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

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

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

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

PARTIES:

TREVOR WILLIAM GERHARDT
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NO/S:

Appeal No 2096 of 2015

QCATA No 237 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2015] QCATA 13

DELIVERED ON:

31 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2015

JUDGES:

Morrison and Philippides JJA and North J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Leave to appeal be granted.
  2. Leave to amend the proposed Notice of Appeal be refused.
  3. Appeal dismissed.
  4. Appellant to pay the respondent’s costs of the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – where an extension of time is required to bring the application for leave to appeal – where the extension is not opposed – whether leave is granted

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – where the Queensland Building and Construction Commission decided the applicant had engaged in unsatisfactory conduct – where the decision was set aside by a member of the Queensland Civil and Administrative Tribunal (QCAT) – where a member of the Queensland Civil and Administrative Appeal Tribunal set aside the QCAT member’s findings – where leave to appeal is restricted to a question of law – where the applicant was a private certifier under the Building Act 1975 (Qld) – where the applicant issued building permits without preliminary approval – where the council was prescribed as a “concurrence agency” in the Sustainable Planning Regulation 2009 – whether the applicant was the assessment manager of the development application and therefore did not require preliminary approval

Brisbane City Plan 2000

Building Act 1975 (Qld), s 11, s 30(1)(a), s 45, s 46, s 83, s 84

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(3)

Sustainable Planning Act 2009 (Qld), s 241, s 247, s 251, s 252

Sustainable Planning Regulation 2009 (Qld), Schedule 7, Table 1, item 17

Brisbane City Council v Gerhardt [2016] QCA 76, applied

Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139, related

Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686, related

Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13, related

COUNSEL:

P R Smith for the applicant

S E Seefeld for the respondent

SOLICITORS:

No appearance for the applicant

Queensland Building and Construction Commission for the respondent

  1. MORRISON JA:  Mr Gerhardt is a private certifier in the Brisbane area.  In 2012 he issued an approval of building development, for alterations and additions to an existing residential building in Annerley.
  2. In August 2013, the Queensland Building and Construction Commission decided that he had engaged in unsatisfactory conduct, contrary to s 83(1)(b) of the Building Act 1974 (Qld).  The basis of that conclusion was that Mr Gerhardt had issued his approval without a preliminary approval for carrying out building work having first been issued by the Brisbane City Council.
  3. That decision was set aside by a member of the Queensland Civil and Administrative Tribunal (QCAT).  The Commission sought leave to appeal to the QCAT Appeal Tribunal, which allowed the Commission’s appeal, and set aside the orders.[1]  The essential reasoning was that:[2]
  1. s 30(1)(a) of the Building Act 1975 (Qld) requires that building assessment work must be carried out under the Integrated Development Assessment System (IDAS) applicable under the Sustainable Planning Act 2009 (Qld);
  2. therefore, s 30 requires a certifier to assess work against the relevant town planning requirements;
  3. the work had to be assessed against relevant planning Codes, namely the Character Code and the Demolition Code;
  4. but Mr Gerhardt could only approve building work, and work that requires assessment against the Codes is excluded from that definition;
  5. therefore, a preliminary approval from the Council was necessary.
  1. Thus the Commission’s decision as to unsatisfactory conduct was reinstated.
  2. Mr Gerhardt seeks leave to appeal from the orders of the Appeal Tribunal.  If leave is granted the appeal is restricted to a question of law: s 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. The issues raised by the application are:
  1. was a preliminary approval necessary prior to Mr Gerhardt issuing his approval;
  2. was the Council a “concurrence agency”;
  3. if so, what was the consequence; and
  4. did the Appeal Tribunal err in finding unsatisfactory conduct by Mr Gerhardt.
  1. Mr Gerhardt also requires an extension of time within which to bring the application for leave.  An extension of time is not opposed, and need not be further considered.

