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Neller & Anor v Queensland Building and Construction Commission[2023] QCATA 91

Neller & Anor v Queensland Building and Construction Commission[2023] QCATA 91

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Neller & Anor v Queensland Building and Construction Commission [2023] QCATA 91

PARTIES:

Luke edward neller 

leeward management pty ltd atf le Trust t/as Project BA

(appellants)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

APL009-22

ORIGINATING APPLICATION NO:

OCR207-21

MATTER TYPE:

Appeals

DELIVERED ON:

15 June 2023

HEARING DATE:

14 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. Leave to appeal is granted.
  2. The decision of the Tribunal of 1 December 2021 is set aside, and in lieu thereof;
  3. The requirements of s 190(2A) of the Building Act 1975 (Qld) are not met.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant certifier issued a development approval in respect of a roof structure – where limitation on bringing a complaint against the applicant under s 190 of the Building Act – where limitation extended if approval results in significant financial loss or other serious harm – where dispute as to whether the structure was a deck or roof – where direction to determine a preliminary issue as to whether s 190 applied – whether the approved structure constitutes a deck or roof – whether the requirements of s 190 are met – whether leave to appeal should be granted.

Building Act 1975 (Qld), s 190

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b)

Bennett v Minister of Community Welfare [1992] HCA 27

Devries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy  [2003] HCA 22; (2003) 214 CLR 118

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22

Rintoul v State of Queensland & Ors [2018] QCA 20

Terera v Clifford [2017] QCA 181

APPEARANCES & REPRESENTATION:

Applicants:

Mr Neller – self represented

Ms Timmins for Leeward Management Pty Ltd as trustee for Le Trust t/a Project BA

Respondent:

Mr Seefeld of counsel instructed by the respondent

REASONS FOR DECISION

  1. [1]
    On 24 May 2021 the Queensland Building and Construction Commission made a decision that Mr Neller engaged in unsatisfactory conduct. The decision related to   the approval of a Development Application Decision Notice (“development application” or “DA”) dated 17 December 2019 in respect of work on the roof of a property at 5 Minyama Island, Minyama owned by Vicki Dwyer. The certification was for “feature hoods on roofline & stairway – 1a building (10a and 10b parts)”.[1] Attached to the development application are plans for the proposed work which involves fixing or ensuring the existing hoods are in a horizontal position and also an access stair to the roof for maintenance. The plans also stipulate the roof hoods are not to exceed 8.5 metres from the ground.
  2. [2]
    Mr Neller filed an application to review the Commission’s decision on 17 June 2021. In essence the Commission’s complaint is that the certification was in fact for a recreational deck rather than a roof or roofing work and if this is the case, then the certification fails to comply with the building requirements for a deck. Mr Neller contends the development application clearly shows, at the time of certification, it was no longer a deck for a variety of reasons and also that the complaint, made on 23 December 2020, is out of time as it was made more than 12 months after the DA. The Commission concedes that the limitation applies, but under s 190(2A) of the Building Act 1975 (Qld), a complaint can be made after the cut-off date if the certifier’s conduct “has or may have caused significant financial loss or other serious harm”.
  3. [3]
    Because the review application may well turn on whether Mr Neller is afforded the protection of s 190, the Tribunal directed that the question of whether s 190 applied should be decided as a preliminary point.
  4. [4]
    On 1 December 2021 the Tribunal considered the preliminary point and found that “the requirements of s 190(2A) of the Building Act 1975 (Qld) are met”. The conclusion was arrived at because the Tribunal found that the structure the subject of the certification was in fact a deck rather than a roof. Mr Neller and Project BA have appealed that decision. There are no grounds of appeal as such other than the Tribunal “incorrectly directed the requirements of section 190(2A) of the Building Act 1975 (Qld) are met”. However, reliance is placed on the detailed submission attached to the application.

