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Gerhardt v Brisbane City Council[2015] QPEC 34

Gerhardt v Brisbane City Council[2015] QPEC 34

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gerhardt v Brisbane City Council [2015] QPEC 34

PARTIES:

TREVOR WILLIAM GERHARDT

(Applicant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE:

351/15

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

31 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2015

JUDGE:

Searles JDC

ORDER:

1. Declare that no application for a development approval (including either a preliminary approval or a development permit) for carrying out building work is required to be made to and approved by the Respondent for the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling located at 105 Lodge Road, Wooloowin.

2. Declare that the Applicant be at liberty to approve the development application within the Sustainable Planning Act 2009 (Qld) s 286(1) as if there were no concurrence agency requirements.

3. The Council pay the costs of the Applicant on a standard basis.

CATCHWORDS:

PLANNING AND ENVIRONMENT – BUILDING WORK – EXISTING RESIDENTIAL DWELLING – Applicant a private certifier who received a building development application from homeowners for alterations to an existing residential dwelling – Alterations require assessment against Dwelling House code and Traditional Building Character (Design) Code – Where development permit required before alterations can go ahead – Where Applicant applied to Respondent for amenity and aesthetic assessment for purposes of obtaining approval – Whether Respondent is a ‘concurrence agency’ – Whether Applicant must make separate application to Respondent for development permit or preliminary approval.

Building Act 1975 (Qld) ss 10, 11, 36, 45, 47, 48, 83

Brisbane City Plan 2014 s 1.7.4

Sustainable Planning Act 2009 (Qld) ss 238, 241, 243, 244, 246(1), 247, 251, 252, 254, 260, 270, 282, 283, 284, 285, 286(1), 288, 456(1), 456(7), 457

Sustainable Planning Regulation 2009 (Qld) regs 9, 12, 13, 15 and Schedules 3, 6, 7, 15

Brisbane City Council v Mamczur [2010] QPEC 71

Mingara Pty Ltd v Brisbane City Council [2002] QPELR 88

COUNSEL:

Applicant - Mr P Smith of Counsel

Respondent - Mr J Lyons of Counsel

SOLICITORS:

Applicant - Direct brief

Respondent - Brisbane City Legal Practice

Application before the Court

  1. [1]
    The Applicant seeks the following declarations pursuant to s 456(1) of the Sustainable Planning Act 2009 (Qld) (SPA):

[A]That the Respondent is a concurrence agency by the operation of City Plan 2014 s 1.7.4, for assessing the amenity and aesthetic impact of the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling located at 105 Lodge Road, Wooloowin.

[B]That no application for a development approval (including either a preliminary approval or a development permit) for carrying out building work is required to be made to and approved by the Respondent for the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling located at 105 Lodge Road, Wooloowin.

  1. [2]
    He also seeks costs pursuant to s 457 of SPA, and an order under s 456(7) that Council, in its capacity as a concurrence agency, decide the development application as if it had assessed the application.

Building Application

  1. [3]
    On 11 December 2014, the owners of the house at 105 Lodge Road, Wooloowin (Residence) applied for a development permit for a carport, entry, alterations and changes to the external walls façade (Works). It is common ground that these Works constitute ‘building work’ under s 5(1)(a) of the Building Act 1975 (Qld) (BA) and under ss 7, 10(1)(a) and 57 of the SPA. There is no material change of use, operational works, or other form of development sought. The owners’ application for the Works is a ‘building development application’ (BDA) for the purposes of both s 6 of the BA, and s 10 and Schedule 3 of SPA.
  1. [4]
    The Residence is an existing dwelling house. It is a single detached class 1(a)(i) building under the Building Code of Australia[1] for the purposes of s 10(d) of the BA. It is also a pre-1946 house within the Character Residential zone, the Traditional Building Character overlay and the Clayfield-Wooloowin District Neighbourhood plan of City Plan 2014.

Private Certifier

  1. [5]
    Owners lodged the BDA with the Applicant, a private certifier (class A) for the purposes of ss 8 and 9(2) of the BA,[2] which role involves performing ‘building certifying functions’[3] and ‘private certifying functions’[4] in relation to the Works, and assessing the BDA against the building assessment provisions under the BA.[5] Under the relevant provisions of the BA, set out below, he has the power to decide the BDA, that is, grant or refuse approval, required by s 282 of the SPA and s 46 of the BA.

