Gerhardt v McNeil[2015] QDC 270

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was a private certifier (class A) under the Building Act 1975. On 20 August 2012, he granted a development permit for building work at a house at Annerley. The work was assessable development.^[1]The Brisbane City Plan 2000 applied to the site.^[2]The application was not assessed against the City Plan. The appellant was convicted of two charges of, being a private certifier, granting a development permit without all necessary preliminary approvals being effective. He appeals against those convictions, under s. 222 of the Justices Act 1886.

2. [2]
   The learned magistrate found beyond reasonable doubt that:

1. a)
   The defendant is a private certifier;
2. b)
   He granted a building development approval which had been applied for and which included for charge 2 the addition of a deck and for charge 3 the partial demolition of the eastern wall of the house;
3. c)
   At the time of granting the same, a preliminary approval under the Planning Act was not effected for other assessable parts of the development, i.e. to say this work needed also in a preliminary way to be assessed by the council as against the Sustainable Planning Act (and thereby the City of Brisbane Plan 2000) and that had not been done.

3. [3]
   There is no dispute about what happened, that is, the learned magistrate’s finding a) and b) above are not challenged. The argument is that the learned magistrate was wrong in law to conclude that, in the circumstances, a preliminary approval was required and so an offence was committed when the appellant granted the permit without it.

4. [4]
   The fundamental argument on appeal is that the he cannot be so guilty because it cannot be proven beyond reasonable doubt that any preliminary approval was necessary. Linked to this is the argument that the learned magistrate erred by concluding that the assessment manager for the application was the local government to the exclusion of the private certifier.

5. [5]
   The charges were brought under subs. 83(1)(b) of the Building Act 1975. It is instructive to look at the whole provision and then to consider its terms within the legislative scheme.

6. [6]
   Section 83 appears in Part 6 of Chapter 4 of the Building Act:

Chapter 4 - Assessment of building development applications and carrying out self-assessable building work.

Part 6 - Regulation of building assessment work and the issuing of building development approvals by private certifiers.

7. [7]
   It provides:

83 General restrictions on granting building development approval

3. (1)
   The private certifier must not grant the building development approval applied for—

1. (a)
   if the building development application includes development other than building work—until, under the Planning Act[3], all necessary development permits and SPA compliance permits are effective for the other development; and

Example—

A proposal involves building work, a material change of use and reconfiguring a lot, under the Planning Act. 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 development permits and SPA compliance permits are effective for the change of use and reconfiguring of the lot.

1. (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.

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

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

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

1. (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; and

1. (e)
   if proposed works relating to the development include installing or changing on premises an on-site sewerage facility under the Plumbing and Drainage Act 2002—until a compliance permit under that Act has been given for the installation or change.

Maximum penalty—165 penalty units.

3. (2)
   If the private certifier receives the application before all other assessments for permits and approvals mentioned in subsection (1) are completed, for timings under IDAS, the application is taken not to have been received until the day all other assessments under IDAS have been completed.

3. (3)
   This section does not limit part 4.

8. [8]
   The circumstances of the present case fit neatly with the example to subs. 83(1)(b). The proposal required building assessment work against a planning scheme under the Sustainable Planning Act and the building assessment provisions. The appellant was engaged to carry out the building assessment work and decide the building development application. The example is part of the provision.^[4]The example and the provision are to be read in the context of each other and the Act.^[5]It is hard to resist the conclusion that, according to subsection 83(1)(b), the application was not to be decided until preliminary approvals were obtained for the assessment of the building work against the planning scheme.

The appellant is a private certifier (class A)

9. [9]
   The application the appellant granted was for a development permit for the carrying out of building work.^[6]Building work is defined both in the Sustainable Planning Act (s. 10) and the Building Act (s. 5), according to the purposes of each Act. The long title of the Building Act includes,

“An Act to regulate building development approvals, building work, building classification, building certifiers …”.

10. [10]
    Under the Building Act, a building development application is an application for development approval under the Sustainable Planning Act 2009, to the extent it is for building work.^[7]Building assessment work is the assessment, under the building assessment provisions, of a building development application for compliance with those provisions.^[8]Building assessment work must be carried out under the laws and documents set out in s. 30 of the Building Act (the building assessment provisions). These do not include the planning scheme for the local government area in which the work is to be undertaken.^[9]

11. [11]
    A private certifier is a building certifier who may perform building certifier functions as a private certifier.^[10]

12. [12]
    Section 10 of the Building Act provides that a building certifying function is doing any of the following-

1. (a)
   carrying out building assessment work, other than a part of building assessment work that, under section 46, a concurrence agency may carry out;

1. (b)
   the giving of a certificate (a compliance certificate) in the approved form that, other than for aspects of building assessment work that under section 46 must be assessed by a concurrence agency, states building work complies with the building assessment provisions;

1. (c)
   for a building development approval—inspecting the building work to decide whether to certify the work;

1. (d)
   for building work for a single detached class 1a building or a class 10 building or structure, the giving of—

1. (i)
   a certificate in the approved form for the stage of the building work that is after excavation of foundation material and before the footings for the building are laid; and

1. (ii)
   a certificate (a final inspection certificate) in the approved form for the final stage of the building work;

1. (e)
   the giving of a certificate of classification for a building or structure of another class.