The Primary Decision

  1. [5]
    In coming to the conclusion that the roof was a deck at the time of the development approval, the Tribunal relied on the statement of Wayne Blackman, Principal Technical Officer with the Commission in which Mr Blackman set out the key reasons why he came to that conclusion which, in summary, included:
    1. (a)
      On inspection the applicant knew or ought to have known that the Rooftop Work was for recreational purposes, e.g. a tennis court;
    2. (b)
      The feature hoods, located on the rooftop could be mechanically adjusted into a vertical position;
    3. (c)
      The rooftop had been originally constructed as a recreational area, tennis court, evident in the aerial photographs;
    4. (d)
      The reference to ‘hinged feature hoods’ or ‘hinged roof hoods’ should more accurately be described as ‘mechanical adjustable barriers/fences’ on the external perimeter of the rooftop deck.
  2. [6]
    Mr Neller’s submission is that the roof structure was not used as a deck at the time of his development approval and is not a deck. Therefore, used as a roof (rather than a deck), it did not cause significant financial loss or other serious harm and also there was no evidence of loss or harm. The learned member found that the submission that it was not a deck was disingenuous because the rooftop, evidenced in the aerial photo, clearly shows a marked out tennis court. There was no dispute that the rooftop had, in the past, been used as a tennis court, however that changed once the Council issued the Enforcement Notice to the owner preventing its use as such.
  3. [7]
    Also, having accepted that the complaint was out of time, in treating the roof structure as a deck the learned member found s 190(2A) was satisfied, because the certifier’s conduct “has or may have caused significant financial loss or other serious harm”. In particular there was risk of harm to individuals such as falling from the roof because of the absence of acceptable barriers. He also found that the section did not require there be actual financial loss or harm because it was prefaced with the words “has or may have”.
  4. [8]
    In reliance on what the High Court said in Bennett v Minister of Community Welfare[2]  he found that there was a causal connection between the roof structure being used as a deck, despite the restrictions in the development application and harm referred to in s 190(2A). He put it as follows:[3]

In the present case, the risk of serious harm does not in itself arise from the use of the roof as an outdoor recreation area or tennis court. The risk arises from a lack of acceptable barriers for the protection of persons falling from the perimeter of the rooftop deck. The mechanically adjustable barriers/fences which fail to provide protection whilst oriented in the horizontal position, were approved in this form by Mr Neller. Adopting a common sense approach, I am of the view that Mr Neller’s conduct in approving an adjustable barrier has a sufficient causal connection to the risk of serious harm.

  1. [9]
    The Tribunal also did not accept that there needed to be actual serious financial or other harm before s 190(2A) applied. It was enough that the design may cause serious financial or other harm. Therefore, the Tribunal found that the time limitation under the section did not apply. The effect of that finding is that the review application would proceed to determine whether Mr Neller did engage in unsatisfactory conduct.

The Appeal

  1. [10]
    The Tribunal made a finding of fact as to whether the structure the subject of the certified development approval was a deck or roof. Under s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) an appeal on a question of fact, or on a question of mixed law and fact, may only be made if the appeal tribunal grants leave to appeal. In Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles for a grant of leave to appeal:

The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

  1. (a)
    the appeal is necessary to correct a substantial injustice;
  1. (b)
    there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.[4]

  1. [11]
    The principal consideration in this appeal is whether the conclusion of fact as found by the Tribunal was open in circumstances when all of the evidence leading up to the certification by Mr Neller was not fully considered in the reasons. The appeal tribunal will only disturb a finding of fact if there is good reason to do so, as the High Court said in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43]:

A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review"[5] of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings[6]. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony"[7], or they are "glaringly improbable" or "contrary to compelling inferences"[8].

