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Baxter v Preston[2021] QPEC 69

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Baxter v Preston & Ors [2021] QPEC 69

PARTIES:

STEVEN JOHN BAXTER

(Applicant)

v

ANTHONY STEVEN PRESTON AND KYLIE ANNE PRESTON

(First Respondents)

and

GRAYA CONSTRUCTION PTY LTD (ACN 158 362 406)

(Second Respondent)

and

BRISBANE CITY COUNCIL

(Third Respondent)

FILE NO/S:

932 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2021 (site inspection), 6, 7, 8 and 12 October 2021, further written submissions received 22 and 25 October 2021 and further evidence received 26 October 2021

JUDGE:

Kefford DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant says the private certifier was not the appropriate assessment manager – whether the local government was the appropriate assessment manager

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says other development permits were required for development other than building work that may affect the form or location of the building work or the use of the building or structure – whether the private certifier had power to give the approval under s 83 of the Building Act 1975 (Qld) – whether the requirement in s 83 of the Building Act 1975 (Qld) is a jurisdictional fact – whether there was a jurisdictional error that affected the decision

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says there was an inconsistency between the building permit and an earlier development approval – whether the private certifier had power to give the approval under s 84 of the Building Act 1975 (Qld)

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about the Council’s decision to give an exemption certificate under s 46 of the Planning Act 2016 – where the applicant challenged the validity of the Council’s decision to give an exemption certificate and the accuracy of the notice of its decision – where the decision was challenged on the basis of jurisdictional error – whether the notice of the decision was inaccurate – whether the Council failed to take into account relevant considerations – whether the Council’s opinion, for the purposes of s 46(3)(b) of the Planning Act 2016 was legally unreasonable

PROCEDURE – STATE COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – ADVISORY OPINIONS AND HYPOTHETICAL QUESTIONS – where the applicant seeks declaratory relief about the lawfulness of future development – where there is no evident intention to carry out the development the subject of the declarations – whether granting declaratory relief would amount to answering a hypothetical question

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders to remedy the commission of development offences – where the applicant alleges that the first and second respondents carried out operational works without all necessary development approvals – where the applicant alleges that the first and second respondents carried out building work without all necessary development approvals – where the development alleged to have been carried out was not particularised – whether the applicant should fail because of inadequate particulars – whether the applicant has demonstrated the commission of the alleged development offences

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders to restrain the commission of development offences that he alleges will be committed unless restrained – whether the applicant has demonstrated that the first and second respondents will commit the alleged development offences unless restrained

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – ENFORCEMENT PROCEEDING – whether the relief sought should be granted in the exercise of the Court’s discretion

LEGISLATION:

Building Act 1975 (Qld) ss 7, 12, 13, 30, 32, 33, 83, 84, 86, 132, 143, 256, sch 2

Building Regulation 2006 (Qld) s 10

City of Brisbane Act 2010 (Qld) ss 231, 232

Planning Act 2016 (Qld) ss 8, 29, 43, 44, 46, 48, 49, 51, 54, 55, 57, 83, 88, 104, 107, 161, 163, 164, 180, 333 sch 2

Planning and Environment Court Act 2016 (Qld) s 11

Planning and Environment Court Rules 2018 (Qld) r 8, 9

Planning Regulation 2017 (Qld) ss 20, 21, 22, 26, sch 6, sch 8, sch 9, sch 10

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, applied

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, applied

Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119, cited

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, applied

Australia Pacific LNG Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2020] QCA 15, cited

Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297, applied

Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, applied

Baevski v Gladstone Regional Council & Ors; Sea Breeze (Qld) Pty Ltd v Gladstone Regional Council & Ors [2009] QPEC 5; [2009] QPELR 533, cited

Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, applied

Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613, approved

Birkdale Flowers Pty Ltd v Wilson Four Pty Ltd & Anor [2016] QPEC 4; [2016] QPELR 231, cited

Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, approved

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied

Bundaberg Regional Council v Loeskow & Ors [2011] QPEC 95; [2012] QPELR 27, cited

Bundaberg Regional Council v Ross [2011] QPEC 137; [2012] QPELR 322, cited

BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34; (2019) 268 CLR 29, applied

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied

Council of City of the Gold Coast v McKean [2019] QPEC 28; [2019] QPELR 959, cited

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, applied

Di Marco v Brisbane City Council & Ors [2006] QPEC 35; [2006] QPELR 731, cited

Eschenko v Cummins & Ors [2000] QPELR 386, cited

Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, approved

Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, cited

Francis v Crime and Corruption Commission & Anor [2015] QCA 218, applied

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, applied

Gerhardt v Brisbane City Council [2016] QPEC 48; [2016] QPELR 900, cited

Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118; [2020] QPELR 286, applied

Massie & Ors v Brisbane City Council [2007] QCA 159, applied

Mentink v Registrar of Ships [2014] FCA 1138; (2014) 320 ALR 137, cited

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No. 6) [2015] FCA 825; (2016) 325 ALR 1, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, applied

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, cited

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, cited

Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541, applied

Minister for Immigration and Border Protection v SZVFW & Ors [2017] FCAFC 33; (2017) 248 FCR 1, cited

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, cited

MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17, considered

Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, applied

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485, distinguished

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, applied

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, applied

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied

QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186, cited

Re Tooth & Co Ltd [1978] FCA 10; (1978) 31 FLR 314, applied

Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, applied

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

Serratore & Anor v Noosa Shire Council [2021] QPEC 21, approved

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

Walker v Noosa Shire Council [1983] 2 Qd R 86, applied

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, applied

Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520, cited

Wheldon & Anor v Logan City Council & Anor [2015] QPEC 22; [2015] QPELR 640, cited

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

A N S Skoien and J R Moxon for the Applicant

S J Hedge for the First and Second Respondents

R Yuen for the Third Respondent

SOLICITORS:

Romans & Romans Lawyers for the Applicant

Thynne + Macartney for the First and Second Respondents

Brisbane City Legal Practice for the Third Respondent

TABLE OF CONTENTS

Overview8

What approvals have been obtained for the subject land?14

What does the Council building permit relate to?16

What does the first amenity referral agency response relate to?19

What does the first certifier building permit relate to?22

What does the siting variation referral agency response relate to?24

What does the second certifier building permit relate to?25

What does the exemption certificate relate to?26

What does the operational works permit relate to?27

What does the changed Council building permit relate to?27

What does the second amenity referral agency response relate to?28

What does the third certifier building permit relate to?29

What are the Prestons’ future intentions?30

What is Mr Baxter’s case?31

What are the relevant legal principles with respect to granting declaratory relief?32

What are the relevant legal principles that guide the review of the validity of the building permits and the exemption certificate?36

Is the second certifier building permit invalid?38

Was the application made to the wrong assessment manager?39

Did the construction of the pool, the deck and the rear stairs require assessment against City Plan?42

Did the matters in City Plan include matters other than the building assessment provisions?53

Did the matters in City Plan include matters other than the matters mentioned in sch 9, pt 3, div 2?55

Conclusion regarding whether the development application for the pool, the deck and the rear stairs was made to the wrong assessment manager60

Was there a relevant absence of other development approvals?60

Is the second certifier building permit inconsistent with the Council building permit?64

Are there discretionary considerations that inform whether the declaration should be made?66

Conclusion regarding Mr Baxter’s challenge to the validity of the second certifier building permit67

Is the exemption certificate invalid?67

What is the relevant legislative context?69

Is the exemption certificate invalid because of non-compliance with s 46(6) of the Planning Act 2016?72

Is the exemption certificate invalid because of the misdescription of the works?73

Is the exemption certificate invalid because the decision to issue it is impermissibly piecemeal?74

Is the exemption certificate invalid because of a failure to consider relevant matters?77

Was the decision one that no reasonable decision-maker could make?78

What are the relevant principles?79

What was the evidence about the Council’s decision?85

Has Mr Baxter established legal unreasonableness?86

Conclusion regarding Mr Baxter’s challenge to the validity of the exemption certificate90

Is the third certifier building permit invalid?90

What are the enforcement orders that are sought?91

What is the Court’s jurisdiction and powers with respect to enforcement orders?93

Have the Prestons and Graya Construction Pty Ltd committed development offences under s 163 of the Planning Act 2016?94

What must Mr Baxter prove?95

Is operational work for filling and excavation categorised as assessable development under City Plan?96

Is building work for the pool, the deck and the rear stairs categorised as assessable development under City Plan?96

Was there authorisation for the development?97

What are the particulars of the development offences that are alleged to have been committed?97

Are the particulars sufficient?100

What is the evidence of the earthworks that have commenced?103

Conclusion about whether the operational works permit was necessary105

Conclusion about whether a building works permit from the Council was necessary105

Conclusion regarding the alleged development offences105

Unless restrained, will the Prestons and Graya Construction Pty Ltd commit development offences under ss 163 and 164 of the Planning Act 2016?106

Should the declarations about the lawfulness of operational work yet to be carried out be made?107

Should the declarations about the lawfulness of building work yet to be carried out be made?112

Should the enforcement orders restraining the commission of development offences be made?114

Should the Prestons and Graya Construction pay Mr Baxter’s costs?115

Conclusion116

Attachment A117

Overview

  1. [1]
    This proceeding relates to a dispute between neighbours in Reading Street, Paddington.  Reading Street is a very steep street in which every house sits substantially higher than its downhill neighbour because of the grade of the land in the area.
  2. [2]
    The Applicant, Mr Steven Baxter, is the registered owner of land located at 11 Reading Street.  The grade of the land in the area is such that Mr Baxter can see down into the neighbouring property to the south of his land.  There is also significant grade from Reading Street to the rear boundary of Mr Baxter’s land, so Mr Baxter can also see down into the backyard and pool area of the property at 30 Wilden Street to the east.[1]  This extent of potential overlooking is not confined to Mr Baxter’s southern and eastern neighbours.  It is a feature of the locality.[2] 
  3. [3]
    Mr Baxter’s house does not enjoy the advantage of being located at the top of the hill.  Rather, Mr Baxter is the downhill neighbour to the residents of the property at 9 and 9A Reading Street (“the subject land”).  The subject land is owned by the First Respondents, Mr Anthony Preston and Mrs Kylie Preston (collectively referred to herein as “the Prestons”).  The subject land is downhill of the property to the Prestons’ north, which also fronts Reading Street.  The grade of Reading Street is so steep that the residents to the north of the Prestons (two houses to the north of Mr Baxter) can look down from their deck into Mr Baxter’s yard.[3] 
  4. [4]
    The context of the locality in which Mr Baxter lives, and the subject land is located, is one where built form consistently towers over the respective downhill neighbours, and combined retaining walls and balustrades more than three metres in height are clearly visible from the street.[4]
  5. [5]
    Although there is potential for the occupants of each house on the eastern side of Reading Street to overlook the adjoining properties to the south and the east, there is a matter of far greater attraction in the area.  It is the extensive, effectively uninterrupted, city views that are available to the east, which can be enjoyed together in combination with unfettered south-easterly breezes.[5] 
  6. [6]
    The design of Mr Baxter’s house takes advantage of this context.  It turns its least-fenestrated side to the subject land and orients itself towards the easterly outlook.[6]  
  7. [7]
    Until recently, the subject land was improved by a pre-1947 dwelling.  The backyard was terraced, with the higher land towards the northern boundary. 
  8. [8]
    The Prestons engaged experts to develop a design for the subject land that would reflect their overarching desires for its redevelopment.  They wanted to maintain the front façade and the traditional building character of the pre-1947 dwelling; provide equal sized bedrooms for each of their children; maximise their views of the city; maximise the extent of level backyard to allow their children to run around and to address Mrs Preston’s concerns about the risks to her children associated with flooding in the low terraces in the backyard; incorporate a pool; and incorporate a space that their children could socialise with a degree of privacy when they reach their teenage years.[7]
  9. [9]
    In February 2019, the Prestons began the process of applying for the development approvals they would need to redevelop the subject land.  They engaged the Second Respondent, Graya Construction Pty Ltd, to assist them in their endeavour. 
  1. [10]
    Between February 2019 and the end of October 2020, the Prestons sought multiple development approvals over the subject land.  Over that period, there were some changes to the proposed design.  The amendments were part of an iterative process between the Prestons and their consultants that was informed by communications between the Prestons’ consultants and Brisbane City Council (“the Council”) during the development application process.  Ultimately, the Prestons left it to their architect to develop a design that would give effect to their desired design outcomes to the extent that they could be achieved with approval by the Council.[8] 
  1. [11]
    Around August 2020, Mr Baxter learned about the proposal to change the pre-1947 dwelling on the subject land.  He engaged a town planner, Mr Catchlove, to prepare an objection to the proposed redevelopment on the basis that the proposed works would significantly reduce the amount of direct and indirect sunlight over his lawn and pool.  He also instructed his lawyers to issue a letter to the Council objecting to the development on the ground that, amongst other things, the natural light and ventilation to his property would be significantly affected.[9] 
  2. [12]
    In August, October, and November 2020, building permits were given by the Council and a private certifier under the Building Act 1975 (Qld), Mr Gareth Martin of 3 Codes: Building Certification (“the private certifier”).  As the development applications for each of the building permits only required code assessment, Mr Baxter had no right of appeal with respect to the grant of those development approvals. 
  3. [13]
    Construction on the subject land commenced around November 2020.[10]  By that time, the Prestons had the benefit of what they understood to be, and what I am satisfied were,[11] the necessary development approvals under the Planning Act 2016 (Qld) and the Building Act 1975
  4. [14]
    On 18 November 2020, Mr Catchlove wrote to the Council on Mr Baxter’s behalf alleging that there was unlawful development occurring on the subject land.  The unlawful development was said to be filling and excavation that would require an operational works permit.
  5. [15]
    On 11 March 2021, the Prestons made a development application to the Council seeking a development permit for operational work.  The development application records that it was made on the advice of Ms Rattansay, Built Environment Officer with the Compliance and Regulatory Service Branch of the Council.[12]
  6. [16]
    On 21 April 2021, at an ex parte hearing, Mr Baxter sought the leave of the Court to file the Originating Application that commenced this proceeding.  In the Originating Application, Mr Baxter alleges that the Prestons were committing a development offence by commencing development without all necessary development approvals. 
  7. [17]
    The development that is alleged to have commenced unlawfully was:
    1. (a)
      filling and excavation for which no operational works permit had been obtained; and
    2. (b)
      building work associated with the construction of a swimming pool and associated support structures at the rear of the dwelling (“the pool”), a deck between the rear of the dwelling and the eastern and southern boundaries (“the deck”) and stairs adjacent the deck (“the rear stairs”).  Mr Baxter alleges that this building work required development approval from the Council, not just the private certifier. 
  8. [18]
    The purpose of the proceeding was to obtain enforcement orders restraining the Prestons, and Graya Construction Pty Ltd, from carrying out development unless and until all necessary development approvals were obtained. 
  9. [19]
    His Honour Judge Everson granted Mr Baxter leave to file the Originating Application.  His Honour went on to make an ex parte interim enforcement order that same day.  The ambit of the order was expansive.  It required the Prestons and Graya Construction Pty Ltd to cease those works involving filling, excavation, and the construction of retaining walls, and the construction of the pool, the deck and the rear stairs.  The order enjoined them from resuming those works.  No undertaking as to damages was given by Mr Baxter to secure this outcome. 
  10. [20]
    After the proceeding was commenced, the Council gave an operational works permit that authorised the filling and excavation the subject of Mr Baxter’s complaint.  On 7 June 2021, the Council gave an exemption certificate under s 46 of the Planning Act 2016, obviating the need for the Prestons to obtain a building permit from it in relation to the pool.  Mr Baxter responded by amending his proceeding to raise new and further allegations.
  1. [21]
    As with the earlier allegations of impropriety, the Prestons sought to address the allegations by seeking, and obtaining, further development approvals.  They did so even though, in my view, the additional development approvals[13] and the exemption certificate were not required.[14]  On each occasion, Mr Baxter responded by further amending his proceeding. 
  2. [22]
    By the conclusion of the hearing, Mr Baxter had amended his proceeding several times, including twice during the three-day hearing.  In the face of the many approvals obtained by the Prestons, in his Third Further Amended Originating Application Mr Baxter deploys allegations of invalidity, throwing the term around like confetti at a wedding. 
  3. [23]
    Mr Baxter challenges the lawfulness of works that he alleges have been carried out on the subject land.  He seeks enforcement orders that would require the Prestons and Graya Construction Pty Ltd to stop the redevelopment of the subject land and to return parts of it to the condition that it was in prior to the redevelopment, unless and until valid development approvals are obtained.  Mr Baxter also challenges the validity of the exemption certificate given by the Council and the validity of two of the development approvals given by the private certifier. 
  4. [24]
    Mr Baxter has the onus of demonstrating that the relief he seeks should be granted.  This is a herculean task.[15]  That is evident from considering the nature of just one of the declarations sought.  Mr Baxter seeks a declaration that the exemption certificate is invalid because the Council failed to consider relevant considerations when exercising a discretionary statutory power and the decision was one that no reasonable decision-maker could make.  That declaration is sought in circumstances where there are no prescribed mandatory considerations in the legislation. 
  5. [25]
    Mr Baxter’s task is made none the easier by the form of the declarations that he has chosen to seek.  Some of the declarations are unattractively expressed.  They are more than a page in length, contain multiple allegations that are expressed in cumulative terms, and include statements that are non-sensical.[16] 
  6. [26]
    Against that background, it must be remembered that the relief that Mr Baxter seeks is discretionary.  Even if Mr Baxter establishes all his allegations about unlawful works and invalid decision-making, the Court must still ask itself whether, in the exercise of the discretion, the declarations and orders should be made.  Here, that question is to be answered in a context where there are many discretionary considerations that militate against the grant of the relief.  They include the following eight considerations.
  1. [27]
    First, the documents, on their face, authorise the activities carried out to date on the subject land and the Prestons’ proposed redevelopment of the subject land.
  2. [28]
    Second, the breaches of the law, assuming they were made out, were not the product of a wilful and contumelious disregard of the law.  To the contrary, the Prestons relied on the expertise of others.  It was reasonable for them to do so.
  3. [29]
    Third, the extent of deficiencies now alleged are technical in nature.[17]  Even if the allegations were correct, they are such that they are unnoticeable other than to a person well-versed in the legal quagmire that is the regulation of building work under the Planning Act 2016 and the Building Act 1975 and the sub-ordinate legislation and statutory instruments that they bring into play.[18]
  4. [30]
    Fourth, the Prestons, through their conduct and through the direct testimony of Mrs Preston, have demonstrated a commitment to obtaining all necessary development approvals or exemptions to authorise any development undertaken on the subject land.  They have also demonstrated a commitment to acting in accordance with the development approvals so obtained.
  1. [31]
    Fifth, even if Mr Baxter was correct about the need for an operational works permit and authorisation from the Council with respect to the construction of the pool, by 13 July 2021 the Prestons had the additional authorisations from the Council.  Despite that, they were still restrained from progressing the redevelopment of the subject land. 
  2. [32]
    As I have already noted, on 21 April 2021, His Honour Judge Everson made an ex parte interim enforcement order that required the Prestons and Graya Construction Pty Ltd to cease those works involving filling, excavation, and the construction of retaining walls, and the construction of the pool.  The order enjoined them from resuming those works.  The interim enforcement order was expressed to continue until final determination of this proceeding.  As such, it impeded the Prestons’ ability to proceed with development for which they had extant development approvals.  No undertaking as to damages was given by Mr Baxter. 
  3. [33]
    The interim enforcement order was only cancelled on 8 October 2021 when I determined an application that was returnable on the final day of the hearing.  Even then, the order was only cancelled after Mr Baxter failed in his unmeritorious oral application to adjourn the application, and after he spent considerable time advancing unmeritorious arguments resisting the cancellation. 
  1. [34]
    In those circumstances, the Prestons have been more than appropriately punished for the alleged unlawful conduct.  They were restrained from undertaking work from 13 July 2021 to 8 October 2021 even though during that period they had all necessary development permits and the additional authorisations that Mr Baxter alleged were required.  The Prestons and Graya Construction Pty Ltd have suffered significant inconvenience, building delays and costs.[19]  The cost and inconvenience serves as ample reminder of the importance of complying with planning laws. 
  2. [35]
    Sixth, the application was not brought by the Council as the proper guardian of public rights but by a private individual who feels aggrieved by decisions made by the Council and the private certifier about which he has no right to institute a review on the merits.[20]
  3. [36]
    Seventh, having regard to the evidence of Mr Powell, which I accept,[21] I am satisfied that there will be no unacceptable impacts occasioned by the development contemplated by the extant development approvals and the exemption certificate.  The design of the dwelling and outdoor living areas shown in the approved plans utilises an L-shape configuration that enables its residents to enjoy spectacular easterly views while capturing elevated south-easterly breezes.  The adjoining properties to the north and south of the subject land, including Mr Baxter’s, adopt a similar L-shape development form.[22]  Mr Baxter’s residence and the residence to the east both turn away from the subject land and instead orient themselves toward the east.
  4. [37]
    The retaining wall that retains the fill about which Mr Baxter complains will not be of sufficient size to interfere with the breeze to any neighbouring property.  The development will produce a negligible increase in shadowing over Mr Baxter’s land.  Further, given the landscaping that the Prestons propose, there will be a limited impact on visual amenity for the neighbours.  The impact is one that is within reasonable expectations given the context in which the proposed development will sit.
  5. [38]
    Finally, there is no apparent public interest to be served in requiring the Prestons to make yet further development applications to the Council and the private certifier.  To the extent that I am incorrect in my assessment of the matters of statutory construction, the resultant deficiencies relate to matters of form, not substance.  Further, even if the correction of the alleged deficiencies resulted in the Prestons being denied the ability to proceed with the pool, this would not be likely to result in a materially different outcome for Mr Baxter.  The potential impacts on character, sunlight, and privacy about which Mr Baxter is concerned[23] are a by-product of the location where he lives.  A degree of impact, such as that occasioned by the proposed development, is within reasonable expectations.  The impacts are not unacceptably exacerbated by the aspects of the proposed development about which Mr Baxter complains.[24] 
  6. [39]
    Ultimately, even assuming Mr Baxter were able to establish the factual and legal foundation for each of the declarations and orders he seeks, I am of the view that the discretionary considerations weigh strongly against the grant of the relief.  Mr Baxter’s position is compounded by the lack of merit to his allegations.  As such, for the reasons detailed below, I am more than comfortably satisfied that his application should be dismissed.