The Applicant is the assessment manager under the BA

  1. [6]
    The following provisions of the BA show that the Applicant is the ‘assessment manager’ for the purposes of the BDA:

11 Who is the assessment manager for a building development application

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

48 Functions of private certifier (class A)

  1. (1)
    A private certifier (class A) may—
  1. (a)
    receive and assess a building development application; and
  2. (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
  3. (c)
    …
  1. (2)
    …
  2. (3)
    …
  3. (4)
    …
  4. (5)
    …
  5. (6)
    …

However, section 83 of the BA places restrictions on the Applicant’s exercise of assessment manager powers. It provides:

83 General restrictions on granting building development approval

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

a)…;

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

c)…

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; and

e)…

  1. [7]
    Hence, even if the Applicant has decided to grant approval of the BDA, he must withhold such approval until any ‘concurrence agency’ has assessed that part of the works within its jurisdiction under BA s 83(1)(d) above.

Role of Council as Concurrence Agency

Application for amenity and aesthetic assessment

  1. [8]
    Given the Residence is a pre-1946 dwelling within both the Character Residential Zone and the Traditional Building Character Overlay under City Plan 2014 (CP2014),[6] Table 1.7.4 of CP2014 provides that the Works are code assessable against the Dwelling House Code and the Traditional Building Character (Design) Code:
Table 1.7.4—Declared locality and building form for amenity and aesthetic referral agency assessment

Locality

Codes

Land in the following zones:

(a) …

(b) …

(c) …

(d) …

(e) Character residential zone and zone precincts

(f) …

(g) …

(h) …

Dwelling house code

…http://eplan.brisbane.qld.gov.au/CP/DwellingHseSmallLotCode

Land in the Traditional building character overlay

Traditional building character (design) code

…

…

  1. [9]
    The Applicant accepts that the BDA does not comply with the relevant acceptable solutions in the codes identified in Table 1.7.4.[7] As a consequence of that non-compliance, in terms of section 1.7.4 of CP2014, the BDA is declared either to have either an “extremely adverse effect on the amenity or likely amenity of the locality”, or to be in “extreme conflict with the character of the locality”. That section provides:-

1.7.4 Declaration for amenity and aesthetic impact referral agency assessment

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

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

(b) be in extreme conflict with the character of the locality.

  1. [10]
    The operation of s 1.7.4 of CP2014 and Schedule 7, Item 17 of SPR[8] invokes the jurisdiction of Council as a ‘concurrence agency’ for the purposes of SPA and the BA. Its role as concurrence agency, being a ‘referral agency’,[9] is to assess the amenity and aesthetic impact of the BDA against the Traditional Building Character (Design) Code and Dwelling House Code under CP2014.[10] The relevant provisions of SPA detailing the powers of a concurrence agency are:-
  • SPA s 251 - Who is a concurrence agency

A concurrence agency, for an application, is—

  1. an entity prescribed under a regulation as a concurrence agency for the application; or
  2. if the functions of the entity in relation to the application have been devolved or delegated to another entity—the other entity.
  • SPA s 252 - Who is a referral agency

A referral agency is an advice agency or a concurrence agency.

  • SPA s 254 - Jurisdiction of referral agencies for applications—generally
  1. A referral 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.
  2. …
  • SPA s 282 - Referral agency assesses application

(1) …

(a) …

(b) …

(c) …

(d) …

(e) …

  1. Also, each referral agency must, to the extent relevant to the development and within the limits of its jurisdiction, assess the application having regard to each of the following—

(a) …

(b) …

(c) …

(d) the planning scheme;

(e) …

  1. (f)
     

