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Gerhardt v Brisbane City Council[2016] QPEC 48

Gerhardt v Brisbane City Council[2016] QPEC 48

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

CITATION:

Gerhardt v Brisbane City Council [2016] QPEC 48

PARTIES:

TREVOR WILLIAM GERHARDT

Applicant

v

BRISBANE CITY COUNCIL

Respondent

FILE NO/S:

2023/16

DIVISION:

Planning and Environment Court

PROCEEDING:

Hearing

DELIVERED ON:

16 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2016; further submissions on 14 September 2016

JUDGE:

Bowskill QC DCJ

ORDER:

Final orders to be made, once the parties have had an opportunity to consider these reasons

CATCHWORDS:

PLANNING AND ENVIRONMENT – Where a building development application is made to a private certifier (class A) under the Building Act 1975 seeking a development permit for building work comprising the demolition of pre-1946 character houses – Where the building work is assessable development, required to be assessed against the building assessment provisions under the Building Act 1975 and the traditional building character (demolition) overlay code under Brisbane City Plan 2014 – Whether the Council is a concurrence agency for the purposes of assessment against the demolition code – Whether a separate application for development approval is required to be made to the Council – Whether the private certifier may grant a building development approval in the form of a development permit, or a preliminary approval, where the Council has not yet carried out its assessment.

Acts Interpretation Act 1954, s 14A

Brisbane City Plan 2014

Building Act 1975, ss 5, 6, 7, 10, 11, 12, 20, 30, 31, 32, 34A, 46, 48, 51, 52, 83, 86 and schedule 2

Sustainable Planning Act 2009, ss 7, 10, 232, 238, 241, 243, 246, 247, 249, 251, 254, 286, 288, 312, 324, 334, 335, 456, 578 and schedule 3

Sustainable Planning Regulation 2009, s 9 and schedule 3 (part 1, table 1, item 1), s 12 and schedule 6 (table 1, item 1), and s 13 and schedule 7 (table 1, item 17)

Brisbane City Council v Gerhardt [2016] QPELR 485; [2016] QCA 76

Gerhardt v Brisbane City Council [2015] QPELR 812

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

Woolworths Ltd v Kelly (1991) 22 NSWLR 189

COUNSEL:

P Smith for the Applicant (direct brief)

N Kefford for the Respondent

SOLICITORS:

Brisbane City Legal Practice for the Respondent

Introduction

  1. [1]
    Mr Gerhardt is a private certifier (class A) for the purposes of the Building Act 1975.  In April 2016 a building development application[1] was made to him, by the owners of two pre-1946 houses on land at 32 and 36 Rossiter Street, Morningside, seeking a development permit for “building work”, being the demolition of those houses.[2]
  2. [2]
    In the course of Mr Gerhardt considering this application, a dispute has arisen between Mr Gerhardt and the Council in relation to the assessment of part of it (being the part that requires consideration of the traditional building character (demolition) overlay code, under Brisbane City Plan 2014).  The dispute is as to whether the Council is a “concurrence agency” with jurisdiction to assess that part (as Mr Gerhardt submits) or whether a separate application for development approval is required to be made to the Council in respect of that part (as the Council submits).
  3. [3]
    In order to resolve this dispute, and enable him to lawfully proceed in relation to the application made to him, Mr Gerhardt seeks the following declarations under s 456 of the Sustainable Planning Act 2009 (Planning Act):

“(1)  That no application for a development approval (including either a preliminary approval or a development permit) is required to be made to the Respondent before the Applicant may assess and decide the building development application made to the Applicant on 21 April 2016, being the demolition of two dwellings located at 32 and 36 Rossiter Street, Morningside (lot 1 on RP 105751 and lot 2 on RP 47697); and

  1. (2)
    That the amenity and aesthetics concurrence agency referral made by the Applicant to the Respondent on 21 April 2016 complied with the requirements of SPA, s 272; and
  1. (3)
    That no fee may be charged by the Respondent for the amenity and aesthetics concurrence agency referral made by the Applicant to the Respondent on 21 April 2016; and
  1. (4)
    That the Applicant has liberty to assess and decide the development application made to him on 21 April 2016 without any further development approval or concurrence agency response from the Respondent”.[3]
  1. [4]
    At the primary hearing of the application on 11 August 2016, the Council submitted that declarations (1) and (4) are not in dispute, and therefore there is no utility in making the declarations.  This was on the basis that, following the decision of the Court of Appeal in Brisbane City Council v Gerhardt [2016] QPELR 485; [2016] QCA 76 (which I shall refer to as BCC v Gerhardt), the Council no longer maintains its previous position, that a preliminary approval, or indeed any type of approval, is required before Mr Gerhardt may lawfully grant an application under s 83(1)(b) of the Building Act.  This position needs to be considered in light of the further issues which were raised with the parties, and were the subject of a brief supplementary hearing on 14 September 2016, which is discussed from paragraph [64]  below.  In so far as declarations (2) and (3) are concerned with Mr Gerhardt’s contention that the Council is a “concurrence agency”, the Council says the proceedings are not soundly based and should be dismissed.
  2. [5]
    The resolution of the issues in dispute between Mr Gerhardt and the Council involves interpretation of relevant provisions of the Planning Act, the Sustainable Planning Regulation 2009 (Regulation), the Building Act, and the relevant planning scheme - Brisbane City Plan 2014 (City Plan 2014), having regard to the Court of Appeal’s decision in BCC v Gerhardt and its later decision in Gerhardt v Queensland Building and Construction Commission [2016] QCA 136 (which I will refer to as Gerhardt v QBCC).

Assessable development

  1. [6]
    The houses are within the traditional building character overlay under City Plan 2014.
  2. [7]
    The proposed demolition of the houses is building work[4] which is assessable development.[5]  The level of assessment is code assessment.[6] 
  3. [8]
    The applicable codes are:
    1. (a)
      the “building assessment provisions” under the Building Act;[7] and
    2. (b)
      the traditional building character (demolition) overlay code, under City Plan 2014.[8]
  4. [9]
    A development permit is necessary for assessable development to take place; it is an offence to carry out assessable development without one.[9]

Assessment manager

  1. [10]
    The “assessment manager” is the person or entity which “administers and decides” an application for development approval.[10] 
  2. [11]
    By operation of s 246 of the Planning Act, and s 12, schedule 6 of the Regulation, the assessment manager for development within a single local government area, which is assessable against the planning scheme or is for building work assessable against the building assessment provisions, is the local government.  However, in the case of a building development application, this can be varied, by s 11 of the Building Act, which provides:

“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.”
  1. [12]
    Section 48(1) of the Building Act provides, relevantly, that:

“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 …”
  1. [13]
    It was uncontroversial that, by operation of ss 11 and 48 of the Building Act, Mr Gerhardt is the assessment manager for the building development application which has been made to him.