What approvals have been obtained for the subject land?

  1. [40]
    There are parts of the building work that the Prestons seek to undertake that were assessable under Brisbane City Plan 2014 (“City Plan”)[25], and for which the Council was the assessment manager.  There are also parts of the building work that were assessable against the building assessment provisions under the Building Act 1975.  The private certifier was the assessment manager for those aspects of the building work assessable under the Building Act 1975, and the Council was a referral agency for them. 
  2. [41]
    Under s 48 of the Planning Act 2016, there can be a different assessment manager for different aspects of development.  The legislation provides the following example:

“For building work that must be assessed against the building assessment provisions and is assessable development under a local government’s planning scheme, a regulation may prescribe that—

  1. (a)
    a private certifier is the assessment manager for a development application for the part of the building work that must be assessed against the building assessment provisions; and
  1. (b)
    the local government is the assessment manager for a development application for the part of the building work that is assessable development under the planning scheme.”
  1. [42]
    In those circumstances, it is unremarkable that Graya Construction Pty Ltd made applications to the Council for some aspects of the building work and to the private certifier for other aspects.
  2. [43]
    The resultant approvals and decisions made by the Council and the private certifier in relation to the proposed redevelopment of the subject land are:
    1. (a)
      a development permit for building work with respect to application reference number A005140139 dated 6 August 2020 that was given by the Council (“the Council building permit”);[26]
    2. (b)
      an early concurrence agency response under s 57 of the Planning Act 2016 with respect to application reference number A005140139 dated 6 August 2020 that was given by the Council (“the first amenity referral agency response”);[27]
    3. (c)
      a development permit for building work dated 23 October 2020 that was given by the private certifier (“the first certifier building permit”);[28]
    4. (d)
      a referral agency response dated 29 October 2020 that was given by the Council in relation to siting variations (“the siting variation referral agency response”);[29]
    5. (e)
      a “Notice of Decision on Change Application to a Development Approval” dated 19 November 2020 that was given by the private certifier (“the second certifier building permit”);[30]
    6. (f)
      an exemption certificate under s 46 of the Planning Act 2016 dated 7 June 2021 that was given by the Council (“the exemption certificate”);[31]
    7. (g)
      a development permit for operational works dated 13 July 2021 that was given by the Council (“the operational works permit”);[32]
    8. (h)
      a decision of the Council to change the Council building permit under s 83 of the Planning Act 2016 dated 1 October 2021 (“the changed Council building permit”);[33]
    9. (i)
      an early concurrence agency response under s 57 of the Planning Act 2016 with respect to application reference number A005805245 dated 1 October 2021 that was given by the Council (“the second amenity referral agency response”);[34] and
    10. (j)
      a development permit for building work dated 5 October 2021 that was given by the private certifier (“the third certifier building permit”).[35]
  3. [44]
    Before considering the allegations made by Mr Baxter, it is convenient to provide further details about the development approvals obtained.

What does the Council building permit relate to?

  1. [45]
    Pursuant to s 44 of the Planning Act 2016, two aspects of the building work associated with the partial demolition and extensions of the dwelling were categorised as assessable development under City Plan.  The Council was the assessment manager for those aspects of the building work.[36]  The relevant categorisations and assessment benchmarks in City Plan were as follows:

Table 5.10.21–Traditional building character overlay

Development

Categories of development and assessment

Assessment benchmarks

Building work

Building work if involving demolition of:

b. the components of a building constructed in 1946 or earlier forward of a point which is the highest and rearmost part of the roof; …[and]

d. where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay

Assessable development–Code assessment

-

Note–If the development is impact assessable in the zone or neighbourhood plan, then the category of assessment is not lowered to code assessment.

Traditional building character (demolition) overlay code–purpose, overall outcomes and outcomes in sections A and B

Building work involving a dual occupancy, dwelling house, multiple dwelling, retirement facility, rooming accommodation or short-term accommodation where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay

Assessable development–Code assessment

-

Note–If the development is impact assessable in the zone or neighbourhood plan, then the category of assessment is not lowered to code assessment.

Traditional building character (design) overlay code”

  1. [46]
    Pursuant to Table 5.9.31.C of City Plan, building work that is assessable development on land in the Ithaca district neighbourhood plan area is assessable against the Ithaca district neighbourhood plan code.
  2. [47]
    The decision notice for the Council building permit records that the development permit relates to the partial demolition of, and extensions to, a dwelling house in the Traditional building character overlay. 
  3. [48]
    There are 13 plans that form part of the Council building permit.  One depicts the floor plan and elevations of the existing dwelling and indicates the extent of the dwelling that is to be demolished.  Others show the floor plans for each level of the proposed renovated dwelling, and the roof plan and elevations and sections that depict details of the proposed renovations.  There is also a proposed site plan.
  4. [49]
    The approved plans contain the following notation made in red by the Council:

Standard Building Regulations

This approval does not include assessment against the siting requirements of the Queensland Development Code.  Should the approved development require a siting variation against the Queensland Development Code, an application for a Siting Variation must be submitted for the approval of Brisbane City Council – Development Services.

Note.  This development approval does not commit to an approval of any siting variation shown on the approved drawings.”

  1. [50]
    The siting variation issue was addressed in the siting variation referral agency response referred to in paragraphs [72] to [77] below.
  2. [51]
    The approved plans also include a notation made in red by the Council that states:

“Earthworks not incidental to Building Work do not form part of this approval.  Any cut, fill, or retaining structure exceeding 1.0 vertical metre may require a separate Operational Works application.”

(emphasis added)

  1. [52]
    The extent of development approved by the Council building permit and notified to be acceptable in the first amenity referral agency response is informed by an appreciation of the definitions of building work and operational work in the Planning Act 2016.  They are:

building work

  1. (a)
    means–
  1. (i)
    building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or

Example

building a retaining wall

  1. (ii)
    works regulated under the building assessment provisions; or
  1. (iii)
    excavating or filling for, or incidental to, the activities stated in subparagraph (i); or
  1. (iv)
    excavating or filling that may adversely affect the stability of a building or other structure, whether on the premises on which the building or other structure is situated or on adjacent premises; or
  1. (v)
    supporting (vertically or laterally) premises for activities stated in subparagraph (i);

operational work means work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises.”

(emphasis added)

  1. [53]
    It is apparent from the approved plans that the extension to the dwelling is to be built utilising a slab-on-ground construction method.[37]  Given the steeply sloping nature of the backyard, this is to be achieved by constructing several retaining walls in the backyard and placing fill behind those retaining walls to create a level fill platform. 
  2. [54]
    The proposed retaining walls are not immediately beneath the outer limit of the built form of the dwelling.  Rather, they are offset from the edge of the building such that the aerial extent of the level fill platform is greater than the building footprint.  There is additional fill between the retaining walls and the fill platform directly beneath the footprint of the dwelling.  That area is a level backyard that adjoins the southern and eastern extents of the built form, adjacent the outdoor dining area.  It is described on the plans as “YARD 12.7m x 8.1m”.  The 12.7 metre dimension is the dimension of the backyard from east to west.  Towards the eastern extent of the backyard but within the 12.7 metre east-west dimension, the plans show three terraced gardens, with consequent stepping to the height of the southern retaining wall at its eastern end.
  3. [55]
    The consequence of that design is that the structural support for the dwelling is provided by the combined effect of the fill directly beneath the footprint, the southern and eastern retaining walls, and the fill that creates the level backyard.  Absent the fill in the location of the backyard, there is no means of retaining the fill that is to be placed directly beneath the building platform.
  4. [56]
    In the circumstances, I am satisfied that the notation about earthworks on the approved plans does not relate to the excavation and filling that will create the level pad on which the dwelling is to be constructed, nor the excavation and filling that will create the area of level backyard that adjoins the southern and eastern extents of the built form.  That development is properly characterised as building work.  It is excavating or filling for, or incidental to, the building of the extensions to the dwelling.  It is part of the building work approved by the Council building permit.
  5. [57]
    The decision notice records that a further development permit is required to carry out the building work the subject of the development permit.  This reflects that the Council’s assessment of the building work relates only to those aspects of building work made assessable pursuant to the categorisation in City Plan referred to in paragraph [45] above.[38] 
  6. [58]
    Mr Baxter does not challenge the validity of the Council building permit.

What does the first amenity referral agency response relate to?

  1. [59]
    In addition to those aspects of the building work that were assessable by the Council under City Plan,[39] there were aspects of the building work for which the private certifier was the assessment manager.[40]  The Council was a referral agency for two aspects of the work for which the private certifier was the assessment manager. 
  2. [60]
    The first referral agency jurisdiction of the Council related to the amenity and aesthetic impact of the proposed building work.  Pursuant to s 54 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 1 of the Planning Regulation 2017 (Qld), City Plan contains a declaration that the following building work requires referral to the Council:

1.7.4 Declaration for amenity and aesthetic impact referral agency assessment

For the purposes of Schedule 9, Division 2, Table 1 of the Regulation, building work for a building or structure which is a single detached class 1(a)(i) building, class 1(a)(ii) building comprising not more than 2 attached dwellings or a class 10 building or structure in a locality identified in Table 1.7.4 that does not comply with the acceptable outcomes in the codes identified in Table 1.7.4, is declared to:

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

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

Table 1.7.4–Declared locality and building form for amenity and aesthetic referral agency assessment

Locality

Codes

Land in the following zones:

a. Rural zone

b. Rural residential zone

c. Environmental management zone

d. Low density residential zone

e. Character residential zone and zone precincts

f. Low-medium density residential zone and zone precincts

g. Medium density residential zone

h. Emerging community zone

Dwelling house code

Dwelling house (small lot) code

Land in the Traditional building character overlay

Traditional building character (design) overlay code

Land in a neighbourhood plan area

A relevant neighbourhood plan code to the extent provided”

  1. [61]
    The subject land is in the Low-medium density residential zone.  It is also in the Traditional building character overlay and in the Hillside character precinct of the Ithaca district neighbourhood plan area.  The proposed building work did not comply with all the acceptable outcomes in the Dwelling house code, the Dwelling house (small lot) code,[41] the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code.  As such, that part of the building work that was assessable by the private certifier against the building assessment provisions also required assessment by the Council as a referral agency in relation to its amenity and aesthetic impact.[42]
  2. [62]
    The Council’s referral agency assessment with respect to amenity and aesthetics was required to be carried out against the Dwelling house code, the Dwelling house (small lot) code,[43] the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code.[44]
  3. [63]
    The relevant criteria for the Council’s referral agency assessment included performance outcome PO24 and acceptable outcomes AO24.1 and AO24.2 of the Ithaca district neighbourhood plan code.  They state:

Performance outcomes

Acceptable outcomes

If in the Hillside character precinct (Ithaca district neighbourhood plan/NPP-008)

Landscape character, physical setting and topography

PO24

Development, including buildings or other structures, driveways and hard-stand areas, must be designed and sited to minimise cut-and-fill on the site and to soften visual impact.

AO24.1

Development incorporates:

a. foundation systems that minimise disturbance to the landscape, such as post-and-pier type foundations;

b. slab-on-ground foundations only on those parts of a site with gradients less than 1 in 8 and where cut and fill is minimal;

c. benching, cut and fill, or construction of retaining walls of a minor nature only (i.e. fill does not exceed 1m and/or the combined height of any retaining wall and fence does not exceed 2m) and is designed so it is not noticeable after construction has been completed;

d. driveways and hardstand areas only on those parts of a site with gradients less than 1 in 4.

AO24.2

Development provides retaining walls that are set back from any boundary and are stepped, terraced and landscaped.”

  1. [64]
    On 6 August 2020, the Council gave the first amenity referral agency response.  It was an early referral agency response.[45]  The first amenity referral agency response states:

“This is an early referral agency response for amenity and aesthetic impact of particular building work (Schedule 9, Part 3, Division 2, Table 1 of the Planning Regulation 2017).  This advice is to be provided to the Building Certifier issuing the development permit for carrying out building work.

This advice has been triggered due to non-compliance with acceptable outcome/s of codes identified in Table 1.7.4 of the Brisbane City Plan 2014.

It has been determined that the proposed building will not:

  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.

where the proposed building work complies with the requirements set out in the decision notice for Council development approved (sic) A005140139 (this includes the approved drawings, conditions and accepted development subject to compliance with identified requirements).

Advisory Notes

This response does not constitute an approval to start building work.  A development permit to begin construction of the proposed building work must be obtained from an appropriately licensed Building Certifier.

No further referral agency response (amenity and aesthetics) is required for the building work development permit.

Any variation to the proposal will require a new request for a referral agency response and the applicable fees to be submitted for assessment by Council.”

  1. [65]
    Mr Baxter does not challenge the validity of the first amenity referral agency response.

What does the first certifier building permit relate to?

  1. [66]
    As I have already mentioned, City Plan was not the only statutory instrument under which the proposed building work was categorised as assessable development.  It was also assessable development pursuant to s 44 of the Planning Act 2016 and s 20 and sch 9, pt 1, s 1 of the Planning Regulation 2017.  The private certifier was the assessment manager for this part of the building work.[46]  The relevant assessment benchmarks were the building assessment provisions.[47]
  2. [67]
    The building assessment provisions are the laws and other documents specified in s 30 of the Building Act 1975, namely:

“(a) chapter 3 and this chapter[48];

  1. (b)
    the fire safety standard;
  1. (c)
    the fire safety standard (RCB);
  1. (d)
    any provisions of a regulation made under this Act relating to building assessment work[49] or accepted building work;
  1. (e)
    any relevant local law, local planning instrument[50] or resolution made under section 32 or any relevant provision under section 33;
  1. (f)
    the BCA;[51]
  1. (g)
    subject to section 33, the QDC.[52]
  1. [68]
    On or about 25 August 2020, the Council received notice under s 143 of the Building Act 1975 that the private certifier had been engaged under the Building Act 1975 with respect to building work proposed on the subject land.[53]  The proposed building work was described as:

“Class

Building Work Description

1a

Alterations

to existing Dwelling – raise, relocate, build under, internal alterations and extension

10b

New Construction

of Swimming Pool

10b

New Construction

of Swimming Pool Fence

10b

New Construction

of Retaining Walls

10b

New Construction

of Fences”

  1. [69]
    On 23 October 2020, the private certifier gave the first certifier building permit.  The conditions of the first certifier building permit include:

Local Authority Planning Scheme Approvals

1 Building work to comply with the Local Authority Town Planning Approval, Ref. A005140139 dated 06 August 2020.

Application Specific

1 APPROVAL LIMITATIONS – This building development approval is limited to the proposed complete demolition of the existing carport and proposed partial demolition of the existing dwelling only.  No other building work is to occur.”

  1. [70]
    As is apparent from these conditions, the partial demolition of the existing dwelling was the only component of the application made to the private certifier that was approved in the first certifier building permit.
  2. [71]
    Mr Baxter does not challenge the validity of the first certifier building permit.

What does the siting variation referral agency response relate to?

  1. [72]
    Pursuant to s 54 of the Planning Act 2016, s 22 and sch 9, pt 3, div 2, table 3 of the Planning Regulation 2017, and s 1.6 4.b. and Table 1.6.2, items 2 and 3 of City Plan, that part of the building work that was assessable by the private certifier against the building assessment provisions also required assessment by the Council as a referral agency in relation to its design and siting. 
  2. [73]
    On 17 September 2020, the Council received a request for a referral agency response in relation to a siting variation proposed for the building work on the subject land.  The application for the siting variation sought approval for:
    1. (a)
      a southern boundary setback to the dwelling of 2 metres, rather than the 2.5 metres stipulated in the Queensland Development Code;
    2. (b)
      a rear boundary setback to the deck and roof of 1.25 metres, rather than the 2 metres stipulated in the Queensland Development Code;
    3. (c)
      a rear boundary setback to the rear stairs of 0.159 metres, rather than the 1.5 metres stipulated in the Queensland Development Code;
    4. (d)
      no northern side boundary setback to the roof structure over the deck (i.e. built to boundary), rather than the 2 metres stipulated in the Queensland Development Code;
    5. (e)
      a northern boundary setback to the dwelling extension of 1.081 and 1.45 metres, rather than the 1.5 and 2 metres respectively stipulated in the Queensland Development Code;
    6. (f)
      a southern boundary blockwork wall height of 3.18 metres, rather than the 2 metres stipulated in the Queensland Development Code; and
    7. (g)
      a northern boundary retaining wall and fence height of 5.4 metres, rather than the 2 metres stipulated in the Queensland Development Code.
  3. [74]
    In response to an information request, Graya Construction Pty Ltd amended the application.  The variation sought was for a southern boundary blockwork wall height of 2.25 metres, rather than the 2 metres stipulated in the Queensland Development Code.  The wall had a maximum length of 3.55 metres. 
  4. [75]
    The matters that the Council’s referral agency assessment with respect to design and siting was required to be carried out against included, relevantly:[54]
    1. (a)
      performance outcomes PO2, PO3 and PO6 and acceptable outcomes AO2, AO3 and AO6 of the Dwelling house code;
    2. (b)
      performance outcomes PO2, PO3, PO4, PO5, PO6, PO7, PO8, PO9, PO12, PO14 and acceptable outcomes AO2, AO3, AO4, AO5, AO6, AO7, AO8, AO9.1, AO9.2, AO12.1, AO14.1, AO14.2, AO14.3 of the Dwelling house (small lot) code;[55]
    3. (c)
      performance outcome PO1 and acceptable outcome AO1 of the Ithaca district neighbourhood plan code; and
    4. (d)
      performance outcomes PO1 and PO2 and acceptable outcomes AO1.2 and AO2.1 of the Traditional building character (design) overlay code.
  5. [76]
    By letter dated 29 October 2020, the Council notified the private certifier of its decision to approve the siting variation and gave the certifier a copy of its siting variation referral agency response.  The letter records that the Council assessed the application against the relevant mandatory part of the Queensland Development Code and found it to be compliant with the Queensland Development Code design and siting standard. 
  6. [77]
    Mr Baxter does not challenge the validity of the siting variation referral agency response.

What does the second certifier building permit relate to?

  1. [78]
    In a document titled “Notice of Decision on Change Application to a Development Approval” and dated 19 November 2020, the private certifier gave the second certifier building permit.  It was expressed as an approval to a request to change the first certifier building permit.  The changes are described as “Inclusion of all remaining building work”. 
  2. [79]
    The second certifier building permit is subject to conditions.  They include:

Local Authority Planning Scheme Approvals

1 Building work to comply with the Local Authority Town Planning Approval, Ref. A005140139 dated 06 August 2020.

Application Specific

2 AMENDMENT – All building work the subject of the building development application is now approved and included in this building development approval.”

  1. [80]
    A comparison of the approved plans that form part of the second certifier building permit to those that form part of the Council building permit reveals that there are some differences in the southern and eastern retaining walls and to the area of fill in the backyard that provides lateral support to the fill beneath the slab for the extension to the dwelling.  The eastern extent of the backyard that was shown to contain three terraced gardens in the Council building permit is depicted as part of the level backyard in the second certifier building permit.  Immediately adjacent the eastern extent of that area, the second certifier building permit plans show the deck, the pool, and the rear stairs.  The deck and the pool are depicted as level with the backyard.  They are supported in their elevated position by post-and-pier style blockwork foundations.  The deck, the pool, and the rear stairs, and the structures that support them, do not appear in the approved plans that form part of the Council building permit.  They are part of the building works with which Mr Baxter takes issue.
  2. [81]
    As a referral agency, the Council assessed the siting and design of those aspects of the building work shown on the approved plans that form part of the second certifier building permit.  They included the pool, the deck, the rear stairs, and all associated supporting structures.  The result of the Council’s assessment of that building work is the siting variation referral agency response referred to in paragraphs [72] to [77] above, which Mr Baxter does not challenge.
  3. [82]
    Mr Baxter challenges the validity of the second certifier building permit.

What does the exemption certificate relate to?

  1. [83]
    Section 46(1) of the Planning Act 2016 provides that a development approval is not required for assessable development on premises if there is an exemption certificate for the development.
  2. [84]
    On 7 June 2021, the Council gave the Prestons an exemption certificate under s 46 of the Planning Act 2016 in respect of the pool proposed on the subject land.  The exemption certificate comprises 15 pages. 
  3. [85]
    On the first page, the exemption certificate describes the development to which it relates as “Swimming pool part above ground pool due to grade of land”.  Under a heading “When development must be started or completed”, the exemption certificate states that “Development stated in this exemption certificate must be completed by 7 June 2023”.
  4. [86]
    The balance of the exemption certificate comprises 14 plans that are annotated with a red stamp stating:

“APPROVED PLAN ONLY REFERS TO:

Exemption Certificate

(Planning Act 2016 s 46)

Dated: 7 June 2021”

  1. [87]
    The plans depict the pool, the shell of which is elevated above natural ground level.  The top edge of the pool is generally level with the proposed elevated backyard.  It is supported in its elevated position by post-and-pier blockwork foundations, which foundations penetrate the natural ground level.
  2. [88]
    Mr Baxter challenges the validity of the exemption certificate.