(3) …

  • SPA s 283 - Referral agency’s assessment period
  1. The period a referral agency has to assess the application (the referral agency’s assessment period) is—
  1. the number of business days, starting on the day immediately after the agency’s referral day and being less than 30 business days, prescribed under a regulation; or
  2. …
  1. …
  2. …
  3. The referral agency’s assessment period does not include—
  1. any extension for giving an information request; or
  2. any period in which the agency is waiting for a response to an information request.
  • SPA s 285 - When concurrence agency must give response for particular matters
  1. Subsection (2) applies if a concurrence agency—
  1. wants the assessment manager to include concurrence agency conditions in the development approval, or to refuse the application; or
  2. under this Act, requires the assessment manager to do something else in relation to the application.
  1. The concurrence agency must give its response (a concurrence agency’s response) to the assessment manager, and give a copy of its response to the applicant, before the referral agency’s assessment period for the application and any extension of that period ends.
  • SPA s 286 - Effect if concurrence agency does not give response
  1. (1)
    If a concurrence agency does not give a response under section 285, the assessment manager must decide the application as if the agency had assessed the application and had no concurrence agency requirements (Emphasis added).
  2. (2) However, the concurrence agency’s response is taken to be a refusal of the application if—
  1. the application is a building development application; and
  2. the concurrence agency is the local government; and
  3. the matter being decided by the concurrence agency is a matter other than assessing the amenity and aesthetic impact of a building or structure; and
  4. the concurrence agency does not give a response under section 285.
  1. [11]
    It can be seen from s 286(2)(c) that any deemed refusal by Council as a concurrence agency does not arise here, because Council is to assess only the amenity and aesthetic impact. Hence, Council was obliged to assess the BDA, decide whether to grant or refuse the application, and, if to be granted, to impose any conditions on such approval.[11] Sections 282, 283 and 285 obliged Council to assess the amenity and aesthetic impact and convey its decision to the Applicant before the end of the ‘assessment period’.

Assessment Period

  1. [12]
    That period of assessment and notification is provided for in SPR as 10 business days, commencing after the day Council received the application for amenity and aesthetic impact.[12] That commencement date was 12 December 2014.[13] Hence, Council had until 29 December 2014 to exercise its concurrence agency powers by assessing the BDA and communicating its response to the Applicant.[14]
  1. [13]
    It was not until its letter of 13 January 2015, 15 days after the expiration of the assessment period, that Council responded to the Applicant.[15] But that letter contained no response to the amenity and aesthetic impact application, rather advising that it had not yet assessed the BDA against the relevant planning scheme codes.[16] Subsequently, on four occasions, the Applicant wrote to Council, asking it to, in effect, provide its concurrence agency response for the application.[17] Finally, on 4 February 2015, the day before the present application was filed and well beyond the expiration of the assessment period, Council advised the Applicant in writing that the request for its concurrence agency response was premature and that, under s 83(1)(b) of the BA, a preliminary approval was necessary before the BDA could proceed.[18] The Applicant subsequently brought the current application before the Court.

FIRST DECLARATION SOUGHT

Council’s Submissions

  1. [14]
    Council argues that the First Declaration should not be made, given its concession it is a concurrence agency for the purpose of the BDA. It conveyed this to the Applicant in its letter dated 4 February 2015.[19] It relies on Renard Partners Pty Ltd v Quinn Villages Pty Ltd[20] as authority for the proposition that, ordinarily, a declaration will not be made where there is no dispute between the parties.

Consideration – First Declaration

  1. [15]
    Renard was a case involving two parties who were engaged in a joint venture. They had each made cross-applications to the primary judge for declarations in relation to their rights under that agreement. The declarations were made non-contentiously. One declaration required the Appellant to fulfil certain obligations within a ‘reasonable time’. It seems that, during submissions for the hearing, the Appellant’s Counsel gave indications of what a ‘reasonable time’ was. After the declaration was granted, the Respondent sought to pin the Appellant to those indications, requesting its agreement in writing. The Appellant refused to agree to affix outer limits to what was a ‘reasonable time’, saying it would give no confirmation as such and no assurance that it would not later take a different course to what it had indicated at the hearing.
  1. [16]
    The Respondent then sought and obtained a further declaration, which required the Appellant to fulfil the same obligation within a reasonable time but after a specific date. Renard appealed from this declaration, arguing that its subject matter was hypothetical and concerned no real controversy between the parties.
  1. [17]
    The Queensland Court of Appeal (McPherson and Thomas JJA, Mullins J) unanimously dismissed the appeal, holding that “the parties were sufficiently in dispute to justify the court in entertaining the application”.[21] The court said:

“The essential question in the present case is whether in the circumstances there was sufficient utility in the making of the declarations to justify the order. Renard's solicitors refused to agree that they would not raise such matters in the future. In the absence of an indication from Renard that it did not propose to challenge the propositions sought in the declarations at some future time, we think that there was some utility in having those issues determined”.[22] (Emphasis added)

  1. [18]
    As the above statement makes clear, there must be a “sufficient utility” to justify making the declaration. In Renard, there was such a utility because, in the court’s view, it was clear enough that Renard did not accept the addition of a specific date against which ‘a reasonable time’ would be assessed. 
  1. [19]
    The present case is quite different. Council wholly accepts what is sought in the declaration. It has explicitly indicated, both in submissions to this court[23] and in earlier correspondence to Mr Gerhardt,[24] that it agrees it is a concurrence agency for the purposes of CP2014 and SPA. It has added no qualification or caveat to this acceptance. In short, I do not consider there to be any, let alone sufficient, utility in granting the declaration as sought.

SECOND DECLARATION SOUGHT

  1. [20]
    The next declaration sought is that the Applicant can himself now approve the BDA without needing to separately apply to Council for a development permit or preliminary approval. The declaration sought is in these terms:

[A]That no application for a development approval (including either a preliminary approval or a development permit) for carrying out building work is required to be made to and approved by the Respondent for the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling located at 105 Lodge Road, Wooloowin

Applicant’s Submissions

  1. [21]
    The Applicant says that he has no need to apply for a development approval from Council because he alone is the ‘assessment manager’ charged with the authority to decide the BDA. Council, as concurrence agency, did not provide its response within the required assessment period under SPA. Its failure to so respond within the required timeframe results in a deemed decision under SPA s 286 that it has no requirements.  It follows that, under SPA s 286(1), the Applicant must, as assessment manager, decide the BDA as if Council had imposed no concurrence agency requirements.
  1. [22]
    As to Council’s assertion that he must first obtain a preliminary approval for the amenity and aesthetic assessment application, he relies on s 241 of SPA, which provides:

241 Preliminary approvals

  1. A preliminary approval—
  1. approves development, but does not authorise assessable development to take place; and
  2. approves development—
  1. to the extent stated in the approval; and
  2. subject to the conditions of the approval.
  1. However, there is no requirement to get a preliminary approval for development.

Note—

Preliminary approvals assist in the staging of approvals.

  1. [23]
    No preliminary approval was sought or obliged to be sought.

Council’s Submissions re: Second Declaration

  1. [24]
    Council says the Applicant misconceives the limited role of a private certifier plays in the assessment process and says the relevant provisions in the BA do not oust its role as assessment manager for the purposes of assessment against the planning scheme under SPA. While private certifiers may perform assessments themselves, the extent of that role is confined to assessing building matters within the sphere of their expertise – namely, matters relating to how buildings are constructed pursuant to and regulated by the BA. The assessment manager role which a private building certifier may exercise, it says, does not include assessing the development against the planning scheme, because that is self-evidently not within the expertise of a private certifier. Council points to as the following provisions:-

[A]AO1.1 of the Traditional Building Character (Design) Overlay Code, which requires satisfaction about, among other things, whether a building was constructed prior to 1946.

[B]AO3 of the Traditional Building Character (Design) Overlay Code, which requires satisfaction that a relevant development use “breaks in form to present as small components similar in scale to that of existing dwelling houses constructed in 1946 or earlier nearby in the street.

[C]AO6.1 of the Traditional Building Character (Design) Overlay Code, which requires satisfaction that the development “uses traditional material consistent with the predominant traditional materials of the dwelling houses constructed in 1946 or earlier fronting the same street.

[D]AO10.1 of the Traditional Building Character (Design) Overlay Code, which requires that, within a certain neighbourhood plan area, “a veranda incorporates historically appropriate detailing for the period of the building”.

[E]AO12.3(b) of the Traditional Building Character (Design) Overlay Code, which requires that, within a certain neighbourhood plan area, “a minimum of 1 tree capable of growing to a height of over 4m is provided for every 7m of the average lot width.”