13. [13]
    A private certifier (class A) is a private certifier whose licence has development approval endorsement. That is, a private certifier (class A) can perform the function under s. 48 of the Building Act of issuing building development approvals.^[11]

14. [14]
    Relevantly, s. 48 provides:

1. (1)
   A private certifier (class A) may—

1. (a)
   receive and assess a building development application; and

1. (b)
   decide the application and grant or refuse the building development approval applied for as if the certifier were the person, who, under the Planning Act, section 246(1), is the assessment manager; and

1. (c)
   decide whether enforcement action under this Act or the Planning Act ought to be taken for a building development approval granted by—

1. (i)
   the private certifier (class A); or

1. (ii)
   another private certifier (class A) employed by the same private certifier employer when the decision to take the enforcement action is made.

15. [15]
    One must remember a building development application is an application for development approval under the Sustainable Planning Act 2009, to the extent it is for building work.^[12]

16. [16]
    Section 34A of the Building Act provides “subject to section 83 and the Planning Act” that if the assessment manager for a building application is satisfied the application complies with the building assessment provisions, the assessment manager must approve the application.

17. [17]
    The legislation does not provide for a private certifier (class A) to decide a planning application or, for that matter, to decide that a preliminary approval is unnecessary.

‘Development other than building work’

18. [18]
    Subsection 83(1)(a) of the Building Act limits the private certifier’s power to grant a building development approval when the application includes development other than building work. Other types of development include carrying out operational work, reconfiguring a lot and making a material change of use of premises.^[13]

19. [19]
    The application the appellant approved was only for building work. Subsection 83(1)(a) was not engaged.

‘Other assessable parts’

20. [20]
    Although subs. 83(1)(a) is not applicable to the present case that provision assists in understanding what is meant by ‘other assessable parts’. Clearly, ‘other assessable parts’ are not the same as other types of development. With the benefit of the example given, it is clear that ‘other assessable parts’ of the application include the circumstance that the work was assessable against the plan.

‘Necessary preliminary approvals’

21. [21]
    Chapter 6 of the Sustainable Planning Act details a system for integrating State and local government assessment and approval processes for development,^[14]called the integrated development assessment system (IDAS). The types of approval under the Act for IDAS are:

1. (a)
   a preliminary approval;
2. (b)
   a development permit;
3. (c)
   a compliance permit; and
4. (d)
   a compliance certificate.^[15]

22. [22]
    Section 241 provides that a preliminary approval ‘approves development, but does not authorise assessable development to take place.’ The example in subs. 83(1)(b) pertains – assessment of the application against the planning scheme would be a stage in the development, but of course the ‘preliminary approval’ alone would not permit building to be done. That must await assessment against the building assessment provisions.

23. [23]
    Section 241 goes on to provide,

‘However, there is no requirement to get a preliminary approval for development.

Note –

Preliminary approvals assist in the staging of approvals.’

24. [24]
    As I have said, the appellant granted a development permit. A development permit authorises assessable development to take place subject, among other things, ‘to any preliminary approval relating to the development ….’.^[16]  It is common ground that the work was assessable against the City Plan. The only species of approval provided for in the legislation which could have followed that assessment was a preliminary approval. Therefore, the preliminary approval was necessary. In the circumstances, it seems to me inescapable that by granting the permit when there was no preliminary approval in effect the appellant was in breach s. 83(1)(b). In the present case, because the appellant granted the development permit, his client, the home owner, was free to call the demolisher or builder and get started without the preliminary approval in place. That is, without assessment against the City Plan. This would seem to be precisely the result the legislation is designed to prevent.

25. [25]
    The appellant argues that no preliminary approvals were necessary. Alternatively, if any were, it was he, as the private certifier made assessment manager by the combination of s. 11 of the Building Act and s. 246 of the Sustainable Planning Act, who would have been empowered to grant the preliminary approval.^[17]It is not clear to me why the latter proposition, even if it were true, would be an answer to the charge when the appellant does not assert that he gave the preliminary approval.

26. [26]
    Division 4 of Chapter 6 of the Sustainable Planning Act provides for assessment managers and referral agencies.

246 Who is the assessment manager

3. (1)
   The assessment manager for an application is the entity prescribed under a regulation as the assessment manager for the application.

3. (2)
   Without limiting subsection (1), the regulation may state that the assessment manager for an application is the entity decided by the Minister.

3. (3)
   If, under the regulation, the assessment manager is to be decided by the Minister, the Minister may instead require the application to be split into 2 or more applications.

247 Role of assessment manager

The assessment manager for an application administers and decides the application, but may not always assess all aspects of development for the application.