What does the operational works permit relate to?

  1. [89]
    On 13 July 2021, the Council gave a development permit for operational works in relation to filling and excavation on the subject land.  Condition 3 of the operational works permit requires all earthworks to be carried out in accordance with the approved earthworks plans. 
  2. [90]
    The approved plans depict areas of cut in yellow and areas of fill in green.  The coloured areas cover almost the entire subject land, including areas underneath the footprint of the dwelling and in the location of the proposed elevated backyard. 
  3. [91]
    The plans show the backyard pad with a finished level of RL 48.04.  The backyard pad is flanked to the east by a lower garden, with a finished level of RL 47.09.  Along the southern edge of the backyard pad is a garden with a finished level of RL 47.04 and a lower garden with a finished level of RL 46.09.
  4. [92]
    Mr Baxter does not challenge the validity of the operational works permit.

What does the changed Council building permit relate to?

  1. [93]
    On 1 October 2021, the Council approved a change to the Council building permit under s 83 of the Planning Act 2016.  The changes approved by the Council related to the building design, such as alterations to the roof profile and pitch of the extension.  The changed Council building permit was subject to conditions with respect to the proposed extension and conditions with respect to the partial demolition. 
  2. [94]
    Condition 2 (for the extension) and condition 21 (for the partial demolition) require the approved development to be carried out generally in accordance with the approved drawings and documents.  Condition 3 (for the extension) and condition 22 (for the partial demolition) require all building work associated with the development approval to be carried out generally in accordance with the approved drawings and documents.  This includes the construction of retaining walls and filling and excavation that is for, or incidental to, the building work for the extension to the dwelling.  Conditions 7 and 9 (for the extension) contain requirements with respect to those matters.
  3. [95]
    Condition 11 (for the extension) and condition 27 (for the partial demolition) state:

Further Development Permit required

This Development Approval to carry out building work made assessable under the planning scheme for Brisbane does not include an assessment of building work against the requirements of the Building Act and does not permit building work to occur unless, prior to the commencement of any building work, a Development Permit(s) to carry out assessable building work under the Building Act has been issued.”

  1. [96]
    As with the Council building permit, this condition reflects that the changed Council building permit relates only to those aspects of building work made assessable pursuant to the categorisation in City Plan referred to in paragraph [45] above. 
  2. [97]
    There are 13 approved plans that form part of the changed Council building permit.  The approved plans depict works approved under the operational works permit and building work that is the subject of the exemption certificate.  A notation made in red on the approved plans states:

“The swimming pool, pool deck and earthworks/retaining walls where not incidental to the Building Work do not form part of this approval.  Refer to Operational Work approval (ref: A005685671) and Exemption Certificate (ref: A005728128) for more information.”

  1. [98]
    The approved plans also include a notation in red in similar terms to the notation referred to in paragraph [51] above.
  2. [99]
    My findings in paragraphs [53] to [56] above regarding the construction method to be adopted, the location of retaining walls, and the extent of filling and excavation that is part of the building work approved by the decision are equally applicable to the changed Council building permit. 
  3. [100]
    Mr Baxter does not challenge the validity of the changed Council building permit.

What does the second amenity referral agency response relate to?

  1. [101]
    On 1 October 2021, the Council gave the second amenity referral agency response.  It was issued with the changed Council building permit.  The response was an early concurrence agency response under s 57 of the Planning Act 2016.  It relates to the Council’s amenity and aesthetic impact referral agency jurisdiction.
  2. [102]
    The second amenity referral agency response states:

“This is an early referral agency response for amenity and aesthetic impact of particular building work (Schedule 9, Part 3, Division 2, Table 1 of the Planning Regulation 2017).  This advice is to be provided to the Building Certifier issuing the development permit for carrying out building work.

This advice has been triggered due to non-compliance with acceptable outcome/s of codes identified in Table 1.7.4 of the Brisbane City Plan 2014.

It has been determined that the proposed building will not:

  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.

where the proposed building work complies with the requirements set out in the decision notice for Council development approved (sic) A005805245 (this includes the approved drawings, conditions and accepted development subject to compliance with identified requirements).

Advisory Notes

This response does not constitute an approval to start building work.  A development permit to begin construction of the proposed building work must be obtained from an appropriately licensed Building Certifier.

No further referral agency response for amenity and aesthetics is required under the Brisbane City Plan 2014 for the building work development permit.

Any variation to the proposal will require a new request for a referral agency response and the applicable fees to be submitted for assessment by Council.”

  1. [103]
    Mr Baxter does not challenge the validity of the second amenity referral agency response.

What does the third certifier building permit relate to?

  1. [104]
    On 5 October 2021, the private certifier gave the third certifier building permit.  It relates to those aspects of the building work that were categorised as assessable development pursuant to s 44 of the Planning Act 2016 and s 20 and sch 9, pt 1, s 1 of the Planning Regulation 2017 for which the private certifier was the assessment manager. 
  2. [105]
    The third certifier building permit describes the approved building work as:

Building class

Building Work Description

1a

Alterations to existing Dwelling – raise, relocate, build under, internal alterations and extension

10b

New Construction of Swimming Pool

10b

New Construction of Swimming Pool Fence

10b

New Construction of Retaining Walls

10b

New Construction of Fences

  1. [106]
    The approved plans that form part of the third certifier building permit depict development that is generally in accordance with the development depicted in the operational works permit and the changed Council building permit.
  2. [107]
    Mr Baxter challenges the validity of the third certifier building permit.

What are the Prestons’ future intentions?

  1. [108]
    Mrs Preston gave evidence that, now the interim enforcement order has been cancelled, she intends to instruct her builder to carry out development in accordance with the most recent development approvals that have been obtained over the subject land.[56]  They are the operational works permit, the changed Council building permit, and the third certifier building permit.
  2. [109]
    In general terms, the development approvals now in place approve development that comprises:
    1. (a)
      demolition of part of the pre-1947 dwelling;
    2. (b)
      construction of an extension to the dwelling using a slab-on-ground construction method;
    3. (c)
      the excavation and filling beneath the dwelling to create the level pad on which the slab for the dwelling is to be constructed (“the filling beneath the dwelling slab”);
    4. (d)
      filling to the south and east of the dwelling footprint to create, in part, a level backyard adjacent the ground floor of the dwelling at a height greater than the natural ground level (“the filling for the backyard”);
    5. (e)
      construction of walls along the western half of the southern boundary of the subject land, which walls form part of the structure of the dwelling;
    6. (f)
      construction of retaining walls proximate the southern and eastern boundaries of the subject land, which walls (together with the filling for the backyard) provide lateral support for the filling beneath the dwelling slab (“the retaining walls”);
    7. (g)
      construction of the deck.  The deck is shown at the same level as the ground floor of the dwelling.  It is to be constructed using a post-and-pier foundation.  It is located immediately adjacent to the eastern extent of the dwelling.  It extends along the northern, eastern and southern sides of the pool;
    8. (h)
      construction of the pool.  The pool is shown at the same level as the ground floor of the dwelling.  It is to be constructed using a post-and-pier foundation; and
    9. (i)
      construction of the rear stairs.  The rear stairs provide access from the deck down to the natural ground level adjacent the eastern and southern boundaries.
  3. [110]
    I accept Mrs Preston’s evidence about her future intentions for the subject land.  Mrs Preston impressed me as a credible witness.  She listened carefully to the questions and provided responsive answers about things that were within her knowledge. 
  4. [111]
    Having regard to the details of the various development approvals and the exemption certificate referred to above, I am satisfied that the redevelopment of the subject land that the Prestons intend to carry out is lawful. 

What is Mr Baxter’s case?

  1. [112]
    The prayer for relief in the Third Further Amended Originating Application spans 13 pages.  There are many declarations and orders that Mr Baxter seeks.  They are set out in Attachment A to these reasons for judgment.[57] 
  2. [113]
    As I have already mentioned above, Mr Baxter does not dispute the validity of the Council building permit, the first amenity referral agency response, the first certifier building permit, the siting variation referral agency response, the operational works permit, the changed Council building permit or the second amenity referral agency response. 
  3. [114]
    Mr Baxter alleges that the second certifier building permit, the exemption certificate and the third certifier building permit are invalid.  He seeks declarations to that effect pursuant to s 11 of the Planning and Environment Court Act 2016 (Qld), and consequential orders setting aside the second certifier building permit, the exemption certificate and the third certifier building permit.
  4. [115]
    Mr Baxter also alleges that the Prestons and Graya Construction Pty Ltd have committed development offences, and that they will commit development offences unless restrained.  He seeks enforcement orders that require the Prestons and Graya Construction Pty Ltd to:
    1. (a)
      remedy the effect of the development offences committed under s 163 of the Planning Act 2016; and
    2. (b)
      refrain from committing development offences under ss 163 and 164 of the Planning Act 2016.
  5. [116]
    The allegations made by Mr Baxter in support of the relief he seeks raise the following questions for consideration:
  1. Is the second certifier building permit invalid?
  2. Is the exemption certificate invalid?
  3. Is the third certifier building permit invalid?
  4. Have the Prestons and Graya Construction Pty Ltd committed development offences under s 163 of the Planning Act 2016?
  5. Will the Prestons and Graya Construction Pty Ltd commit development offences under ss 163 and 164 of the Planning Act 2016 unless restrained?
  1. [117]
    Before turning to consider each of these questions, it is convenient to consider the relevant legal principles about declaratory relief and declaratory challenges.

What are the relevant legal principles with respect to granting declaratory relief?

  1. [118]
    Under s 11 of the Planning and Environment Court Act 2016, the Court has express statutory power to hear an application that seeks declaratory orders without any other consequential relief.
  2. [119]
    The relevant legal principles governing the exercise of that type of statutory power are helpfully set out by Bond J in Nerang Subdivision Pty Ltd v Hutson.[58]  I gratefully adopt His Honour’s analysis, the tenor of which is set out in paragraphs [120] to [125] below.
  3. [120]
    In Ainsworth & Anor v Criminal Justice Commission,[59] in considering the exercise of an inherent power to make declarations, Mason CJ, Dawson, Toohey and Gaudron JJ, observed that:[60]

“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”.”

  1. [121]
    There is no reason to think that those principles do not also govern the exercise of a statutory power to grant declaratory relief.[61] 
  2. [122]
    The High Court subsequently re-examined the considerations which mark out the boundaries of judicial power in Bass & Anor v Permanent Trustee Company Limited & Ors.[62]  In a joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed:[63]

[45] The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy.

[47] Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that:

“a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.”

By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case.

[48] It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:

If … the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”

  1. [123]
    In Nerang Subdivision Pty Ltd v Hutson,[64] Bond J observed that despite the unqualified nature of the statement in Ainsworth & Anor v Criminal Justice Commission,[65] that relief will not be granted if relief is “claimed in relation to circumstances that [have] not occurred and might never happen”, it is apparent that relief is sometimes granted in such circumstances.[66] 
  2. [124]
    In Re Tooth & Co Ltd,[67] Brennan J (then a judge of the Federal Court) observed “mere futurity does not establish that the question is hypothetical in the relevant sense”.  His Honour went on to observe:[68]

“… The difficulty is to determine whether a particular case falls on one side or the other of the line which divides the hypothetical from the non-hypothetical cases.  In the United States, where federal courts are limited (pursuant to Art. III of the U.S. Constitution, and by the Declaratory Judgment Act) to granting declaratory relief only in “a case of actual controversy”, the Supreme Court has held that the difference between such a case and an hypothetical case is one of degree: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” (Maryland Casualty Co. v. Pacific Coal and Oil Co.). The immediacy and reality of a controversy are factors to which weight must be given in applying the principle expressed by Lord Radcliffe in delivering the judgment of the Judicial Committee in Ibeneweka v. Egbuna: “… it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”. A controversy as to the lawfulness of future conduct cannot be said to be immediate and real if it is unlikely that the applicant will engage in the conduct (Golden, Acting District Attorney of Kings County v. Zwickler). If the prospects of the applicant engaging in the conduct are uncertain, the uncertainty may deprive the controversy of a sufficient immediacy and reality to warrant the making of a declaration (Steffel v. Thompson). The degree of uncertainty as to whether the applicant will engage in the conduct proposed will usually determine whether the circumstances call for the making of a declaration.”

  1. [125]
    Brennan J’s observations were expressed in a case in which a declaration was being sought as to the lawfulness of proposed future conduct.  They are helpful in this proceeding given what is in issue, in part, is the lawfulness of potential future conduct.  I gratefully adopt Bond J’s observation in Nerang Subdivision Pty Ltd v Hutson,[69] that although made before Bass & Anor v Permanent Trustee Company Limited & Ors,[70] Brennan J’s observations are consistent with the High Court’s emphasis that a declaratory judgment must be based on a concrete situation and capable of amounting to a binding decision raising a res judicata between parties.
  2. [126]
    With respect to the form of any declaration that is sought, in Brassgrove KB Pty Ltd v Brisbane City Council, I observed:[71]

[19] … the party seeking relief should assist the Court by identifying, with precision, the declaration sought.  It is necessary to pay close attention to the form of proposed declarations.[72]  It is not sufficient to indicate in general terms that a declaration is sought and to avert broadly to aspects of its content.  The declaration should reflect the matter in issue in a concise and accurate way to establish conclusively the situation that exists between the parties.  The party seeking the declaration needs to persuade the Court that the subject declaration should be made.  Relevant to that question is whether the declaration is framed as a conclusive determination based on a concrete and established or agreed situation that quells a controversy and gives rise to a binding decision between the parties.[73]  Alternatively, the party seeking the declaration might demonstrate that there is some other utility to the grant of a declaration in the terms sought.”

  1. [127]
    In essence:
    1. (a)
      there must be a real controversy for determination before a declaration should be made;
    2. (b)
      the question must be a real question and not a theoretical question; and
    3. (c)
      in considering whether a declaration should be granted, regard is had to whether its grant would serve any useful purpose.

What are the relevant legal principles that guide the review of the validity of the building permits and the exemption certificate?

  1. [128]
    Mr Baxter challenges the validity of the second certifier building permit, the exemption certificate and the third certifier building permit under s 11 of the Planning and Environment Court Act 2016.  It relevantly provides:

11 General declaratory jurisdiction

  1. (1)
    Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—
  1. (a)
    a matter done, to be done or that should have been done for the Planning Act; or
  1. (b)
    the interpretation of this Act or the Planning Act; or
  1. (c)
    the lawfulness of land use or development under the Planning Act; or

Note

Under the Acts Interpretation Act 1954, section 7, a reference to an Act in this list of subject matter about which a declaration may be sought includes a reference to the statutory instruments made under the Act.

  1. (4)
    The P&E Court may also make an order about any declaration it makes.”
  1. [129]
    It is well-established that the function of the Court in proceedings that seek declaratory relief is analogous to judicial review proceedings.[74]  Consequently, the same constraints apply.  The focus must be on the legality of the decision rather than its merits.  The proceedings afford a means of reviewing the lawfulness of local government decision-making.[75]  They are concerned with whether the impugned decision was validly made.  They are not a merits appeal from fact finding.[76] 
  2. [130]
    As was observed by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection:[77]

[23] It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff’s challenge to the validity of the Delegate’s decision falls to be determined. These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision. In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:[78]

‘an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.’”

  1. [131]
    There are three issues that must be resolved to determine whether the declaratory relief about the validity of the building permits and the exemption certificate should be granted. 
  2. [132]
    The first issue is whether the alleged non-compliance or failure in the decision-making process is established.
  3. [133]
    In BVD17 v Minister for Immigration and Border Protection & Anor, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ observed:[79]

“As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs[80] well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner.[81]  The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.[82]

  1. [134]
    As I have already mentioned, the focus is on issues that relate to the legality of the decision, rather than its merits.
  2. [135]
    The second issue is whether the alleged non-compliance or failure renders the decision invalid.
  3. [136]
    In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ observed:[83]

[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

[93]  ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

  1. [137]
    To discern whether there is an evident legislative purpose to invalidate a decision because of a non-compliance, one must examine the provisions of the legislation.[84]
  2. [138]
    The third issue is whether the Court should, in exercise of its discretion, make the declaration sought.

Is the second certifier building permit invalid?

  1. [139]
    In paragraph 3A of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks a declaration about the validity of the second certifier building permit.  The declaration is in the following terms:

“3A. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Building Approval[85] is invalid and of no effect, by virtue of:

  1. (a)
    the status of the Third Respondent, rather than the private certifier as the assessment manager for any building development application seeking such development approval, pursuant to section 48 of the PA, section 21 of the PR and Item 1 of Table 1A of Schedule 8 of the PR;
  1. (b)
    the requirement for a development approval issued by the Third Respondent for the building works that are the subject of the Building Approval;
  1. (c)
    the requirement for a development approval issued by the Third Respondent for the operational works that may affect the form, location and/or use of the building works that are the subject of the Building Approval;
  1. (d)
    pursuant to section 83(3) of the BA,[86] the building development application resulting in the Building Approval being taken not to have been received by the private certifier;
  1. (e)
    non-compliance with section 83(1) of the BA;
  1. (f)
    non-compliance with section 84(1) of the BA, in that the Building Approval is inconsistent with the Dwelling House Development Approval.[87]
  1. [140]
    The allegations are expressed to be cumulative.
  2. [141]
    In effect, Mr Baxter contends that the second certifier building permit is invalid because:[88]
    1. (a)
      the Council, and not the private certifier, was the appropriate assessment manager under the Planning Act 2016 and the Planning Regulation 2017;[89] and
    2. (b)
      the second certifier building permit could not be issued because of the absence of a development approval for operational works;[90] and
    3. (c)
      the second certifier building permit is inconsistent with the Council building permit.[91]

Was the application made to the wrong assessment manager?

  1. [142]
    Mr Baxter contends that, to the extent that the second certifier building permit relates to building work for the construction of the pool, the deck and the rear stairs, the application was required to be made to the Council as assessment manager pursuant to s 21 and sch 8, table 1A, item 1 of the Planning Regulation 2017.  The Council submits that the pool is building work for which it is an assessment manager but disagrees with Mr Baxter about the deck and the rear stairs.  The Prestons and Graya Construction Pty Ltd submit that none of that building work requires assessment by the Council as assessment manager.
  2. [143]
    A development application seeking approval for assessable development is required to be made to the assessment manager.[92]  This is a fact that is objectively ascertainable.[93]
  3. [144]
    The assessment manager for a development application is the person prescribed by regulation as the assessment manager.[94]  As I have already mentioned, a regulation may prescribe that a person is the assessment manager for a development application that is for part of a particular type of development.[95] 
  4. [145]
    Section 21 of the Planning Regulation 2017 states:

21 Assessment manager for development applications – Act, s 48

  1. (1)
    This section prescribes, for section 48(1) of the Act, the assessment manager for a development application.

  1. (4)
    For a development application other than an application stated in subsection (2) or (3), schedule 8, column 2 states the assessment manager for the application stated opposite the assessment manager in column 1.”
  1. [146]
    Table 1, item 2, and table 1A, item 1 of sch 8 of the Planning Regulation 2017 are relevant in this case.  They provide as follows:

Table 1

 

Column 1

Development application type

Column 2

Assessment manager

Building work assessable against building assessment provisions

2 If the development application is for building work only and–

  1. (a)
    all or part of the building work must be assessed against the building assessment provisions; and
  1. (b)
    a private certifier (class A) is, under the Building Act, section 48, performing functions for the application

The private certifier

Table 1A

 

Particular building work made assessable against a local instrument

1 If the development application is for building work or part of building work and—

  1. (a)
    the building work or part must be assessed against a local instrument; and
  1. (b)
    the matters in the local instrument that the building work or part must be assessed against include matters other than—
  1. (i)
    the building assessment provisions; and
  1. (ii)
    the matters mentioned in schedule 9, part 3, division 2; and
  1. (c)
    the building work or part is completely in a single local government area; and
  1. (d)
    the development application is not a development application mentioned in table 1, item 1

The local government

  1. [147]
    As is evident from the items in the tables extracted above, whether the Council was the assessment manager requires consideration of:
    1. (a)
      whether the construction of the pool, the deck and the rear stairs required assessment against City Plan;
    2. (b)
      whether the matters in City Plan that the construction of the pool, the deck and the rear stairs were required to be assessed against include matters other than:
      1. the building assessment provisions; and
      2. the matters mentioned in sch 9, pt 3, div 2;
    3. (c)
      whether the construction of the pool, the deck and the rear stairs is completely in the Brisbane City local government area; and
    4. (d)
      whether the development application is a development application mentioned in table 1, item 1.
  2. [148]
    It is uncontroversial that the proposed construction of the pool, the deck and the rear stairs is building work[96] and that the building work is completely in the Brisbane City local government area.  There is also no dispute that the development application was not a development application mentioned in table 1, item 1.[97]

Did the construction of the pool, the deck and the rear stairs require assessment against City Plan?