  1. [25]
    According to Council, compliance with the relevant Acceptable Solutions is within the sole domain of the Council, as non-compliance is deemed to “have an extremely adverse effect on the amenity or likely amenity of the locality or be in extreme conflict with the character of the locality.”[25] To hold otherwise would wrongly conflate the role of a private certifier with the Council’s role in considering town planning matters. In short, Council would have to rely on the certifier ‘doing the right thing’, and on his or her lay judgment, as to compliance with the Acceptable Outcomes in CP2014.
  1. [26]
    Council further says its interpretation is consistent with the fact that it may, but need not always, issue a preliminary approval for building work assessed against CP2014. It relies on the following remarks in Mingara Pty Ltd v Brisbane City Council,[26] made in the context of the Integrated Planning Act 1997 (Qld) (IPA), in support:

“The building work application requires code assessment rather than impact assessment. S31 of the Building Act 1975 applies the provisions of that Act to development applications under IPA and the Standard Building Regulations under the Building Act constitute the code against which the application is assessed. S3.5.13 of IPA provides in subs(4):

  1. (1)
    The assessment manager may refuse the application only if the assessment manager is satisfied –
  1. (a)
    the development does not comply with the applicable code; and

    (b) compliance with the code can not be achieved by imposing conditions.

 Those provisions are applied to a private certifier by s.5.3.5(1) of IPA which provides:

5.3.5(1) For the types of development or works for which a private certifier has the qualifications, necessary experience or accreditation, the private certifier may receive, assess and decide development applications as if the private certifier were the assessment manager.

 Subsection (4) of s.5.3.5 is also important.  It provides, relevantly:

  1. (4)
    However the private certifier must not decide the application until –
  1. (a)
    necessary development permits are effective for other assessable development related to the development; and
  1. (b)
    all necessary preliminary approvals are effective for other assessable aspects of the development; and

  …

It is because certification by a private certifier divides the role of the assessment manager that the provisions of s.5.3.5(4) are required as a safety measure to ensure that there are not development permits issued for building work which would result in the authorisation of construction of a building perhaps for a use which had not been approved…” (Emphasis added)

  1. [27]
    It says its position is also consistent with the decision of this court in Brisbane City Council v Mamczur [2010] QPEC 71.[27]
  1. [28]
    Finally, it says the absurdity of the Applicant’s suggested interpretation revealed itself through his concession that Council would have been the assessment manager for the Works had the development application been made to it first, rather than to him, as happened. The planning scheme, the argument runs, does not determine who the assessment manager is based on who the development application was first lodged with.

Consideration

  1. [29]
    I am satisfied the Applicant is entitled to the Second Declaration. No further application for a development permit or preliminary approval is required to be made to Council before the Applicant can himself approve the BDA.
  1. [30]
    As to the argument that a preliminary approval is required, Council correctly points out that, under s 241(1) of SPA, it may issue a preliminary approval. But that is only in the event that application for such an approval is made – which was not the case here. Further, s 241(2) plainly states that the Applicant is not required to obtain preliminary approval before the BDA can be approved. The issue of a preliminary approval does not arise.
  1. [31]
    Council’s reliance on the decision of Mamczur is misplaced for two reasons. Firstly, that case involved consideration of an application for a development permit for building work under IPA, a materially different legislative scheme to that presently under consideration. Secondly, the building works the subject of the application for development permit, unlike the Works here, involved a “material change of use”.
  1. [32]
    Council did not avail itself of the opportunity to impose conditions on any approval, so that by operation of s 286(1) of SPA, Council lost that opportunity, and the Applicant, as assessment manager, now has to decide the BDA as if Council had no concurrence agency requirements.
  1. [33]
    Curiously, Council, in its submissions, did not address the lapsing of the concurrence agency assessment period, despite the point being expressly agitated by the Applicant. It did not even acknowledge the existence of the timeframe within which concurrence agencies must communicate a response. These are telling omissions not assisting its arguments. Rather, Council sought to emphasise that the Applicant should not be held to be the assessment manager as doing so would require it to trust him to “do the right thing” as to properly assess the BDA against the relevant codes under CP2014.[28] But the Applicant does not dispute that it is not his place to do such assessments.[29] He says that Council failed to exercise its concurrence agency jurisdiction by imposing conditions or refusing the BDA under SPA s 285(1)(a). He is correct.
  1. [34]
    The Applicant is the sole assessment manager for the BDA. But for s 11(2) of the BA, Council would ordinarily be the assessment manager.[30] However, s 11(2) is clear, and is not qualified by any other provision, whether in the BA or in the SPA. There is nothing in either statute that suggests to me that there may be more than one assessment manager concurrently.

