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Gerhardt v Brisbane City Council[2017] QPEC 49

Gerhardt v Brisbane City Council[2017] QPEC 49

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Gerhardt v Brisbane City Council [2017] QPEC 49

PARTIES:

TREVOR WILLIAM GERHARDT
(Applicant)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

2565 of 2017

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

11 August 2017 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2017

JUDGE:

Kefford DCJ

ORDER:

  1. The application is dismissed.
  2. The Applicant is to pay Council’s costs assessed on the standard basis.

CATCHWORDS:

PLANNING AND ENVIRONMENT – BUILDING WORK – where a building development application is made to a private certifier seeking a development permit for building work – where Council, as concurrence agency, refused the development application – where Council advised that the building work constituted a material change of use – whether the construction of the proposed house constitutes a material change of use – whether a development approval for building work is required from Council

LEGISLATION:

Planning Act 2016 (Qld), s 55, s 62, s 73A, s 288

Planning and Environment Court Act 2016 (Qld), s 60

Sustainable Planning Act 2009 (Qld), s 245A, s 325

Sustainable Planning Regulation 2009 (Qld), Sch 7

CASES:

Carrigan v Goondiwindi Regional Council [2016] QPELR 273; [2016] QPEC 8

Gorrie v Mackay City Council [2003] QPELR 328; [2002] QPEC 74

KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2005] QPELR 28; [2004] QPEC 31

Maroochy Shire Council v Barns [2001] QPELR 475; [2001] QPEC 31; Maroochy Shire Council v Barns [2001] QCA 273

Sunshine Coast Regional Council v Flanigan [2010] QPELR 97; [2009] QPEC 68

COUNSEL:

P R Smith for the Applicant (direct brief)

M A Williamson with M J Batty for the Respondent

SOLICITORS:

No appearance for the Applicant

Brisbane City Legal Practice for the Respondent

Introduction

  1. [1]
    The Applicant is a private certifier. On 4 May 2017, he received a development application for a development permit for building work (residential dwelling) (“proposed house”) for land situated at 42 Gillan Street, Norman Park.
  1. [2]
    By his Originating Application, the Applicant seeks declaratory and consequential relief that he contended was relevant to his power to assess and decide the application for building work for the proposed house.
  1. [3]
    The Applicant bears the onus of proof.
  1. [4]
    The Respondent, Brisbane City Council (“Council”), opposes the Originating Application and the relief sought therein.

Relevant background

  1. [5]
    The subject land has an area of 567 square metres and is vacant.
  1. [6]
    The land has not always been vacant. It was previously improved with a modest dwelling house that was demolished sometime between 15 December 2016 and 11 April 2017, likely around February 2017. 
  1. [7]
    As noted above, the Applicant received an application for a development permit for building work.
  1. [8]
    The development application was referred to Council as a concurrence agency for the purposes of:
  1. (a)
    design and siting pursuant to Schedule 7 of the Sustainable Planning Regulation 2009; and
  1. (b)
    amenity and aesthetics pursuant to Schedule 7 of the Sustainable Planning Regulation 2009.
  1. [9]
    On about 18 May 2017, Council provided its concurrence agency response. The response advised the Applicant that:
  1. (a)
    the concurrence agency response for the amenity and aesthetic impact was refused for the reasons listed in “Attachment 1” to that correspondence; and
  1. (b)
    the proposed development constituted a material change of use as the building work proposed represented a material increase in the intensity and scale of the use of the premises.
  1. [10]
    There is no dispute between the parties about the validity of Council’s concurrence agency response directing refusal based on the amenity and aesthetic impact of the building work.
  1. [11]
    It seems that the Applicant has not presently decided the development application before him.

The issues in dispute

  1. [12]
    On 13 July 2017, the Applicant filed an Originating Application in this court seeking declarations and consequential orders to the effect that:
  1. (a)
    the construction of the proposed house does not constitute a material change of use;
  1. (b)
    no development application for a development approval for a material change of use is required to be made to, and approved by, Council;
  1. (c)
    no development application for a preliminary approval for building work is required to be made to, and approved by, Council;
  1. (d)
    the Applicant, as a private certifier, has the ability to assess and decide the subject development application without any further development approvals or concurrence agency responses from Council; and
  1. (e)
    Council pay the Applicant’s costs on an indemnity basis.