Building assessment provisions

  1. [14]
    The work carried out by a private certifier (as a building certifier, albeit with a higher endorsement, enabling them to issue building development approvals) is “building assessment work”, which is the assessment under the “building assessment provisions” of a building development application for compliance with those provisions.[11] 
  2. [15]
    The “building assessment provisions” are identified in s 30(1) of the Building Act, as follows:

“Building assessment work and self-assessable building work must be carried out under the following laws and documents (the building assessment provisions) –

  1. (a)
    IDAS;
  1. (b)
    chapter 3 and this chapter;
  2. (c)
    the fire safety standard;
  3. (d)
    the fire safety standard (RCB);
  4. (e)
    any provisions of a regulation made under this Act relating to building assessment work or self-assessable building work;
  5. (f)
    any relevant local law, local planning instrument or resolution made under section 32 or any relevant provision under section 33;
  6. (g)
    the BCA [Building Code of Australia];
  7. (h)
    subject to section 33, the QDC [Queensland Development Code].”[12]
  1. [16]
    Section 32 of the Building Act enables a local government, inter alia, to make or amend a provision of a local law or planning scheme or a resolution about an aspect of, or matter related or incidental to, building work prescribed under a regulation (s 32(b) and s 10 of the Building Regulation 2006), and to make or amend alternative provisions to the Queensland Development Code, under s 33 (s 32(c)).
  2. [17]
    The building assessment provisions in the planning scheme are identified in table 1.6.1 of City Plan 2014.  Relevantly, those provisions include the traditional building character (design) overlay code.   They do not include the traditional building character (demolition) overlay code (which I will call the demolition code).
  3. [18]
    That matter was uncontroversial as between Mr Gerhardt and the Council.  The parties agreed that the demolition code does not form part of the “building assessment provisions”.

Concurrence agency

  1. [19]
    Whilst the assessment manager “administers and decides the application”, they may not always assess all aspects of development for the application.[13]
  2. [20]
    One of the limitations on the scope of the private certifier’s role is that they may not carry out any part of building assessment work that, under s 46 of the Building Act, a concurrence agency may carry out.[14] 
  3. [21]
    A concurrence agency is one of the types of “referral agencies” which the Planning Act provides for, which may have jurisdiction, prescribed under the Regulation, for a part of an application for development approval.[15]
  4. [22]
    The Planning Act provides for the carrying out of a concurrence agency’s functions, by requiring the applicant to provide certain material to the agency (s 272), enabling the agency to request further information (s 276), providing for assessment by the agency within a specified period of time (s 283), and for a response to be given by the agency to the assessment manager (ss 285 and 287-289).  The concurrence agency’s response powers can extend to telling the assessment manager to refuse the application (ss 287(2)(b) and 288).  If the concurrence agency does not give a response within the prescribed time, “the assessment manager must decide the application as if the agency had assessed the application and had no concurrence agency requirements”.[16] 
  5. [23]
    Section 13 and schedule 7, table 1 of the Regulation identifies the referral agency for certain types of building work assessable against the Building Act.  Relevantly, item 17 of that table provides as follows:

Column 1

Application involving

Colum 2

Referral agency and type

Column 3

Referral jurisdiction

17 Building 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 not more than 2 attached dwellings or a class 10 building or structure; and
  1. (b)
    in a locality and of a form for which the local government has, by resolution or in its planning scheme, declared that[17] the form may –
  1. (i)
    have an extremely adverse effect on the amenity, or likely amenity, of the locality; or
  1. (ii)
    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

  1. [24]
    In City Plan 2014, the local government has made a declaration, for the purpose of item 17(b) above.  This is set out in section 1.7.4, in the following terms:

“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:

  1. (a)
    have an extremely adverse effect on the amenity or likely amenity of the locality; or
  1. (b)
    be in extreme conflict with the character of the locality.”
  1. [25]
    Table 1.7.4 includes, in the locality column, land in the traditional building character overlay and, in the codes column, the traditional building character (design) code (which I will call the design code).   It contains no reference to the demolition code.
  2. [26]
    There is a logical symmetry to the provisions.  The design code is part of the “building assessment provisions”, therefore part of the provisions which a private certifier, engaged to assess a building development application, would be required to assess the proposed building work against.  However, carved out of that “building assessment work”, is a part that is allocated to a concurrence agency, in this case, the local government, being the assessment of the amenity and aesthetic impact of the building or structure, if the building work is carried out, by reference to the design code.  The private certifier cannot assess that part of the application.[18] The design code is, in brief terms, concerned with maintaining the character of houses in areas covered by the traditional building character overlay, by encouraging development of them, in a form and comprising elements, detailing and materials that are complementary to “traditional building character”.  It can readily be seen that assessment of such building development, in a functional sense, would be within the expertise of a building certifier.  However, by operation of the Regulation and section 1.7.4 of City Plan 2014, the local government ensures that it retains overall control of the regulation of this aspect of its strategic framework, in terms of assessing the amenity and aesthetic impact of the proposed building work.
  3. [27]
    That the concurrence agency’s jurisdiction is carved out of the private certifier’s jurisdiction, rather than being additional to it, is clear from s 46(3) of the Building Act, which provides that assessment of the part of the application for which the concurrence agency has jurisdiction must be done under the building assessment provisions.

Another limitation on the scope of the private certifier assessment manager’s role

  1. [28]
    There is another limitation on the scope of the private certifier’s role, which flows logically from the fact that they may only assess the proposed building work against the “building assessment provisions”.
  2. [29]
    If the proposed development the subject of the application requires assessment against, for example, parts of the planning scheme which are not part of the building assessment provisions, then logically that will need to be done by someone else.
  3. [30]
    This is contemplated by s 312 of the Planning Act, which applies to a part of an application for which, were it a separate development application, there would be a different assessment manager, and requires that the assessment manager not assess the development the subject of that part.  
  4. [31]
    Here, if there were a separate development application, dealing with the assessment of the application against the demolition code, there would be a different assessment manager – the local government[19] – because a private certifier could not perform functions in relation to that application (the demolition code not being part of the “building assessment provisions”).[20]

The parties’ contentions

  1. [32]
    As already noted, it is not in dispute that Mr Gerhardt is the “assessment manager” for the building development application, at least in so far as the application concerns “building work”, which includes demolition, assessable against the “building assessment provisions” under the Building Act.
  2. [33]
    However, Mr Gerhardt and the Council disagree as to who the assessment manager is for the purposes of the part of the application that requires assessment against the relevant provisions of City Plan 2014, in particular, the demolition code.
  3. [34]
    The Council submits that the only assessment manager for a development application for building work assessable against the demolition code under City Plan 2014 is the local government.  The Council also submits that its assessment in that regard is undertaken separately from the private certifier’s assessment, not as a concurrence agency.   
  4. [35]
    The Council says that it is necessary for an applicant for a development permit to demolish a pre-1946 house, if they choose to make their building development application to a private certifier under the Building Act, to also, separately, apply for a development approval from the Council, in so far as issues arising under the demolition code are concerned.[21]
  5. [36]
    At the primary hearing, on the basis of the Court of Appeal’s decision in BCC v Gerhardt, the Council did not assert that that approval is a preliminary approval, required to be obtained before the private certifier can grant a building development approval under s 83(1)(b) of the Building Act.[22]  But the Council maintained that it is an approval that is required to be obtained, before the applicant (home owner) could lawfully carry out the work of demolishing the building.  So, the Council’s position was that whilst the approval required to be given by the Council is not a precondition to a private certifier such as Mr Gerhardt granting a building development approval, it is a pre-condition to the home owner lawfully carrying out the work.   This issue is addressed further, from paragraph [64] below.
  6. [37]
    Mr Gerhardt disputes that.  He acknowledges that it is only the Council that can assess the proposed work under the demolition code, but submits that the Council must do that as a concurrence agency.  In this regard, Mr Gerhardt says that he has made a valid concurrence agency referral to the Council; the Council has failed to respond within the time provided for under the Planning Act; and in the circumstances Mr Gerhardt is free to decide the application, by reference to s 286(1) of the Planning Act, as though the Council had no concurrence agency requirements.

