 2 attached dwellings or a class 10 building or structure; and
  1. in a locality and of a form for which the local government has, by resolution or in its planning scheme, declared that the form may
  1. have an extremely adverse effect on the amenity, or likely amenity, of the locality; or
  1. be in extreme conflict with the character of the locality

The local government – as a concurrence agency

The amenity and aesthetic impact of the building or structure if the building work is carried out

  1. The respondent made the following declaration in s 1.7.4 of the City Plan 2014:

“For the purpose of Schedule 7, item 17 of the Regulation, building work for a building or structure which is a single detached class 1(a)(i) building, class 1(a)(ii) building comprising not more than 2 attached dwellings or a class 10 building or structure in a locality identified in Table 1.7.4 that does not comply with the acceptable outcomes in the codes identified in Table 1.7.4, is declared to:

  1. have an extremely adverse effect on the amenity or likely amenity of the locality; or
  1. be in extreme conflict with the character of the locality.”
  1. In Table 1.7.4, for the locality identified as “Land in the Traditional building character overlay” the design code is identified.  That table does not refer to the demolition code.

The primary judge’s analysis

  1. The applicant argued that Gerhardt v Queensland Building and Construction Commission[10] supported his case.  The application in that case was for a building development approval for building work comprising demolition of part of a house and additions or alterations to the house.  The building work fell to be assessed under the Building Act and the Residential – Design Character Code and demolition code in the Brisbane City Plan 2000.  The primary judge extracted the following passage from the reasons of Morrison JA (Philippides JA and North J agreeing) in Gerhardt v Queensland Building and Construction Commission:

[31] The work approved by Mr Gerhardt's approval triggered the Residential Design - Character Code and the Demolition Code because:

  1. the addition of a deck over the carport triggered the Character Code; and
  1. the partial demolition of the pre-1946 fabric of the house to facilitate the use of the deck triggered the Demolition Code.

[32] The Brisbane City Plan 2000 contained provisions under which pre-1946 houses were to be protected so that the essential character of the relevant area would be maintained. Thus in the Low-medium Density Residential Area, and in a Demolition Control Precinct [in which the subject house was sited]:

  1. the Intent included that “pre-1946 'timber and tin' housing will be retained and new development will reflect pre-1946 architectural character”;
  1. the Desired Environmental Outcomes included that “pre- 1946 ‘timber and tin’ buildings are largely retained and new buildings reflect many of the Precinct's architectural themes”;
  1. the purpose of the Residential Design – Character Code was to “encourage development in Demolition Control Precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing” and “ensure that precincts of pre-1946 houses are retained and redevelopment in those precincts complements the pre-1946 houses”;
  1. the Character Code imposed various Performance Criteria and Acceptable Solutions by which the Code might be met; included were that (i) “the building form must complement the traditional elements of pre-1946 houses nearby in the street” and (ii) “External elements, materials and detailing must reflect pre-1946 architectural themes”;
  1. the Demolition Code had, among its purposes, that it would “protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity”, and “in conjunction with the Residential Design – Character Code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in those precincts complements the houses constructed in or prior to the end of 1946”; and
  1. the Demolition Code had its own performance Criteria and Acceptable Solutions to regulate when demolition of a pre-1946 house might occur; one such Performance Criteria was “if Partial demolition involving parts of the pre-1946 elements of the front elevation of the building must not diminish 'traditional building character’”.

[33] Those planning scheme provisions reveal that the Council had the ability to prevent work that conflicted with the intent of preserving the pre-1946 character of various localities. Thus, it is clear that the Council’s planning scheme declared that the locality and form of the building work in the Low-medium Density Residential Area, and where the Character Code and Demolition Code apply, may have an extremely adverse effect on the amenity or be in extreme conflict with the character of the locality.

[34] Thus, s 17 of Table 1 in Schedule 7 of the Sustainable Planning Regulation 2009 was engaged. Column 2 of that table nominates the Council as a ‘concurrence agency’.