  1. [149]
    Mr Baxter alleges that the construction of the pool, the deck and the rear stairs is building work that must be assessed against City Plan.  The Council submits that the pool is building work that must be assessed against City Plan but disagrees with Mr Baxter about the deck and the rear stairs.  The Prestons and Graya Construction Pty Ltd submit that none of that building work requires assessment against City Plan.
  2. [150]
    Section 44(1) of the Planning Act 2016 provides that there are three categories of development, namely prohibited, assessable and accepted development.  Prohibited development is development for which a development application may not be made.[98]  Assessable development is development for which a development approval is required.[99]  Accepted development is development for which a development approval is not required.[100]
  3. [151]
    Development may be categorised by a categorising instrument,[101] which includes a regulation or local categorising instrument that categorises development as prohibited, assessable or accepted development and sets out the assessment benchmarks that an assessment manager must assess assessable development against.[102]  A local categorising instrument includes a planning scheme.[103] 
  4. [152]
    Sections 5.3.1 and 5.3.2 of City Plan outline the process for determining the categories of development and assessment for assessable development under City Plan.  Relevantly, they state:

5.3.1  Process for determining the categories of development and assessment for assessable development

The process for determining a category of development and category of assessment is:

  1. For a material change of use, establish the use by reference to the use definitions in Schedule 1;
  1. For all development, identify the following:

a. the zone or zone precinct that applies to the premises, by reference to the zone map in Schedule 2;

b. if a neighbourhood plan or neighbourhood plan precinct applies to the premises, by reference to the neighbourhood plan map in Schedule 2;

c. if an overlay applies to the premises, by reference to the overlay map in Schedule 2;

  1. Determine if the development is accepted development under schedule 6 of the Regulation;

Editor’s note–Schedule 6 of the Regulation prescribes development that a planning scheme can not state is assessable development where the matters identified in the schedule are met.

  1. Determine if the development is assessable development under Schedule 10 of the Regulation by reference to the tables in section 5.4 (Regulated categories of development and assessment prescribed by the Regulation);
  1. If the development is not listed in the tables in section 5.4 (Regulated categories of development and assessment prescribed by the Regulation), determine the initial category of development and assessment by reference to the tables in:

a. section 5.5 Categories of development and assessment–Material change of use;

b. section 5.6 Categories of development and assessment–Reconfiguring a lot;

c. section 5.7 Categories of development and assessment–Building work;

d. section 5.8 Categories of development and assessment–Operational work;

  1. A precinct of a zone may change the category of development or assessment and this will be shown in the ‘Categories of development and assessment’ column of tables in section 5.5, section 5.6, section 5.7 and section 5.8.
  1. If a neighbourhood plan applies, refer to the table(s) in section 5.9 Categories of development and assessment–Neighbourhood plans, to determine if the neighbourhood plan changes the category of development or assessment for the zone;
  1. If a precinct of a neighbourhood plan changes the category of development or assessment this will be shown in the ‘Categories of development and assessment’ column of the table(s) in section 5.9;
  1. If an overlay applies, refer to section 5.10 Categories of development and assessment–Overlays, to determine if the overlay further changes the category of development or assessment.

5.3.2 Determining the categories of development and assessment

  1. Building work and operational work are accepted development, unless the tables of assessment state otherwise or unless otherwise prescribed in the Act or the Regulation.
  1. Where an aspect of development is proposed on premises included in more than one zone, neighbourhood plan or overlay, the category of development or assessment for that aspect is the highest category under each of the applicable zones, neighbourhood plans or overlays.

  1. If development is identified as having a different category of development or category of assessment under a zone than under a neighbourhood plan or an overlay, the highest category of development or assessment applies as follows:

a. accepted development subject to requirements prevails over accepted development;

b. code assessment prevails over accepted development where subject to requirements and accepted development;

c. impact assessment prevails over code assessment, accepted development where subject to requirements and accepted development.

  1. Despite subsection 5.3.2(4) and (7) above, a category of development or assessment in a neighbourhood plan overrides a category of development or assessment in a zone, and a category of development or assessment in an overlay overrides a category of development or assessment in a zone or neighbourhood plan.
  1. Provisions of Part 10 may override any of the above.
  1. The category of development prescribed under schedule 6 of the Regulation overrides all other categories of development or assessment for that development under the planning scheme to the extent of any inconsistency.

Editor’s note–Schedule 7 of the Regulation also identifies development that the state categorises as accepted development.  Some development in the schedule may still be made assessable under the planning scheme.

  1. Despite all of the above, if development is listed as prohibited development under Schedule 10 of the Regulation, a development application can not be made.

Note–Development is to be taken to be prohibited development under the planning scheme only if it is identified in Schedule 10 of the Regulation.

  1. [153]
    As I have already mentioned, the subject land is:
    1. (a)
      in the Low-medium density residential zone;
    2. (b)
      in the Hillside character precinct of the Ithaca district neighbourhood plan; and
    3. (c)
      subject to the Traditional building character overlay.
  2. [154]
    The construction of the pool, the deck and the rear stairs are not accepted development under sch 6 of the Planning Regulation 2017.  They are not assessable development under sch 10 of the Planning Regulation 2017, as is evident from the tables in s 5.4 (Regulated categories of development and assessment prescribed by the Regulation) of City Plan.
  3. [155]
    The initial category of development and assessment, determined by reference to the table in s 5.7 (Categories of development and assessment–Building work), is accepted development.  This is because the construction of the pool, the deck and the rear stairs are a form of building work that is not otherwise listed in Table 5.7.1–Building work.
  4. [156]
    Under s 5.9 (Categories of development and assessment–Neighbourhood plans), the Ithaca district neighbourhood plan does not change the category of development or assessment for building work in the Low-medium density residential zone.[104]
  5. [157]
    Under s 5.10 (Categories of development and assessment–Overlays), Table 5.10.21–Traditional building character overlay changes the category of development assessment for building work in identified circumstances.  The table includes the following relevant entries (emphasis added in underlining):[105]

Table 5.10.21–Traditional building character overlay

Development

Categories of development and assessment

Assessment benchmarks

All aspects of developments

MCU, ROL, building work or operational work if prescribed accepted development

Accepted development

Development approval is not required

Not applicable

Building work

Building work involving a dual occupancy, dwelling house, multiple dwelling, retirement facility, rooming accommodation or short-term accommodation where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay

Assessable development–Code assessment

-

Note–If the development is impact assessable in the zone or neighbourhood plan, then the category of assessment is not lowered to code assessment.

Traditional building character (design) overlay code”

  1. [158]
    Section 5.3.4 of City Plan also identifies development as “prescribed accepted development” in Table 5.3.4.1–Prescribed accepted development.  The development in the table is only accepted development and not assessable under City Plan for the development identified in the development column to which the circumstances in the circumstances column apply.  The table includes the following relevant entry (emphasis added in underlining):

Table 5.3.4.1– Prescribed accepted development

Development

Circumstances

Building work if in the Traditional building character overlay or the Pre-1911 building overlay, where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay

If for a dual occupancy, dwelling house or multiple dwelling, involving one or more of the following:

a. an enclosed extension under an existing building to the extent of the core of the building along the front and side boundaries, other than a dwelling in the Local character significance sub-category;

b. an enclosed extension at the rear where preceded by lawful demolition as either accepted development or approved in accordance with the Traditional building character (demolition) code;

c. an external stair, ramp or lift;

d. internal building work;

e. a carport, garage, shed or other outbuilding at the rear of the building;

f. a carport:

i. if located:

A. between the building and side boundary; or

B. between the building and front boundary, where a maximum total width of 6m or 50% of the average width of the lot, excluding eaves, whichever is the lesser;

ii. if not in the Sherwood–Graceville district neighbourhood plan area or the Local character significance sub-category of the Traditional building character overlay;

iii. if associated with a dwelling house in the West End estate precinct of the West End – Woolloongabba district neighbourhood plan, where also complying with the requirements in AO13.2, AO13.3 and AO13.4 in that neighbourhood plan code;

iv. if associated with a multiple dwelling in the Hillside character precinct of the Ithaca district neighbourhood plan, where also complying with the requirements in AO23.3 in that neighbourhood plan code;

g. decks, verandahs, balconies and other shade structures at the rear of the building;

h. an in-ground swimming pool and/or spa (of any size) and unenclosed ancillary shade structures (where not at the rear, any shade structures are to have a maximum roofed area 10m2 and maximum height 3m)

Note–Where on a lot with more than one frontage, the rear of the building is that part of the site that is behind the building relative to the primary street frontage.

  1. [159]
    To assist in understanding the categorisation of development in Table 5.10.21 and Table 5.3.4.1 above, it is helpful to refer to several relevant definitions.
  2. [160]
    The terms “pool”, “in-ground pool” and “deck” are relevantly defined by the Macquarie Dictionary[106] as follows:[107]
    1. (a)
      pool” means “a swimming pool”;
    2. (b)
      in-ground pool” means “a domestic swimming pool set into the ground”;
    3. (c)
      deck” means “an unenclosed, elevated platform or verandah, usually of wood”.
  3. [161]
    Dwelling house” is a use defined in sch 1 of City Plan as follows:

“Dwelling house means a residential use of premises involving–

a. 1 dwelling for a single household and any domestic outbuildings associated with the dwelling; or

b. 1 dwelling for a single household, a secondary dwelling and any domestic outbuildings associated with either dwelling.”

  1. [162]
    The term “premises” is defined in sch 2 of the Planning Act 2016 as follows:

premises means–

  1. (a)
    a building or other structure; or
  1. (b)
    land, whether or not a building or other structure is on the land.”
  1. [163]
    Schedule 1, Table SC1.2.2.B of City Plan contains the following entries:

Column 1
Term

Column 2
Definition

Domestic outbuilding

Domestic outbuilding means a non-habitable class 10a building that is–

a. a shed, garage or carport; and

b. ancillary to a residential use carried out on the premises where the building is.

Dwelling

Dwelling means all or part of a building that–

a. is used, or capable of being used, as a self-contained residence; and

b. contains–

i. food preparation facilities; and

ii. a bath or shower; and

iii. a toilet; and

iv. a wash basin; and

v. facilities for washing clothes.”

  1. [164]
    Ultimately, Mr Baxter submits that the construction of the pool, the deck and the rear stairs required code assessment against City Plan by virtue of the operation of Table 5.10.21.  To support this submission, Mr Baxter adopts a construction of Table 5.10.21 that is sufficiently broad to capture the construction of the pool, the deck, and the rear stairs.
  2. [165]
    In interpreting Table 5.10.21, Mr Baxter submits that there is no reason to differentiate between:
    1. (a)
      the phrase “Building work involving a … dwelling house” in Table 5.10.21; and
    2. (b)
      the phrase “if for a … dwelling house…, involving …” in Table 5.3.4.1. 
  3. [166]
    He says that in both instances the phrase should properly be read as:

“building work for the purposes of the use of the land for a residential use - relevantly, a residential use in the form of a dwelling house, as defined by the Planning Scheme”.

  1. [167]
    Mr Baxter submits that there is no reason to differentiate between the words “for” and “involving” in the two relevant parts of City Plan.  He says the use of those different terms is consistent with clear grammatical expression, where the table of assessment for the Traditional building character overlay contains a broad designation of all building work for the purposes of a dwelling house use as assessable development, while the table of prescribed accepted development contains specific exclusions to that broad designation.[108]
  2. [168]
    The Council adopts a similar position.  It submits that any construction that results in building work for a swimming pool not being code assessable development under Table 5.10.21 should not be accepted for two reasons.
  3. [169]
    First, the Council says it is important to note that “dwelling house”, “dual occupancy”, “multiple dwelling”, “retirement facility”, “rooming accommodation” and “short-term accommodation” are defined uses under City Plan.  They relate to the use of premises.  They are not buildings or structures.
  4. [170]
    For the purposes of “dwelling house”, “dual occupancy” and “multiple dwelling”, the “dwelling” for those uses is the building component and is separately defined.  The Council says that, against that background, the expression “involving a … dwelling house” is directed at the use of the premises, rather than the building or structure itself.
  5. [171]
    Second, the Council submits that if the code assessable development trigger in Table 5.10.21, where “involving a … dwelling house”, is limited to the dwelling house (being the building itself), building work for an in-ground pool (which sits in a backyard) in the Traditional building character overlay would never trigger code assessment.  As such, the categorisation of an in-ground pool on premises in the Traditional building character overlay and not in the Heritage overlay as prescribed accepted development under table 5.3.4.1 would be superfluous.
  6. [172]
    For the reasons provided in paragraphs to [173] to [187] below, I do not accept the submissions of Mr Baxter or the Council. 
  7. [173]
    The Court of Appeal confirmed in AAD Design Pty Ltd v Brisbane City Council[109] and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd[110] that the established principles and canons of statutory construction apply to the construction of planning documents.  In AAD Design Pty Ltd v Brisbane City Council,[111] Chesterman JA observed that it is not unduly pedantic to begin with an assumption that words mean what they say.  As the High Court has re-iterated on numerous occasions, the starting point for ascertaining the meaning of a statutory provision is the text of the provision considered in light of its context and purpose.[112] 
  8. [174]
    There are three relevant observations that can be made about the provisions.  Each tell against the construction urged by Mr Baxter and the Council.
  9. [175]
    First, there is a difference in the phrasing of the relevant entries in Table 5.3.4.1 and Table 5.10.21. 
  10. [176]
    The phraseology of building work “for a … dwelling house, involving one or more of the following” in Table 5.3.4.1 calls for identification of building work that is both:
    1. (a)
      for” a dwelling house; and
    2. (b)
      involving” one or more of the listed items.
  11. [177]
    The terms “for” and “involve” are relevantly defined by the Macquarie Dictionary[113] as follows:[114]
    1. (a)
      for” means:

“intended to belong to, suit the purposes of or needs of, or be used in connection with”

  1. (b)
    involve” means:

1. to include as a necessary circumstance, condition, or consequence; imply; entail.  2. to affect, as something within the scope of operation.  3. to include, contain, or comprehend within itself or its scope”.

  1. [178]
    As such, as a matter of ordinary meaning, the relevant entry in Table 5.3.4.1 captures those aspects of building work that have within their scope an aspect itemised in sub-paragraphs a. to h., provided the building work is also to be undertaken in connection with a dwelling or a domestic outbuilding associated with the dwelling. 
  2. [179]
    The phraseology in Table 5.10.21 is building work “involving” a dwelling house.  Reading City Plan as a whole, the word “involving” should be given the same meaning in each section.  As such, the relevant entry in Table 5.10.21 captures only that building work that has within its scope the dwelling used as a self-contained residence or a domestic outbuilding.  It does not capture building work that has within its scope, for example, a class 10b structure[115] such as a swimming pool. 
  3. [180]
    On that basis, any “building [or] … underpinning (whether by vertical or lateral support)[116] of a swimming pool is not “building work involving a dwelling house” under Table 5.10.21. 
  4. [181]
    That a pool is an aspect of building work that is not assessable in the Traditional building character overlay is a result that follows from the ordinary construction of City Plan.  There is no reason that City Plan should be interpreted inconsistently with its plain words to avoid that outcome.  The outcome does not produce an absurd result.
  5. [182]
    Second, a construction of the code assessable trigger in Table 5.10.21 that limits it to the dwelling house (being the building itself) does not render the categorisation of prescribed accepted development in Table 5.3.4.1 superfluous.  The context of the provisions does not suggest that the categorisation of an aspect of development as “prescribed accepted development” in Table 5.3.4.1 only has efficacy if there is a corresponding provision in City Plan that otherwise makes the same aspect of development assessable development. 
  6. [183]
    To the contrary, s 5.3.4 of City Plan contemplates that there may be instances where prescribed accepted development is subject to a higher category of assessment, as well as instances where it is not.  That provision tells the reader which categorisation prevails.  It states:

“1. This section identifies development (prescribed accepted development) which is not assessable under the planning scheme unless a higher category of assessment is stated in section 5.9 or section 5.10.

Editor’s note–In interpreting Table 5.3.4.1, development is only accepted development and not assessable under the planning scheme for the development identified in the development column, in the circumstances described in the circumstances column.  Development may still be assessable or accepted development subject to compliance with identified requirements against the tables of assessment, where the circumstances are outside of those identified in Table 5.3.4.1.

  1. The development which is prescribed accepted development is stated in Table 5.3.4.1.”

(emphasis added)

  1. [184]
    As such, Table 5.3.4.1 still has work to do.  For example, it prescribes items of work to be accepted development where the building work is within the scope of the dwelling, such as an in-ground pool that forms part of the dwelling or a front deck that is attached to the dwelling. 
  2. [185]
    Third, the interpretation advanced by Mr Baxter and the Council would lead to absurd results.  If the phrase “involving a … dwelling house” was interpreted as applying to any building work done on the same lot as a dwelling, the result would be to require a development application to be made to the Council for any building work done on land within the Traditional building character overlay no matter how insignificant.  It would capture, for example, the construction of play equipment, a bird bath, a kennel, or a free-standing clothesline.
  3. [186]
    As Table 5.10.21 and all other tables do not change the category of development, the work is accepted development.  The same result follows for the deck and the rear stairs.  They are not “building work involving … a dwelling house” and so are not made assessable by Table 5.10.21.  Therefore, they are not assessable development.  The supporting structure for the pool, the deck and the rear stairs are part of the building work for each item under the definition of building work in the Planning Act 2016
  4. [187]
    In the circumstances, the blockwork done, or proposed, in the rear of the subject land (other than the blockwork that retains the filling beneath the dwelling slab and the filling for the backyard) is not assessable building work under City Plan.  That aspect of the building work that is the blockwork that retains the filling beneath the dwelling slab and the filling for the backyard was “building work involving a … dwelling house”.  The application for that building work was made to, and approved by, the Council as assessment manager.  It is the subject of the Council building permit.[117]
  5. [188]
    If I am wrong about the proper construction of Table 5.10.21, the deck and the rear stairs are nevertheless prescribed accepted development in accordance with Table 5.3.4.1 of City Plan. 
  6. [189]
    The rear stairs are an “external stair” within the meaning of item c. in Table 5.3.4.1 as they are not internal to the dwelling.  I do not accept Mr Baxter’s submission that the word “external” introduces the need for a direct (physical) connection between the stair and the dwelling.  The plain meaning of the word connotes a requirement that the stair is situated outside.  The context does not suggest that anything other than the plain meaning should be adopted. 
  7. [190]
    Similarly, the deck is captured by Table 5.3.4.1 in item g. which refers to “decks, verandahs, balconies and other shade structures at the rear of the building”.  I do not accept Mr Baxter’s submission that the reference to “decks” should be read as limited to decks attached to the dwelling.[118]  That limitation does not appear in the provision.  There is no reason that City Plan should be interpreted inconsistently with its plain words.  I also do not accept that a failure to read item g. as incorporating a requirement for physical connection would result in item h. having no work to do.  Item h. deals with shade structures that are ancillary to an in-ground swimming pool.  It would apply, for example, to shade structures ancillary to an in-ground swimming pool located at the front of a building, whereas item g. would not.
  8. [191]
    By virtue of the definition of building work in the Planning Act 2016, the works done, and proposed, underneath the deck (to support the deck) are also prescribed accepted development.
  9. [192]
    Further, If I am wrong about the proper construction of Table 5.10.21, the pool is assessable development under City Plan.  In that case, whether a development application for that aspect of the building work was required to be made to the Council would depend on whether the matters in City Plan that the construction of the pool was required to be assessed against include matters other than:
    1. (a)
      the building assessment provisions; and
    2. (b)
      the matters mentioned in sch 9, pt 3, div 2.
  10. [193]
    I address each of those issues below.[119]

Did the matters in City Plan include matters other than the building assessment provisions?

  1. [194]
    Mr Baxter contends that the building work for the construction of the pool, the deck and the rear stairs required assessment against City Plan by reason of Table 5.10.21 of City Plan.  To the extent that assessment was required against City Plan by reason of Table 5.10.21, it required assessment against the Traditional building character (design) overlay code.  Mr Baxter says that code includes matters other than the building assessment provisions. 
  2. [195]
    This issue calls for a comparison between the matters the subject of the building assessment provisions, and the matters addressed in the Traditional building character (design) overlay code.  Even though he bears the onus, Mr Baxter did not provide any assistance in this regard.[120]  His submission is no more than a bare assertion.  Nevertheless, after the conclusion of the hearing, the Council provided relevant parts of the building assessment provisions.[121]  As such, I will consider the merits of Mr Baxter’s contention.
  3. [196]
    As I have already mentioned in paragraph [67] above, the building assessment provisions are the laws and other documents specified in s 30 of the Building Act 1975, namely:

“(a) chapter 3 and this chapter[122];

  1. (b)
    the fire safety standard;
  1. (c)
    the fire safety standard (RCB);
  1. (d)
    any provisions of a regulation made under this Act relating to building assessment work[123] or accepted building work;
  1. (e)
    any relevant local law, local planning instrument[124] or resolution made under section 32 or any relevant provision under section 33;
  1. (f)
    the BCA;
  1. (g)
    subject to section 33, the QDC.[125]
  1. [197]
    The “BCA” is defined in s 12 of the Building Act 1975 as the Building Code of Australia.  It is the document called “National Construction Code” volume 1 and volume 2 (including the Queensland Appendixes) published by the entity known as the Australian Building Codes Board.
  2. [198]
    The National Construction Code regulates the technical design and construction of buildings and other structures, and plumbing and drainage systems.[126]  The National Construction Code volume two contains requirements for Class 1 and 10a buildings and certain Class 10b structures.[127] 
  3. [199]
    Relevantly, the National Construction Code volume two contains matters that relate to:
    1. (a)
      safeguarding people from injury caused by structural failure;
    2. (b)
      safeguarding people from loss of amenity caused by structural behaviour;
    3. (c)
      protecting other property from physical damage caused by structural failure;
    4. (d)
      safeguarding occupants from illness or injury and protecting buildings from damage caused by discharge of swimming pool waste water;
    5. (e)
      protecting other property from damage caused by the discharge of swimming pool waste water;
    6. (f)
      providing people with safe access, including matters about the construction of any stairway;
    7. (g)
      safeguarding young people from drowning or injury in a swimming pool; and
    8. (h)
      safeguarding people from drowning or injury due to suction by a swimming pool water recirculation system.
  4. [200]
    The Queensland Development Code regulates swimming pool barriers.
  5. [201]
    The Traditional building character (design) overlay code includes matters that are different to the building assessment provisions.  It contains matters that relate to reflecting and strengthening the traditional character and the traditional building character of an area through compatible form, scale, materials, and detailing.  These are matters about the amenity or aesthetics of a locality.
  6. [202]
    As such, I am satisfied that the Traditional building character (design) overlay code includes matters other than the building assessment provisions. 