  1. [12]
    In coming to the conclusion he did, the learned member’s reasons did not canvass the history associated with the roof structure on this house, the use of the roof structure at the time of, and the purpose of, Mr Neller’s development approval. Furthermore, the endorsements on the plans attached to the development approval required the structure to comply with the conditions of the certification. It did not permit the use of the feature hoods in a way other than what was endorsed on the certification. The roof structure could not be used as a deck because of the court’s injunction referred to below.
  2. [13]
    It is therefore relevant to have regard to how and why Mr Neller became involved in the debacle with this roof structure. Despite what description might be attributed to the structure, it clearly serves a purpose as a roof to the subject house, even though there may not be fall or the usual attributes of a normal roof as described by Mr Blackman. The cross section of the roof structure identifies a secondary roof under the flat top roof, however both structures’ primary purpose is a roof for the habitable space constructed below it. So one of the functions of the flat top surface is as a roof. It was used as a recreational area, in particular a tennis court.
  3. [14]
    The following history is not contested. The roof structure, when first constructed was and remains flat. There are lines of a tennis court marked out on the roof so it could be used as a tennis court, as well as a roof.  The feature hoods, now referred to as such in the development application, could be elevated into a vertical position to be used as a fence for the tennis court. This means the height of the building would exceed the maximum allowable height of 8.5m.
  4. [15]
    None of this work or use of the roof as a tennis court had been the subject of a development approval by the Sunshine Coast Regional Council which was necessary in circumstances where the maximum height of the structure would exceed 8.5m. As a consequence, on 14 May 2018 the Council issued an Enforcement Notice (“the Notice”) to Ms Dwyer effectively prohibiting the rooftop’s use as a tennis court or the carrying out of any further work on the rooftop until the Notice was complied with. The Notice provided that:

By 30 October 2019, remedy the commission of the Offence by either:-

  • Demolishing and removing the building works the subject of the offence; or
  • Obtaining all necessary development permits for the building works the subject of the offence, including development approval for the building works above a height in excess of 8.5 metres above natural ground level
  1. [16]
    Following on from the issuing of the Notice, Council commenced a proceeding against Ms Dwyer and others in the Planning and Environment Court because:

the first respondent [Vicki Dwyer] has contravened the enforcement notice dated 14 May 2019 (enforcement notice) and has committed an offence against section 168 (5) of the Planning Act

  1. [17]
    On 22 July 2019 the Planning and Environment Court made orders, inter alia, that:

The First [Vicki Dwyer] and Second Respondents by themselves, servants, agents or permittees:

  1. (i)
    must not use or allow the use of the rooftop work or the rooftop area for a prohibited use until the development approval is in effect
  1. [18]
    The development approval necessary was not to use the rooftop as tennis court or recreational area but to ensure it met the compliance of 8.5 metre maximum height. To remedy the situation, on or about 15 August 2019, Ms Dwyer engaged Project BA, to assist in obtaining the necessary development approval. Mr Neller had the conduct of preparing the application on behalf of Project BA.
  2. [19]
    A new development application was proposed and a letter to the Council stated:

A new roof structure was constructed over the existing dwelling. That roof has since been changed into a rooftop deck including glass balustrades and lift shaft and rumpus room all constructed under the prescribed 8.5 metre maximum height.

  1. [20]
    The effect of the correspondence was to advise Council that the building now complied with the height restriction and approval was sought. However, the Council took a different view, contending that the building exceeded 8.5 metres. The proposed work was inconsistent with reasonable community standards and therefore would be rejected. This proposal was taken no further.
  2. [21]
    To further address this problem, a more detailed solution was proposed. A detailed design/drawing was provided to Mr Neller for certification and development approval. The approved drawings[9] with the development application of 17 December 2019 are endorsed with specific requirements for the use of the feature hoods as shade for the house in a horizontal position not to exceed 8.5 metres. After that approval, the applicants took no further part in the development process.
  3. [22]
    No actual work was carried out pursuant to the development approval but on 1 May 2020 the Council commenced a proceeding in the Planning and Environment Court against Ms Dwyer and others, including Mr Neller, claiming that the Development Approval of 17 December 2019 was void and of no effect.
  4. [23]
    Subsequently, on 10 November 2019, the Council and Ms Dwyer (and others) agreed to final orders in the proceeding, the effect of which was that the development approval was set aside “pursuant to s 11(4) of the P & E Court Act”.[10] The fact that Mr Neller consented to the order does not of itself imply culpability on his part. He had no interest in contesting the application for the benefit of Ms Dwyer.
  5. [24]
    It was after this that a complaint was lodged with the Commission about Mr Neller’s conduct in issuing a development approval for the subject works.
  6. [25]
    It is not for me in this appeal to determine the correct and preferable decision in the review application. Although, the whole of the circumstances surrounding the Commission’s decision and reasons have some relevance to the appeal. The issue for me is whether the determination of the preliminary point should stand.