Orders

  1. [35]
    For the abovementioned reasons, I declare:

[A]That no application for a development approval (including either a preliminary approval or a development permit) for carrying out building work is required to be made to and approved by the Respondent for the building work, the subject of the development application made on 11 December 2014, for the carrying out of building work on a dwelling located at 105 Lodge Road, Wooloowin.

  1. [36]
    I order that the Applicant be at liberty to approve the BDA within SPA s 286(1) as if there were no concurrence agency requirements.
  1. [37]
    I order that the Council pay the costs of the Applicant on a standard basis.

Annexure A - Relevant provisions

SPA 238 Assessable development

A development permit is necessary for assessable development.

SPA 243 Development permits

A development permit authorises assessable development to take place—

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

SPA 244 Development approval includes conditions

A development approval includes any conditions—

  1. imposed by the assessment manager; and
  2. that a concurrence agency has given in a response under section 285 or 290, or an amended response under section 290; and
  3. …
  4. …

SPA 246 Who is the assessment manager

  1. The assessment manager for an application is the entity prescribed under a regulation as the assessment manager for the application.
  2. …
  3. …

SPA 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.

SPA 260 Applying for development approval

  1. Each application must—
  1. be made to the assessment manager; and
  2. …
  3. …
  4. …
  5. …
  1. …
  2. …

SPA 270 Purpose of information and referral stage

The information and referral stage for an application—

  1. gives the assessment manager and any concurrence agencies the opportunity to ask the applicant for further information needed to assess the application; and
  2. gives concurrence agencies the opportunity to exercise their concurrence powers; and
  3. …

SPA 284 Extending referral agency’s assessment period

  1. A concurrence agency may, by written notice given to the applicant and without the applicant’s agreement, extend its referral agency’s assessment period by not more than—
  1. if a regulation under section 283(1)(a) has prescribed the referral agency’s assessment period—the number of business days, being less than 20 business days, prescribed under a regulation; or
  2. if paragraph (a) does not apply—20 business days.
  1. A notice under subsection (1) may be given only before the referral agency’s assessment period ends.
  2. …
  3. …

SPR 9 Assessable development, self-assessable development and type of assessment—Act, s 232

  1. For section 232(1) of the Act—
  1. development stated in schedule 3, part 1, column 2 is assessable development; and
  2. …
  1. For section 232(3) of the Act, schedule 3, part 1, column 3 identifies the type of assessment for the development stated opposite in column 2.

SPR 12 Assessment manager for development applications—Act, s 246

For section 246(1) of the Act, schedule 6, column 2 states the assessment manager for the development application mentioned opposite the assessment manager in column 1.

SPR 13 Referral agencies and their jurisdictions—Act, ss 250, 251 and 254

For sections 250(a), 251(a) and 254(1) of the Act—

  1. schedule 7, column 2 states the referral agency, and whether it is an advice agency or a concurrence agency, for the development application mentioned in column 1; and
  2. schedule 7, column 3 states the jurisdiction of the referral agency mentioned in column 2.

SPR 15 Referral agency assessment period—Act, s 283

For section 283(1)(a) of the Act, schedule 15, column 2 states the number of business days for the referral agency mentioned opposite the number in column 1.