[37] Counsel for Mr Gerhardt submitted that the Council would only be a “concurrence agency” if it had made a specific declaration to that effect, notwithstanding that the Character Code and Demolition Code would come within Item l7(b)(ii) of the Sustainable Planning Regulation, Schedule 7.

[38] A further submission raised the point that the question of whether the Council was a concurrence agency had not been raised, or dealt with, in the QCAT proceedings below.

[39] Discussion of that aspect then led the Commission to say that it would not contest the point that the Council had not made “the declaration referred to in the [Sustainable Planning Regulation], Schedule 7, tab 1, item 17”.

[40] That was, in turn, a response to the outline for Mr Gerhardt referring to that item of Schedule 7.

[41] The positions taken by Mr Gerhardt and the Commission were misconceived and should not be accepted by this Court as governing the question as to whether the Council was a “concurrence agency”. Nor should the fact that this issue was not raised at first instance prevent this Court from dealing with it. The reasons for that are as follows: -

  1. first, the question whether the Council is a “concurrence agency” is a matter of the proper construction of the Regulation; it does not depend on the opinions or concessions of the parties;
  1. secondly, it cannot be said that the proceedings to this point were conducted, by mutual agreement or acquiescence, on any particular basis as to this issue;
  1. thirdly, the parties’ positions are simply misconceived; for this Court to act on that basis would be wrong.

[42] As [Brisbane City Council v Gerhardt [2016] QCA 76] held, whether the Council is a “concurrence agency” is answered by the Sustainable Planning Regulation, Schedule 7, item 17.

[43] As can be seen, item 17 in August 2012 was in the same terms as it was when considered in [Brisbane City Council v Gerhardt]. I [respectfully] agree with the analysis in that case, on this point. The Council was a “concurrence agency” because item 17 of the Regulation prescribed so.”[11]

  1. In the case referred to in [42] of Morrison JA’s reasons, Brisbane City Council v Gerhardt,[12] it was common ground that the Council was a concurrence agency for the application made to Mr Gerhardt.  The primary judge observed that Brisbane City Council v Gerhardt concerned an application for permission to make additions and alterations to a particular house and it did not involve an application for approval of demolition.  Her Honour considered that the conclusion in that case that the Council was a concurrence agency was dictated by item 17 of Schedule 7 of the Regulation and the expressed declaration in s 1.7.4 of the City Plan 2014.
  1. In relation to the emphasised part of [33] in the quoted passage from Gerhardt v Queensland Building and Construction Commission, the primary judge referred to Woolworths Ltd v Kelly[13] for the proposition that the reference in Schedule 7, Table 1, item 17(b) to the local government having “declared” something contemplated a formal, express statement,[14] but the primary judge acknowledged the binding force of Gerhardt v Queensland Building and Construction Commission in that respect.  Her Honour distinguished that decision on the ground that the planning scheme from which the declaration contemplated in item 17 of Table 1 of the Regulation was inferred was not the City Plan 2014 but the Brisbane City Plan 2000.
  1. Her Honour observed that the declaration expressed in s 1.7.4 of the City Plan 2014 was in the terms contemplated by item 17(b) of the Regulation, “which has the effect that on land within the traditional building character overlay, that does not comply with the acceptable outcomes in the design code, the local government is a concurrence agency, with jurisdiction to assess the amenity and aesthetic impact of the building or structure if the building work is carried out.”[15]  Her Honour considered that, given the presence of the declaration expressed in s 1.7.4 and the absence of any reference in s 1.7.4 or elsewhere in the City Plan 2014 to the demolition code, it was not open to interpret the planning scheme as including an inference that the local government had made a declaration of the kind contemplated by item 17(b) insofar as the demolition code was concerned.
  1. The primary judge considered that the language in Schedule 7, Table 1, item 17 of the Regulation (describing the referral jurisdiction as “[t]he amenity and aesthetic impact of the building or structure if the building work is carried out”) might perhaps be construed as empowering the local government, acting as a concurrence agency, to consider the “amenity and aesthetic impact” of the loss of the building where the proposed building work is demolition, but that could not be the proper construction in light of s 288(2) of the Planning Act.  Section 288 is in a division of the Planning Act concerning referral agency assessment and in a subdivision concerning concurrence agency responses.  Section 288(2) provides:

“To the extent a local government's concurrence agency jurisdiction is about assessing the amenity and aesthetic impact of a building or structure, the concurrence agency may only tell the assessment manager to refuse the application if the concurrence agency considers -

  1. the building or structure, when built, will have an extremely adverse effect on the amenity or likely amenity of its neighbourhood; or
  1. the aesthetics of the building or structure, when built, will be in extreme conflict with the character of its neighbourhood.”[16]
  1. The primary judge referred to the correlation between that provision and the expressed declaration in s 1.7.4 of the City Plan 2014 to the effect that the Council is a concurrence agency where assessment against the design code is required.  Her Honour also noted that in Schedule 7, Table 1 item 17 the reference in (b) to “a form” of “a building or structure” was apt to describe a built form rather than the absence of a building following demolition.
  1. The primary judge considered that another feature of the regulatory scheme supported the view that Schedule 7, Table 1, item 17 of the Regulation did not render the respondent a concurrence agency so far as assessment against the demolition code was concerned.  Section 46 of the Building Act provided:

“(1) This section applies if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work.

  1. Only the concurrence agency may assess the part.
  1. Assessment of the part by the concurrence agency must be done under the building assessment provisions.
  1. Subject to sections 37 and 61, the assessment must be carried out under the building assessment provisions in force when the assessment is made.
  1. If the part is assessing complim1ce with the fire safety standard, the concurrence agency must appoint or employ a building certifier to carry out the assessment.”[17]
  1. With reference to s 46(3), the primary judge observed that because the building assessment provisions do not include the demolition code, if the respondent Council were a concurrence agency and an application was required to be assessed against the demolition code, the result would be that neither the private certifier, acting as assessment manager, nor the local government as a concurrence agency, could assess that part of the application.  The primary judge concluded that such a construction would not give effect to the language and purpose of the provisions (contrary to s 14A of the Acts Interpretation Act 1954 (Qld)) or maintain the unity of the regulatory scheme (which is a relevant consideration in selecting which of the available constructions should be adopted.[18])
  1. The primary judge described the applicable regulatory scheme in terms which may be summarised as follows.  The legislation contemplates that assessment of an application for approval to carry out building work, including demolition, can be carried out by a private certifier.  Such an assessment falls within the scope of a building certifier’s expertise.  Where the building work is to a house within the traditional building character overlay, the local government is designated as a concurrence agency to give it a more direct role in assessing the aesthetic and amenity impact of the building work against the design code.  Where the demolition code is triggered, the value judgments concerning the loss of traditional building character from a particular area or street as a result of the demolition are entrusted to the complete responsibility of the local government, leaving the private certifier to assess aspects of the proposed demolition work under the building assessment provisions falling within the expertise of the building certifier.