Note—

See section 312 (When assessment manager must not assess part of an application).

27. [27]
    The Building Act provides in s. 11:

11 Who is the assessment manager for a building development application

3. (1)
   Generally, the assessment manager for a building development application is the assessment manager for the application under the Planning Act, section 246(1).

3. (2)
   However, if under section 48 a private certifier (class A) is performing functions for the application, the certifier is the assessment manager for the application.

28. [28]
    The appellant submits that the legislation, particularly Building Act s. 48, empowers the private certifier to decide the application. At the core of the appellant’s argument is the submission that there can only be one assessment manager, and in the present case it was the appellant, by the combination of s. 11 of the Building Act and s. 246 of the Sustainable Planning Act. As the submission continues, under the IDAS, any planning issues would be dealt with by reference to a referral agency – that is by referral to the Council as a concurrence agency. Because, at the relevant time, the Council was not registered as a concurrence agency, no reference to it could be made. In the result, it is argued, no ‘necessary preliminary approval’ arose and it was open to the private certifier to grant the development permit.

29. [29]
    Counsel for the appellant submits in the written outline that “nothing in the SPA, the BA or the Brisbane City Plan 200 makes a preliminary approval necessary if the assessment manager is not the Brisbane City Council.”^[18]

30. [30]
    I have already referred to the qualification on the private certifier’s power contained in the definition of building development application. The appellant’s construction of Building Act s. 48 ignores that limitation. It also ignores the terms of s. 83 of the Building Act. Nothing in the scheme of the legislation expands the authority of a private certifier to assess other than building work by reference to the building assessment provisions.

31. [31]
    There may be several aspects to - “parts of” - a development proposal. The circumstance that the work was assessable against the plan was an “other assessable part” of the development for the purposes of s. 83 of the Building Act. It was necessary that others assess the other assessable parts. Whether that means there can be two assessment managers at once or the system involves consecutive intermittent assessment managers (of the same or different applications) it is unnecessary to decide. What is plain is that the legislative scheme allows a private certifier to assess a specific type of development. Even if the private certifier becomes the assessment manager, as it were, for all purposes, the private certifier’s power to grant a building development approval is limited by, among other things, s. 83.^[19]

The role of a concurrency agency

32. [32]
    The respondent submits that the appellant’s argument that under the IDAS any planning issues would be dealt with by referral to the Council as a concurrence agency is misconceived. This is because Building Act s. 46 requires the concurrence agency to assess any relevant part of building assessment work under the building assessment provisions. I have already mentioned that the Codes in City Plan, relevant to the building development application, are not within the building assessment provisions. So, it is argued, assessment against the Codes cannot be made as a concurrence agency.

33. [33]
    If it were necessary to decide whether this submission is correct, I would accept it. But it is not necessary because at times relevant to the subject application, the Council was not a concurrence agency. A concurrence agency is one of two types of referral agency, the other being an advice agency.^[20]The appellant argues that upon the passage of the Building and Other Legislation Amendment Act 2006 the Council could have (but did not) become a concurrence agency; and because the private certifier was and could be the only assessment manager, “the only option then open to BCC to assess such a building development application was for BCC to become a concurrence agency.”^[21]So, the argument seems to proceed, because the Council did not become a concurrence agency, it lost the opportunity to assess the application against the planning scheme and so the appellant could approve the application (as if the Council were a concurrence agency and had not given a response under Sustainable Planning Act s. 285 and the proviso in subs 286(2) did not apply). These submissions really reduce to an argument that the 2006 amending legislation effected a repeal of the provisions under which the appellant was prosecuted. I find the argument unpersuasive.^[22]  It comes back to the unsustainable assertion that the appellant could grant a building permit without the application being assessed, as it was required to be, against the planning scheme.

34. [34]
    While this decision was reserved, Searles DCJ gave judgment in Gerhardt v Brisbane City Council [2015] QPEC 34. In that case, Mr Gerhardt was granted declarations that, in the circumstances of that case, no application for a preliminary approval was necessary and he could approve a development application as if there were no concurrence agency requirements. The case is distinguishable because, at times relevant to it, the BCC was a concurrence agency – for amenity and aesthetic impact of the building or structure^[23]. His honour found that the Council had failed to exercise its concurrence agency jurisdiction, so, under s. 286 of the Sustainable Planning Act, Mr Gerhardt was then to decide the application as if the agency had assessed the application and had no concurrence agency requirements.

35. [35]
    His honour did not decide Mr Gerhardt, as private certifier, could assess the application against the relevant Codes. Indeed, Mr Gerhardt’s position before Judge Searles, differently from the position taken in this appeal, seems to have been that he did “not dispute it was not his place to do such assessments.”^[24] 

36. [36]
    I think it unnecessary to traverse Judge Searles’ decision further. It was a different sort of case from this appeal. Upon my own review of the record^[25]I am satisfied the appellant was properly convicted and I confirm the orders of the learned magistrate.^[26]