“At liberty to assess and decide”

  1. [13]
    The Applicant seeks a declaration or order that he be at liberty to assess and decide the development application for the proposed house. Council submits that the order needs to be qualified to make it clear that this court is not authorising the Applicant to approve the proposed house.
  1. [14]
    Council gave its concurrence agency response on 18 May 2017. Council’s concurrence agency response advised the Applicant, amongst other things, that “the concurrence agency response for the amenity and aesthetic impact was refused for the reasons listed in ‘Attachment 1 (sic) to that correspondence”.
  1. [15]
    An assessment manager, such as the Applicant, has no power to approve a development application where a concurrence agency has advised that the application should be refused (see for example s 325(4) of the Sustainable Planning Act 2009 and s 62 of the Planning Act 2016).
  1. [16]
    It is apparent from the Applicant’s Reply that this is accepted by the Applicant and, as such, there is no utility to any orders or declarations with respect to the matter.
  1. [17]
    During the hearing it was conceded by the Applicant, through his Counsel, that:
  1. (a)
    the development application for building work made to the Applicant on 4 May 2016 must be refused as a consequence of the direction to refuse in Council’s concurrence agency response; and
  1. (b)
    in those circumstances, there was no utility to the declaration sought in paragraph 1(4) of the Originating Application.
  1. [18]
    The Applicant abandoned its application for that declaration.

The central questions in the remaining issues

  1. [19]
    The issues to be determined otherwise turn on two central questions, namely:
  1. (a)
    whether the use of the subject land for a residential use in the proposed house would constitute a material change of use of the land; and 
  1. (b)
    whether a preliminary approval for building work is required from Brisbane City Council for the proposed house.

Material Change of Use - the legal test

  1. [20]
    The Originating Application was filed on 13 July 2017, after the commencement of the Planning Act 2016 (Qld) and the Planning and Environment Court Act 2016 (Qld).  The Sustainable Planning Act 2009 does not apply to the proceeding.
  1. [21]
    The proceeding is to be heard and determined under the Planning and Environment Court Act 2016 and the Planning Act 2016.
  1. [22]
    For the purposes of the Planning Act 2016, a “material change of use” is defined in Schedule 2 as:

“… any of the following that a regulation made under section 284(2)(a) does not prescribe to be a minor change of use–

  1. (a)
    the start of a new use of the premises;
  1. (b)
    the re-establishment on the premises of a use that has been abandoned;
  1. (c)
    a material increase in the intensity or scale of the use of the premises.”
  1. [23]
    The reference to “minor change of use” is irrelevant for the purposes of this proceeding.
  1. [24]
    The definition for the same term under the Sustainable Planning Act 2009 may still be relevant given that s 288(2) of the Planning Act 2016 provides that the Sustainable Planning Act 2009 will continue to apply to the application before the Applicant as an assessment manager.  That definition is, for all intents and purposes, the same definition save for the reference to “minor change of use”.
  1. [25]
    It is the third limb of the definition for either Act that is of importance to this proceeding (i.e. whether there has been a material increase in the intensity or scale of the use of the premises). In this respect, the relevant comparison for determining whether there has been “a material increase in the intensity or scale of the use of the premises” is between the use of the subject land that involved the house that previously improved the subject land and the use that involves the house now proposed by the owner of the subject land.  The comparison is not to the presently vacant state of the land, as the use of the land for residential purposes has not been abandoned: KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2005] QPELR 28; [2004] QPEC 31.
  1. [26]
    Whether there has been a material increase in intensity or scale of the use is a question of fact and degree, the materiality of which will be informed by the planning legislation and relevant planning instruments: Maroochy Shire Council v Barns [2001] QPELR 475, 482 [47]; [2001] QPEC 31; Maroochy Shire Council v Barns [2001] QCA 273.
  1. [27]
    A measure of common sense is called for in determining whether a change is material: Gorrie v Mackay City Council [2003] QPELR 328, 329 [7]; [2002] QPEC 74.
  1. [28]
    The test does not require there to be significant impacts on local amenity or on other planning matters such as parking or traffic for the court to conclude that there has been a material increase in the intensity or scale of the use: Sunshine Coast Regional Council v Flanigan [2010] QPELR 97, 100 [25]; [2009] QPEC 68.  The presence of impacts may, in some cases, be indicative that there has been a material increase in intensity or scale of the use: Sunshine Coast Regional Council v Flanigan [2010] QPELR 97, 100 [27]; [2009] QPEC 68.