Did the matters in City Plan include matters other than the matters mentioned in sch 9, pt 3, div 2?

  1. [203]
    Mr Baxter contends that the Traditional building character (design) overlay code includes matters other than the matters in sch 9, pt 3, div 2 of the Planning Regulation 2017.
  2. [204]
    The relevant parts of sch 9, pt 3, div 2 of the Planning Regulation 2017 are as follows:

Schedule 9 Building work under Building Act

Part 3 Referral agency’s assessment

Division 2 Local government as referral agency

Table 1–Particular class 1 and 10 buildings and structures involving possible amenity and aesthetic impacts

Column 1

Column 2

1 Development application requiring referral

Development application for building work that is assessable development under section 1 and is for a building or structure that is—

  1. (a)
    a single detached class 1(a)(i) building, class 1(a)(ii) building made up of 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 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

2 Referral agency

The local government

3 Limitations on referral agency’s powers

4 Matters referral agency’s assessment must be against

Whether the building or structure will impact on the amenity or aesthetics of the locality, including, for example, whether the building or structure complies with a matter stated in a local instrument that regulates impacts on amenity or aesthetics

5 Matters referral agency’s assessment must have regard to

6 Matters referral agency’s assessment may be against

7 Matters referral agency’s assessment may have regard to

Table 3–Design and siting

Column 1

Column 2

1 Development application requiring referral

Development application for building work that is assessable development under section 1, if—

  1. (a)
    the Queensland Development Code, part 1.1, 1.2 or 1.3 applies to the building work and, under the part, the proposed building or structure does not include an acceptable solution for a relevant performance criteria under the part; or
  1. (b)
    under the Building Act, section 33, an alternative provision applies for the building work and, under the provision, the proposed building or structure is not of the quantifiable standard for a relevant qualitative statement under the provision; or
  1. (c)
    all of the following apply—
  1. (i)
    under the Building Regulation, section 10, the planning scheme includes a provision about a matter provided for under performance criteria P4, P5, P7, P8 or P9 of the Queensland Development Code, part 1.1 or 1.2;
  1. (ii)
    the provision applies for building work;
  1. (iii)
    under the provision, the proposed building or structure is not of the quantifiable standard for a relevant qualitative statement under the provision

2 Referral agency

The local government

3 Limitations on referral agency’s powers

4 Matters referral agency’s assessment must be against

For building work stated in item 1, column 2, paragraph (a)—whether the proposed building or structure complies with the performance criteria stated in the paragraph

For building work stated in item 1, column 2, paragraph (b) or (c)—whether the proposed building or structure complies with the qualitative statement stated in the paragraph

5 Matters referral agency’s assessment must have regard to

6 Matters referral agency’s assessment may be against

7 Matters referral agency’s assessment may have regard to

  1. [205]
    Pursuant to s 55 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 1, item 4 and table 3, item 4 of the Planning Regulation 2017, the matters the Council’s referral agency assessment must be against are stipulated in s 1.6 4.b. and Table 1.6.2 of City Plan.  Relevant entries are as follows[128]:

Table 1.6.2–Building assessment provisions in the planning scheme for the Council acting as referral agency

Item

Relevant legislation

Description

Building assessment provisions in planning scheme

1

Schedule 9, Part 3, Division 2, Table 1 of the Regulation

Whether a single detached class 1(a)(i) building, class 1(a)(ii) building made up of not more than 2 attached dwellings or a class 10 building or structure will impact on the amenity or the aesthetics of the locality

Traditional building character (design) overlay code where the building work is in the traditional building character overlay

Dwelling house code or Dwelling house (small lot) code where the building work is in the following zones:

a. Rural zone

b. Rural residential zone

c. Environmental management zone

d. Low density residential zone

e. Character residential zone and zone precincts

f. Low-medium density residential zone and zone precincts

g. Medium density residential zone

h. Emerging community zone

i. Township zone

The neighbourhood plan code relevant to the building work

2

Schedule 9, Part 3, Division 2, Table 3, Item 1, Column 2(b) of the Regulation

If under the Building Act 1975, section 33, an alternative provision applies for the building work and, under the provision, the proposed building or structure is not of the quantifiable standard for a relevant qualitative statement under the provision, whether the proposed building or structure complies with the qualitative statement

The performance outcomes contained in Items 9, 10 and 11 of Table 1.6.1

3

Schedule 9, Part 3, Division 2, Table 3, Item 1, Column 2(c) of the Regulation

If all of the following apply:

a. under Building Regulation 2006, section 10, the planning scheme includes a provision about a matter provided for under performance criteria P4, P5, P7, P8 or P9 of the QDC, part 1.1 or 1.2;

b. the provision applies for building work;

c. under the provision, the proposed building or structure is not of the quantifiable standard for a relevant qualitative statement under the provision,

whether the proposed building or structure complies with the qualitative statement

The performance outcomes contained in Items 6, 7 and 8 of Table 1.6.1”

  1. [206]
    The relevant performance outcomes and acceptable outcomes contained in items 6, 7, 8, 9, 10 and 11 of Table 1.6.1 of City Plan are:
    1. (a)
      performance outcomes PO2, PO3 and PO6 and acceptable outcomes AO2, AO3 and AO6 of the Dwelling house code;
    2. (b)
      performance outcomes PO2, PO3, PO4, PO5, PO6, PO7, PO9, PO12, PO14 and PO17 and acceptable outcomes AO2, AO3, AO4, AO5, AO6, AO7, AO9.1, AO9.2, AO12.1, AO14.1, AO14.2, AO14.3 and AO17.1 of the Dwelling house (small lot) code;[129]
    3. (c)
      performance outcome PO1 and acceptable outcome AO1 of the Ithaca district neighbourhood plan code; and
    4. (d)
      performance outcomes PO1 and PO2 and acceptable outcomes AO1.2 and AO2.1 of the Traditional building character (design) overlay code.
  2. [207]
    It is apparent from the extracts of sch 9, pt 3, div 2 of the Planning Regulation 2017 and City Plan set out in paragraphs [204] and [205] above that Mr Baxter cannot establish that the Traditional building character (design) overlay code includes matters other than the matters in sch 9, pt 3, div 2 of the Planning Regulation 2017.  In calling up Table 1.6.2, item 1 of City Plan, sch 9, pt 3, div 2 of the Planning Regulation 2017 triggers an assessment of the impacts on the amenity or aesthetics of the locality against the provisions of the Traditional building character (design) overlay code.  The matters dealt with in the Traditional building character (design) overlay code are matters that regulate impacts on amenity or aesthetics.
  3. [208]
    As such, even if I am wrong about whether the construction of the pool, the deck and the rear stairs required assessment against City Plan, the Council was not the assessment manager.  This is because the matters in City Plan that the construction of the pool, the deck and the rear stairs required assessment against did not include matters other than the building assessment provisions and the matters mentioned in sch 9, pt 3, div 2 of the Planning Regulation 2017.

Conclusion regarding whether the development application for the pool, the deck and the rear stairs was made to the wrong assessment manager

  1. [209]
    Mr Baxter has not established that, to the extent that the second certifier building permit relates to building work for the construction of the pool, the deck and the rear stairs, the application was required to be made to the Council as assessment manager.  He has failed to establish each of the matters in sch 8, table 1A, item 1 of the Planning Regulation 2017.  He has not discharged his onus with respect to either item 1(a) or item 1(b).  As such, he has not established the factual basis that founds his first ground for alleging invalidity of the second certifier building permit.

Was there a relevant absence of other development approvals?

  1. [210]
    The second substantive challenge to the legality of the decision of the private certifier is that which is the subject of paragraph 3A(c), (d) and (e) of the prayer for relief in the Third Further Amended Originating Application.
  2. [211]
    Mr Baxter contends that the second certifier building permit could not be issued because of the absence of a development approval for operational works.  In this respect, Mr Baxter relies on ss 83(1)(a), (2) and (3) of the Building Act 1975, which state:

83 General restrictions on granting building development approval

  1. (1)
    The private certifier must not grant the building development approval applied for—
  1. (a)
    until, under the Planning Act and the Economic Development Act 2012, all necessary development permits and PDA development permits are effective for development, other than building work, that may affect any or all of the following—
  1. (i)
    the form or location of the building work;
  1. (ii)
    the use of the building or other structure;
  1. (iii)
    the assessment of the building development application; and

Example—

A proposal involving building work also involves a material change of use, reconfiguring a lot and operational work under the Planning Act. The material change of use, reconfiguring a lot and operational work are categorised as assessable development under the Planning Act. The private certifier is engaged to carry out building assessment work and decide the building development application. The private certifier must not grant the building development approval applied for until, under the Planning Act, all necessary development permits are effective for—

  • the material change of use, which will affect the use of the building or other structure
  • reconfiguring the lot, which will affect the location of the building work on the reconfigured lot
  • the operational work, other than operational work that does not affect the form or location of the building work or assessment of the building development application, including, for example, landscaping work.

Maximum penalty—165 penalty units.

  1. (2)
    Subsection (3) applies if the private certifier receives the application before a following application or request is decided—
  1. (a)
    if subsection (1)(a) applies to the application—a development application for each development permit, or a PDA development application for each PDA development permit, mentioned in the subsection;

  1. (3)
    For the development assessment process under the Planning Act, the building development application is taken not to have been received by the private certifier until the day the last or only application or request mentioned in subsection (2)(a) to (c) to be decided is decided.

…”

  1. [212]
    At the time that the second certifier building permit was issued, the Council building permit was in effect.  The exemption certificate and operational works permit had not yet been given.
  2. [213]
    Mr Baxter submits that the filling the subject of the operational works permit was development that may affect the location of the building work the subject of the second certifier building permit or, at least, the use of part of the building work the subject of the second certifier building permit, being the pool and associated structures. 
  3. [214]
    In support of his submission, Mr Baxter says that it is apparent that the Prestons intended to be able to walk from the decks at either end of the pool onto the lawn created by the fill contemplated by the operational works permit.  He relies on the acceptance of this proposition by Mr Buckley, the town planner retained by the Prestons and Graya Construction Pty Ltd.  Mr Baxter says that it follows that the second certifier building permit should not have been granted by the private certifier.  He says that pursuant to s 83(3) of the Building Act 1975, the development application that resulted in the second certifier building permit is taken not to have been received.
  1. [215]
    Mr Baxter’s case with respect to non-compliance with s 83(1)(a) of the Building Act 1975 appears to be advanced on the basis that the criterion in s 83(1)(a) of the Building Act 1975 was a jurisdictional fact, in the sense of an objectively ascertainable criterion, upon which the authority of the private certifier to grant the second certifier building permit was contingent.  Mr Baxter’s case is not advanced on the basis that the authority of the private certifier depended upon his assessment or evaluation of that matter and that his assessment of that matter was infected by jurisdictional error.[130]  This is apparent from two matters.  First, the Third Further Amended Originating Application itself, which makes no reference to the way the private certifier’s decision was affected by jurisdictional error, such as by failing to take into account a relevant consideration.  The second matter is the nature of the evidence that Mr Baxter relies on.  There was no statement of reasons from the private certifier, nor any evidence from the private certifier, nor any evidence about the process of the private certifier leading up to the making of his decision.  Further, Mr Baxter relies on material that was not before the decision-maker at the relevant time.  While such evidence is ordinarily not admissible in a proceeding such as this,[131] it is admissible where the ground of review is that the decision-maker based the finding on a particular fact and the evidence is directed to proving that the fact did not exist.[132]
  1. [216]
    In my view, whether filling and excavation that is not part of building work may affect the form or location of building work is a matter of fact and degree.  Determination of the issue requires a value judgment on the part of the private certifier.  By extension, whether there was operational work that required a development approval that may affect any or all of (i) the form or location of the building work; (ii) the use of the building or other structure; and (iii) the assessment of the building development application was a matter about which the private certifier would need to make a value judgment.  As such, there is no reviewable error alleged by Mr Baxter.  There is no reviewable error in simply making a wrong finding.[133]  As I have already mentioned, the scope of the Court’s jurisdiction about this issue is confined to the legality of the decision, rather than the merits of it. 
  2. [217]
    In Ferreyra & Ors v Brisbane City Council & Anor, Her Honour Justice Bowskill (as Her Honour then was) observed:[134]

“In a case such as this, where the “jurisdictional fact” is the opinion or belief held by the decision maker about a particular matter, as opposed to the existence of the particular matter itself, the basis on which such a decision may be judicially reviewed was explained by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-19; 9 ALR 481 at 487:

“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”[135]

  1. [218]
    Here, Mr Baxter has approached the case on a false premise, namely that s 83 of the Building Act 1975 contains an objectively determinable fact. 
  1. [219]
    Even if I am wrong about the nature of the pre-condition, Mr Baxter has not persuaded me that there is a relevant non-compliance with s 83 of the Building Act 1975.  A comparison of the plans that form part of the Council building permit to those that form part of the second certifier building permit reveal that the pool, the deck, and the rear stairs could be conveniently accessed from a deck that wrapped around the eastern and southern extents of the dwelling.  That deck was approved by the Council building permit.  Although the additional area of level backyard approved by the operational works permit increased the accessibility of the deck and the pool, its absence would not affect the use of those structures.  Further, consideration of the plans approved by the second certifier building permit reveals that the form and location of the structures approved to support the pool, the deck and the rear stairs are not dependent on the approval or otherwise of additional fill that increases the aerial extent of the level backyard (i.e. the fill that is shown in the place of the three terraced gardens that are on the approved plans in the Council building permit).
  2. [220]
    In the circumstances, Mr Baxter has not discharged his onus with respect to this allegation. 

Is the second certifier building permit inconsistent with the Council building permit?

  1. [221]
    The third substantive challenge to the legality of the decision of the private certifier is the subject of paragraph 3A(f) of the prayer for relief in the Third Further Amended Originating Application.
  2. [222]
    Mr Baxter contends that the second certifier building permit is invalid because it is inconsistent with the Council building permit.  He relies on s 84(1) of the Building Act 1975 in this respect.  It states:

84 Approval must not be inconsistent with particular earlier approvals or accepted development

  1. (1)
    The private certifier must not approve the building development application if—
  1. (a)
    the application relates to either or both of the following approvals (each an earlier approval)—
  1. (i)
    a development approval given by the local government;
  1. (ii)
    a PDA development approval under the Economic Development Act 2012; and
  1. (b)
    the earlier approval has not lapsed; and
  1. (c)
    the application is inconsistent with the earlier approval.

Maximum penalty—165 penalty units.”

  1. [223]
    None of the parties contended that this was not an objectively ascertainable jurisdictional fact.  I accept that it can be so characterised.
  2. [224]
    Mr Baxter submits that a building approval will “relate to” an earlier approval where it is “presented as ancillary to it” and will be relevantly “inconsistent” with it where the building approval shows some different use or configuration over the same area.  He cites Bundaberg Regional Council v Ross[136] in support of his submission.
  3. [225]
    Mr Baxter says the second certifier building permit purports to include the construction of the pool and the deck, along with other structures, in the rear of the subject land.  The area where the pool and the deck are located was, under the Council building permit, to be a lawn and terraced garden beds.  As such, Mr Baxter says there is a clear inconsistency between what was contemplated by the two approvals in respect of the same part of the subject land.  He submits that, in those circumstances, the second certifier building permit should not have been granted.
  4. [226]
    The development application for building work made to the private certifier sought approval for the construction of the pool, the deck, and the rear stairs, and supporting structures, in the rear of the subject land.  The application sought to locate them in an area that was depicted in the Council building permit as a lawn and terraced garden beds.  The Council building permit has not lapsed. 
  5. [227]
    Despite that, it does not follow that the application for the pool, the deck and the rear stairs that was made to the private certifier relates to the Council building permit or that the application is inconsistent with the Council building permit.[137]  Whether there is an inconsistency is a question of fact that must be determined having regard to the nature and extent of the earlier approval.
  6. [228]
    Here, the Council building permit relates to those aspects of building work identified in paragraphs [45] to [56] above.  The application made to the private certifier related to the Council building permit insofar as it sought approval for alterations to the existing dwelling.  There was no inconsistency between the application and the earlier approval in that respect.
  7. [229]
    I am not persuaded that the other aspects of the application for the second certifier building permit were otherwise related to the Council building permit.  Even if they could be so regarded, they were not inconsistent with the Council building permit.  To the extent that there were differences between the plans that form part of the Council building permit and the plans that form part of the second certifier building certificate, particularly in relation to the lawn and the terraced gardens, those differences do not demonstrate an inconsistency.  The Council building permit did not approve the use of the rear of the premises for lawn and terraced garden beds.  The notation on the plans about earthworks makes that clear.[138]  Further, there was no condition of the Council building permit that required the lawn and terraced garden beds to be maintained for that purpose. 
  8. [230]
    As such, it was possible to undertake both the development the subject of, and approved by, the Council building permit and the development the subject of, and approved by, the second certifier building permit entirely in accordance with each of those development approvals. 
  9. [231]
    If the Prestons and Graya Construction Pty Ltd did not obtain approval for operational works to place additional fill over the top of the terraced garden beds, the extent of the level backyard would have to be maintained in accordance with that approved under the Council building permit.  The absence of an operational works permit approving the yard and gardens in the form shown on the second certifier building permit did not work an invalidity on the second certifier building permit.[139]
  10. [232]
    In the circumstances, Mr Baxter has failed to discharge his onus with respect to this allegation.  He has not demonstrated non-compliance with s 84 of the Building Act 1975.

Are there discretionary considerations that inform whether the declaration should be made?

  1. [233]
    Considering my findings above, it is not necessary to dwell on discretionary considerations.  It is sufficient to make three observations.
  2. [234]
    First, there is no utility to the declaration in paragraph 3A of the prayer for relief in the Third Further Amended Originating Application.  The Prestons and Graya Construction Pty Ltd do not rely on the second certifier building permit as authorising any of the future works complained of by Mr Baxter.   The second certifier building permit will not be relied on to complete any works in the future as it was issued in accordance with an earlier building permit from the Council (being the Council building permit and not the changed Council building permit).  Mrs Preston intends to have her builder construct in accordance with the changed Council building permit and the third certifier building permit.  As such, events have overtaken this declaration, and the associated consequential order in paragraph 10A of the prayer for relief in the Third Further Amended Originating Application.
  3. [235]
    Second, Mr Baxter did not join the private certifier as a party to the proceeding.  Although a declaration will only bind the parties, the failure to join the private certifier is a relevant discretionary consideration.[140]  The alleged non-compliances are offences that make the private certifier liable to summary prosecution.[141]  An adverse declaration may also have a direct commercial consequence given the task for which the private certifier was engaged by the Prestons.  In those circumstances, it is difficult to appreciate why the private certifier would not be directly affected by the relief sought and required to be named as a party under r 8 of the Planning and Environment Court Rules 2018 (Qld).  In any event, that the private certifier was not named as a party and was also not called to give evidence about the decision that he made is a telling discretionary consideration.
  4. [236]
    Third, the discretionary considerations in paragraphs [28] to [38] above tell against the making of the declaration.

Conclusion regarding Mr Baxter’s challenge to the validity of the second certifier building permit

  1. [237]
    With respect to the non-compliances with ss 83 and 84 of the Building Act 1975, Mr Baxter submits that while the Building Act 1975 does not expressly provide that a private certifier’s approval given contrary to those provisions is invalid, it is settled law that such an approval is invalid and of no effect.  Mr Baxter cites Council of City of the Gold Coast v McKean[142] and the cases there cited[143] in support of his submission. 
  2. [238]
    Assuming that there is a legislative intent that each of these alleged inadequacies result in invalidity of the resultant development approval, Mr Baxter’s case for the declaration in paragraph 3A and the order in paragraph 10A of the prayer for relief in the Third Further Amended Originating Application must still fail.  This is because he has not established the factual basis on which his application for relief is founded.

Is the exemption certificate invalid?