Is the Council a “concurrence agency”?

  1. [38]
    In support of his contention that the Council is required to conduct its assessment of the application against the demolition code as a concurrence agency, Mr Gerhardt relies on the Court of Appeal’s decision in Gerhardt v QBCC.
  2. [39]
    In Gerhardt v QBCC, an application had been made to Mr Gerhardt by the owner of a pre-1946 house, for the grant of building development approval for “building work” comprising demolition of part of the house (front and rear stairs) and other additions/alterations to the house.  It was uncontroversial that the proposed building work had to be assessed under the Building Act, as well as under two relevant parts of the applicable planning scheme, Brisbane City Plan 2000, being the Residential Design – Character Code and the Demolition Code.[23]
  3. [40]
    In determining the issue whether the Council was a concurrence agency for the purposes of that application, Morrison JA (who gave the reasons of the Court of Appeal, with which Philippides JA and North J expressed their agreement), referred to item 17, schedule 7 of the Regulation,[24] and then went on to say:

“[31] The work approved by Mr Gerhardt’s approval triggered the Residential Design – Character Code and the Demolition Code because:

  1. (a)
    the addition of a deck over the carport triggered the Character Code; and
  1. (b)
    the partial demolition of the pre-1946 fabric of the house to facilitate the use of the deck triggered the Demolition Code.

[32] The Brisbane City Plan 2000 contained provisions under which pre-1946 houses were to be protected so that the essential character of the relevant area would be maintained.  Thus in the Low-medium Density Residential Area, and in a Demolition Control Precinct [in which the subject house was sited]:

  1. (a)
    the Intent included that “pre-1946 ‘timber and tin’ housing will be retained and new development will reflect pre-1946 architectural character”;
  1. (b)
    the Desired Environmental Outcomes included that “pre-1946 ‘timber and tin’ buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes”;
  1. (c)
    the purpose of the Residential Design – Character Code was to “encourage development in Demolition Control Precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing” and “ensure that precincts of pre-1946 houses are retained and redevelopment in those precincts complements the pre-1946 houses”;
  1. (d)
    the Character Code imposed various Performance Criteria and Acceptable Solutions by which the Code might be met; included were that (i) “the building form must complement the traditional elements of pre-1946 houses nearby in the street” and (ii) “External elements, materials and detailing must reflect pre-1946 architectural themes”;
  1. (e)
    the Demolition Code had, among its purposes, that it would “protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity”, and “in conjunction with the Residential Design – Character Code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in those precincts complements the houses constructed in or prior to the end of 1946”; and
  1. (f)
    the Demolition Code had its own performance Criteria and Acceptable Solutions to regulate when demolition of a pre-1946 house might occur; one such Performance Criteria was “if Partial demolition involving parts of the pre-1946 elements of the front elevation of the building must not diminish ‘traditional building character’”.

[33] Those planning scheme provisions reveal that the Council had the ability to prevent work that conflicted with the intent of preserving the pre-1946 character of various localities.  Thus, it is clear that the Council’s planning scheme declared that the locality and form of the building work in the Low-medium Density Residential Area, and where the Character Code and Demolition Code apply, may have an extremely adverse effect on the amenity or be in extreme conflict with the character of the locality.

[34] Thus, s 17 of Table 1 in Schedule 7 of the Sustainable Planning Regulation 2009 was engaged.  Column 2 of that table nominates the Council as a ‘concurrence agency’. 

…

[37] Counsel for Mr Gerhardt submitted that the Council would only be a “concurrence agency” if it had made a specific declaration to that effect, notwithstanding that the Character Code and Demolition Code would come within Item 17(b)(ii) of the Sustainable Planning Regulation, Schedule 7.

[38] A further submission raised the point that the question of whether the Council was a concurrence agency had not been raised, or dealt with, in the QCAT proceedings below.

[39] Discussion of that aspect then led the Commission to say that it would not contest the point that the Council had not made “the declaration referred to in the [Sustainable Planning Regulation], Schedule 7, tab 1, item 17”.

[40] That was, in turn, a response to the outline for Mr Gerhardt referring to that item of Schedule 7.

[41] The positions taken by Mr Gerhardt and the Commission were misconceived and should not be accepted by this Court as governing the question as to whether the Council was a “concurrence agency”.  Nor should the fact that this issue was not raised at first instance prevent this Court from dealing with it.  The reasons for that are as follows:-

  1. (a)
    first, the question whether the Council is a “concurrence agency” is a matter of the proper construction of the Regulation; it does not depend on the opinions or concessions of the parties;
  1. (b)
    secondly, it cannot be said that the proceedings to this point were conducted, by mutual agreement or acquiescence, on any particular basis as to this issue;
  1. (c)
    thirdly, the parties’ positions are simply misconceived; for this Court to act on that basis would be wrong.

[42] As Gerhardt v BCC held, whether the Council is a “concurrence agency” is answered by the Sustainable Planning Regulation, Schedule 7, item 17.

[43] As can be seen, item 17 in August 2012 was in the same terms as it was when considered in Gerhardt v BCC.  I respectively (sic) agree with the analysis in that case, on this point.  The Council was a “concurrence agency” because item 17 of the Regulation prescribed so.”[25]

  1. [41]
    In BCC v Gerhardt, which was the earlier decision of the Court of Appeal, it was common ground that the Council was a concurrence agency for the application made to Mr Gerhardt.   That was a case involving an application for permission to make additions and alterations to a particular house (not demolition).[26]   The application was assessable under the Building Act and the planning scheme, in that case City Plan 2014, in particular, the traditional building character (design) overlay code.  In that case, the conclusion that the Council was a concurrence agency was dictated by item 17 of schedule 7 of the Regulation, and the express declaration made in section 1.7.4 of City Plan 2014 (as to which, see paragraphs [24] and [25] above).[27]
  2. [42]
    Significantly, whilst schedule 7, item 17 of the Regulation was in the same terms when considered in BCC v Gerhardt (both by the Court of Appeal, and by Searles DCJ at first instance) and in Gerhardt v QBCC, the relevant provisions of the planning schemes were markedly different.  In City Plan 2014, which was considered in BCC v Gerhardt there was an express declaration for the purposes of schedule 7, item 17 of the Regulation (section 1.7.4).  Whereas in City Plan 2000, which was considered in Gerhardt v QBCC, there was not.  This distinction was not referred to by the Court of Appeal in Gerhardt v QBCC.  That may be because it is not immediately apparent from the Court of Appeal’s earlier decision in BCC v Gerhardt (where the matter of the Council being a concurrence agency was uncontroversial).  It is apparent from Searles DCJ’s decision at first instance.
  3. [43]
    So, although in Gerhardt v QBCC at [42]-[43] Morrison JA referred to this aspect of BCC v Gerhardt, as supporting the analysis his Honour undertook, in my respectful view, the reasoning is distinguishable.   The decision in BCC v Gerhardt does not support a conclusion that a “declaration” for the purposes of item 17 of the Regulation may appropriately be inferred from the purpose, intent and subject-matter of parts of the planning scheme.   The conclusion in BCC v Gerhardt is solely on the basis of the express declaration in section 1.7.4 of City Plan 2014.
  4. [44]
    But the question remains whether the analysis in Gerhardt v QBCC, in particular at [33]-[34], is applicable in this case, resulting in a conclusion that it is to be inferred, from the purpose, intent and subject-matter of the demolition code, that the local government has made a declaration of the kind contemplated by schedule 7, item 17(b) of the Regulation.
  5. [45]
    As a matter of principle, in so far as item 17(b) refers to the local government, in its planning scheme, having “declared” something, I am respectfully of the view that what is contemplated is a formal, express statement.   As Kirby P (as his Honour then was) observed in Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 198:

“The word ‘declare’ of itself imports a formal statement.  In that sense, the word is stronger than ‘state’ or ‘indicate’ or ‘mention’.  In the hierarchy of formal statements, a declaration stands high:  cf Imperial Mercantile Credit Association (Liquidators) v J Coleman (1873) LR 6 HL 189 at 205.”[28]

  1. [46]
    The use of the word “declare”, or its derivatives (including declaration) elsewhere in the Planning Act and the Regulation, is consistent with this sense of the word.[29]
  2. [47]
    Notwithstanding that view, if all other things were equal, this Court would be bound to apply the decision in Gerhardt v QBCC, in so far as it concerns the interpretation of item 17 of the Regulation and City Plan 2000, finding a declaration of the kind required by item 17(b), by inference.
  3. [48]
    However, all other things are not equal.
  4. [49]
    Firstly, and importantly, in City Plan 2014, there is an express declaration, in section 1.7.4, in the terms contemplated by item 17(b) of the Regulation – which has the effect that on land within the traditional building character overlay, that does not comply with the acceptable outcomes in the design code, the local government is a concurrence agency, with jurisdiction to assess the amenity and aesthetic impact of the building or structure if the building work is carried out.
  5. [50]
    There is no reference, in section 1.7.4, to the demolition code.  There is no other provision in City Plan 2014 which contains a declaration, for the purpose of item 17(b), which would have the effect of making the local government a concurrence agency, where assessment against the demolition code is required.
  6. [51]
    In those circumstances, as a matter of statutory construction, I am unable to conclude that it is open, despite that plain, express intention on the part of the drafters of the planning scheme, to interpret the planning scheme in such a way as to infer that the local government has made a declaration of the kind contemplated by item 17(b), in so far as the demolition code is concerned.[30]  
  7. [52]
    The presence of an express declaration in section 1.7.4 of City Plan 2014 is a significant distinguishing factor from the provisions of City Plan 2000 considered in Gerhardt v QBCC.
  8. [53]
    Accordingly, in so far as the assessment of the application against the demolition code is concerned, given that there is no declaration in City Plan 2014, in terms contemplated by item 17(b) of the Regulation, in so far as the demolition code is concerned, in my view, the Council is not a concurrence agency, by operation of schedule 7, item 17 of the Regulation.  
  9. [54]
    In addition to the presence of the express declaration in section 1.7.4 of City Plan 2014 (and by corollary, the absence of any declaration in relation to the demolition code), there are other reasons which support the view that, on a proper construction of the relevant provisions of the Planning Act, the Regulation, the Building Act, and City Plan 2014, the Council was not a concurrence agency for the purposes of the application made to Mr Gerhardt the subject of these proceedings.
  10. [55]
    First, the “referral jurisdiction” conferred on a local government as a concurrence agency, by operation of schedule 7, item 17 of the Regulation is “the amenity and aesthetic impact of the building or structure if the building work is carried out”.  Although one might perhaps think that would enable the agency to consider the “amenity and aesthetic impact” of the (loss of the) building(s), where the building work proposed is demolition of them, it is apparent from s 288(2) of the Planning Act, which provides as follows, that that is not what is contemplated:

“Limitation on concurrence agency’s power to refuse application

…

  1. (2)
    To the extent  a local government’s concurrence agency jurisdiction is about assessing the amenity and aesthetic impact of a building or structure, the concurrence agency may only tell the assessment manager to refuse the application if the concurrence agency considers –
  1. (a)
    the building or structure, when built, will have an extremely adverse effect on the amenity or likely amenity of its neighbourhood; or
  1. (b)
    the aesthetics of the building or structure, when built, will be in extreme conflict with the character of its neighbourhood.”[31]
  1. [56]
    There is a clear correlation between this provision, and the express declaration in section 1.7.4 of City Plan 2014, which has the effect that where assessment against the design code is required, the Council is a concurrence agency.    This is reinforced also by the reference to the “form” of a building or structure, in item 17 itself, which is also apt to refer to the presence of a built form, not the absence of a building following demolition.
  2. [57]
    Also relevant is s 46 of the Building Act, which provides:

“Concurrence agencies may carry out building assessment work within their jurisdiction

  1. (1)
    This section applies if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work.
  1. (2)
    Only the concurrence agency may assess the part.
  1. (3)
    Assessment of the part by the concurrence agency must be done under the building assessment provisions.
  1. (4)
    Subject to sections 37 and 61, the assessment must be carried out under the building assessment provisions in force when the assessment is made.
  1. (5)
    If the part is assessing compliance with the fire safety standard, the concurrence agency must appoint or employ a building certifier to carry out the assessment.”[32]
  1. [58]
    As already discussed, it is not in dispute that the “building assessment provisions” do not include the demolition code.   So s 46(3) also reinforces the conclusion that the Council is not a concurrence agency, where an application is required to be assessed against the demolition code, because if it was, that would result in a situation where:
    1. (a)
      the assessment manager (ie the private certifier) cannot assess that part of the application – because the demolition code is not part of the building assessment provisions; and
    2. (b)
      nor can the concurrence agency – because it is limited to applying the building assessment provisions, which do not include the demolition code.
  2. [59]
    Such a construction of the legislation would not give effect to the language and purpose of the provisions,[33] or maintain the unity of the scheme comprising the Planning Act, Regulation, Building Act and City Plan 2014.[34]   
  3. [60]
    The Council’s contention that in so far as an application for building development approval, made to a private certifier, includes demolition of a pre-1946 house, which is required to be assessed against the demolition code under City Plan 2014, that must be the subject of a separate application for development approval, which can be made only to the Council, is in my view correct.
  4. [61]
    Mr Gerhardt submitted that the Council’s position would have absurd results where, as in Gerhardt v QBCC, what is proposed is partial demolition of some aspect of a house, together with alterations and additions.    In such a case, where the house is within the traditional building character overlay, and the proposed development requires assessment against the building assessment provisions, the design code and the demolition code, a person who makes their building development application to a private certifier will be in the position where:
    1. (a)
      the private certifier can assess all parts of the proposed development against the building assessment provisions, other than those within the jurisdiction of the Council as a concurrence agency (relevantly, the part requiring assessment against the design code), as the assessment manager for the application;
    2. (b)
      the Council is to assess part of the development, against the design code, in its capacity as a concurrence agency; and
    3. (c)
      the Council is to assess another part of the development, against the demolition code, in its capacity as a separate assessment manager for that part.
  5. [62]
    The alternative of course is for the application to be made to the local government alone.[35]  But in any event, where a private certifier is involved, clearly there may be some inconvenience to an owner, but that is the effect of the provisions.  In my view, legislative changes would be required, including to the planning scheme, in order to achieve a different result.
  6. [63]
    From the scheme of the provisions, it is apparent that in so far as matters plainly within the scope of the expertise of a building certifier – even one with an endorsement as a private certifier (class A) – are concerned, the legislation contemplates that assessment of an application for approval to carry out building work, including where that involves demolition (in part or whole), can be carried out by a private certifier.   Where the building work proposed is to a house within the traditional building character overlay, the legislation provides for the local government to have a more direct role in assessing the aesthetic and amenity impact of the proposed building work against the design code, by becoming a concurrence agency.  However, where the building work is required to be assessed against the demolition code, rather than carrying out that role as a concurrence agency, the effect of the legislation is that the local government retains complete responsibility for that aspect of any proposed development.   Whilst there will plainly be aspects of the demolition of any building that are within the expertise of a building certifier – and therefore it is appropriate for such a person to assess an application for approval for such work – in so far as the demolition code is triggered, that is not concerned with the function of demolition of a building, but rather with value judgments concerning the loss of traditional building character, from a particular area or street, as a result of the demolition.  