Relevant facts

  1. The facts are relatively simple and not in contest.  They can be restated from the Appeal Tribunal decision.
  2. In 2011 the owner of a pre-1946 house, on a double block at Annerley, obtained a series of preliminary development approvals from the Brisbane City Council.  The approvals were to relocate the house, reconfigure the lots and build two multiunit dwellings at the rear.  None of the Council’s approvals were building permits.
  3. In 2012, the Council discovered the owner had carried out building work on the house.  It issued an enforcement notice relating to:
  1. a deck constructed above the garage;
  2. enclosing the lower level of the house;
  3. the carport being 1100 mm from the boundary instead of the required 1500 mm;
  4. the removal of both the front and rear stairs; and
  5. a front fence 2900 mm high.
  1. The owner engaged Mr Gerhardt to issue the necessary building permits.  Mr Gerhardt did so without reference to the preliminary approvals.  The Commission commenced disciplinary proceedings against Mr Gerhardt, found he had engaged in unsatisfactory conduct, and reprimanded him.

Approach of the Appeal Tribunal

  1. At the outset of the hearing before this Court, counsel for Mr Gerhardt said that certain passages in the reasons of the Appeal Tribunal were at the heart of the contention that leave to appeal was warranted.  Those passages are set out below:[3]

“[29]The learned Senior Member found[4] that there was no requirement for a preliminary approval because there was no material change of use. QBCC submits that a preliminary approval was necessary and that Mr Gerhardt had no power to issue the preliminary approval.

[30]I agree that whether or not there was a material change of use is not the relevant test. The test goes back to the complex definition process referred to at [8] above. The essence of the argument is that Mr Gerhardt can only approve building work and work that requires assessment against the Codes is excluded from that definition. I accept that analysis.

[31]I have previously found:[5]

[32]Section 30(1)(a) of the Building Act 1975 (Qld) states that building assessment work must be carried out under IDAS. IDAS means the system detailed in the Planning Act, chapter 6, for integrating State and local government assessment and approval processes for development. Therefore, s 30 requires a certifier to assess work against the relevant town planning requirements. Mr Gerhardt has not made any submissions in this appeal that would change my view. Therefore, he was required to assess the work against relevant Codes. As I have found, those Codes included the Character Code and the Demolition Code. A preliminary approval was necessary. The learned Senior Member erred in finding to the contrary.”

  1. The reference to paragraph [8] of the reasons below is an error and should refer to paragraph [9].  As that paragraph is essential to understanding the passages relied upon, and contains the analysis accepted by the Appeal Tribunal, it is as well to set it out:

“[9]QBCC submits that whether or not Mr Gerhardt could approve the building work requires the following analysis:

(a)Section 11 of the Building Act sets out who can be an assessment manager for a building development application and it is not controversial that a private certifier (class A) can perform that task.

(b)A private certifier can only approve a building development application for “building work”.

(c)“Building work” is ‘other work regulated under the building assessment provisions other than IDAS’.

(d)“Building assessment provisions” include any relevant local law, local planning instrument or resolution made under s 32.

(e)The only local planning instruments, other than IDAS, that form part of the building assessment provisions are those prescribed in Part 3 of the Building Regulation.

(f)The building work required assessment against the Character Code and the Demolition Code. Neither of these Codes is prescribed in Part 3 of the Building Regulation.

(g)Therefore, assessment against those Codes cannot be part of the building development application.

(h)Therefore, Mr Gerhardt could not be the assessment manager for work that had to be assessed against either of the Codes.”