Discussion

  1. [26]
    The Tribunal’s decision that the requirements of s 190(2A) are met is based on the finding that the rooftop structure was a deck. Clearly, as I said earlier it is not solely a deck but also serves a purpose as a roof over the house. It is an accepted fact that it was used as a deck, in fact a tennis court, but the purpose of the development approval was to change it from a dual use of both a recreational deck and roof to solely a rooftop. Also to utilise the structures in place being the feature hoods, previously used as a fence in the vertical position. The development approval was not for it to be used as a deck.
  2. [27]
    It seems that there is no reason why the submission of Mr Neller[11] should not be accepted that:
    1. (a)
      the development approval sought by Vicki Dwyer was required to assist with transitioning the rooftop back to a lawful state;
    2. (b)
      staged inspections were to be carried out where the applicant and Vicki Dwyer would resolve technical construction details and the applicant would ensure compliance with the Enforcement Notice dated 14 May 2019;
    3. (c)
      any safety requirements for carrying out the works required by the Enforcement Notice dated 14 May 2019 and the development application dated 17 December 2019 to bring the rooftop to its final constructed form fell under the workplace health and safety obligations of the property owners and/or builder engaged to carry out the works;
    4. (d)
      upon completion of the building works, a final inspection was required to be carried out by the applicant where he was satisfied himself the roof was not a deck, relevant conditions of any development approval had been carried out, and the final form of the proposed works was a rooftop and considered safe as same.
  3. [28]
    The above statement is consistent with the endorsements on the plans.[12] They include:
    1. (a)
      The inclusion of maintenance access stairs to the rooftop;
    2. (b)
      Note: Stairs are to be provided for maintenance access only. Ensure access is restricted so access to the roof is not available to children or other non-service professionals;
    3. (c)
      Note: Hinged Feature Hoods. Shown in normal position (horizontal). Finished height of horizontal hoods to not exceed 8.5 metres from ground. Hoods to be constructed with aluminium frame having approx. 40% of its area fixed glass with the remainder being black PVC coated cyclone mesh wire all to engineer’s detail.
  4. [29]
    Further, as again stated by Mr Neller, no other works were permitted by the development approval. The development approval clearly did not permit use of the rooftop as a deck, recreational area or a tennis court. It was, as he said, a transitioning process to comply with the Enforcement Notice and preserve the structure already in place.
  5. [30]
    The learned member found that the rooftop structure was a deck because of the marked out tennis court on the rooftop. That had been there for many years, and it was one of the central reasons for coming to the conclusion that he did. The reasons do not demonstrate that he had regard to the history of the matter, nor did he have regard to the primary purpose of the development application to ensure the structure complied with the height restrictions of 8.5 metres.
  6. [31]
    He relied on Mr Blackman’s evidence as to the specification of a normal roof under the Building Code and how this structure differed from that. Again, that is no doubt correct, but it does not address the purpose of the development approval. He surmises that despite the development approval the roof top will continue to be used as recreational area, tennis court and the ‘feature hoods’ will be utilised as a fence for the tennis court. That is conjecture and entirely inconsistent with the endorsements on the approval or the intent of the development approval.
  7. [32]
    He also relied on the fact that the ‘feature hoods’ in the horizontal position would not provide fall protection for persons on the roof. Again, that assumes that the roof would be used for recreational purposes. This is also inconsistent with the endorsements on the approved plans restricting access to the roof, via the stairs, to non-service professionals.
  8. [33]
    If the rooftop was to be used for recreational purposes then clearly there is a risk of serious harm because of the lack barrier/fences failing to provide protection.
  9. [34]
    The learned member only relied on the evidence of Mr Blackman and the photograph of the rooftop, marked up as a tennis court, to conclude that the structure was a ‘deck’. Had he considered the history of the matter and the purpose of the development approval, in light of that history, he ought to have come to a different conclusion. That is although its original use was as a deck, the purpose of the development approval was to transition it to a roof, and not a recreational area. In other words, it was no longer a deck for recreational purposes. That is the only conclusion open on the evidence.
  10. [35]
    In line with what the High Court said in Robinson Helicopter, the conclusion reached that the structure proposed in the development approval was a deck was improbable having regard to all of the evidence that was before the Tribunal. As a roof, with the restrictions in place noted in the endorsements on the development approval, the certifier’s conduct would not result in significant financial loss or other serious harm.
  11. [36]
    In the circumstances, leave to appeal is granted.  The decision of the Tribunal below is set aside and instead there be a decision that as a roof structure the requirements of s 190(2A) have not been met.