The parties’ submissions: concurrence agency jurisdiction

  1. The respondent’s arguments substantially adopted the primary judge’s reasons.
  1. The applicant described the principal issue in the application as being whether, upon the proper construction of the Planning Act and Regulation, the Building Act, and the City Plan 2014, the respondent is an “amenity and aesthetic” concurrence agency for the application made to the applicant; if so, in the applicant’s submission there would be nothing to distinguish this matter from Brisbane City Council v Gerhardt, with the consequence that no separate preliminary approval would be required from the respondent before the applicant issued a development permit.
  1. The applicant argued that: Gerhardt v Queensland Building and Construction Commission supported the view that a declaration of the kind described in Schedule 7, Table 1, item 17(b) may be implied from the purpose, intent, and substance of the applicable planning scheme; the declaration in s 1.7.4 of the City Plan 2014 did not limit the required assessment by the respondent to the design code; the absence of reference in that declaration to the demolition code could not limit the content of the referral jurisdiction described in column 3 of item 17; and the terms of (b) in column 1 of item 17 were apt to comprehend both an express declaration and a declaration drawn by implication from the planning scheme as a whole.
  1. The applicant also argued that, in any event, the declaration in s 1.7.4 of the City Plan 2014 did not justify rejection of such an implication for the additional reason that the declaration was not a declaration for the purposes of (b) of item 17.  That was so because s 1.7.4 includes a requirement that the building work for a building or structure “does not comply with the acceptable outcomes in the codes identified in Table 1.7.4” and positively declares the building work for a building structure to have the effect and conflict described in (b) of item 17; whereas item 17(b) authorises only a declaration that the form of building or structure “may” have the described effect and be in the identified conflict.  Because, in the applicant’s submission, the declaration in s 1.7.4 comprehended building work only on pre-1946 dwellings described in item 17 that the applicant decided did not comply with the acceptable outcomes, it left room for an implied declaration that allowed assessment by the respondent against the demolition code.
  1. The applicant referred to other provisions of the Planning Act which were submitted to support the proposition that the jurisdiction of a referral agency was very broad: s 282(1) provides that each referral agency “must, to the extent relevant to the development and within the limits of its jurisdiction, assess the application against…(c) for a concurrence agency-any applicable concurrence agency codes that are identified as a code for IDAS in this or another Act” and “(e) the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency”; and s 282(2) provides that “each referral agency must, to the extent relevant to the development and within the limits of its jurisdiction, assess the application having regard to…(d) the planning scheme…”.  The term “applicable code” is defined, for development, to mean “a code, including a concurrence agency code, that can reasonably be identified as applying to the development.”  The applicant argued that the demolition code fell within the definition of “applicable code”.  The applicant argued that these provisions indicated that the jurisdiction of each referral agency was very broad.  Whilst in some cases under Schedule 7 it was limited to the building assessment provisions, that was not the case here.
  1. As to item 17, the applicant emphasised the breadth of the expression “amenity and aesthetic impact” in the description of the referral jurisdiction in column 3 and that “building work” comprehends demolition: Planning Act, s 10(1) (“Building work means…building, repairing, altering, underpinning…moving or demolishing a building or other structure…”).  The applicant argued that other items in Schedule 7, Table 1 conferred a referral jurisdiction by column 3 which was not necessarily confined by the descriptions in column 1.  In response to the contention for the respondent that item 17 conferred jurisdiction only in relation to building work resulting in a built form (a building or structure after the building work is carried out), the applicant argued that the text was capable of comprehending the impact of the demolition of the building or structure; the absence of the building or structure would have a negative impact upon its amenity and aesthetic.
  1. The applicant argued that the result of the construction preferred by the primary judge was absurd, in that, whilst alterations and additions would be regarded as having an adverse impact comprehended within the referral jurisdiction even though such building work might amount to partial demolition, the demolition of the whole or a part of the building would not be regarded as having an impact such as to be within the referral jurisdiction.  The applicant argued that it should not be inferred that assessment against the demolition code was excluded from the referral jurisdiction for the reason articulated by the primary judge; rather, the shorter time frames for assessment by the Council as a concurrence agency might have been thought to be appropriate in the context that item 17 applied to dwellings.
  1. The applicant argued that the primary judge’s reliance upon s 46(3) of the Building Act did not support her Honour’s conclusion because (unlike another item in Table 1 of Schedule 7, concerning Fire Services) the jurisdiction conferred upon the local government by item 17 was not “jurisdiction for a part of building assessment work” as described in s 46(1).

Consideration: concurrence agency jurisdiction

  1. The critical issue is whether item 17, properly construed and read with the declaration in s 1.7.4 the City Plan 2014, confers jurisdiction upon the respondent, acting as a concurrence agency, to assess the application against the demolition code.  In my view it does not.
  1. The relevant principles of statutory construction were articulated by Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council & Ors:[19]

[52] … The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning …

[53] This Court, in AAD Design [Pty Ltd v Brisbane City Council [2013] 1 Qd R 1], endorsed that “the established principles and canons of statutory construction should be applied” when construing planning documents.