Submissions in this Court

  1. The question of law as framed during oral address was whether preliminary approval was necessary before the 20 August 2012 approval was issued.
  2. Central to the contentions on that issue is a proper understanding of Mr Gerhardt’s role as a private certifier, and the limits (if any) on what he could approve.  Mr Gerhardt’s contention is that he was the assessment manager in respect of the development application and therefore able to approve the development without reference to the Council, and without the requirement for any preliminary approval.
  3. As developed orally the contentions focused on:
  1. the need for an approval of the development application;
  2. the role of the assessment manager;
  3. the role of the private certifier;
  4. the position of the Council and whether it was a “concurrence agency”; and
  5. whether Mr Gerhardt’s conduct warranted the conclusion that it was misconduct.
  1. Since the hearing of this matter, some of those questions have been agitated as between Mr Gerhardt and the Council, in Gerhardt v Brisbane City Council.[6]  The Commission was not a party to those proceedings.
  2. Gerhardt v BCC concerned an approval (in December 2014) of additions and alterations, to a house in Brisbane.  Because the question of compliance with the Council’s planning was a factor, Mr Gerhardt referred the development application to the Council.  It did not respond to the referral, and took the position that two separate applications had to be made, one to the Council and one to the private certifier.  Mr Gerhardt sought declarations that, in those circumstances, he was entitled to approve the application without the Council’s concurrence.
  3. Thus consideration of the applicability of Gerhardt v BCC must recognise not only the different factual circumstances, but also any changes in the applicable legislation between August 2012 and December 2014.
  4. That said, Gerhardt v BCC provides valuable guidance.

Application to be assessed under the Council’s planning scheme

  1. It was common ground before this Court that the development application involved more than just building work.  The house was in a zone which for planning scheme purposes necessitated that the application had to be assessed against the Residential Design - Character Code and Demolition Code of Brisbane City Plan 2000.
  2. Where that is the case, the proposed work is assessable development for two reasons.  First, the component of building work in the application must be assessed under the Building Act 1975 (Qld).  Secondly, the work has to be assessed against part of the Council’s town planning scheme, the Brisbane City Plan 2000.
  3. This aspect was determined in Gerhardt v BCC[7] on the basis of reasoning with which I respectfully agree.  There is no relevant distinction between the proposed work in Gerhardt v BCC and that in this case.  Each involved a component of building work; in Gerhardt v BCC it was additions and modifications to a house; in this case it was alterations and additions which included the construction of a deck, and the demolition of part of the fabric in order to install bi-fold doors.
  4. The parties were therefore correct to acknowledge that this matter must be analysed on the basis that the proposed work in the development application was assessable under the Building Act and, as well, under the Council’s planning scheme.

Was Mr Gerhardt the assessment manager?

  1. The answer to this question is the affirmative.  Once again, the reasoning in Gerhardt v BCC governs the issue.[8]
  2. However, as was recognised in Gerhardt v BCC,[9] s 247 of the Sustainable Planning Act provides that the assessment manager “may not always assess all aspects of development for the application”.  Some aspects must be assessed by other agencies, described as a “referral agency”,[10] or a “concurrence agency”.[11]
  3. Thus, Counsel for Mr Gerhardt focussed the argument on the contention that the Council was not a “concurrence agency” and therefore Mr Gerhardt was under no requirement to refer the application (as any part of it) to the Council.  It is to that question that I now turn.

Was the Council a “concurrence agency”?

  1. Unlike the position in Gerhardt v BCC, it was not common ground before this Court that the Council was a “concurrence agency”.  Counsel for Mr Gerhardt put the contention (that it was not) a number of ways, but the central point was that the Council had not declared itself to be a concurrence agency for the purposes of the Sustainable Planning Regulation 2009,  Schedule 7, Table 1, item 17.
  2. For reasons which will become apparent, that contention cannot be accepted.
  3. Section 251 of the Sustainable Planning Act defines what a “concurrence agency” is, namely an entity prescribed as such under a regulation.  The Sustainable Planning Regulation 2009, Schedule 7, Table 1, item 17, provided, as at 20 August 2012:

Amenity and aesthetic impact of particular building work

[Application involving]

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

(a) 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

(b) 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—

(i) have an extremely adverse effect on the amenity, or likely amenity, of the locality; or

(ii) be in extreme conflict with the character of the locality

[Referral agency and type]

The local government – as a concurrence agency

[Referral jurisdiction]