Timing of the separate development approval to be obtained from the Council – and the nature of the development approval which may be granted by Mr Gerhardt

  1. [64]
    As already noted,[36] at the primary hearing of this application, the Council did not contend that the approval required to be obtained from the Council, concerning assessment against the demolition code, is a preliminary approval, required to be obtained before a private certifier can grant a building development approval under s 83(1)(b) of the Building Act.  The Council’s position was that whilst the approval required to be given by the Council is not a precondition to a private certifier such as Mr Gerhardt granting a building development approval, it is a pre-condition to the home owner lawfully carrying out the work.  There was some uncertainty about what type of approval would/could be granted by the Council, but ultimately it was suggested that, if the Council’s assessment occurred before the private certifier’s, the Council could grant a preliminary approval; but if it occurred after the private certifier’s, it would be a development permit. 
  2. [65]
    Where the Council’s assessment has not been done before the private certifier’s assessment, the Council suggested that s 86(1) of the Building Act may provide a practical solution, to ensure a home owner does not unwittingly breach the law, by proceeding to demolish part or all of a pre-1946 house without an approval from the Council.  Section 86(1)(a) requires a private certifier, within 5 business days of approving the application, to give the local government a copy of the application, and the approval.  The Council submitted that, upon receiving this, the local government could put the applicant on notice of the need to obtain a development permit from the Council, in so far as the demolition code was concerned.
  3. [66]
    Mr Gerhardt pointed out, however, that that notice is only required to be given 5 days after approval has been given (as opposed to it being notice of an intention to grant an approval), and an applicant could well have acted immediately (where demolition is concerned) upon being given the approval by the private certifier.
  4. [67]
    On closer analysis, in the course of preparing these reasons, I became concerned that the Council’s position on this aspect of the matter may not be consistent with the scheme under the Planning Act, and that the appropriate process in this case may not necessarily be governed by the decision in BCC v Gerhardt.  As the matters addressed below were not the subject of submissions at the initial hearing, I therefore invited further submissions from the parties, which were received in the course of a brief supplementary hearing on 14 September 2016.[37]
  5. [68]
    My concern stems from s 243 of the Planning Act, which provides that:

“A development permit authorises assessable development to take place –

  1. (a)
    to the extent stated in the permit; and
  1. (b)
    subject to –
  1. (i)
    the conditions of the permit; and
  1. (ii)
    any preliminary approval relating to the development the permit authorises, including any conditions of the preliminary approval.”
  1. [69]
    In this case, the “assessable development” authorised by a development permit to take place would be, relevantly, the demolition of the two houses.
  2. [70]
    Under the Building Act, a private certifier is empowered, upon being satisfied a building development application complies with the building assessment provisions, to approve the application (s 34A(2)) and grant a “building development approval” (s 48(1)(b)).  A “building development approval” is defined to mean a development approval to the extent it is for building work; and “development approval” is defined by reference to schedule 3 of the Planning Act.[38]
  3. [71]
    In the Planning Act, “development approval” is defined to mean:

“(a)  a decision notice or a negotiated decision notice that –

  1. (i)
    approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
  1. (ii)
    is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval; or
  1. (b)
    a deemed approval, including any conditions applying to it.”[39]
  1. [72]
    A preliminary approval “approves development, but does not authorise assessable development to take place” (s 241).  As already noted, a development permit “authorises assessable development to take place” (s 243).
  2. [73]
    A decision notice, under s 334(1) and (2) of the Planning Act, is required to be given within 5 business days of the decision being made, to the applicant and the local government (if the local government is not the assessment manager).  Under s 335(1) of the Planning Act, the decision notice must state a number of things, including:

“(g)  if the application is approved – whether the approval is a preliminary approval, a development permit or a combined preliminary approval and development permit;

…

  1. (i)
    any other development permits or compliance permits necessary to allow the development to be carried out…”
  1. [74]
    Where the decision notice is given by a private certifier, the “decision notice” provisions in the Planning Act (ss 334-337) apply subject to chapter 4, part 6 of the Building Act (which contains ss 82-88).   Relevantly, ss 86-88 of the Building Act establishes a different process, to that contemplated by s 334(1) and (2), by requiring a private certifier who approves an application to give the local government a copy of the application, and the “approval documents” within five days and pay a fee to the local government (s 86(1)); requiring the local government to immediately acknowledge the payment of the fee (s 87); and only to give the approval documents to the applicant if they have complied with s 86(1) (s 88).    Otherwise, the required contents of the decision notice are not altered by the Building Act.[40]
  2. [75]
    That part of the Building Act also includes s 83, which imposes some restrictions on the grant of a building development approval.  Under s 83(1), a private certifier must not grant a building development approval applied for:

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

  1. (b)
    until all necessary preliminary approvals under the Planning Act are effective for other assessable parts of the development; and
  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 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.”[41]
  1. [76]
    If it is correct to say that a private certifier, like Mr Gerhardt, has an unqualified power to approve a building development application made to him, and grant a development permit – despite the fact that there is a part of the “development” that he cannot assess, and which must be assessed, separately, by the Council (not as a concurrence agency) – then the result would be that the home owner would, upon obtaining the development permit from the private certifier, be free to carry out the “development” the subject of it – that is, demolish the house(s).   In circumstances where the development is required to be assessed against the building assessment provisions and part(s) of the planning scheme which are not building assessment provisions, a construction of the legislation which would enable a development permit to be issued by a private certifier, in circumstances where other parts of the assessable development, which are not within the jurisdiction of the private certifier, have not been addressed by the relevant entity (here, the Council), will not achieve the purpose of the legislation; but rather would thwart an aspect of it.   Such a construction would result in a part of the assessment process, which is the responsibility of the local government, being left out altogether.[42]
  2. [77]
    Where, as in BCC v Gerhardt, the Council is a concurrence agency for part of a building development application, and there is no other part of the application which falls outside the building assessment provisions, then s 83(1)(d) of the Building Act operates to ensure that the private certifier may not issue a building development approval (development permit), until the concurrence agency’s assessment has been carried out (or, on the basis of s 286(1), where there is a failure to respond).  But, as BCC v Gerhardt makes clear, the Council does not conduct its concurrence agency assessment in the context of considering whether to grant a preliminary approval.[43]  The provisions of the Planning Act provide for a clear framework in which the concurrence agency’s jurisdiction is exercised, including where there is a failure to exercise it.[44]  There is no preliminary approval necessary under the Planning Act in that context.[45]
  3. [78]
    But the process in a case such as this one, where there is a part of the building development application which cannot be assessed by the private certifier, and in respect of which the Council is not a concurrence agency, is different.  What that process should be is not governed by the outcome in BCC v Gerhardt, which was concerned with a different factual and legal scenario.
  4. [79]
    BCC v Gerhardt is authority for the proposition that, in so far as s 83(1)(b) of the Building Act imposes a restriction on the ability of a private certifier to grant a building development approval, the necessity for any preliminary approval, if there be one, must be found in the Planning Act.  Section 83(1)(b) itself is not the source of any such requirement.
  5. [80]
    In my view, in a case such as this one – where the Council has responsibility to assess a part of the building development application, other than as a concurrence agency – there is a necessity for a preliminary approval to be granted in relation to that part, before a private certifier could lawfully grant a building development approval in the form of a development permit.
  6. [81]
    The process of reasoning leading to this conclusion is as follows.  
  7. [82]
    Under s 243, a development permit authorises assessable development to take place:
    1. (a)
      to the extent stated in the permit; and
    2. (b)
      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.
  8. [83]
    The “assessable development”, in the present context, is building work, assessable against the building assessment provisions under the Building Act, and other parts of the planning scheme which are not part of the building assessment provisions, namely the demolition code.
  9. [84]
    If the Council has not carried out its assessment, against the demolition code, a private certifier, in the present context, cannot issue a development permit – that is, a permit which authorises the assessable development to take place – because it is not within the private certifier’s power to do so, in relation to parts of the application he or she cannot assess.  There is a clear distinction in the Planning Act between “development” per se and “assessable development”.   This is articulated clearly in s 241, which draws a distinction between the ability of a preliminary approval to “approve development”, but not to “authorise assessable development to take place”.
  10. [85]
    The point is that a private certifier, without something more (from the Council) could not properly authorise the “assessable development” to take place; because the private certifier’s role is limited to being satisfied the building development application complies with the building assessment provisions, and approving the development to that extent.
  11. [86]
    In order for the private certifier to grant a building development approval, which is in the form of a development permit, there is another necessary approval – that is, approval by the local government, following its assessment against the demolition code.   It is only if such an approval is in place, at the time the private certifier proposes to grant a building development approval, that the private certifier could appropriately grant a development permit, authorising the assessable development to take place.  On that analysis, s 83(1)(b) of the Building Act would operate to prevent the private certifier from granting the building development approval (in the form of a development permit), without “all necessary preliminary approvals under the Planning Act” being effective for other assessable parts of the development (namely, those parts assessable against the demolition code).   The preliminary approval is “necessary” under the Planning Act because without it the “assessable development”, in whole, has not been authorised.
  12. [87]
    As McMurdo JA observed, in BCC v Gerhardt at [37], s 83(1)(b) has an operation, as a qualification to the certifier’s power to grant an approval, where under the Planning Act there is a necessity for an effective preliminary approval.  That was not so in that case (because the role of the Council was to assess a part of the application as a concurrence agency).   But here, before a private certifier could grant a building development approval, in the form of a development permit (that is, authorising assessable development to take place), there would be a need – that is to say, it would be necessary – for another (preliminary) approval to have been obtained from the Council.
  13. [88]
    In BCC v Gerhardt, it was recognised that there may be circumstances where a preliminary approval may be “a necessary element of a permission which authorises the development to take place” (at [35]).  The particular example referred to there, was where the application for preliminary approval involves a variation of the effect of a local planning instrument (as contemplated by s 242).    For the reasons outlined, in my view, this case presents another circumstance where a preliminary approval is a necessary element of a permission which authorises assessable development to take place.
  14. [89]
    It is important to emphasise that this analysis is on the basis that what the private certifier proposes to issue is a building development approval, in the form of a development permit.
  15. [90]
    The alternative, where the Council has not yet undertaken its assessment against the demolition code, would be for the private certifier to issue its building development approval, in the form of a preliminary approval.  A preliminary approval would authorise the development (ie the building work, comprising the demolition), but not authorise the “assessable development” to take place (s 241).  That would depend upon the later grant of a development permit, by the Council, following its assessment against the demolition code, and on the basis otherwise of the preliminary approval granted by the private certifier.[46]   In the “decision notice” issued by the private certifier, they would need to state that the approval is a preliminary approval (s 335(1)(g)) and that another development permit is required to allow the development to be carried out (s 335(1)(i)), namely, a permit granted by the Council.

Mr Gerhardt’s submission in relation to this issue

  1. [91]
    Mr Gerhardt submits[47] that a person in his position has no discretion to issue a preliminary approval, because what the owner has applied for is a development permit and, under s 34A of the Building Act, if he, as the assessment manager, is satisfied the application complies with the building assessment provisions, he “must approve the application”.  Mr Gerhardt relies also on s 48(1)(b), which empowers a private certifier to “decide the application and grant or refuse the building development approval applied for”.  Mr Gerhard submits that the effect of these provision is that he can only grant the type of approval which is applied for, which in this case was a development permit.[48] 
  2. [92]
    I do not accept that construction as correct.  Section 34A of the Building Act is expressly subject to both s 83 of that Act, and chapter 6 of the Planning Act, which contains the IDAS provisions (s 34A(1)).   One of the provisions within chapter 6 is s 324, which provides that:

“(1)  In deciding the application, the assessment manager must –

  1. (a)
    approve all or part of the application; or
  1. (b)
    approve all or part of the application subject to conditions decided by the assessment manager; or
  1. (c)
    refuse the application.

…

  1. (4)
    To remove any doubt, it is declared that –
  1. (a)
    the assessment manager may give a preliminary approval, other than a preliminary approval to which section 242 applies, even though the applicant sought a development permit; and
  1. (b)
    if the assessment manager approves only part of an application, the balance of the application is refused.”
  1. [93]
    It is also clear, from the definition of “development approval” (set out in paragraph [71] above) that there is a distinction between the “development applied for in a development application”, which may be approved, and the form of that approval (which may be a preliminary approval, a development permit or a combination of both).  The development applied for is, in this case, building work comprising the “demolition of two existing dwellings”.  The effect of s 34A(1) of the Building Act is that if the development applied for in the application complies with the building assessment provisions, the assessment manager must approve that development.  The form of the approval, as s 324 makes clear, is a matter for the assessment manager (whether they are a private certifier or not) to decide.   The fact that an owner has asked for a development permit does not constrain the form of the approval that a private certifier, who is performing the role of the assessment manager, may grant under s 48(1)(b) of the Building Act.