[54] Chesterman JA took the same view, adding:

The starting point in the task of construing statutes and like instruments remains, I think, that explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5:

It is an elementary and fundamental principle that the object of the court, in interpreting a statute, “is to see what is the intention expressed by the words used”: River Wear Commissioners v Adamson. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what the say: cf. Cody v JH Nelson Pty Ltd. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking “nothing remains but to give effect to the unqualified, words”: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Ltd … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature.

[55] The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the

modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense …

[56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.

[57] As was said by Chesterman JA in AAD Design:

Planning schemes, and the definitions found in them, often lack clarity, contain ambiguities and sometimes appear contradictory. The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation. Nevertheless, Mr Hinson submits that the court should approach the task of construction in the manner described by Thomas J (with whom Ryan and McKenzie JJ agreed) in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360:

To arrive at the so-called proper construction of such provisions involves a good deal of guess-work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well as obscure (cf. Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157, 162; Brown v Idofill Pty Ltd (1987) 64 LGRA 218, 227; Tainui Pty Ltd v Brown (1988) 65 LGRA 22, 27).

[58] However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC [Insurance Ltd v Bankstown Football Club Ltd].”

  1. The statutory text makes it plain that whilst “building work” comprehends demolition, item 17 is not intended to comprehend all kinds of building work. The language in column 3 confines item 17 to a case in which a building or structure will remain after the building work is carried out. That is also the effect of the references in s 288(2) of the Planning Act to the impact on amenity or aesthetics of a “building or structure, when built”.  The text of column 1 of item 17 is to the same effect; the building work must be “for” a building or structure that is both as described in (a) and is in a locality and “of a form” that, by resolution or declaration in the planning scheme, may have the specified effect.  As the primary judge observed, that text refers to a built form, rather than to the absence of a building.
  1. The declaration in s 1.7.4 of the City Plan 2014 accords with that construction.  The declaration is limited to “building work for a building or structure…that does not comply with the acceptable outcomes in the codes identified in Table 1.7.4”, a reference in the case of land in the traditional building character overlay only to the design code.  It is within the authority given by item 17(b) to confine the declaration to a form of building or structure.  The introductory words of the declaration make it clear that the declaration was intended to take effect as a declaration under item 17(b).  Understood in the context of item 17(b), as the declaration must be understood, it comprehends a declaration that this form “may” have the identified effect on amenity and be in the identified conflict with the character of the locality.
  1. Nothing in the statutory context suggests a contrary conclusion. Accordingly, item 17 does not confer jurisdiction upon the respondent acting as a concurrence agency to assess the application against the demolition code.  If, as was held in Gerhardt v Queensland Building & Construction Commission,[20] a declaration contemplated in item 17 may be derived by implication or inference, no such implication or inference is available in this case.  As the primary judge explained, any such implication or inference would be inconsistent with the expressed terms of item 17 and the limitation in the declaration in s 1.7.4 of the City Plan 2014 to a building form that does not comply with the design codeGerhardt v Queensland Building and Construction Commission did not bind the Planning & Environment Court to conclude to the contrary because that decision concerned the Brisbane City Plan 2000, which did not include any declaration in the terms of s 1.7.4 of the City Plan 2014.  Subsections (1) and (2) of s 282, upon which the applicant relied, do not purport to enlarge the jurisdiction otherwise conferred upon a referral agency, as is made plain by the words “within the limits of its jurisdiction”.
  1. It is not necessary to consider the applicant’s contention that, under s 46(1), s 46(3) applies only where the concurrence agency has jurisdiction for a part of “building assessment work” and the demolition code does not form part of the “building assessment provisions”.  The primary judge relied upon s 46(3) only as an additional matter supporting the conclusion that the respondent was not a concurrence agency for the purposes of the relevant application to the applicant.
  1. The underlying policy propounded for the applicant (see [28] of these reasons) is not evidenced by any material extrinsic to the legislation itself, so it is not of assistance in the exercise of construing the legislation. Because the construction preferred by the primary judge is readily explicable in the way described by her Honour (see [21] of these reasons), the applicant’s argument that the construction produces absurd results cannot be accepted. The circumstance that the legislation may produce some inconvenience for an owner who retains a private certifier – namely, that the owner will also be required to seek an approval from the local government in the case of this kind – is not a sufficient basis for preferring the applicant’s competing construction, which requires not insignificant departures from the statutory text.