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

  1. 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
    2. the partial demolition of the pre-1946 fabric of the house to facilitate the use of the deck triggered the Demolition Code.
  2. The Brisbane City Plan 2000[12] 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[13]:
    1. the Intent included that “pre–1946 ‘timber and tin’ housing will be retained and new development will reflect pre–1946 architectural character”;[14]
    2. 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”;[15]
    3. 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”;[16]
    4. 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”[17] and (ii)  “External elements, materials and detailing must reflect pre–1946 architectural themes”;[18]
    5. 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”;[19] and
    6. 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’”.[20]
  3. 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.
  4. 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”.
  5. Gerhardt v BCC held that the Sustainable Planning Regulation 13 and Schedule 7 of the Regulation contains the prescription as to when a body is a “concurrence agency”.[21]  The Court in Gerhardt v BCC set out that Item 17 of Schedule 7 (as it stood in 2014) applies to an application involving:

“Building work for a building or structure if it is -

  1. a single detached class 1(a)(i) building … and
  2. in a locality and of a form for which the local government has, by resolution as 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
    2. be in extreme conflict with the character of this locality.”
  1. The Court in Gerhardt v BCC then said, in respect of the effect of that part of the Sustainable Planning Regulation:[22]

“Section 254 of the Planning Act provides that a referral agency (thereby including a concurrence agency) “has, for assessing and responding to the part of an application giving rise to the referral, the jurisdiction or jurisdictions prescribed under a regulation.”

As is common ground, the application which was made to the respondent falls within item 17 of sch 7 of SPR.  Consequently, by what appears in columns 2 and 3 of sch 7, the council is a concurrence agency and its “referral jurisdiction” is “the amenity and aesthetic impact of the building or structure if the building work is carried out”.

  1. 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 17(b)(ii) of the Sustainable Planning Regulation, Schedule 7.[23]
  2. 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.[24]
  3. 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”.
  4. That was, in turn, a response to the outline for Mr Gerhardt referring to that item of Schedule 7.
  5. 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;
  2. 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;
  3. thirdly, the parties’ positions are simply misconceived; for this Court to act on that basis would be wrong.
  1. As Gerhardt  v BCC held, whether the Council is a “concurrence agency” is answered by the Sustainable Planning Regulation, Schedule 7, item 17.
  2. As can be seen, item 17 in August 2012 was in the same terms as it was when considered in Gerhardt v BCC.  I respectively agree with the analysis in that case, on this point.  The Council was a “concurrence agency” because item 17 of the Regulation prescribed so.[25]

Consequence of the Council being a “concurrence agency”

  1. The consequence of the Council being a “concurrence agency” in respect of the development application in this case, is that the Council was the body to assess that part of the proposed building work which came within its jurisdiction.
  2. The position was put in Gerhardt v BCC:[26]

“[19]Section 45 of the Building Act provides that, subject to s 46, building assessment work must be carried out by a building certifier.  Section 46 qualifies s 45 in the case of concurrence agencies.  Section 46 relevantly provides:

‘46Concurrence agencies may carry out building assessment work within their jurisdiction

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

(2)Only the concurrence agency may assess the part.

(3)Assessment of the part by the concurrence agency must be done under the building assessment provisions.’”

  1. In plain terms, the Council was a “concurrence agency” and had the jurisdiction to assess the proposed building work against its planning instrument, and in particular the Character Code and the Demolition Code.
  2. Unlike the position in Gerhardt v BCC, the Council was not given an opportunity to carry out that assessment, as Mr Gerhardt considered that no such approvals were required from the Council, and be stood in the Council’s shoes, in all respects concerning the development application.
  3. That stance was in error.

Preliminary approval - s 83(1)(d) of the Building Act 1975

  1. Section 83(1)(a) and (d) of the Building Act 1974 (Qld) relevantly provide:[27]

“83General restrictions on granting building development approval

(1)The private certifier must not grant the building development approval applied for—

(a)if the building development application includes development other than building work—until, under the Planning Act, all necessary development permits and SPA compliance permits are effective for the other development; and

…

(b)until all necessary preliminary approvals under the Planning Act are effective for other assessable parts of the development; and

Example—

A proposal requires building assessment work against a 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.