  1. [239]
    In paragraph 3B of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks a declaration about the validity of the exemption certificate.  The declaration is in the following terms:

“3B. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the exemption certificate issued by the Third Respondent on about 7 June 2021 (the “Purported EC”) is invalid and of no effect, because:

  1. (a)
    the Purported EC does not contain any proper description of the development to which the exemption relates, contrary to section 46(6)(b) of the PA;[144]
  1. (b)
    the Purported EC does not set out the reasons for giving the Purported EC, contrary to section 46(6)(c) of the PA
  1. (c)
    the Purported EC incorrectly describes the development to which the Purported EC relates as a “[s]wimming pool part above ground due to grade of land”;
  1. (d)
    the purported decision to issue the Purported EC is impermissibly piecemeal, as the development to which the Purported EC relates:
  1. (i)
    depends upon, and/or may involve prejudgment or predetermination of, other assessable development that is not the the (sic) subject of the Purported EC;
  1. (ii)
    does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the Subject Premises; and/or
  1. (iii)
    is inconsistent with, and would require a change to, the Dwelling House Development Approval;
  1. (e)
    the purported decision to issue the Purported EC did not consider relevant considerations, namely that the development to which the Purported EC relates:
  1. (i)
    depends upon, and/or may involve prejudgment or predetermination of, other assessable development that is not the the (sic) subject of the Purported EC;
  1. (ii)
    does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the Subject Premises; and/or
  1. (iii)
    is inconsistent with, and would require a change to, the Dwelling House Development Approval;
  1. (f)
    in all the circumstances:
  1. (i)
    no reasonable decision-maker could find that any of the criteria set out in section 46(3)(b) of the PA for the grant of an exemption certificate under the PA were established for the development to which the Purported EC relates;
  1. (ii)
    no reasonable decision-maker could exercise any discretion under section 46 of the PA to grant the Purported PEC (sic); and
  1. (iii)
    in any event, there was no power to issue an exemption certificate under the PA for the development to which the Purported EC relates (including, so far as it was directed to these things, the Commenced Operational Works, the Filling Works and/or the Swimming Pool Works), as none of the criteria giving rise to the discretion to issue an exemption certificate under section 46 of the PA apply to that development.”
  1. [240]
    In effect, Mr Baxter contends that the exemption certificate is invalid because:[145]
    1. (a)
      it does not contain a sufficient description of the development to which it relates as required by s 46(6)(b) of the Planning Act 2016;
    2. (b)
      it does not state the reasons for granting the exemption certificate as required by s 46(6)(c) of the Planning Act 2016;
    3. (c)
      the description of the works in the exemption certificate is incorrect;
    4. (d)
      the decision to issue the certificate is impermissibly piecemeal, in that the exemption certificate:
      1. depends upon, or may involve, prejudgment or predetermination of other assessable development not the subject of the exemption certificate;
      2. does not include existing filling at the rear of the subject land; and
      3. is inconsistent with and would require a change to the Council building permit to include the pool, the deck, and associated structures;
    5. (e)
      the decision to issue the certificate failed to consider relevant matters, being those in paragraph [240](d) above;
    6. (f)
      no reasonable decision-maker could conclude that the criteria in s 46(3)(b) of the Planning Act 2016 for the issuing of the exemption certificate were met;
    7. (g)
      no reasonable decision-maker could exercise a discretion to grant the exemption certificate; and
    8. (h)
      there was no power to issue the exemption certificate because the criteria in s 46(3)(b) of the Planning Act 2016 were not satisfied.
  2. [241]
    As I have already noted in paragraphs [129] and [130] above, the focus is on the legality of the decision.  It is for Mr Baxter to establish each of the facts on which he founds his claim for relief, being the non-compliance or irregularities alleged, and that there is a legislative intent that the established non-compliance or irregularity sounds in invalidity of the exemption certificate.
  3. [242]
    Before addressing each of Mr Baxter’s contentions, it is convenient to consider the relevant legislative context.

What is the relevant legislative context?

  1. [243]
    Pursuant to s 163(1) of the Planning Act 2016, it is an offence to carry out assessable development unless all necessary development permits are in effect for the development.  However, by operation of s 163(2) of the Planning Act 2016, criminal liability does not arise where the development is carried out in accordance with an exemption certificate under s 46 of the Planning Act 2016.[146]
  2. [244]
    Section 46 of the Planning Act 2016 states:

46 Exemption certificate for some assessable development

  1. (1)
    A development approval is not required for assessable development on premises if there is an exemption certificate for the development.
  1. (2)
    The following persons may give an exemption certificate
  1. (a)
    for development for which a local government would be the prescribed assessment manager if the development, and no other development, were the subject of a development application—the local government;
  1. (b)
    otherwise—the chief executive.
  1. (3)
    The person may give an exemption certificate if
  1. (a)
    for development for which there is a referral agency—each referral agency has agreed in writing to the exemption certificate being given; and
  1. (b)
    any of the following apply—
  1. (i)
    the effects of the development would be minor or inconsequential, considering the circumstances under which the development was categorised as assessable development;
  1. (ii)
    the development was categorised as assessable development only because of particular circumstances that no longer apply;
  1. (iii)
    the development was categorised as assessable development because of an error.
  1. (4)
    The person must give a copy of the exemption certificate to—
  1. (a)
    each owner of the premises; and
  1. (b)
    each referral agency for the development; and
  1. (c)
    if the person is the chief executive—the local government for the premises.
  1. (5)
    The person must publish a notice about the person’s decision to give the exemption certificate on the person’s website.
  1. (6)
    The notice must state—
  1. (a)
    a description of the premises for which the exemption certificate was given; and
  1. (b)
    a description of the development to which the exemption certificate relates; and
  1. (c)
    the reasons for giving the exemption certificate; and
  1. (d)
    any matter prescribed by regulation.
  1. (7)
    The exemption certificate attaches to the premises and benefits each of the owners, the owners’ successors in title and any occupiers of the premises.
  1. (8)
    The exemption certificate has effect for 2 years after the day the certificate was given, or a later day stated in the certificate.
  1. (9)
    However, the exemption certificate may state a period, or periods, within which—
  1. (a)
    stated development must be completed; or
  1. (b)
    a use that is the natural and ordinary consequence of the development must start; or
  1. (c)
    a plan for reconfiguring a lot that is required under a regulation to be given to the local government for its approval must be given.
  1. (10)
    To the extent development does not comply with a requirement stated under subsection (9), the exemption certificate has no effect.
  1. (11)
    Subject to a requirement stated under subsection (9)—
  1. (a)
    any development substantially started under the exemption certificate may be completed as if the certificate had not expired; and
  1. (b)
    a use that is the natural and ordinary consequence of the development is taken to be a lawful use; and
  1. (c)
    a development approval is not required for reconfiguring a lot that is the subject of the exemption certificate if works for the reconfiguration substantially started before the certificate expires.”

(emphasis added)

  1. [245]
    In this case, the development to which the exemption certificate relates is described in paragraphs [84] to [87] above.  In short, it is building work for the pool, including all its necessary components such as its post-and-pier blockwork foundations.
  2. [246]
    The issue of the exemption certificate by the Council is consistent with its position in this proceeding that the building work for the pool was assessable development for which it was the assessment manager.  For the reasons given in paragraphs [142] to [209] above, the Council was not the assessment manager for any aspect of the building work associated with the pool.   
  3. [247]
    In the circumstances, there was no need for the exemption certificate to legitimise building work associated with the construction of the pool.  If I am wrong about that, I am satisfied that the exemption certificate is valid for the reasons that follow.

Is the exemption certificate invalid because of non-compliance with s 46(6) of the Planning Act 2016?

  1. [248]
    Mr Baxter’s allegations of invalidity the subject of paragraphs 3B(a) and (b) of the prayer for relief in the Third Further Amended Originating Application can be dealt with quite readily.
  2. [249]
    As is evident from paragraph [133] above, Mr Baxter has the onus of establishing the facts on which his claim is based. 
  3. [250]
    Relevantly, Mr Baxter alleges non-compliance with s 46(6)(b) and s 46(6)(c) of the Planning Act 2016
  4. [251]
    Pursuant to s 46(5) of the Planning Act 2016, the Council was required to publish a notice of its decision to give the exemption certificate.  The publication was required to be made on the Council’s website.[147]  Section 46(6) stipulates requirements for the notice.  Relevantly, the notice was required to state a description of the development to which the exemption certificate relates[148] and the reasons for giving the exemption certificate.[149]
  5. [252]
    An evidentiary certificate of the Chief Executive Officer of the Council provided pursuant to ss 231 and 232 of the City of Brisbane Act 2010 (Qld) establishes that on 8 June 2021, the Council published a notice about its decision to give the exemption certificate for the subject land on its website.[150] 
  6. [253]
    The notice described the development to which the exemption certificate relates as “Swimming pool part above ground”. 
  7. [254]
    The reasons for giving the exemption certificate were stated in the notice.  They were as follows:

“The exemption certificate has been granted as the effects of the development are considered to be minor or inconsequential, considering the circumstances under which the development was categorised as assessable development.”

  1. [255]
    The evidentiary certificate establishes compliance with s 46(6) of the Planning Act 2016.  As such, it is not necessary to dwell on whether a failure to comply with s 46(6) results in the invalidity of the exemption certificate.  It is sufficient to make three observations.
  2. [256]
    First, I do not consider Mr Baxter’s submissions on this issue to be persuasive.  They do not examine the language of the relevant provision and the scope and object of the Planning Act 2016 to discern whether there is an evident legislative intent to invalidate an exemption certificate in the event of non-compliance with s 46(6). 
  3. [257]
    Second, in my view the legislation does not reveal an intention that invalidity of the decision to give an exemption certificate would follow from a failure to comply with requirements to give notice of the decision after the decision is made.  
  4. [258]
    Third, consideration of the Planning Act 2016 more broadly highlights that the legislation makes careful provision for when things are of no effect on a limited basis (i.e. to the extent of non-compliance)[151] and when they are of no effect at all.[152]  That the legislation has declared certain matters to be of no effect whatever but has not done so in respect of a failure to give appropriate notice of an exemption certificate is a textual indication that invalidity was not intended.

Is the exemption certificate invalid because of the misdescription of the works?

  1. [259]
    In paragraph 3B(c) of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks a declaration that the exemption certificate is invalid and of no effect because it incorrectly describes the development to which it relates as a “[s]wimming pool part above ground due to grade of land”.
  2. [260]
    Mr Baxter notes that in the exemption certificate under the heading “Development to which the exemption certificate relates”, the development is described as “swimming pool part above ground due to grade of land”.[153]  The notice of the decision to give the exemption certificate published on the Council’s website similarly describes the “Proposal” as “swimming pool part above ground”.  Mr Baxter submits that the description does not correspond to the pool that is proposed.  He says that the evidence of Mr Muller, the architect he retained, is that the pool is entirely above ground.  Mr Baxter says that it follows that, on the face of the exemption certificate and the notice, the exemption certificate does not purport to exempt the works undertaken and proposed to be undertaken by the Prestons and Graya Construction Pty Ltd. 
  3. [261]
    Further, Mr Baxter says that the Council delegate who assessed the application, Mr McAulay, admits that he misinterpreted the plans when considering the request for an exemption certificate.  He believed that the pool was partly above ground due to the gradient of the subject land, when that is not, in fact, the case.  Mr Baxter says that concession alone means that the decision to issue the exemption certificate was infected by jurisdictional error because the delegate asked himself the wrong question, namely “should I issue a certificate in respect of a pool which is partly above ground due to the grade of the land?
  4. [262]
    Mr Baxter has not discharged his onus on this issue.  I say that for each of the following two reasons.
  5. [263]
    First, Mr Baxter has not alleged, nor established, a jurisdictional error.  The question asked, and answered, by the Council’s delegate, Mr McAulay, was whether the effect of the development the subject of the exemption certificate (being that building work described in words and shown on the plans) would be minor or inconsequential considering the circumstances under which the building work was categorised as assessable development.[154]  This is the question that is called for under s 46(3) of the Planning Act 2016
  6. [264]
    In any event, Mr Baxter has not established that the exemption certificate misdescribes the development.  The exemption certificate comprises 15 pages.  It is described in paragraphs [84] to [87] above.  Careful consideration of the plans reveals that the description is accurate.  The building work for the “pool” includes the pool shell, the pool water recirculation system, the components associated with the discharge of swimming pool waste water and the underpinning or other structural support that is necessary for the construction of the pool.  Part of the pool, being a part of its post-and-pier blockwork structural foundation, is below the ground. 
  7. [265]
    Second, Mr Baxter’s submissions do not examine the language of s 46 of the Planning Act 2016 and the scope and object of the Planning Act 2016 to demonstrate that there is an evident legislative intent to invalidate an exemption certificate in the event of a misdescription of the development to which it applies.  In my view, the legislation does not reveal an intention that invalidity of the decision to give an exemption certificate would follow from an anomaly in the words used to describe the development as compared to the plans that depict the development that is the subject of the exemption certificate. 

Is the exemption certificate invalid because the decision to issue it is impermissibly piecemeal?

  1. [266]
    In paragraph 3B(d) of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks a declaration that the exemption certificate is invalid and of no effect because the purported decision to issue the exemption certificate is impermissibly piecemeal as the development to which the exemption certificate relates:
    1. (a)
      depends upon, and/or may involve, prejudgment or predetermination of other assessable development not the subject of the exemption certificate;
    2. (b)
      does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the subject land; and/or
    3. (c)
      is inconsistent with and would require a change to the Council building permit.
  2. [267]
    Mr Baxter’s submissions on this issue are brief.  They are:

“96. The Court is familiar with the principles in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485. At 504, Stephen J said that severing an application could impede proper consideration, in that it:

… would tend to make it difficult for the Council or, for that matter the [then] Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged…Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes it, the first application having been granted, the second were to be refused.

  1. In Fox v Brisbane City Council [2003] QCA 330, de Jersey CJ said of the Pioneer principle (at [12]):

The so-called Pioneer principle was developed in relation to the proposed use of particular land for a single purpose. The goal is that the local authority should be made aware of all that is proposed, prior to its embarking upon a consideration and determination of the application. But where considerations of convenience otherwise warrant separate applications, there is no legislative prohibition, and the Pioneer principle should not be erected into an equivalent, where, as here, each application makes the overall scope of the project abundantly clear: no relevant intention was ‘held back’.”

  1. Thus here, the Dwelling House Approval[155] plainly did not disclose ‘the overall scope of the project’ in relation to the site. Moreover, in circumstances where the Building Approval[156] had already been granted and work commenced, the application for the Exemption Certificate (accepting that Council does not ‘approve’ anything by granting a certificate) involved pre-judgment. How could Council not grant the Exemption Certificate where the works leading up to it had already been supposedly approved?”
  1. [268]
    Mr Baxter fails to discharge his onus on this issue for five reasons.
  2. [269]
    First, Mr Baxter has not established that the principle in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council[157] (“Pioneer”) applies in this case. 
  3. [270]
    Pioneer relates to an application made under the City of Brisbane Town Planning Act 1964-1976 (Qld) for permission to use certain land for the extraction, crushing and screening of rock and stone.  The land the subject of the application was part of a large area of land owned by a company associated with the applicant.  The application did not show the formed road, located on the larger parcel, which was intended to be used to remove the rock from the land.  The High Court found that where a change of use is contemplated, the proposed use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application.
  4. [271]
    The current situation is distinguishable.  This proceeding does not relate to a development approval to make a material change of use of the land.  The development in question are the various aspects of building work and operational work that are proposed to be undertaken.  As I have noted in paragraph [41] above, s 48 of the Planning Act 2016 specifically contemplates that different parts of building work for a single project may be the subject of separate development applications.
  5. [272]
    Second, I am not persuaded that the development to which the exemption certificate relates (i.e., that aspect of the building work that involves construction of the pool) depends upon, and/or may involve, prejudgment or predetermination of other assessable development not the subject of the exemption certificate.
  6. [273]
    The development that is the subject of the Council building permit is building work involving partial demolition, and extensions to, a pre-1947 dwelling.  That building work is separate and distinct from the building work that is the construction of the pool.  There is no potential for conflict between the Council’s decision to approve the partial demolition of, and extensions to, the pre-1947 dwelling and the Council’s decision to either approve or refuse a request for an exemption certificate for the pool.
  7. [274]
    Similarly, the aspect of the development that is approved by the second certifier building permit is separate and distinct from the aspect of development the subject of the exemption certificate.  The second certifier building permit is the result of an assessment of the pool against the building assessment provisions.  Those aspects of the building work to which it relates are those that inform the pool’s technical design and construction and its associated plumbing and drainage systems.  By way of contrast, the aspects of the building work to which the exemption certificate relates are those aspects for which the Council says it was the assessment manager.  They are those aspects that relate to whether the pool reflects and strengthens the traditional character and the traditional building character of the area through compatible form, scale, materials and detailing, and the impact of the building work having regard to the landscape character, physical setting, and topography of the subject land.[158]  As such, there is no potential for conflict between the decision of the private certifier to give the second certifier building permit and a decision to either approve or refuse a request for an exemption certificate for the pool.  The same is true of the potential for conflict between the exemption certificate and the third certifier building permit.
  8. [275]
    Third, Mr Baxter has not established any relevance to his allegation that the exemption certificate does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the subject land.  The exemption certificate only relates to building work.  It does not relate to operational work.  It is unremarkable that the plans that form part of the exemption certificate do not show any filling or excavation associated with the pool as the pool is not to be constructed within a filled platform.  It is to be constructed using a post-and-pier type blockwork foundation.  Further, Mr Baxter does not explain the relevance of his submission that the work has commenced.  It is not apparent how the current state of the land (whether it involves works that are lawful or not) demonstrates that the decision to give the exemption certificate is impermissibly piecemeal.
  9. [276]
    Fourth, I am not persuaded that the development to which the exemption certificate relates is inconsistent with, and would require a change to, the Council building permit.  Pursuant to s 49(3) of the Planning Act 2016, a development permit only authorises the carrying out of assessable development to the extent stated in the decision notice.  The Council building permit did not authorise the building work for the pool.  In any event, the plans that form part of the changed Council building permit are now consistent with the exemption certificate.
  10. [277]
    Fifth, Mr Baxter’s submissions do not examine the language of s 46 of the Planning Act 2016 and the scope and object of the Planning Act 2016 to demonstrate that there is an evident legislative intent to invalidate an exemption certificate in the event of a piecemeal application.  In my view the legislation does not reveal such an intention.  To the contrary, s 46(2) of the Planning Act 2016 contemplates that an exemption certificate may be given in relation to an aspect of development that is only part of an overall project. 

Is the exemption certificate invalid because of a failure to consider relevant matters?

  1. [278]
    In paragraph 3B(e) of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks a declaration that the exemption certificate is invalid and of no effect because the decision to issue the exemption certificate did not consider relevant considerations, namely that the development to which the exemption certificate relates:
    1. (a)
      depends upon, and/or may involve, prejudgment or predetermination of other assessable development that is not the subject of the exemption certificate;
    2. (b)
      does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the subject land; and/or
    3. (c)
      is inconsistent with, and would require a change to, the Council building permit.
  2. [279]
    Mr Baxter made no submissions about this allegation.  Nevertheless, it can be dealt with quite readily. 
  3. [280]
    In Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport,[159] Bond J (as His Honour then was) observed:

[230] Under this ground of review,[160] the applicants must show that the Minister was bound to take into account the alleged relevant considerations that they identified.

[231] As I have earlier stated, determining what considerations a decision-maker must take into account in the exercise of a statutory power is question of law which must be determined as a matter of construction of the statute which created the power, including, if necessary, by implication from the subject matter, scope and purpose of the statute. Moreover, the same question of materiality arises on this ground as arose in relation to ground 5.

[232] It follows that in order to obtain the relief which they seek in respect of this ground, the applicants must demonstrate:

  1. (a)
    first, the alleged relevant consideration was, as a matter of law, to be regarded as an a (sic) consideration which the Minister was bound to take into account in the exercise of power;
  1. (b)
    second, the decision-maker failed to take the relevant consideration into account;
  1. (c)
    third, because of the materiality of the consideration, the proper exercise of discretion would be to set aside the decision and to order it to be re-exercised.”
  1. [281]
    Section 46 of the Planning Act 2016 does not prescribe criteria which a decision-maker must consider.  Against that background, Mr Baxter has not otherwise demonstrated that, in the exercise of its power to give an exemption certificate, the Council was bound, as a matter of law, to take into account the alleged relevant considerations.
  2. [282]
    Even if any of the matters identified by Mr Baxter are relevant considerations, for the reasons provided in paragraphs [269] to [276] above, he has not established the factual foundation for his allegation. 
  3. [283]
    Mr Baxter has also failed to demonstrate that because of the materiality of the consideration, the proper exercise of discretion would be to set aside the decision and to order it to be re-exercised.[161] 

Was the decision one that no reasonable decision-maker could make?

  1. [284]
    In paragraph 3B(f) of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks a declaration that the exemption certificate is invalid and of no effect because in all the circumstances:
    1. (a)
      no reasonable decision-maker could find that any of the criteria set out in s 46(3)(b) of the Planning Act 2016 for the grant of an exemption certificate under the Planning Act 2016 were established for the development to which the exemption certificate relates;
    2. (b)
      no reasonable decision-maker could exercise any discretion under s 46 of the Planning Act 2016 to grant the exemption certificate; and
    3. (c)
      in any event, there was no power to issue an exemption certificate under the Planning Act 2016 for the development to which the exemption certificate relates (including, so far as it was directed to any excavation and filling already undertaken on the subject land, operational work on the subject land that exceed that approved by the operational works permit and/or the building work for the pool), as none of the criteria giving rise to the discretion to issue an exemption certificate under s 46 of the Planning Act 2016 apply to that development.

What are the relevant principles?