Building Act, s 83(1)(b)

  1. It is necessary to refer to one remaining issue, which was agitated in the applicant’s outline of submissions but not in oral submissions. The applicant argued that, even if the respondent is not a concurrence agency and it was therefore necessary for development approval to be granted by the respondent to render the proposed development lawful, that development approval was not a condition precedent to the power of the applicant to issue a development permit; it would be sufficient if the respondent granted the necessary development approval before the commencement of the work.
  1. The applicant argued that this result was required by the decision in Brisbane City Council v Gerhardt.[21]  The main question in that case was whether s 83(1)(b) required a separate development application to the respondent for a preliminary approval for building works in addition to the respondent’s concurrence agency jurisdiction.  Section 83(1)(b) of the Building Act prohibits the grant by a private certifier of a building development approval pursuant to an application being assessed by that certifier, “until all necessary preliminary approvals under the Planning Act are effective for other assessable parts of the development.”  That provision includes an example:

“A proposal requires building assessment work against the planning scheme under the Planning Act and the building assessment provisions. The private certifier is engaged to carry out the building assessment work and decide the building development application. The application must not be decided until all necessary preliminary approvals are effective for the assessment of the building work against the planning scheme.”

  1. In that case the council argued that s 83(1)(b) itself imposed the necessity for a preliminary approval under the Planning Act to be obtained.  That argument was rejected.  McMurdo JA, with whose reasons Holmes CJ and Daubney J agreed, said:

[33] The first difficulty with this argument is that the language of s 83(1)(b) does not suggest that the paragraph itself is the source of a necessity for a preliminary approval. Rather, paragraph (b), like the other paragraphs within s 83(1), describes events and circumstances which can restrict the relevant power of the certifier.

[34] Paragraph (a) of s 83(1) applies where a building development application includes development other than building work. In that circumstance, it restricts the power of the private certifier according to whether “under the Planning Act, all necessary development permits and SPA compliance permits are effective for the other development.” This is an unambiguous reference to development permits and SPA compliance permits which are necessary under the Planning Act in that the Planning Act necessitates those permits for that part of the development which is not building work. It cannot be thought that paragraph (a) itself is the source of a legal necessity for an effective permit for that (non-building) work.

[35] Similarly, it is the Planning Act by which any preliminary approval must be “necessary” in order to engage paragraph (b). But as s 241(2) of the Planning Act provides that there is no requirement to get a preliminary approval for development, how could a preliminary approval under the Planning Act be necessary? At least one way appears from s 242 of the Planning Act. It provides that a preliminary approval may be sought and granted in a way which varies the effect of a local planning instrument for the land. A local planning instrument includes a planning scheme. If the application for a preliminary approval is for development which is a material change of use, a preliminary approval may be granted in terms which are different from the local planning instrument, in which case it is the approval which will prevail: s 242(6). In a particular case, that variation of the effect of a planning scheme for a development may be a necessary element of a permission which authorises the development to take place. That the terms of a preliminary approval may become part of a relevant permission appears from s 243 of the Planning Act, which provides:

A development permit authorises assessable development to take place—

  1. to the extent stated in the permit; and
  1. subject to—
  1. the conditions of the permit; and
  1. any preliminary approval relating to the development the permit authorises, including any conditions of the preliminary approval.”

[36] The council’s argument is apparently consistent with its general stance about s 83(1) outside the present case. The council’s argument referred to certain notes which appear below Table 1.6.1 in the City Plan 2014, which indicate the council’s understanding of its responsibilities in cases such as the present:

“Editor’s note - A decision in relation to building work that is assessable development under the planning scheme should only be issued as a preliminary approval. See section 83(b) of the Building Act 1975.