(c)until the building assessment work for the application has been carried out under the building assessment provisions; and

(d)if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work—

(i)that part has been assessed by the concurrence agency, under the building assessment provisions; and

(ii)if the concurrence agency is the local government—any security it has required for the carrying out of the building work has been given;

…”

  1. Counsel for Mr Gerhardt conceded that if the Council was a “concurrence agency” then “s 83(1)(d) would prevent him from issuing the approval”.[28]
  2. Section 83(1)(d) provides that a private certifier “must not grant the building development approval … if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work – that part has been assessed by the concurrence agency …”.
  3. Section 241(2) of the Sustainable Planning Act provides that “there is no requirement to get a preliminary approval for development”.  Gerhardt v BCC held that s 83(1)(b) is not itself a source of legal necessity for an effective pursuit for the component of non-building work in an application.  It does not require a preliminary approval to be obtained where none is otherwise necessary.  Rather, s 83(1)(b) had an operation as a qualification to the certifier’s power to grant an approval.  The Court said:[29]

“[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.[30]  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—

(a)to the extent stated in the permit; and

(b)subject to—

(i)the conditions of the permit; and

(ii)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 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.”

  1. The same reasoning applies here.  Nothing in the words of s 83(1)(d) requires that a preliminary approval be obtained prior to the private certifier’s approval.
  2. All that s 83(1)(d) requires is that the concurrence agency assess that part for which it has jurisdiction.  It is not required that any form of approval, whether preliminary or otherwise, be issued by the concurrence agency.  Given that the private certifier is the assessment manager, the concurrence agency would notify the certifier that it had carried out its assessment, and what its conclusions were.  That would then enable the private certifier to proceed with the approval, or not, depending on the concurrence agency’s assessment.
  3. In so far as the reasoning by the Appeal Tribunal turned on the necessity for a preliminary approval, it was in error.[31]
  4. However, for reasons which will become apparent, that is not the end of the matter.

Unsatisfactory conduct by Mr Gerhardt

  1. Section 83(1)(d) provides a qualification as to the private certifier’s power to grant an approval.  By its plain and unambiguous wording, the private certifier must not “grant the … approval” until the part of the application falling under the jurisdiction of the concurrence agency “has been assessed” by the concurrence agency.
  2. The Appeal Tribunal made findings that:
  1. part of the building work which fell under the planning instrument (the Character Code and the Demolition Code) could not be approved by Mr Gerhardt, but had to be assessed by the Council;
  2. Mr Gerhardt was aware that there was an existing development approval; in the circumstances he was subject to a legislative obligation to make inquiries to ensure that the previous development approval did not affect the approval under assessment; Mr Gerhardt did not do so;[32]
  3. the approval in 2012 was inconsistent with the earlier 2011 approval; that was for relocation of the house, reconfiguration of the lots and the construction of two multi-unit dwellings at the rear;[33]
  4. Mr Gerhardt’s actions “demonstrate a cavalier approach to building certification” because:
    1. he issued an approval for the development application when he could not; and
    2. he should have considered the earlier approvals and did not.[34]
  1. The finding in paragraph [58](a) above was challenged in the application to this Court.  The findings in paragraphs [58](b) and (c) were not, for the obvious reason that they are, or are dependent upon, factual findings.  Any appeal to this Court is only on a question of law.
  2. What is apparent from those findings is that the Appeal Tribunal’s decision to uphold the Commission’s decision, namely that Mr Gerhardt had engaged in unsatisfactory conduct, was ultimately based on two grounds.  The first ground was that Mr Gerhardt could not issue the approval in the absence of the code assessment against the Character Code and the Demolition Code.  That ground involved a consideration of s 83(1)(d) of the Building Act.
  3. The second ground was that he had not considered the 2011 approval, and had issued an approval inconsistent with it.  That involved a breach of s 84(1) of the Building Act, which relevantly provides:

“(1)The private certifier must not approve the application if–

(a)the building development application relates to an earlier development application by the local government …; and

(b)the earlier approval … has not lapsed; and

(c)the application is inconsistent with the earlier approval …”.