The relevant comparison (historical and proposed)

  1. [29]
    Whether there will be a material change of use ought be determined by comparing the historical use of the subject land with the development that is now proposed.
  1. [30]
    The Applicant’s case in this regard involves a simple point of comparison – he contends that there is no material change of use because the subject land is to be used for a single family dwelling in circumstances where the historical use was the same. The Applicant submits that the changes to the built form are an irrelevant consideration. He contends that an increase in the scale of the built form alone is immaterial and cannot give rise to a material change of use.
  1. [31]
    It is accepted that the proposed use involves the construction, and subsequent occupation, of a building as a self-contained residence to be used as the family home of the owner of the subject land. However, where the built form in which the use is to be conducted changes, by increasing in scale, it is relevant to consider the materiality of that change in how the use is conducted. It is too simplistic to focus only on the nature of the use, namely residential occupation, and ignore the extent of the use, which may be informed by matters such as the built form.
  1. [32]
    As was observed by Jones DCJ in Carrigan v Goondiwindi Regional Council [2016] QPELR 273; [2016] QPEC 8, at 282 [43]:

“Turning to the question of scale it is necessary to have regard to the physical characteristics of the shed. Although the intensity of the use may not have materially changed it is still relevant to consider the scale of the structure intended to accommodate the use.”

  1. [33]
    Not every house is the same in terms of scale and intensity. In circumstances where many uses are conducted within a structure, the built form associated with the use cannot properly be regarded as irrelevant to an assessment of the nature and extent of the use and whether there has been a material change in intensity or scale of the use. It is a question of fact and degree.
  1. [34]
    On the evidence available, the demolished house:
  1. (a)
    was a low-set timber dwelling that is slightly elevated above the ground;
  1. (b)
    contained three rooms designed to be used as bedrooms;
  1. (c)
    contained a single bathroom;
  1. (d)
    contained a carport of very open construction; and
  1. (e)
    did not have a pool or other formalised recreational areas.
  1. [35]
    In comparison, having regard to the development application and information included in the Applicant’s affidavit, the proposed house, if constructed, would:
  1. (a)
    be two storeys in height:
  1. (b)
    have a floor area of 442 square metres;
  1. (c)
    have external walls constructed of double brick veneer;
  1. (d)
    have four bedrooms;
  1. (e)
    have two bathrooms; and
  1. (f)
    include a study, large pool and deck area, large kitchen, dining and living areas and a cellar.
  1. [36]
    The comparison exercise in this case reveals the proposed house will, if approved, constructed and used for a residential purpose, represent an increase in scale of the built form associated with the use and an increase in the intensity of the built form aspect of the use of the land.
  1. [37]
    The elevations of the proposed house also make clear that the design includes large concrete walls, a flat roof and is of a contemporary design.
  1. [38]
    Put simply, the comparison exercise reveals that the proposed development, if approved, constructed and used, would result in an increase in residential built form on the land. That increase would represent an increase in scale, if not also intensity, of the residential use. The question of importance is whether the increase in scale (and potentially intensity) is fairly characterised as being material.