Editor’s note - In a development application the applicant may request preliminary approval for building work. The decision on that development application can also be taken to be a referral agency’s response under section 271 of The Act, for building work assessable against the Building Act 1975. The decision notice must state this.”

The first of those notes is an apparent reference to s 83(1)(b). These notes reveal misunderstandings of the council from which the course of events in this case can be explained. The apparent practice of the council, in cases such as this where the council must assess the proposed work against parts of its planning scheme, is to make that assessment in the course of deciding whether to grant a preliminary approval. However s 83, upon its proper interpretation, refers to an already existing preliminary approval which is relevant in the assessment of the development against the scheme. That is clear from the example given within s 83(1)(b), which explains that in such a case, the application must not be decided until all necessary preliminary approvals are effective for the assessment of the building work against the planning scheme.

[37] The primary judge was therefore correct to reject the council’s argument about s 83(1)(b). This provision does not require a preliminary approval where none is otherwise necessary. Rather s 83(1)(b) has an operation, as a qualification to the certifier’s power to grant an approval, where under the Planning Act there is a necessity for an effective preliminary approval. But that was not so in the present case.”

(Footnotes omitted)

  1. The applicant argued that the last sentence of [36] of those reasons construed s 83(1)(b) as being limited in its operation to a case in which a preliminary approval had been granted by the respondent but was not yet in effect.  That argument fails to take into account the context in that case that the Council was admittedly a concurrence agency.  The primary judge explained the significance of this distinction in the following passage of her Honour’s reasons:[22]

[82] Under s 243, a development permit authorises assessable development to take place:

  1. to the extent stated in the permit; and
  1. subject to -
  1. the conditions of the permit; and
  1. any preliminary approval relating to the development the permit authorises, including any conditions of the preliminary approval.

[83] The "assessable development", in the present context, is building work, assessable against the building assessment provisions under the Building Act, and other parts of the planning scheme which are not part of the building assessment provisions, namely the demolition code.

[84] If the Council has not carried out its assessment, against the demolition code, a private certifier, in the present context, cannot issue a development permit - that is, a permit which authorises the assessable development to take place - because it is not within the private certifier's power to do so, in relation to parts of the application he or she cannot assess. There is a clear distinction in the Planning Act between "development" per se and "assessable development". This is articulated clearly in s 241, which draws a distinction between the ability of a preliminary approval to "approve development", but not to "authorise assessable development to take place".

[85] The point is that a private certifier, without something more (from the Council) could not properly authorise the "assessable development" to take place; because the private certifier's role is limited to being satisfied the building development application complies with the building assessment provisions, and approving the development to that extent.

[86] In order for the private certifier to grant a building development approval, which is in the form of a development permit, there is another necessary approval - that is, approval by the local government, following its assessment against the demolition code. It is only if such an approval is in place, at the time the private certifier proposes to grant a building development approval, that the private certifier could appropriately grant a development permit, authorising the assessable development to take place. On that analysis, s 83( l )(b) of the Building Act would operate to prevent the private certifier from granting the building development approval (in the form of a development permit), without "all necessary preliminary approvals under the Planning Act" being effective for other assessable parts of the development (namely, those parts assessable against the demolition code). The preliminary approval is "necessary" under the Planning Act because without it the "assessable development", in whole, has not been authorised.

[87] As McMurdo JA observed, in BCC v Gerhardt at [37], s 83(1)(b) has an operation, as a qualification to the certifier's power to grant an approval, where under the Planning Act there is a necessity for an effective preliminary approval. That was not so in that case (because the role of the Council was to assess a part of the application as a concurrence agency). But here, before a private certifier could grant a building development approval, in the form of a development permit (that is, authorising assessable development to take place), there would be a need -that is to say, it would be necessary - for another (preliminary) approval to have been obtained from the Council.