Footnotes

[1]  Appeal Book page 110.

[2]  [1992] HCA 27.

[3]  [2021] QCAT 426, [17].

[4]  Citing Terera v Clifford [2017] QCA 181.

[5]         Citing Fox [2003] HCA 22; (2003) 214 CLR 118 at 126.

[6]  Citing Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-481 per Deane and Dawson JJ; Fox [2003] HCA 22; (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at 381 [76] per Heydon, Crennan and Bell JJ;  [2010] HCA 31.

[7]  Citing Fox [2003] HCA 22; (2003) 214 CLR 118 at 128 [28] per Gleeson CJ, Gummow and Kirby JJ.

[8]  Citing Fox [2003] HCA 22; (2003) 214 CLR 118 at 128 [29].

[9]  Appeal Book pages 115 – 118.

[10]  Ibid page 205.

[11]  Ibid page 411.

[12]  Ibid 115.

Close

Editorial Notes

  • Published Case Name:

    Neller & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Neller & Anor v Queensland Building and Construction Commission

  • MNC:

    [2023] QCATA 91

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    15 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bennett v Minister of Community Welfare [1992] HCA 27
2 citations
Jump To
Cite 1 - [1992] HCA 27
Cite 2 - [1992] HCA 27
Devries v Australian National Railways Commission (1993) 177 CLR 472
2 citations
Jump To
Cite 1 - (1993) 177 CLR 472
Cite 2 - (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
5 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Cite 4 - (2003) 214 CLR 118
Cite 5 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
5 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Cite 3 - (2003) HCA 22
Cite 4 - (2003) HCA 22
Cite 5 - (2003) HCA 22
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357
2 citations
Jump To
Cite 1 - (2010) 241 CLR 357
Cite 2 - (2010) 241 CLR 357
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31
1 citation
Jump To
Cite 1 - [2010] HCA 31
Neller v Queensland Building and Construction Commission [2021] QCAT 426
1 citation
Jump To
Cite 1 - [2021] QCAT 426
Rintoul v State of Queensland [2018] QCA 20
2 citations
Jump To
Cite 1 - [2018] QCA 20
Cite 2 - [2018] QCA 20
Robinson Helicopter Company Incorporated v McDermott & Ors [2016] HCA 22
2 citations
Jump To
Cite 1 - [2016] HCA 22
Cite 2 - [2016] HCA 22
Terera v Clifford [2017] QCA 181
2 citations
Jump To
Cite 1 - [2017] QCA 181
Cite 2 - [2017] QCA 181

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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