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

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

CITATION:

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

PARTIES:

Queensland Building and Construction Commission

(Applicant/Appellant)

 

v

 

Trevor Gerhardt

(Respondent)

APPLICATION NUMBER:

APL237-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

27 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 24 April 2014 is set aside.
  4. The application for review of the QBCC decision dated 2 August 2013 is dismissed.

CATCHWORDS:

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

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

  1. [1]
    Mr Gibb owned a pre-1946 house on a double block at Annerley. In 2011, Brisbane City Council gave him a series of preliminary development approvals to relocate the house, reconfigure the lots and build two multi-unit dwellings at the rear. He did not have any building permits.
  2. [2]
    In 2012, the Council discovered that Mr Gibb had carried out building work on the house. It issued an enforcement notice relating to:
    1. a)
      A deck constructed above the garage;
    2. b)
      Enclosing the lower level of the house;
    3. c)
      The carport being 1100 mm from the boundary instead of the required 1500 mm.
    4. d)
      The removal of both the front and rear stairs.
    5. e)
      A front fence 2900 mm high.
  3. [3]
    Mr Gibb engaged Mr Gerhardt to issue the necessary building permits. Mr Gerhardt did so without reference to the preliminary approvals. The Queensland Building and Construction Commission (QBCC) commenced disciplinary proceedings against Mr Gerhardt, found he had engaged in unsatisfactory conduct, and reprimanded him.
  4. [4]
    Mr Gerhardt applied for a review of the QBCC decision. A Senior Member of the tribunal set aside the QBCC decision.
  5. [5]
    The QBCC wants to appeal that decision. It submits that the grounds of appeal are errors of law but concedes that some errors may be errors of mixed fact and law for which leave is required. I will deal with the grounds of appeal in the order in which they appear in QBCC’s submissions.
  6. [6]
    Mr Gerhardt objects to QBCC adducing fresh evidence about the application of the Codes, the City Plan and the Regulations that apply. The Codes were before the learned Senior Member. Even if they were not before the learned Senior Member, this material is not “evidence” but law, which was publically available and to which the learned Senior Member could have referred in his decision. Mr Gerhardt’s objection, although noted, is overruled.

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

  1. [7]
    QBCC submits that the learned Senior Member erred in finding that, under s 11 of the Building Act 1975 (Qld), a private certifier (Class A) is the assessment manager and, therefore, can grant both a preliminary approval and a development permit.
  2. [8]
    The learned Senior Member observed that Mr Gerhardt ‘was the only person with expertise to give evidence on this point’[1]. The question of whether Mr Gerhardt could grant both a preliminary approval and a development permit was not, however, a question of evidence. It was a question of interpretation of the relevant legislation.
  3. [9]
    QBCC submits that whether or not Mr Gerhardt could approve the building work requires the following analysis:
    1. 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. 
    2. b)
      A private certifier can only approve a building development application for “building work”[2].
    3. c)
      “Building work” is ‘other work regulated under the building assessment provisions other than IDAS[3].
    4. d)
      “Building assessment provisions” include any relevant local law, local planning instrument or resolution made under s 32[4].
    5. 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.
    6. 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.
    7. g)
      Therefore, assessment against those Codes cannot be part of the building development application.
    8. h)
      Therefore, Mr Gerhardt could not be the assessment manager for work that had to be assessed against either of the Codes.
  4. [10]
    I accept that the learned Senior Member did not follow this path of reasoning. However, am not persuaded that the learned Senior Member erred in that respect. If he did err, it is on a different ground; that is, whether the building work required assessment against the Codes.