  1. [285]
    The relevant legal principles governing the exercise of the power to review a decision on the ground of unreasonableness were helpfully set out by Bond J in Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport.[162]  I gratefully adopt His Honour’s analysis, the tenor of which is set out in paragraphs [286] to [293] below.
  1. [286]
    In Francis v Crime and Corruption Commission & Anor[163] Fraser JA (with whom Morrison JA and Mullins J agreed) observed, in relation to the unreasonableness ground of judicial review, that:
    1. (a)
      it involved a stringent test, and was rarely established;
    2. (b)
      it did not sanction a review on the merits;
    3. (c)
      it was not made out merely if the Court disagrees with an evaluative decision or with the weight attributed to a factor taken into account in the decision;
    4. (d)
      in Flegg v Crime and Misconduct Commission & Anor:[164]
      1. McMurdo P had expressed the test, with reference to Minister for Immigration and Citizenship v Li,[165] as being:[166]

“whether the ... decision was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered”; and 

  1. (ii)
    Gotterson JA (with whom Margaret Wilson J agreed) noted that in separate reasons in Minister for Immigration and Citizenship v Li,[167] French CJ reminded that:[168]

“the ground was not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision-maker”;

  1. (e)
    the Court’s task was to examine the reasoning of the impugned decision to determine whether it was a decision that could be justified even though “reasonable minds could reasonably differ” or whether the decision was so unreasonable that it lacked an evident and intelligible justification.
  1. [287]
    In Minister for Immigration and Border Protection v SZVFW & Ors,[169] Griffiths, Kerr and Farrell JJ observed:[170]

“The following general principles may be extracted from the three leading authorities [of Minister for Immigration and Citizenship v Li,[171] Minister for Immigration and Border Protection v Singh[172] and Minister for Immigration and Border Protection v Stretton[173] (further general guidance is provided by the Full Court’s decision in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158):

 there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);

 nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);

 the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ and at [76] per Griffiths J);

 the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);

 in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);

 legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);

 the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);

 where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).”

  1. [288]
    In Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport,[174] Bond J observed that the decision of the Full Court of the Federal Court was subsequently overturned on appeal to the High Court.[175]  His Honour observed that although the reasons of the High Court do not provide any occasion to conclude that the summary of general principles in that case was erroneous, the High Court made several points as to the juridical basis of the legal unreasonableness challenge to administrative decisions which should be emphasised.
  2. [289]
    Kiefel CJ observed:[176]

In Minister for Immigration and Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.”

  1. [290]
    Gageler J observed:[177]

“Whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, however, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin. The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute). Where the presumption prevails so as to condition the exercise of the power on the repository complying with the standard of legal reasonableness, a decision made or action taken in purported exercise of a statutory power in breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power.”

  1. [291]
    Nettle and Gordon JJ expressed themselves in this way:[178]

[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.

[79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.

[80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.

[81] How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain.

[82] Nor is the abuse of statutory power limited to a decision which may be described as “manifestly unreasonable”, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evident and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.

[83] Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. In that situation, the court is not undertaking merits review of an exercise of a discretionary power by a decision-maker. Rather, the court is asking whether the decision-maker’s purported exercise of power was beyond power because it was legally unreasonable.

[84] Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”

  1. [292]
    Edelman J observed:[179]

[131] The reasonableness constraint that usually applies to the exercise by an administrator of statutory power is generally based upon a statutory implication. Where the statutory implication imposes a duty of reasonableness as a condition of decision making, violation of that duty means that the decision will have been made beyond power and therefore unlawfully. …

[134] Like other legal instruments, statutes often confer powers upon a decision-maker without any express condition as to the manner in which those powers must be exercised. To the question: “how should the power be exercised?” the implication will not usually be: “in any way that the decisionmaker desires”. Rather, it will usually be implied that the power should be exercised reasonably. As for the content of the duty of reasonableness, following the classic exposition by Lord Greene MR, the content of the implication of reasonableness as an independent ground of judicial review has often been expressed in this Court in terms similar to those which ask whether a decision is “so unreasonable that no reasonable repository of the power could have taken the impugned decision or action”. In Canada, in a distinction now abandoned, this high standard of unreasonableness was once described as “patent” unreasonableness in contrast with “unreasonableness simpliciter”. Although Lord Cooke of Thorndon presciently observed nearly two decades ago, and a majority of this Court more recently said, that the legal standard of reasonableness is not necessarily limited to patent unreasonableness, it is not helpful to attempt to divide unreasonableness into predetermined species. Rather, the precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute.”

  1. [293]
    I gratefully adopt Bond J’s summary in Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport,[180] where His Honour observed:

[161] It is clear now that, subject to one caveat, any summary of general principle in relation to this ground of judicial review should now start with the proposition that at general law judicial review on the grounds of legal unreasonableness is concerned with: (1) the rebuttable presumption that the valid exercise of administrative power is conditioned on the repository of the power exercising it within the bounds of legal reasonableness, and (2) the discernment of the ambit of those bounds in the particular case, having regard to the scope, purpose and objects of the statutory source of the power. The various ways in which Courts have expressed the circumstances in which it might be appropriate to conclude that the bounds have been exceeded (e.g. “manifestly unreasonable”, “illogical”, “irrational”, or “lacks an evident and intelligible justification”) do not confine the manner of discernment of the bounds in any particular case, but are examples of when the appropriate conclusion might have been drawn in different cases.

[162] The caveat of course is that at least in Queensland and the Commonwealth by statute, an administrative decision under an enactment must be exercised within the legal bounds created by the proposition that it must not be an exercise of a power that is so unreasonable that no reasonable person could so exercise the power. There is no reason to think that manner of determining the bounds of legal reasonableness was intended to codify the law. However, if the legal bounds so defined are exceeded in a particular case then the statutory ground of judicial review would be established.”

What was the evidence about the Council’s decision?

  1. [294]
    Mr McAulay is the delegate of the Council who gave the exemption certificate.  He provided an affidavit in which he explained the reasons for his decision.[181]
  2. [295]
    Mr McAulay attests that in assessing the application for an exemption certificate under s 46 of the Planning Act 2016, he considered the material that was provided as part of the application.  It included the application lodgement form, the details of the application in a document from Property Projects Australia dated 7 May 2020, the proposed plans, the Council building permit and the second certifier building permit.  A copy of each of these documents was provided to the Court as part of an evidentiary certificate of the Chief Executive Officer of the Council provided pursuant to ss 231 and 232 of the City of Brisbane Act 2010.[182]
  3. [296]
    Mr McAulay explains that, in considering the circumstances under which the development was categorised as assessable development, he reviewed the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code.  He found that it was apparent that those codes contained no assessment criteria for a swimming pool that is constructed at the rear of the dwelling.  
  4. [297]
    Mr McAulay considered that the Traditional building character (design) overlay code focuses on the dwelling’s interaction with the streetscape and how the development has a building form and bulk which complements the predominant traditional scale of a dwelling constructed in 1946 or earlier in the streetscape.
  5. [298]
    As for the Ithaca district neighbourhood plan code, Mr McAulay considered that it focuses on the building footprint and boundary setbacks within the Hillside character precinct. 
  6. [299]
    When assessing the application for the exemption certificate, Mr McAulay observed that the deck (surrounding the pool) is prescribed accepted development pursuant to Table 5.3.4.1 of City Plan.  He also reviewed the siting variation referral agency response.  He noted that since the subject land was not a small lot (by definition under City Plan), the rear boundary clearance for a building or structure other than a swimming pool is determined by the Queensland Development Code.  He noted that the Council, as referral agency, had approved a relaxation from two metres to 1.25 metres.
  7. [300]
    Mr McAulay considered the visual impact of the pool on neighbouring properties.  He believed that the visual impacts of the development were minimal as the pool sits within and is surrounded by the deck.  He formed the view that the neighbouring properties would see the deck structure and, whether the pool was part of that structure or not was likely to make little difference to the visual impact.  Most of the impact comes from the surrounding structure.
  8. [301]
    Mr McAulay explains that reviewing all the information, he determined that it was appropriate to give the exemption certificate because the effects of the pool were minor or inconsequential considering the circumstances in which it was categorised as assessable development.
  9. [302]
    In relation to the ambit of the building work the subject of the exemption certificate, Mr McAulay explains that the exemption certificate clearly states that it relates to the pool.  He notes that drawing A207-S clearly differentiates between the pool and the deck that surrounds the pool.  Drawing A221-F identifies the pool in blue waved hatching.  Drawing A732-D provides a clear visual distinction between the pool, being the part of the structure that is intended to hold the water, and the deck that surrounds the pool.
  10. [303]
    With respect to the description of the pool as “part above ground”, Mr McAulay explains that he gave that description as that is how he initially interpreted the plans.  When cross-examined on the issue, it is apparent that, regardless of the appropriate descriptor, the focus of Mr McAulay’s assessment was the effect of the development.  He judged that by reference to the plans, the relativity of the location of the pool (and its consequent impacts) compared to other aspects of built form proposed on the subject land (such as the deck), and the outcome of the assessment of those other aspects.[183]

Has Mr Baxter established legal unreasonableness?

  1. [304]
    Mr Baxter submits that Mr McAulay reached his decision because:
    1. (a)
      there were no assessment criteria under either the Traditional building character (design) overlay code or the Ithaca district neighbourhood plan code for a pool constructed at the rear of a dwelling;
    2. (b)
      the deck surrounding the pool was prescribed accepted development pursuant to Table 5.3.4.1 of City Plan; and
    3. (c)
      the visual impact of the pool was minimal, having regard to the visual impact of the deck surrounding the pool.
  2. [305]
    Mr Baxter says the validity of the exemption certificate depends upon the first two premises relied upon by the delegate being sustainable.  He says they are not because:
    1. (a)
      there are various acceptable outcomes and performance outcomes which, while cast in general terms, apply to the building work for the pool and the deck; and
    2. (b)
      while Table 5.3.4.1 of City Plan refers to (at item g.) “decks, verandahs, balconies and other shade structures at the rear of the building”, the structures must be physically attached or connected to the building and not merely behind it.  Mr Baxter says that is inherent in the notion of a deck, verandah, or balcony.
  3. [306]
    Mr Baxter submits that it follows from the above that the circumstances in which the pool was categorised as assessable development were that the deck surrounding the pool, contrary to the position adopted by Mr McAulay, was itself assessable against City Plan.   He says that once it is accepted that both the deck and the pool are assessable development, it cannot be said that the effects of that development are “minor or inconsequential”.  They are substantial structures that occupy a considerable portion of the rear of the subject land.
  4. [307]
    Beyond those matters, Mr Baxter submits that it is apparent from Mr McAulay’s evidence that he failed to consider at all whether the pool would have any additional impact beyond the structures he considered to be prescribed accepted development.  He considered that the effect of the building work for the pool was minor and inconsequential because the deck was present and closer to boundaries.  Mr Baxter says that the error in this approach is particularly apparent when it is acknowledged that the southern part of the deck is marginally closer (i.e. 750 mm) to the subject land’s eastern boundary.  Mr Baxter contends that by failing to give any independent consideration to the effect of the pool and supporting structures, Mr McAulay did not address the statutory test in s 46(3)(b)(i) of the Planning Act 2016.  As such, Mr Baxter submits that Mr McAulay’s decision is affected by jurisdictional error, is invalid and ought to be set aside.
  5. [308]
    If the pool is assessable development for which the Council was the assessment manager,[184] having regard to the matters outlined in paragraphs [309] to [318] below, I am not satisfied that no reasonable decision-maker could have reached the conclusion that the effects of the building work for the pool would be minor or inconsequential, considering the circumstances under which the development was categorised as assessable development. 
  6. [309]
    The pool was categorised as assessable development because the subject land is in the Traditional building character overlay.  The assessment benchmarks against which the pool was to be assessed were those in the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code.
  7. [310]
    The purpose of the Traditional building character (design) overlay code is achieved through the following overall outcomes:[185]

“a. Development reflects or strengthens the traditional character and traditional building character through compatible form, scale, materials and detailing;

b. Development retains and complements a precinct of houses constructed in 1946 or earlier.”

  1. [311]
    While there are assessment benchmarks in the Traditional building character (design) overlay code that apply to all development, they are cast in general terms and they focus on the aesthetic impact of development presented to the street.
  2. [312]
    The purpose of the Ithaca district neighbourhood plan code is achieved through overall outcomes for the neighbourhood plan area.[186]  The subject land is in the Hillside character precinct of the Ithaca district neighbourhood plan area.  The overall outcomes for the Hillside character precinct are:

“a. Hillside character is maintained, retained and enhanced through sympathetic development that minimises visual impact within its visual catchment;

b. Development along major ridgelines in the precinct contributes to a consistent rhythm and sense of scale along the ridgeline when viewed from the surrounding visual catchment;

c. Residential development in particular, provides and/or incorporates:

i. the appearance of traditional character houses uniformly spaced and steeped across well-treed hillsides;

ii. compatible building height, bulk and proportions;

iii. construction methods, such as posts or piers, that minimise the amount of alteration to site topography.”

  1. [313]
    There are no assessment benchmarks in the Ithaca district neighbourhood plan code that are framed to be specific to the construction of a pool at the rear of a dwelling, but performance outcome PO24 relates to “buildings or other structures”.  As I have already noted in paragraph [63] above, performance outcome PO24 and acceptable outcomes AO24.1 and AO24.2 of the Ithaca district neighbourhood plan code state:

Performance outcomes

Acceptable outcomes

If in the Hillside character precinct (Ithaca district neighbourhood plan/NPP-008)

Landscape character, physical setting and topography

PO24

Development, including buildings or other structures, driveways and hard-stand areas, must be designed and sited to minimise cut-and-fill on the site and to soften visual impact.

AO24.1

Development incorporates:

a. foundation systems that minimise disturbance to the landscape, such as post-and-pier type foundations;

b. slab-on-ground foundations only on those parts of a site with gradients less than 1 in 8 and where cut and fill is minimal;

c. benching, cut and fill, or construction of retaining walls of a minor nature only (i.e. fill does not exceed 1m and/or the combined height of any retaining wall and fence does not exceed 2m) and is designed so it is not noticeable after construction has been completed;

d. driveways and hardstand areas only on those parts of a site with gradients less than 1 in 4.

AO24.2

Development provides retaining walls that are set back from any boundary and are stepped, terraced and landscaped.”

  1. [314]
    It is apparent from the plans that were before the Council delegate that the pool is to be constructed with a foundation system that is post-and-pier type foundations.
  2. [315]
    For the reasons provided in paragraphs [188] to [190] above, Mr Baxter has not established that the structures referred to at item g. in Table 5.3.4.1 of City Plan, namely “decks, verandahs, balconies and other shade structures at the rear of the building” must be physically attached or connected to the building and not merely behind it. 
  3. [316]
    The deck, which surrounds the pool on three sides, was prescribed accepted development pursuant to Table 5.3.4.1 of City Plan.
  4. [317]
    It was reasonable for Mr McAulay to have regard to the siting variation referral agency response.  It approved a rear boundary setback to the rear stairs of 0.159 metres and a rear boundary setback to the deck of 1.25 metres.
  5. [318]
    It was also reasonable for Mr McAulay to have regard to the visual impact of the pool as compared to the visual impact of the deck that surrounds it.  The opinion that he formed with respect to that matter was one that an objective and rational person might form.
  6. [319]
    The opinion formed by Mr McAulay falls within the range of legally and factually justifiable outcomes having regard to the matters referred to above. 
  7. [320]
    In those circumstances, there was power to give the exemption certificate under s 46(3)(b)(i) of the Planning Act 2016.  For that reason, it is unnecessary to consider whether there was also power to give the exemption certificate under ss 46(3)(b)(ii) or (iii).
  8. [321]
    For the reasons provided above, I find that this ground is not made out.

Conclusion regarding Mr Baxter’s challenge to the validity of the exemption certificate

  1. [322]
    If, contrary to my earlier findings,[187] the building work for the pool was assessable development under City Plan for which the Council was assessment manager, Mr Baxter has not demonstrated that the exemption certificate did not validly obviate the need to obtain a development approval for that work.
  2. [323]
    Accordingly, Mr Baxter’s case for the declaration in paragraph 3B and the consequential order in paragraph 10B of the prayer for relief in the Third Further Amended Originating Application must fail.

Is the third certifier building permit invalid?

  1. [324]
    In paragraph 10C of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks an order pursuant to s 11(4) of the Planning and Environment Court Act 2016.  The order is in the following terms:

“10C. An order, pursuant to section 11(4) of the PECA, that the further building development approval (the “Further Building Approval”)[188] issued on 5 October 2021 be set aside.”

  1. [325]
    The basis for the order is not clear in the Third Further Amended Originating Application. 
  2. [326]
    Mr Baxter’s written submissions about this relief are brief.  They say:

“106 The Further Building Approval suffers from defects that are of the same type as the defects in the Building Approval.[189]

  1. The Further Building Approval is inconsistent with the Exemption Certificate and the Operational Works and requires further approval from Council for both building work (given the different arrangement of the Southern Deck) and operational work to deal with inconsistency with the Operational Works Approval).
  1. The Further Building Approval is invalid and ought to be set aside.”
  1. [327]
    Mr Baxter’s case with respect to the third certifier building permit is without merit. 
  2. [328]
    To the extent that Mr Baxter says that the third certifier building permit suffers from the same defects as the second certifier building permit, I have dealt with those alleged defects at length in paragraphs [139] to [238] above.  Mr Baxter has not discharged his onus with respect to those allegations.
  3. [329]
    Mr Baxter’s case also falls short with respect to the alleged inconsistency between the third certifier building permit and the exemption certificate and operational works permit.  The differences between the plans to which Mr Baxter refers relate to an area with dimensions of approximately 1.5 metres x 2.5 metres located proximate to the southern boundary of the subject land.  On some of the approved plans that form part of the third certifier building permit, this area is shown as deck.  This is different to how the area is depicted in the approved plans that form part of the operational works permit, and the plans that form part of the exemption certificate.  In those two documents, the area is shown as fill with a level that is commensurate with the lower garden. 
  4. [330]
    The differences between the exemption certificate and the third certifier building permit are of no moment.  The exemption certificate relates only to the pool, not to the deck. 
  5. [331]
    The claimed inconsistency between the operational works permit and the third certifier building permit relies on a misunderstanding of the operational works permit.  The operational works permit approves areas of excavation and areas of fill.  That is the aspect of development with which the operational works permit is concerned.  The operational works permit does not determine what is placed on top of the areas of excavation and fill.  Once that is understood, one can readily appreciate that it is possible to complete the development generally in accordance with both development approvals.  There is no inconsistency between the development approvals. 
  6. [332]
    Accordingly, Mr Baxter has not discharged his onus with respect to his case for the consequential order in paragraph 10C of the prayer for relief in the Third Further Amended Originating Application.  That part of his application must fail.

What are the enforcement orders that are sought?

  1. [333]
    As I have already mentioned above, Mr Baxter alleges that the Prestons and Graya Construction Pty Ltd have committed development offences and will commit development offences unless restrained.  He seeks enforcement orders that require the Prestons and Graya Construction Pty Ltd to:
    1. (a)
      remedy the effect of the development offences committed under s 163 of the Planning Act 2016; and
    2. (b)
      refrain from committing development offences under ss 163 and 164 of the Planning Act 2016.
  1. [334]
    The orders sought are in paragraphs 11, 12 and 13A of the prayer for relief in the Third Further Amended Originating Application.  They are in the following terms:

“11. An order, pursuant to section 11(4) of the PECA, or an interim enforcement order or an enforcement order pursuant to section 180(4) or 180(2) of the PA, that, the First Respondents:

  1. (a)
    within thirty (30) minutes of the service of the order, cease, or cause to be ceased, the (sic) any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
  1. (b)
    from the time of the making of the order and thereafter until any further order, not resume any development comprising the Filling Works and the Swimming Pool Works unless and until there is:
  1. (i)
    a development approval under the PA issued by the Third Respondent approving those works; and
  1. (ii)
    a valid development permit authorising the carrying out of those works; and
  1. (iii)
    a change to the Dwelling House Development Approval[190] consistent with the Filling Works, Commenced Operational Works and Swimming Pool Works.
  1. (c)
    from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval
  1. An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, the Second Respondent:
  1. (a)
    within thirty (30) minutes of service of the order, cease, or cause to be ceased, any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
  1. (b)
    from the time of the making of the order and thereafter until any further order, not resume the works any development comprising the Filling Works, and the Swimming Pool Works unless and until there is:
  1. (i)
    a development permit under the PA issued by the Third Respondent authorising the carrying out of those works; and
  1. (ii)
    a valid development permit authorising the carrying out of those works; and
  1. (iii)
    a change to the dwelling house approval consistent with the carrying out of the Filling Works, Commenced Operational Works and Swimming Pool Works.
  1. (c)
    from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval[191]

13A. An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, to the extent that the Swimming Pool Works are not approved and authorised by all necessary valid development approvals for such works, and/or all such necessary development approvals are not obtained within a reasonable period of time, as determined by the Court, the First Respondents and the Second Respondent remove the unlawful works on the Subject Premises within a reasonable period of time, as determined by the Court.”

  1. [335]
    Mr Baxter’s application for this relief raises the following questions for consideration:
  1. Have the Prestons and Graya Construction Pty Ltd committed development offences under s 163 of the Planning Act 2016?
  1. Will the Prestons and Graya Construction Pty Ltd commit development offences under ss 163 and 164 of the Planning Act 2016 unless restrained?
  1. [336]
    Before considering those questions, it is helpful to briefly consider the Court’s jurisdiction with respect to enforcement orders.

What is the Court’s jurisdiction and powers with respect to enforcement orders?

  1. [337]
    Section 180(1) of the Planning Act 2016 confers a right to start proceedings in this Court for an enforcement order.  “Enforcement order” is defined in s 180(2), which states:

“(2) An enforcement order is an order that requires a person to do either or both of the following –

  1. (a)
    refrain from committing a development offence;
  1. (b)
    remedy the effect of a development offence in a stated way.”
  1. [338]
    The Court’s power to make an enforcement order is enlivened if the Court considers a development offence has been committed; or will be committed unless the order is made.[192]  Each of ss 163 and 164 of the Planning Act 2016 is a development offence under the Act.[193]
  2. [339]
    In deciding whether to make an enforcement order, the Court has a broad discretion.  Pursuant to s 180(5) of the Planning Act 2016, an enforcement order may direct a person:

“(a) to stop an activity that constitutes a development offence; or

  1. (b)
    not to start an activity that constitutes a development offence; or
  1. (c)
    to do anything required to stop committing a development offence; or
  1. (d)
    to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or
  1. (e)
    to do anything to comply with this Act.