  1. The first ground involves the contention central to the application for leave to appeal.  The second ground was not challenged.  Indeed, the second ground was not referred to at all in Mr Gerhardt’s outline.
  2. Counsel for Mr Gerhardt conceded that the second ground was not the subject of the proposed appeal.  In oral address Counsel foreshadowed that if this Court held that the Appeal Tribunal did find a breach of s 84, then leave to amend the Notice of Appeal was sought.[35]
  3. There are difficulties confronting that course.
  4. First, the Appeal Tribunal made a finding of fact, that Mr Gerhardt was aware of the existing development approval.[36]  That followed because the site plan he approved referred to a future subdivision.
  5. The Appeal Tribunal also found that the approval issued by Mr Gerhardt related to the 2011 approval, and was inconsistent with it.[37]  That is a finding of fact.
  6. Those findings were not challenged in the proposed Notice of Appeal, and could not be challenged given that any appeal from the Appeal Tribunal to this Court is restricted to questions of law only.
  7. Secondly, the Appeal Tribunal found that the approval by Mr Gerhardt was one that relates to the 2011 approval within the meaning of s 84 of the Building Act.  Though the reasons of the Appeal Tribunal are somewhat opaque in this respect, I consider it to be tolerably clear from the way in which ground 1 of the proceedings in the Appeal Tribunal was dealt with in the reasons below.[38]
  8. Counsel for Mr Gerhardt contended that the reasoning of the Appeal Tribunal, in paragraphs [37]-[39] of its reasons, did not amount to a finding that Mr Gerhardt acted in breach of s 84 of the Building Act.  In my view, that contention cannot be accepted.  The Appeal Tribunal only held that the Senior Member at first instance did not err in one limited respect.  That is, the Senior Member was correct to say that apart from the approval itself, there was no evidence to show that Mr Gerhardt’s approved plans “related to the 2011 approval”.  However, that did not answer the relevant question.  The Appeal Tribunal held that Mr Gerhardt’s plans referred to a further subdivision, which was sufficient to show that it related to the 2011 approval.[39]
  9. Further, the Appeal Tribunal’s reasons on this point are headed “Ground 1 – the current building application related to the earlier development approval”.  There is nothing in the text of s 83 which refers to an application relating to an earlier approval.  In my view, it is plain that the Appeal Tribunal was dealing with the issue under s 84(1) of the Act, and not s 83, in this section of its reasons.
  10. Therefore, the finding that s 84(1) was breached was underpinned by the findings of fact, that:
  1. the application approved by Mr Gerhardt related to the 2011 approval; and
  2. it was inconsistent with the 2011 approval.
  1. As those factual findings cannot be the subject of the proposed appeal there is no reason to grant leave to raise the s 84 point.  That being so, there is no basis to challenge the Appeal Tribunal’s finding that Mr Gerhardt engaged in unsatisfactory conduct.

Conclusion and orders

  1. The proposed appeal involved important questions of general application as to the proper interpretation of the Sustainable Planning Act and the Building Act.  For the same reasons as expressed in Gerhardt v BCC[40] I would grant leave to appeal.  However, for the reasons expressed above I would dismiss the appeal.
  2. I would propose the following orders:-
    1. Leave to appeal be granted.
    2. Leave to amend the proposed Notice of Appeal be refused.
    3. Appeal dismissed.
    4. Appellant to pay the respondent’s costs of the appeal.
  3. PHILIPPIDES JA:  I agree with Morrison JA’s reasons and with the orders proposed.
  4. NORTH J:  I agree with Morrison JA’s reasons and with the orders proposed.

Footnotes

[1] Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13.

[2] [2015] QCATA 13 at [9], [17]-[18], [25]-[28], [30]-[32] and [40].

[3] [2015] QCATA 13 at [13].

[4] Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686 at [29].

[5] Gerhardt v QBCC [2014] QCAT 139 at [21].

[6] [2016] QCA 76 (Gerhardt v BCC).

[7] [2016] QCA 76 at [5]-[9].

[8] [2016] QCA 76 at [10]-[12].

[9] [2016] QCA 76 at [13].

[10] Sustainable Planning Act, s 252.