Ground 3 – the work required assessment against the Character Code

  1. [11]
    The learned Senior Member found[5] that the Character Code did not apply to the deck/trafficable roof of the carport because the Code does not apply to a carport located between the building and the side boundary.
  2. [12]
    The Character Code does not apply to a carport located between the building and the side boundary. The Code does not apply to decks, verandahs and balconies at the rear of a building. The Code does apply to decks that are at the front of the building, because they are visible form the street. QBCC submits that the Code must apply to a deck on top of a carport at the front of a Character Code building, whether or not it is on top of a carport.
  3. [13]
    It is not for me to determine whether the deck above the carport does meet the Code. I have to decide whether Mr Gerhardt had the power to assess the application without reference to the Code. I can only find that Mr Gerhardt did have that power if I am satisfied that the structure was only a carport.
  4. [14]
    QBCC submits the Macquarie Dictionary definition of “deck” as ‘an unenclosed elevated platform or verandah, usually of wood. It submits that the approved plans for the structure are revealing in that it is directly accessible from a combined living/dining kitchen area though two bi-fold doors, each with an opening over 3 metres. QBCC submits that it was clearly intended to be used as a deck.
  5. [15]
    QBCC makes the point that, in another case[6] in which Mr Gerhardt was involved, it was argued that a free standing unroofed timber deck should have been characterised as “garden furniture” and therefore exempt development. The argument was rejected.
  6. [16]
    Whatever label Mr Gerhardt wants to attach to this structure, it is clear to me that it is a combined deck/carport. Calling it a trafficable roof area does not change its essential purpose. It is a deck. Because the deck is at the front of the building, it is building work that falls within the Character Code.
  7. [17]
    Mr Gerhardt argues that the building work was not caught be the Character Code because it was not a material change of use. This submission is misconceived; the Code applies in assessing a material change of use and/or building work.
  8. [18]
    The learned Senior Member was correct in finding that the Code did not apply to carports built between the building and the side boundary. He was not correct in finding that Mr Gerhardt was assessing a carport.

Ground 6 – partial demolition of the fabric of the existing house was not minor building work

  1. [19]
    The learned Senior Member accepted Mr Gerhardt’s submission that demolishing the fabric of the building to enable the addition of the bi-fold doors was minor building work.
  2. [20]
    Under s 21 of the Building Act the Building Regulation may prescribe certain building work as self-assessable. QBCC submits there are only two bases on which this work could be self-assessable; sections 7 and 8. I agree with that proposition.
  3. [21]
    QBCC then submits that neither section can apply because each only applies to building work that consists of repairs, maintenance or alterations to an existing building. It says, and I accept, that changing weatherboard for bi-fold doors cannot be repairs or maintenance.
  4. [22]
    QBCC also submits, however, that it cannot be an alteration within the sections. “Alterations” include additions to an existing building or structure[7]. QBCC submits that the Macquarie dictionary defines alteration as a change or modification. It then submits that removing the majority of weatherboard from one side of a house and substituting bi-fold doors is not a “mere change or modification”. The QBCC submits that this is, in fact, a complete replacement of one element with something entirely different.
  5. [23]
    I do not accept QBCC’s argument. Removing weatherboard and replacing it with bi-fold doors is a “change”. It is a big change, but neither s 7 nor s 8 of the Building Regulation, incorporate a concept of magnitude into the definition at this point. Section 8(2) does include the concept of magnitude, but it specific and measurable.
  6. [24]
    Building work will not be prescribed work, and therefore not self-assessable, if it affects a structural component of the building or structure[8]. Section 8 of the Building Regulation deals with work that only affects minor structural components.  The building work will be prescribed, and therefore self-assessable, if it does not change the building or structure’s floor area or height[9] and is for, or only affects, a minor structural component of the building[10].
  7. [25]
    The addition of a deck is adding to the floor area of the building. The addition of the bi-fold doors was ancillary to the deck. For this reason, I consider that the building work was not minor building work, was not prescribed and, therefore, not self-assessable.
  8. [26]
    As the QBCC then submit, the question arises as to whether the Demolition Code applies. The Demolition Code does not apply to minor building work but, for this use of the term, the definition in City Plan applies. That definition is extensive.
  9. [27]
    As QBCC points out, this work was not relocation or raising of the house. It was not demolition of internal walls, stairs or any post 1946 feature. The only definition that could apply is work required as a consequence of carrying out work related to renovations and extensions approved in accordance with, or exempt from assessment against the Residential Design – Character Code and/or Residential Design – Small Lot Code.
  10. [28]
    I have already found that the work was not self-assessable. I have already found that the work should have been subject to the Character Code. It is, therefore, also subject to the Demolition Code.

Ground 5 – the need for a preliminary approval

  1. [29]
    The learned Senior Member found[11] 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.
  2. [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.
  3. [31]
    I have previously found[12]:
  4. [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.