The materiality of the increase in scale and intensity

  1. [39]
    The Council submits that the increase in scale and intensity would be material.
  1. [40]
    As a matter of impression, the proposed house is substantially larger in terms of bulk, height and scale in comparison to the demolished dwelling.[1]  The difference is appreciable.  The Applicant accepts that there is an increase in scale of the built form, but submits that it is not relevant.  As I have already observed, I regard the extent of increase in scale of the built form to be a relevant consideration. 
  1. [41]
    The increase in size, in a numerical sense, is not of itself determinative in this case.
  1. [42]
    The proposed house, as compared to the demolished dwelling would have:
  1. (a)
    an extra storey;
  1. (b)
    at least 1 additional bedroom;
  1. (c)
    be of substantially greater floor area;
  1. (d)
    a contemporary design, rather than a timber dwelling;
  1. (e)
    a large number of additional rooms and facilities including a study, pool, deck, and a cellar; and
  1. (f)
    a number of larger facilities including kitchen, dining and living areas.
  1. [43]
    Although it will not always be the case that an increase in the built form constitutes a material increase in the intensity or scale of the use, in this case, it does. The changes to the built form results in a use of the subject land that introduces new impacts which are not trivial or technical.
  1. [44]
    To my mind, the most significant new impact occasioned by the change in the scale of the built form is the difference in flood risk.
  1. [45]
    It was not disputed by the Applicant that the proposed house has the potential to increase an unacceptable flood risk. Quite apart from the fact that the proposed house will involve an increase in the scale of the residential use in a location subject to the flooding overlay:
  1. (a)
    the proposed development, in terms of its garage, fails to meet the required minimum non-habitable floor level of 2.8 metres.  The proposed garage floor level does not meet the required flood planning level, and the new house would not meet the requirements of the Flood overlay code;
  1. (b)
    flood analysis is required from an RPEQ to demonstrate that the proposed house will not impact on flooding to adjacent properties.  In circumstances where such an analysis has not been undertaken, the proposed house has not been shown to comply with Performance Outcome PO2 of the Flood overlay code;
  1. (c)
    the rear half of the land is included in the Citywide Waterway corridor overlay.  The previous dwelling on the land extended into the waterway corridor by about 9 metres.  The proposed house would extend into the waterway corridor by about 24 metres.  The outcome under the proposed house is in conflict with Performance Outcome PO2 of the Waterway corridors overlay code; and
  1. (d)
    the land is also affected by the Coastal hazard overlay code (storm tide flooding).
  1. [46]
    The applicant has not adduced any evidence to demonstrate that such matters are ones that the court ought not be concerned about, in terms of their materiality.
  1. [47]
    For that reason, the Applicant has not established a legal entitlement to the declaration he seeks with respect to the material change of use point.
  1. [48]
    Council also relies on the visual and character impact occasioned by the change to the built form.
  1. [49]
    The increase in scale of the built form in this case introduces a sizeable house of contemporary design. It does so in circumstances where the planning scheme places significance on such matters. The Traditional building character (design) overlay code, in particular, makes such matters relevant. Council placed before the court evidence of Mr McDonald, a heritage architect, that has reviewed the proposed house as against the Traditional building character (design) overlay code and concluded that an approval would conflict with Performance Outcomes PO3, PO5, PO6 and PO7 of the code, as well as Overall Outcomes (a) and (b) of the Traditional building character (design) overlay code. That evidence was not challenged by the applicant. It reinforces the materiality of the change.
  1. [50]
    I am satisfied that the proposed development constitutes a material change of use.

Is the material change of use assessable?

  1. [51]
    There is no dispute that:
  1. (a)
    the subject land is included in the Traditional building character overlay in the Council’s planning scheme;
  1. (b)
    the subject land is not in the Local Heritage Place subcategory of the Heritage place overlay; and
  1. (c)
    the subject land is not in the State Heritage Place subcategory of the Heritage place overlay.
  1. [52]
    As such, a material change of use for a new dwelling house is code assessable under Council’s planning scheme. This was not disputed by the Applicant.

The preliminary approval point

  1. [53]
    The Applicant seeks a declaration to the effect that no application for preliminary approval is required to be made and approved by Council for the proposed house.
  1. [54]
    The Originating Application and the Applicant’s Outline of Argument sought to advance the case with respect to this issue on the basis of s 245A of the Sustainable Planning Act 2009 and s 73A of the Planning Act 2016
  1. [55]
    However, in oral submissions during the hearing, Counsel for the Applicant sought to agitate the issue by reference to other provisions, such as s 55 of the Planning Act 2016.  Reference to those provisions first appeared in the Applicant’s Reply.  The Applicant submitted that, in effect, having assessed the building work application as a concurrence agency, Council had no right to assess the application again as assessment manager in response to a development application made to it for preliminary approval for building work.  This is a different proposition to that which appeared in the Originating Application.  This new proposition relates to a question as to who the appropriate assessment manager is and when the assessment needs to be undertaken, rather than the much narrower question about whether there is a trigger in s 245A of the Sustainable Planning Act 2009 or s 73A of the Planning Act 2016 that requires the landowner to obtain a preliminary approval for building work from Council.  Council was not given fair notice of this new proposition.
  1. [56]
    In terms of the narrower issue, Council accepts that the development does not involve demolition and, therefore, would not require a preliminary approval for that purpose.
  1. [57]
    Section 73A of the Planning Act 2016 states:

73A Development permits for building work given by private certifiers

  1. (1)
    This section applies to a development application for a development permit that—
  1. (a)
    is for building work; and
  1. (b)
    is made to a private certifier as assessment manager.
  1. (2)
    Subsection (3) applies to the development application if any part of the building work requires impact assessment.
  1. (3)
    A development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring impact assessment, unless a relevant preliminary approval is in effect for the part.
  1. (4)
    Subsection (5) applies to the development application if—
  1. (a)
    any part of the building work must be assessed against, or having regard to, a matter that is not a building assessment provision; and
  1. (b)
    none of the referral agencies are required to assess the application against, or having regard to, the matter.
  1. (5)
    A development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring assessment against, or having regard to, the matter, unless a relevant preliminary approval is in effect for the part.
  1. (6)
    In this section—

relevant preliminary approval means a preliminary approval given under the old Act by an entity other than a private certifier.