[11] Sustainable Planning Act, s 251.

[12] Applicable as at August 2012.

[13] In which the subject house was sited.

[14] Chapter 3, s 5.4.1.

[15] Chapter 3, s 5.4.2.

[16] Character Code, s 3.

[17] Character Code P4.

[18] Character Code P6.

[19] Demolition Code, s 3.

[20] Demolition Code, P5.

[21] [2016] QCA 76 at [15].

[22] [2016] QCA 76 at [15].

[23] Appeal transcript T 1-30-31.

[24] Appeal transcript T 1-31, 32; T 1-32, 12; paragraph 31 of the Commission’s outline.

[25] [2016] QCA 76 at [18].

[26] [2016] QCA 76 at [19].

[27] [2016] QCA 76 at [27].

[28] Appeal transcript T 1-37 line 33.

[29] [2016] QCA 76 at [34]-[37].

[30] Sustainable Planning Act, sch 3.

[31] See [2015] QCATA 13 at [32].

[32] [2015] QCATA 13 at [1]-[33], [33]-[36], [40].

[33] [2015] QCATA 13 at [1]-[3], [27] and [38].

[34] [2015] QCATA 13 at [40]-[42].

[35] Appeal transcript T 1-38, 9-12.

[36] [2015] QCATA 13 at [36].

[37] [2015] QCATA 13 at [38].

[38] [2015] QCATA 13 at [37]-[39], [40].

[39] [2015] QCATA 13 at [36].

[40] [2016] QCA 76 at [4].

Close

Editorial Notes

  • Published Case Name:

    Gerhardt v Queensland Building and Construction Commission

  • Shortened Case Name:

    Gerhardt v Queensland Building and Construction Commission

  • MNC:

    [2016] QCA 136

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, North J

  • Date:

    31 May 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2014] QCAT 68624 Apr 2014QBCC's decision that Gerhardt had engaged in unsatisfactory conduct set aside: Senior Member Oliver.
Primary Judgment[2015] QCATA 1327 Jan 2015QCATA
Notice of Appeal FiledFile Number: 2096/1527 Feb 2015APL237/14
Appeal Determined (QCA)[2016] QCA 13631 May 2016Leave to appeal granted; leave to amend proposed notice of appeal refused; appeal dismissed: Morrison, Philippides JJA and North J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Brisbane City Council v Gerhardt [2016] QCA 76
12 citations
Jump To
Cite 1 - [2016] QCA 76
Cite 2 - [2016] QCA 76
Cite 3 - [2016] QCA 76
Cite 4 - [2016] QCA 76
Cite 5 - [2016] QCA 76
Cite 6 - [2016] QCA 76
Cite 7 - [2016] QCA 76
Cite 8 - [2016] QCA 76
Cite 9 - [2016] QCA 76
Cite 10 - [2016] QCA 76
Cite 11 - [2016] QCA 76
Cite 12 - [2016] QCA 76
Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139
2 citations
Jump To
Cite 1 - [2014] QCAT 139
Cite 2 - [2014] QCAT 139
Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686
2 citations
Jump To
Cite 1 - [2014] QCAT 686
Cite 2 - [2014] QCAT 686
Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13
13 citations
Jump To
Cite 1 - [2015] QCATA 13
Cite 2 - [2015] QCATA 13
Cite 3 - [2015] QCATA 13
Cite 4 - [2015] QCATA 13
Cite 5 - [2015] QCATA 13
Cite 6 - [2015] QCATA 13
Cite 7 - [2015] QCATA 13
Cite 8 - [2015] QCATA 13
Cite 9 - [2015] QCATA 13
Cite 10 - [2015] QCATA 13
Cite 11 - [2015] QCATA 13
Cite 12 - [2015] QCATA 13
Cite 13 - [2015] QCATA 13

Cases Citing

Case NameFull CitationFrequency
Gerhardt v Brisbane City Council [2017] QCA 285 4 citations
Gerhardt v Brisbane City Council [2016] QPEC 482 citations
Gerhardt v McNeil [2016] QCA 207 6 citations
1

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