The Council’s position in relation to this issue

  1. [94]
    At the supplementary hearing on 14 September 2016, the Council submitted that, in circumstances where the Council has not yet carried out its separate assessment, against the demolition code, Mr Gerhardt, as a private certifier, could issue a building development approval, in the form of a development permit, if the development permit:
    1. (a)
      identified that “the extent to which it authorises assessable development is limited to the extent to which the building work is constituted by demolition assessable against the building assessment provisions”; and
    2. (b)
      identified, under s 335(1)(i) of the Planning Act, that a development permit for the building work constituted by demolition assessable against City Plan 2014 is necessary to allow the development to be carried out.[49]
  2. [95]
    This argument relies upon the words “to the extent stated in the permit”, in s 243(a) (see paragraph [68] above) as meaning that a development permit could be limited to the extent of the grantor’s jurisdiction or power; as opposed to being limited to the extent of the development (that is, the building work) which has been approved.   Council were not able to refer to any authority which would support such an interpretation of those words.  In my view, having regard to the language used in s 243, and the context in which it appears in the Planning Act, the construction suggested by the Council is not available.
  3. [96]
    The effect of s 243 is that if the form of approval granted is a development permit that operates to authorise the assessable development to take place.  Where, as here, the assessable development is building work, it authorises that building work to be carried out.   A person who has a development permit, cannot be prosecuted for an offence under s 578 if they do carry out the assessable development.
  4. [97]
    The authorisation conferred by a development permit, under s 243, may be:
    1. (a)
      limited, in terms of the extent of the building work that is authorised to take place (for example, not all of the building work for which approval has been sought may comply with the building assessment provisions, and so only part of it may be authorised to be carried out); and
    2. (b)
      subject to:
      1. conditions of the permit; and
      2. any preliminary approval, relating to the “development” (that is, the building work) the permit authorises.
  5. [98]
    If the form of the approval granted by a private certifier is expressly limited, by the extent of the private certifier’s jurisdiction (that is, limited to the extent to which the building work has been assessed against and found to comply with the building assessment provisions), whilst it is an approval of the development (cf s 241(a)), it is not an approval which authorises the assessable development to take place.   It is not a development permit.   It is a preliminary approval.
  6. [99]
    As an alternative to its argument above, the Council submitted that in circumstances where the Council has not yet carried out its assessment, the nature of the building development approval which Mr Gerhardt would be empowered to grant is a preliminary approval.[50]   For the reasons outlined above, in my view this is correct.

Summary

  1. [100]
    In summary then, for the reasons outlined above, where an owner makes a building development application to a private certifier, for approval for building work which, in addition to assessment against the building assessment provisions under the Building Act, is also required to be assessed against the demolition code, and the Council has not yet carried out that assessment:
    1. (a)
      Upon being satisfied the application complies with the building assessment provisions, and approving the application (s 34A Building Act), the private certifier may proceed to grant a building development approval (s 48 Building Act), in the form of a preliminary approval (definition of “development approval”, ss 241, 324 and 335(1)(g) of the Planning Act), which must state that another development permit is required to allow the development to take place (s 335(1)(i) of the Planning Act), namely a development permit from the Council following its assessment of the development against the demolition code.

In this scenario, once the Council has carried out its assessment, if satisfied the application should be approved, the Council would grant a development permit, which would be subject to the preliminary approval granted by the private certifier, and which would then authorise the assessable development to take place.

  1. (b)
    However, the private certifier may not grant a building development approval in the form of a development permit, because if what is proposed is a development permit, having regard to the effect of s 243 of the Planning Act, there would be a “necessary preliminary approval under the Planning Act” for another assessable part of the development (namely, the part assessable against the demolition code) that would be required before a development permit could be granted (s 83(1)(b) Building Act).
  1. [101]
    Of course, if the Council has carried out its assessment, against the demolition code, before the private certifier comes to assess and decide the application made to him or her, and the Council has granted its approval, in the form of a preliminary approval, then the private certifier, upon being satisfied the application complies with the building assessment provisions, would be free to grant a building development approval, in the form of a development permit.  In that instance, the development permit granted by the private certifier would be subject to the preliminary approval granted by the Council.

Orders

  1. [102]
    At the hearing of the application, I indicated to the parties that I would give them an opportunity to consider my reasons, and to be heard further in relation to the form of any declarations that may appropriately be made.
  2. [103]
    In light of the conclusions that I have reached, there is no basis on which declarations (2) and (3) could be made.  Nor is it appropriate to make declarations (1) and (4), not because they lack utility, as initially submitted by the Council, but because they do not reflect the proper construction of the legislative scheme.
  3. [104]
    The appropriate order would seem to simply be that the application is dismissed.  However, I will hear the parties in case either of them wishes to submit otherwise, and also as to costs.

Footnotes

[1]Being an application for development approval under the Sustainable Planning Act 2009, to the extent it is for building work:  see s 6 of the Building Act.

[2]See exhibit TG-2 to the affidavit of Mr Gerhardt filed 27 May 2016, in particular at p 3.

[3]Underlining added.

[4]See the definition of “development” in s 7 of the Planning Act, which includes “carrying out building work”, and the definition of “building work” in s 10, which includes “demolishing a building or other structure”.  See also the definition of “building work” in s 5 of the Building Act, which is in the same terms.

[5]Section 232 of the Planning Act and s 9 and schedule 3, part 1, table 1, item 1 of the Regulation; see also s 20 of the Building Act.

[6]See again, s 9 and schedule 3, part 1, table 1, item 1 of the Regulation; see also sections 5.3.1, 5.3.2, 5.3.3, table 5.7.1 (building work, within the low medium density residential zone) and table 5.10.21 (where the building work involves demolition of houses covered by the traditional building character overlay) of City Plan 2014.

[7]Sections 30 and 31 of the Building Act.

[8]Section 5.3.1(h) and table 5.10.21 of City Plan 2014.  The demolition code is in section 8.2.21 of City Plan 2014.  

[9]Sections 238, 243 and 578 of the Planning Act.

[10]Section 247 of the Planning Act.

[11]Section 7 of the Building Act.

[12]Underlining added.

[13]Section 247 of the Planning Act.

[14]Section 10(a) of the Building Act.

[15]Sections 251(a) and 254 of the Planning Act.

[16]Section 286(1); but note s 286(2), for circumstances in which no response is taken to be a refusal of the application (where the application is a building development application, the concurrence agency is the local government, and the matter being decided is a matter other than assessing the amenity and aesthetic impact of a building or structure).

[17]Underlining added.

[18]Sections 10(a) and 46(2) of the Building Act.

[19]Section 246 of the Planning Act, and s 12 and schedule 6, table 1, item 1 of the Regulation.

[20]In which case ss 11 and 48 of the Building Act would not apply.

[21]An owner could of course make their application to the local government, which would have the ability to assess all aspects of the proposed development: see ss 246 and 249 of the Planning Act (when assessment manager is also a concurrence agency, their jurisdiction is simply enlarged to include the concurrence agency’s jurisdiction); schedule 6 of the Regulation; and ss 51 and 52 of the Building Act (procedure where building development application made to the local government, which requires the local government to appoint a private certifier or building certifier to perform the “building certifying functions”).  See also BCC v Gerhardt at [17].

[22]See BCC v Gerhardt at [28]-[37]; confirming the decision of Searles DCJ in Gerhardt v Brisbane City Council [2015] QPELR 812, that no preliminary approval was necessary, before Mr Gerhardt, as a private certifier, could lawfully grant a building development approval under s 83(1)(b) of the Building Act.

[23]Gerhardt v QBCC at [21]-[24] and [31].

[24]Set out at paragraph [23] above.

[25]Footnotes omitted.  Underlining in [33] added.

[26]See Gerhardt v Brisbane City Council [2015] QPELR 812 at [3]-[4] and [24] per Searles DCJ.

[27]See Gerhardt v Brisbane City Council [2015] QPELR 812 at [8]-[10] per Searles DCJ; see also BCC v Gerhardt at [14]-[18].