  1. [58]
    Section 245A of the Sustainable Planning Act 2009 is in materially similar terms.
  1. [59]
    The purpose of the provision is clearly to limit the application of any development permit issued by a private certifier in terms of the development it authorises. The provision does not purport to ascribe:
  1. (a)
    the development for which development approvals are required;
  1. (b)
    the criteria against which an application for a development approval will be assessed;
  1. (c)
    when a development approval is to be obtained; or
  1. (d)
    who will be the assessment manager for a development approval.
  1. [60]
    One can well understand why, then, Council submitted, in its outline, that the grounds advanced in support of the relief are nonsensical.
  1. [61]
    A trigger exists for assessable development, being building work assessable against the planning scheme. The building work is assessable because:
  1. (a)
    the proposed house involves building work as defined in Schedule 2 of the Planning Act 2016, namely “building… a building”;
  1. (b)
    the land is included in the Traditional building character overlay; and
  1. (c)
    Table 5.10.21 of City Plan 2014 applies to the Traditional building character overlay and provides, in part, that building work involving a dwelling house, where not in the Local Heritage Place sub-category or the State Heritage Place sub-category of the Heritage Overlay, is assessable development requiring code assessment against the Traditional building character (design) Code.
  1. [62]
    The type of further approval required will be a function of timing. Who will be the assessment manager is not fairly raised as the focus of the dispute in the Originating Application.
  1. [63]
    In the circumstances, I am not satisfied that it is appropriate to make the declaration that the Applicant seeks with respect to the preliminary approval point. There appears to be no utility to the declaration given the current development application before the Applicant must be refused. The Applicant now appears to seek an advisory opinion from the court about what applications should be made and to whom they should be made. I am not persuaded that declarations of that kind ought be made here.

Costs

  1. [64]
    I order that the Applicant is to pay Council’s costs, assessed on the standard basis. In short, my reasons for doing so is that I find, for the purposes of s 60 of the Planning and Environment Court Act 2016, particularly s 60(1)(b), that the proceedings vexatious.  In terms of the preliminary approval point, I accept the submissions of Council that the point was poorly articulated from day one.  The exchanges in the transcript throughout the day highlight the difficulties with the articulation of the point.  It was one that was doomed to fail in terms of its reliance on s 245A of the Sustainable Planning Act 2009 and s 73A of the Planning Act 2016.
  1. [65]
    The Applicant submits, that it was not vexatious because correspondence was received by the Applicant from Council on 18 May 2017 that led the Applicant to have concerns with respect to s 83 of the Building Act and the limits contained therein on issuing a development permit.  The submission is not a sound one.  This was a case where there was a directed refusal and the Applicant conceded that the only outcome, with respect to the development application before it, was to refuse the application.
  1. [66]
    In terms of the material change of use point, I do not accept the submission of the Applicant that the point raised a matter of public interest that would provide certainty on an issue about which there is doubt. I do not accept that for a number of reasons.
  1. [67]
    The decision of His Honour Judge Jones in Carrigan v Goondiwindi Regional Council [2016] QPELR 273; [2016] QPEC 8, contains a statement of the relevant principles, in relation of the relevance.  There remains no principle to be determined about whether the physical characteristics of the built form are relevant to a determination of material change of use.  There were no arguments about the proper interpretation of the definition that were advanced.  This case was one that turned on the application of the facts to the definition.
  1. [68]
    In terms of the application of the facts to the definition, the Applicant did not seek to engage on the materiality point at all. It led no evidence with respect to the materiality of the change. All of the evidence was that led by Council. It relied on a simplistic view that a house is a house, which runs completely counter to the existing authority, at the very least, in Carrigan v Goondiwindi Regional Council [2016] QPELR 273; [2016] QPEC 8.

Conclusion

  1. [69]
    For the reasons given, this application is dismissed.
  1. [70]
    The Applicant is to pay the Council’s costs assessed on the standard basis.

Footnotes

[1] See Affidavit of M S Mog Exhibit MM3 pp 3, 4 and 12.  cf Exhibit MM4 pp 47 and 48.

Close

Editorial Notes

  • Published Case Name:

    Gerhardt v Brisbane City Council

  • Shortened Case Name:

    Gerhardt v Brisbane City Council

  • MNC:

    [2017] QPEC 49

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    11 Aug 2017

Appeal Status

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

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