Schedule 6, Item 1(a)(i)-(ii) of the relevantly provides:

Table 1

 

Column 1

Application Type

Column 2

Assessment manager

 

Local Government Planning Schemes and Local Government Tidal Areas

 

  1. If the application is for –
  1. (a)
    development completely in a single local government area and –
    1. any aspect of the development is assessable against the planning scheme, a temporary local planning instrument, master plan or preliminary approval to which section 242 of the Act applies; or
    2. is for building work, that under the Building Act, is assessable against the building assessment provisions; or
    3. …
    4. …
    5. …
  2. (b)
    …”

 

Local government

Schedule 7, Item 17 of SPR relevantly provides:

Schedule 15 relevantly provides:

Table 1 —For building work assessable against the Building Act

Column 1

Application Innolving

Column 2

Referral agency and type

Column 3

Referral jurisdiction

Amenity and aesthetic impact of particular building work

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

  1. (a) a single detached class 1(a)(i) building, class 1(a)(ii) building comprising dwelling or a class 10 building or structure; and
  2. (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—
    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 the locality

The local government— as a concurrence agency

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

Footnotes

[1]Building Code of Australia – Volume 2, s 1.3.2.

[2]Affidavit of Trevor William Gerhardt filed 30 January 2015, para 2, TG-1.

[3]BA s 10.

[4]BA s 47.

[5]BA ss 36, 45.

[6]Affidavit of Trevor William Gerhardt filed 30 January 2015, TG-13.

[7]Applicant’s Written Submissions, para 33.

[8]See Annexure A.

[9]See SPA s 252.

[10]See SPA ss 251(a), 254(1) and SPR reg 13 and Schedule 7, Table 1, Item 17, Columns 2 and 3.

[11]See SPA ss 244(b), 250-254, 272, 282.

[12]See SPA s 285(2), SPR reg 15, SPA s 283(1)(a).

[13]Affidavit of Trevor William Gerhardt filed 30 January 2015, para [4].

[14]See SPA ss 282, 283(1)(a), 285 and Acts Interpretation Act 1954 (Qld) s 38.

[15]Affidavit of Trevor William Gerhardt filed 30 January 2015, TG-7.

[16]Ibid.

[17]Originating Application, paras 23-25; Affidavit of Trevor William Gerhardt filed 30 January 2015, TG-8, TG-9, TG-10, TG-12.

[18]Exhibit 1.

[19]Exhibit 1.

[20][2001] QCA 538.

[21]Ibid [12].

[22]Ibid [13].

[23]Submissions on behalf of the Brisbane City Council at [21]-[24].

[24]Exhibit 1.

[25]Citing  CP2014  s 1.7.4.

[26][2002] QPELR 88 at [8]-[11].

[27]Particularly at [13](ii)-[16], [18], [32], [34] and [36].

[28]Submissions on behalf of the Brisbane City Council at [27]-[28].

[29]Applicant’s Written Submissions at [53].

[30]See SPA s 246(1); SPR reg 12 and Schedule 6, Item 1(a)(i)-(ii); BA s 11(1).

Close

Editorial Notes

  • Published Case Name:

    Gerhardt v Brisbane City Council

  • Shortened Case Name:

    Gerhardt v Brisbane City Council

  • MNC:

    [2015] QPEC 34

  • Court:

    QPEC

  • Judge(s):

    Searles DCJ

  • Date:

    31 Jul 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QPEC 3431 Jul 2015Application for declaratory relief: Searles DCJ.
Notice of Appeal FiledFile Number: 8728/1501 Sep 2015DC351/15
Appeal Determined (QCA)[2016] QCA 7601 Apr 2016Leave to appeal granted; appeal dismissed: Holmes CJ, Philip McMurdo JA and Daubney J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Brisbane City Council v Mamczur [2010] QPEC 71
2 citations
Jump To
Cite 1 - [2010] QPEC 71
Cite 2 - [2010] QPEC 71
Mingara Pty Ltd v Brisbane City Council (2002) QPELR 88
2 citations
Jump To
Cite 1 - (2002) QPELR 88
Cite 2 - (2002) QPELR 88
Renard Partners P/ L & Anor v Quinn Villages P/L [2001] QCA 538
3 citations
Jump To
Cite 1 - [2001] QCA 538
Cite 2 - [2001] QCA 538
Cite 3 - [2001] QCA 538

Cases Citing

Case NameFull CitationFrequency
Brisbane City Council v Gerhardt [2016] QCA 768 citations
Gerhardt v McNeil [2015] QDC 2705 citations
1

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