[28]This is consistent with the definition of “declare” in the Oxford English Dictionary Online as, relevantly, “to make known or state publicly, formally, or in explicit terms; to assert, proclaim, announce or pronounce by formal statement”.  See also the definition in the Concise Australian Legal Dictionary (Lexis Nexis, 2011) of “declaration” as “a formal, imperative statement creating or preserving a right”.

[29]In the Planning Act, see for example s 21 (providing that a State planning regulatory provision may declare development of certain categories); s 106 (similarly, for temporary planning instruments); s 232(2) (that a regulation may prescribe that certain instruments may not declare certain categories of development); s 260(1)(e) (requiring an application for development approval to include a declaration by the applicant as to owner’s consent); s 397 (a regulation may declare that a document or work is a document or work requiring compliance assessment); s 761A (as to a “declared master planned area”).  The Planning Act also contains many provisions in which matters are expressly declared, “to remove any doubt”.   In the Regulation, see for example schedule 3 (assessable development, referring to building work “declared” under the Building Act to be exempt development, or works in a “declared fish habitat area”, referring to a declaration made under the Fisheries Act); schedule 7, items 30 and 31 (referring to building work for a lot for which the local government has declared, under the Building Regulation 2006, a defined flood level or maximum flow velocity of water).

[30]See, by analogy, Tasmania v Commonwealth (1904) 1 CLR 329 at 343-344.

[31]Underlining added.

[32]Underlining added.

[33]See s 14A of the Acts Interpretation Act 1954.

[34]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]; see also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; and Military Rehabilitation and Compensation Commission v May (2016) 150 ALD 392 at [10].

[35]See footnote 21 above.

[36]See paragraph [36] above.

[37]The issues were outlined to the parties, in an email from my Associate dated 6 September 2016 (MFI “A”).

[38]See the definitions in schedule 2 to the Building Act.

[39]See the definition in schedule 3 to the Planning Act; underlining added.

[40]Save that an additional requirement is imposed, by s 85, to include in the notice details of any self-assessable code under the Planning Act that the applicant may need to comply with.

[41]Underlining added.

[42]Cf BCC v Gerhardt at [39].

[43]See BCC v Gerhardt at [28], [36]-[37]

[44]See paragraph [22] above.

[45]For completeness, I should record that in Mr Gerhardt’s further submissions made on 14 September 2016 he suggested that in BCC v Gerhardt there was no nexus between the fact that the Council was a concurrence agency (which was uncontroversial) and the Court of Appeal’s rejection of the Council’s argument in that case that two development applications were required (written submissions at [25]-[27], oral submissions at transcript pp 2-8.45 - 2-9.5).   But there is a very clear nexus.  The reason no separate development application was required was precisely because the Council was a concurrence agency.

[46]Again, for completeness, I note that in Mr Gerhardt’s further submissions made on 14 September 2016 he suggested that, where the private certifier has issued a preliminary approval (approving the building work, in terms of compliance with the building assessment provisions) and subsequently the Council, upon approving the application, following its assessment against the demolition code, grants a development permit, the Council would assume complete responsibility for authorising the building work, including as to “footing and frame inspections etc”, and the private certifier would have no responsibility (written submissions at [12], oral submissions at transcript p 2-20.40).   I do not accept that as a correct analysis.  In this scenario, when the Council grants a development permit, that would authorise the assessable development to take place, subject to the preliminary approval granted by the private certifier (s 243(b) (ii)).  The Council does not assume responsibility for the task already undertaken by the private certifier.  The Council would rely upon the preliminary approval granted by the private certifier, as a necessary element in authorising the assessable development to take place.  Both the preliminary approval, and the development permit, attach to the land and bind the owner (s 245).

[47]Mr Gerhardt’s further submissions filed 14 September 2014 at [7]-[8].

[48]See the application, in exhibit TG-2 to Mr Gerhardt’s affidavit filed 27 May 2016 at p 3.

[49]Council’s further submissions dated 14 September 2016 at [10(a)].

[50]Council’s further submissions dated 14 September 2016 at [10(b)].

Close

Editorial Notes

  • Published Case Name:

    Gerhardt v Brisbane City Council

  • Shortened Case Name:

    Gerhardt v Brisbane City Council

  • MNC:

    [2016] QPEC 48

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    16 Sep 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QPEC 4816 Sep 2016Application seeking declarations under s 456 of the Sustainable Planning Act 2009 dismissed: Bowskill QC DCJ.
Primary Judgment[2016] QPEC 5005 Oct 2016Form of Orders and Costs. Application dismissed and no order as to costs: Bowskill QC DCJ.
QCA Interlocutory Judgment[2016] QCA 27227 Oct 2016Application for an order staying the orders made in [2016] QPEC 50 refused: Gotterson JA.
Notice of Appeal FiledFile Number: Appeal 10289/1607 Oct 2016-
Appeal Determined (QCA)[2017] QCA 28517 Nov 2017Application for leave to appeal refused: Fraser and Morrison JJA and Flanagan J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
1 citation
Jump To
Cite 1 - (2009) 239 CLR 27
Brisbane City Council v Gerhardt [2016] QCA 76
2 citations
Jump To
Cite 1 - [2016] QCA 76
Cite 2 - [2016] QCA 76
Brisbane City Council v Gerhardt [2016] QPELR 485
10 citations
Jump To
Cite 1 - [2016] QPELR 485
Cite 2 - [2016] QPELR 485
Cite 3 - [2016] QPELR 485
Cite 4 - [2016] QPELR 485
Cite 5 - [2016] QPELR 485
Cite 6 - [2016] QPELR 485
Cite 7 - [2016] QPELR 485
Cite 8 - [2016] QPELR 485
Cite 9 - [2016] QPELR 485
Cite 10 - [2016] QPELR 485
Gerhardt v Brisbane City Council [2015] QPELR 812
4 citations
Jump To
Cite 1 - [2015] QPELR 812
Cite 2 - [2015] QPELR 812
Cite 3 - [2015] QPELR 812
Cite 4 - [2015] QPELR 812
Gerhardt v Queensland Building and Construction Commission [2016] QCA 136
2 citations
Jump To
Cite 1 - [2016] QCA 136
Cite 2 - [2016] QCA 136
Imperial Mercantile Credit Association (Liquidators) v J Coleman (1873) LR 6 HL 189
1 citation
Jump To
Cite 1 - (1873) LR 6 HL 189
Military Rehabilitation and Compensation Commission v May (2016) 150 ALD 392
1 citation
Jump To
Cite 1 - (2016) 150 ALD 392
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
State of Tasmania v The Commonwealth of Australia and State of Victoria (1904) 1 CLR 329
1 citation
Jump To
Cite 1 - (1904) 1 CLR 329
Woolworths Ltd v Kelly (1991) 22 NSWLR 189
2 citations
Jump To
Cite 1 - (1991) 22 NSWLR 189
Cite 2 - (1991) 22 NSWLR 189

Cases Citing

Case NameFull CitationFrequency
Baxter v Preston [2021] QPEC 692 citations
Gerhardt v Brisbane City Council [2016] QCA 2721 citation
Gerhardt v Brisbane City Council [2017] QCA 285 6 citations
Gerhardt v Brisbane City Council (No. 2) [2016] QPEC 501 citation
1

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