Ground 2 – no legislative requirement to make inquiries about earlier development approvals

  1. [33]
    QBCC submits that the learned Senior Member erred in finding[13] that there is no legislative requirement for a certifier to make inquiries about whether an earlier development approval has been granted.
  2. [34]
    I do not agree with the QBCC’s proposition that there is a legislative requirement in all cases for the certifier to make inquiries about an earlier development approval. I do accept, however, that in fulfilling the duties of a private certifier, the certifier may have that requirement imposed by the operation of the legislation. I have said that[14]:

In other matters, the tribunal has taken the view that a certifier is entitled to rely on material a client gives him and has no independent obligation to verify the truth of those documents. I agree with that proposition, save that a certifier may have an obligation to inquire if the documents, on their face, suggest an irregularity.

  1. [35]
    I persist in that view. In an ordinary application for building work, where there is no reason to suspect that the work is subject to a development application or Code, a private certifier is entitled to rely on the information provided by the client and not make further inquiries. But as soon as a potential issue with a development approval is flagged, a private certifier is on notice and should make all reasonable inquiries to ascertain whether there are previous development approvals that may affect the grant of a building approval.
  2. [36]
    Mr Gerhardt denies that he was put on notice because he continues to hold the view that a development approval was not necessary. However, by his own approval plans, Mr Gerhardt shows that he was aware of an existing development approval. The site plan he approved[15] refers to a future subdivision. There was sufficient cause for Mr Gerhardt to make further inquiries. The learned Senior Member may have been correct in his general proposition that the legislation did not impose a duty on Mr Gerhardt but he erred in finding that there was no legislative obligation imposed in these particular circumstances.

Ground 1 – the current building application related to the earlier development approval

  1. [37]
    The learned Senior Member found[16] that there was no specific evidence, other than the approval itself, that the plans Mr Gerhardt approved related to the 2011 approval.
  2. [38]
    QBCC submits that there was sufficient evidence before the learned Senior Member to establish that Mr Gerhardt’s approval was inconsistent with the earlier 2011 approval. I have already dealt with that point. The learned Senior Member’s error, if one exists, is in failing to accept this fact as evidence of connection.
  3. [39]
    I do not consider the learned Senior Member was in error. He noted the approval itself did have notes that could have related to an earlier approval. His finding, as I read it, is that there was no other evidence connecting Mr Gerhardt’s approval to the earlier approval. QBCC’s submissions do not advance this point.

Conclusion

  1. [40]
    The building work required assessment against both Character Code and the Development Code. In that case, Mr Gerhardt could not issue the building approval. He should have considered earlier development approvals and he did not. The learned Senior Member’s decision should be set aside.
  2. [41]
    Mr Gerhardt’s actions demonstrate a cavalier approach to building certification. His appeal submissions demonstrate that he continues to misunderstand the certification regime. I agree with the QBCC’s assessment that Mr Gerhardt’s actions were unsatisfactory.
  3. [42]
    Appropriate certification is vital to the domestic building industry in Queensland. Homeowners are entitled to rely on competent advice from certifiers. Subsequent homeowners are entitled to expect that their homes comply with all relevant building codes and conditions. Private certifiers must, therefore, carry out their work competently and diligently. Mr Gerhardt should be reprimanded. It will not only be a reminder to him about the requirements of certification, it will also serve as a lesson to the industry at large. The application to review the QBCC decision should be dismissed.

Footnotes

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

[2] Building Act s 6.

[3]  Ibid s 5(1)(d).

[4]  Ibid s 30(1)(f).

[5] Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686 at [28].

[6] Cowan v Brisbane City Council appeal number 58-11 dated 10 August 2011.

[7] Building Act Dictionary at Schedule 2.

[8] Building Regulation s 7(2).

[9]  Ibid s 8(1)(b)(i).

[10]  Ibid s 8(1)(b)(ii).

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

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

[13] Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686 at [22].

[14]  Supra at [12].

[15]  Statement of reasons page 97.

[16] Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686 at [21].

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission v Gerhardt

  • Shortened Case Name:

    Queensland Building and Construction Commission v Gerhardt

  • MNC:

    [2015] QCATA 13

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    27 Jan 2015

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)

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