[88] In BCC v Gerhardt, it was recognised that there may be circumstances where a preliminary approval may be "a necessary element of a permission which authorises the development to take place" (at [35]). The particular example referred to there, was where the application for preliminary approval involves a validation of the effect of a local planning instrument (as contemplated by s 242). For the reasons outlined, in my view, this case presents another circumstance where a preliminary approval is a necessary element of a permission which authorises assessable development to take place.”

  1. The respondent relied upon that passage in its outline of argument in response to the applicant’s outline of argument. The applicant’s outline of argument in reply on this point submitted only that the primary judge’s reasons were “based on a false premise, namely that Council is not a concurrence agency for the building work the subject of the building development application made to the Applicant”.[23]  I have rejected that argument.  The applicant did not advance any other submissions on this point.  It is therefore necessary to observe only that the primary judge’s quoted reasons explain why the point should not be accepted.

Proposed order

  1. The application for leave to appeal should be refused with costs.
  1. MORRISON JA:  I have read the reasons of Fraser JA and agree with those reasons and the order his Honour proposes.
  1. FLANAGAN J:  I agree with the proposed order of Fraser JA and with his Honour’s reasons.

Footnotes

[1]  The demolition code is contained in s 8.2.21 of the City Plan 2014.

[2]  See s 285.

[3] Gerhardt v Brisbane City Council [2016] QPEC 48 at [100]-[101].  The underlining was made by the primary judge.

[4]  [2016] QPEC 50.

[5]  See ss 30, 31.

[6]  See ss 5.3.1(h), 5.10.21, 8.2.21.

[7] Planning Act, ss 251(a), 254.

[8] Planning Act, ss 287(1)(a), 287(2)(b).

[9]  Pursuant to s 13 of the Regulation.

[10]  [2016] QCA 136.

[11]  [2016] QCA 136.  The emphasis in [33] and other changes were added by the primary judge [2016] QPEC 48 at [40].

[12]  [2016] QCA 76 at [14].

[13]  (1991) 22 NSWLR 189 at 198 per Kirby P (as his Honour then was), citing Imperial Mercantile Credit Association (Liquidators) v J Coleman (1873) LR 6 HL 189 at 205.

[14]  The primary judge referred also to the use of the word “declare” and derivatives of it in other provisions in the Planning Act as being consistent with that meaning: ss 21, 106, 232(2), 260(1)(e), 397, 761A, and many provisions expressly declaring matters “to remove any doubt”.  The primary judge referred also to the Regulation, Sch 3 assessable development (referring to building work “declared” under the Building Act to be exempt development), and works in a “declared fish habitat area” referring to a declaration under the Fisheries Act 1994); and Sch 7, items 30 and 31 (referring to building work for which the local government has declared a defined flood level or maximum flow velocity of water under the Building Regulation 2006).

[15]  [2016] QPEC 48 at [49].

[16]  Emphasis added by the primary judge at [55].

[17]  Emphasis added by the primary judge at [57].

[18]  The primary judge cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47], and Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [10].

[19]  (2014) 201 LGERA 82, 94-96.

[20]  [2016] QCA 136 at [33]; but cf Gerhardt v Brisbane City Council [2016] QPEC 48 at [41]-[46].

[21]  [2016] QCA 76.

[22]  [2016] QPEC 48.

[23]  Amended applicant’s reply to respondent’s outline, 3 March 2017, paragraph [17].

Close

Editorial Notes

  • Published Case Name:

    Gerhardt v Brisbane City Council

  • Shortened Case Name:

    Gerhardt v Brisbane City Council

  • MNC:

    [2017] QCA 285

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Flanagan J

  • Date:

    17 Nov 2017

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2016] QPEC 48 16 Sep 2016 Substantive Judgment
Primary Judgment [2016] QPEC 50 05 Oct 2016 Form of Orders and Costs
Notice of Appeal Filed File Number: Appeal 10289/16 07 Oct 2016 -
Appeal Determined (QCA) [2017] QCA 285 17 Nov 2017 -

Appeal Status

{solid} Appeal Determined (QCA)