Examples of what the respondent may be directed to do—

  • to repair, demolish or remove a building
  • to rehabilitate or restore vegetation cleared from land
  1. [340]
    Section 181 of the Planning Act 2016 provides guidance about the Court’s powers with respect to enforcement orders.  It states:

“(1) The P&E Court’s power to make an enforcement order or interim enforcement order may be exercised whether or not the development offence has been prosecuted.

  1. (2)
    The power to order a person to stop, or not to start, an activity may be exercised whether or not—
  1. (a)
    the P&E Court considers the person intends to engage, or to continue to engage, in the activity; or
  1. (b)
    the person has previously engaged in an activity of the same type; or
  1. (c)
    there is danger of substantial damage to property or injury to another person if the person engages, or continues to engage, in the activity.
  1. (3)
    The power to order a person to do anything may be exercised whether or not—
  1. (a)
    the P&E Court considers the person intends to fail, or to continue to fail, to do the thing; or
  1. (b)
    the person has previously failed to do a thing of the same type; or
  1. (c)
    there is danger of substantial damage to property or injury to another person if the person fails, or continues to fail, to do the thing.

…”

Have the Prestons and Graya Construction Pty Ltd committed development offences under s 163 of the Planning Act 2016?

  1. [341]
    Pursuant to s 180 of the Planning Act 2016, Mr Baxter seeks an enforcement order requiring the Prestons and Graya Construction Pty Ltd to remedy the effect of development offences that he alleges they committed under s 163 of the Planning Act 2016.
  2. [342]
    Relevantly, Mr Baxter says that following the grant of the second certifier building permit, the Prestons and Graya Construction Pty Ltd commenced redevelopment of the subject land.  Mr Baxter alleges that the activities on the subject land involved:
    1. (a)
      the commencement of alterations to the dwelling;
    2. (b)
      the commencement of filling at the rear of the subject land, which Mr Baxter refers to as “the Commenced Operational Works”; and
    3. (c)
      the commencement of the building work for the pool, which Mr Baxter refers to as “the Swimming Pool Works”.[194]
  1. [343]
    In paragraph 1 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter defines “the Swimming Pool Works” as building work under the Planning Act 2016 in the rear of the subject land involving the construction of an above-ground swimming pool, with associated decks, rear stairs and structural and retaining structures.  I refer to these components of the building works as the pool, the deck, and the rear stairs.
  2. [344]
    Ultimately, Mr Baxter alleges that the offences committed by the Prestons and Graya Construction Pty Ltd are carrying out operational work without a development permit and carrying out building work, for the pool, the deck, and the rear stairs, without a development permit. 

What must Mr Baxter prove?

  1. [345]
    Mr Baxter alleges that the Prestons and Graya Construction Pty Ltd have committed development offences under s 163 of the Planning Act 2016, which states:

163 Carrying out assessable development without permit

  1. (1)
    A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

Maximum penalty—

  1. (a)
    if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or
  1. (b)
    otherwise—4,500 penalty units.
  1. (2)
    However, subsection (1) does not apply to development carried out—
  1. (a)
    under section 29(10)(a); or
  1. (b)
    in accordance with an exemption certificate under section 46; or
  1. (c)
    under section 88(3).
  1. [346]
    For each of the offences alleged, Mr Baxter must prove that:
    1. (a)
      the Prestons and Graya Construction Pty Ltd carried out development;
    2. (b)
      the development was assessable development;
    3. (c)
      there was no development permit authorising the development; and
    4. (d)
      the development was not carried out:
      1. under s 29(10)(a) of the Planning Act 2016; or
      2. in accordance with an exemption certificate under s 46 of the Planning Act 2016; or
      3. under s 88(3) of the Planning Act 2016.
  2. [347]
    Due to the nature of the proceedings, the standard of proof is that referred to in Briginshaw v Briginshaw.[195]
  3. [348]
    The real issue in dispute between the parties relates to the identification of the “development” that is said to have been carried out without the necessary development approvals.  There is little controversy about the other elements of the offence.  As such, it is convenient to deal with them first.

Is operational work for filling and excavation categorised as assessable development under City Plan?

  1. [349]
    As I have noted in paragraph [52] above, operational work is defined in the Planning Act 2016 as follows:

operational work means work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises.”

(emphasis added)

  1. [350]
    In Table 5.8.1 of City Plan, the following is classed as assessable development in any zone:

“If filling or excavation, where resulting in a retaining wall greater than 1m or an increase in depth or height of the ground level or finished design level by 1 vertical metre or more.”

  1. [351]
    The term “filling or excavation” is defined in City Plan to mean:

“Removal or importation of material to, from or within a lot that will change the ground level of the land.”

Is building work for the pool, the deck and the rear stairs categorised as assessable development under City Plan?

  1. [352]
    For the reasons provided in paragraphs [142] to [209] above, the building work for the pool, the deck, and the rear stairs was not categorised as assessable development under City Plan.  As such, Mr Baxter has not discharged his onus with respect to the alleged offence associated with that building work.

Was there authorisation for the development?

  1. [353]
    There is no dispute that at the time earthworks were carried out on the subject land, the Prestons did not have the benefit of the operational works permit or the exemption certificate.  It is also not disputed that the earthworks were not carried out under ss 29(10)(a) or 88(3) of the Planning Act 2016.
  1. [354]
    There is also no dispute that at the time building work was carried out on the subject land, the exemption certificate had not been given and the building work was not carried out under ss 29(10)(a) or 88(3) of the Planning Act 2016.

What are the particulars of the development offences that are alleged to have been committed?

  1. [355]
    Mr Baxter alleges that the development offences under s 163 of the Planning Act 2016 have been committed by the Prestons as owners of the subject land and by Graya Construction Pty Ltd as the entity performing the development.  Liability for the offending, if established, is not in issue.
  2. [356]
    In paragraph 1 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks a declaration that there are three forms of “development that have been carried out” on the subject land.  The declaration is framed as follows:

“1. A declaration, pursuant to section 11(1)(a), 11(b) and/or 11(c) of the PECA, that development that have (sic) been carried out on the Subject Premises have been and are:

  1. (a)
    building work for which a development permit under the PA has been issued by the Third Respondent (the “Dwelling House Development Approval”) involving partial demolition to, and extension of, a dwelling house in the Traditional Building Character Overlay (the “Dwelling House Building Works”); and
  1. (b)
    operational work under the PA in the rear of the Subject Premises involving filling on the Subject Premises (the “Commenced Operational Works”), being the operational work in the area of operational work approved by the Operational Works Approval issued by Council on 16 July 2021 (the “Operational Works Approval”);
  1. (c)
    building work under the PA in the rear of the Subject Premises involving the construction of an above-ground swimming pool, with associated decks, rear stairs and structural and retaining structures (the “Swimming Pool Works”):
  1. (i)
    for which no development approval under the PA had been, or has been, issued by the Third Respondent approving such work;
  1. (ii)
    for which there was, and is, no valid effective development permit under the PA authorizing such work and
  1. (iii)
    for which there was, and is, no valid exemption certificate under the PA.

Particulars

The Swimming Pool Works are:

  1. (i)
    the building work that has been carried out on parts of the Subject Premises:
  1. (a)
    covered by red areas on Figure 1 on page 5 of Exhibit 2.15, excluding the areas shown as red areas on Figure 6 on page 5 of the Affidavit of Bradley Muller, Exhibit 2.15;
  1. (b)
    where the proposed swimming pool decks and rear stairs are shown on Floor Plan – Level 1, Sheet A207 Revision S of the development permit (the “Building Approval”) issued by a private certifier under the Building Act 1975 (the “BA”), which is Attachment G in Exhibit 1.10 (with the relevant plan being at page 99 of Exhibit 1.10);
  1. (ii)
    those components of building work in those areas that are the commencement of the new construction of the swimming pool, and retaining walls and stairs shown in the Building Approval in those locations;
  1. (iii)
    the building work of that type in those areas has been carried out is all of the building work in those areas shown in:
  1. (a)
    the photographs at pages 8 and 10 of the Affidavit of Steven Baxter, Exhibit 2.3;
  1. (b)
    the aerial photographs in Exhibit PCC-8 to the Affidavit of Peter Catchlove, Exhibit 2.1;
  1. (c)
    the photographs at pages 11, 12, 14, 17, 18 and 21 of the Affidavit of Steven Baxter, Exhibit 2.1;
  1. (d)
    the photographs at pages 7 to 14 and 16 to 21 of the Affidavit of Heath Burton, Exhibit 2.7;
  1. (e)
    the photographs at pages 14, 18 to 22, 24 to 27, 29 and 32 to 36 of the Affidavit of Chloe Rattansay filed on 19 May 2021 (Court Document No. 19);”
  1. [357]
    The declarations sought in paragraphs 3, 5 and 8 of the prayer for relief in the Third Further Amended Originating Application are also relevant to this issue.  They are in the following terms:

3. A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the Swimming Pool Works:

  1. (a)
    constitute assessable development under the PA;
  1. (b)
    are required to be assessed against City Plan 2014; and
  1. (c)
    require a development permit issued by the Third Respondent authorising the Swimming Pool Works.

  1. A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the commencement of the Swimming Pool Works constituted:
  1. (a)
    a development offence against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals validly in effect for that development; and
  1. (b)
    a development offence against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.

  1. A declaration, pursuant to section 11(1)(c) of the PECA, that the development offence occasioned by the carrying out of the the (sic) Swimming Pool Works:
  1. (a)
    has been committed by the First Respondents, as owners of the Subject Premises; and/or
  1. (b)
    has been committed by the Second Respondent, as the entity performing the works.”
  1. [358]
    The grounds and material facts relied on to support the application for the declarations and enforcement orders are as follows:

“3A. The Dwelling House Development Approval[196] did not approve or authorise any cut, fill or retaining wall that is not incidental to the building work approved by the Dwelling House Development Approval.

3B. The Filling Works and the Commenced Operational Works are not excavation or filling for, or incidental to, work approved by the Dwelling House Development Approval.

4B. The Filling Works Commenced Operational Works (sic) are not “building work” within the meaning of section 5 of the BA.

4C. The Filling Works and the Commenced Operational Works are not works authorised or approved by any building development approval under the PA or the BA.

  1. The Commenced Operational Works have commenced and constitute the carrying out of operational work under the PA.”
  1. [359]
    The Prestons and Graya Construction Pty Ltd submit that the particulars of the work “carried out” are not sufficient for the Court to identify the works complained of and whether the undertaking of such works constitute development offences.  They say that Mr Baxter must identify items which he says are unlawful, for example by identifying which retaining wall, structure, or area of fill is the subject of the allegation. 
  2. [360]
    In the absence of sufficient particulars, the Prestons and Graya Construction Pty Ltd submit that the Court should refuse to make any enforcement order under s 180 of the Planning Act 2016.

Are the particulars sufficient?

  1. [361]
    Rule 9 of the Planning and Environment Court Rules 2018 requires an originating process for a proceeding in the Planning and Environment Court to state the orders or other relief sought in the proceeding and the grounds on which the orders or other relief are sought. 
  2. [362]
    Where the proceeding seeks an enforcement order on the basis that a development offence has been committed, or a declaration that development has been carried out unlawfully, the originating process should identify the acts that constitute the alleged offence.  That a degree of particularity is called for is apparent from four matters of context.[197]
  3. [363]
    First, the foundation for the Court’s power to make an enforcement order is its finding that it is satisfied that the alleged offence has been committed or will be committed.  As such, where the alleged development offence is that under s 163 of the Planning Act 2016, the Court must be able to identify the development in question to ascertain whether it is (or will be) assessable and whether all necessary approvals have been obtained with respect to it. 
  4. [364]
    Second, the particulars of the development offence inform the legitimacy of the relief sought.  Under s 180 of the Planning Act 2016, the Court has power to make an order that requires a person to refrain from committing a development offence or to remedy the effect of a development offence.  The particulars of the development offence must be sufficient to inform the “effect” of the development offence. 
  5. [365]
    Third, under s 180(7) of the Planning Act 2016, the Court must state the period for compliance with the order.  The particulars must be sufficient to ascertain a period that is reasonable.  For example, to determine a reasonable timeframe to comply with an order to remove unlawful fill will likely require an appreciation of the volume of fill the subject of the allegation.
  6. [366]
    The fourth relevant contextual matter is that the making of an enforcement order can have significant consequences to the rights of landowners to deal with their land.[198]  Unless the Court orders otherwise, an enforcement order, other than an order to apply for a development permit, attaches to the premises and binds the owner, the owner’s successors in title and any occupier of the premises.[199]  The order is to be recorded on the register for the premises by the registrar of titles.[200]  Further, contravention of an enforcement order is a criminal offence for which punishment includes imprisonment.[201] 
  7. [367]
    Those features of the enforcement order regime support that the development offence which underpins the orders is to be identified with precision in the originating process.  The originating process should provide sufficient detail to properly inform any respondent of the essential factual ingredients of the offence alleged to have been committed.[202] 
  8. [368]
    In this case, the offences alleged to have been committed are:
    1. (a)
      the carrying out of operational work without all necessary development permits in effect; and
    2. (b)
      the carrying out of building work, being the construction of the pool, the deck, and the rear stairs, without all necessary development permits in effect. 
  1. [369]
    A development offence is only committed under s 163 of the Planning Act 2016 if the work has been “carried out” at the time the development offence is alleged to have occurred. 
  1. [370]
    The Third Further Amended Originating Application does not draw any distinction between the operational works that are alleged to have been “carried out” and those that are yet to be carried out.  The same description and particulars are used for both.[203]  As such, it is not possible to identify the operational works that Mr Baxter alleges have been carried out. 
  2. [371]
    With respect to the allegation regarding the building work for the pool, the deck and the rear stairs, the Third Further Amended Originating Application does not draw any distinction between each of these aspects of building work.  The same description and particulars are used for all aspects.[204]
  3. [372]
    The potential difficulty to the other parties and the Court occasioned by the lack of precision can be explained by reference to the allegations in relation to the works described by Mr Baxter as the “Commenced Operational Works”. 
  4. [373]
    Paragraph 1(b) of the prayer for relief in the Third Further Amended Originating Application describes that work as follows:

“operational work under the PA in the rear of the Subject Premises involving filling on the Subject Premises (the “Commenced Operational Works”), being the operational work in the area of operational work approved by the Operational Works Approval issued by Council on 16 July 2021 (the “Operational Works Approval”)”

  1. [374]
    The operational works permit includes an approved earthworks plan that depicts areas of cut in yellow and areas of fill in green.  Is the area that is coloured yellow and green the “area of operational work” to which Mr Baxter refers?  If so, given the coloured area covers almost all the subject land, what part of it is to be regarded as “the rear of the subject land”? 
  2. [375]
    The need for precision is highlighted by the allegation in paragraph 4A of the Third Further Amended Originating Application that:

“the Commenced Operational Works are not excavation or filling for, or incidental to, work approved by the Building Approval”.

  1. [376]
    Is it Mr Baxter’s case that even the filling beneath the dwelling slab that is required to facilitate a slab-on-ground construction is not filling that is for, or incidental to, the construction of the extension to the dwelling?  If not, what part of the fill is accepted to be building work and what part of the fill is alleged to constitute operational work?  This is not clear from the Third Further Amended Originating Application. 
  2. [377]
    In the circumstances, Mr Baxter has not provided sufficient particularity with respect to his allegation of unlawful operational work. 
  3. [378]
    Mr Baxter’s particulars about the unlawful building work would have also been inadequate if, as the Council submitted, the pool was building work that was categorised as assessable development under City Plan. 
  4. [379]
    It is unnecessary for me to consider whether the absence of sufficient particulars, on its own, would persuade me to deny Mr Baxter the relief he seeks as:
    1. (a)
      for reasons that follow, I am not otherwise persuaded to grant any of the relief sought by Mr Baxter insofar as it relates to the placement of fill on the subject land; and
    2. (b)
      Mr Baxter has not demonstrated that any of the building work commenced on the subject land was unlawful.  It was all authorised by the Council building permit, the first certifier building permit and the second certifier building permit. 

What is the evidence of the earthworks that have commenced?

  1. [380]
    As with his Third Further Amended Originating Application, in his written submissions, Mr Baxter fails to identify the earthworks that he says have commenced on the subject land with any particularity.  Under a heading “Description of the works”, Mr Baxter says:

“48. The proposed filling works at the rear of the site are described in the evidentiary certificate of Council dated 20 August 2021 and associated approved plans. The plans (and in particular the ‘earthworks section’) show that such works will significantly raise the level of the site, in some cases by nearly 4.5 metres.”

  1. [381]
    This description tells me nothing about what currently exists on the subject land. 
  2. [382]
    Under a heading “Are the works operational works?”, Mr Baxter refers to the definition of operational work in the Planning Act 2016 and then submits:

“50. The Applicant submits that the proposed filling works would materially affect the premises within the meaning of the statutory definition. As can be seen from the approved plans, the effect of the works is to level out the backyard areas of the site, significantly raising the ground from its natural level. The result is that the contours of the rear of the site will have been altered from a sloping, terraced block, to a largely flat piece of land.

  1. This is clearly a material effect upon the site.”
  1. [383]
    Again, this description tells me nothing about what currently exists on the subject land. 
  2. [384]
    Under a heading “Are the filling works assessable development”, Mr Baxter notes the trigger in City Plan for assessment and submits:

“55. Such development is required to be assessed against the filling and excavation code, and the operational work code. The Applicant submits that it is clear from the section plan that Table 5.8.1 is triggered in circumstances where the fill works result in an increase to the ground level of the site, at its highest point, some 4.47m.”

  1. [385]
    Yet again, this description tells me nothing about what currently exists on the subject land. 
  2. [386]
    The lack of assistance from Mr Baxter on this issue is telling.  Nevertheless, I will address the evidence of earthworks on the subject land that was placed before me.
  3. [387]
    There is evidence of the earthworks on the subject land in the form of observations of, and photographs taken by, Mr Baxter, Mr Hood, Mr Burton, Mr Catchlove, and the Council compliance officer, Ms Rattansay.
  4. [388]
    It appears from the re-examination of Mr Catchlove[205] that Mr Baxter is relying on the pile of dirt that is visible in the photograph on page 11 of Exhibit 2.03, the First Affidavit of Steven Baxter, as evidence that the Prestons and Graya Construction Pty Ltd unlawfully carried out operational work on the subject land.
  5. [389]
    Mr Catchlove said that he considered there was assessable operational work occurring on the subject land as at 21 April 2021, being the date of his first Affidavit and the interlocutory enforcement order, because there was an area of dirt that was purportedly greater than one metre and he assumed it was intended to permanently change the ground level.[206]  He assumed that because a greater level of fill was shown on plans attached to the second certifier building permit.[207]
  6. [390]
    There are two reasons that this evidence is not sufficient for Mr Baxter to discharge his onus with respect to an allegation that assessable operational work has been carried out without a development permit.
  7. [391]
    First, the pile of dirt has not been proved to be “filling or excavation” as that term is defined in City Plan.  It is clear from the photographs that the construction works on the subject land remain a work in progress.  There will be earthworks, including excavation and filling, that is incidental to the building work and that will occur in the process of performing the building work.
  8. [392]
    Mr Baxter has not proved that the pile of dirt visible in the photos is assessable “filling”.  There is no proof it has changed the ground level of the subject land.  There has been no evidence about the ground level of the subject land at the location where the dirt appears to be piled either before or after the dirt was put there.  Further, at the time of the photographs, it is simply a pile of dirt that may be moved as the development progresses.  There is no proof that it was intended to stay in that location, or that it was even placed in that location in the first instance.  There may have been reasons that the dirt was not intended for final use in that location.  There is no permanency to the dirt’s location.  As such, there is no evidence that it involves the importation of material that will change the ground level of the subject land.
  9. [393]
    Second, even if importation of the pile of dirt could be properly regarded as “filling” under City Plan, Mr Baxter has not proved that the dirt is not part of the building work approved by the Council building permit.
  10. [394]
    This begs the question: To what extent does the Council building permit authorise excavating, filling, and the construction of retaining walls? 
  11. [395]
    In his Third Further Amended Originating Application, Mr Baxter appears to accept that the Council building permit approves cut, fill and the construction of retaining walls that were incidental to the building work the subject of the permit.[208] 
  12. [396]
    Despite that, in his submissions, Mr Baxter says neither the development application nor the Council building permit mention filling and excavation.  He says the proposed site plan makes no mention of development at the front or rear of the subject land, instead showing a series of garden beds.  He also says that while the plans attached to the Council building permit show some level of filling in the rear of the subject land, that has now been removed by express notation on the changed Council building permit.  Mr Baxter submits that it cannot sensibly be contended that the filling was authorised by the Council building permit.  I disagree. 
  1. [397]
    For the reasons provided in paragraphs [53] to [56] above, I am satisfied that the building work approved by the Council building permit includes the filling beneath the dwelling slab, the filling for the backyard and the construction of the retaining walls.[209]
  1. [398]
    This outcome is not altered by the “express notation” on the plans that form part of the changed Council building permit to which Mr Baxter refers.  The notation is set out in paragraph [97] above.  Although it refers to the operational works permit, it does not exclude earthworks and retaining walls that are incidental to the building work from the ambit of the Council building permit or the changed Council building permit.
  2. [399]
    The approved plans that form part of the Council building permit show the dwelling extending further on the northern side of the subject land than on the southern side.  The pile of dirt appears to be toward the northern side of the subject land.
  3. [400]
    Mr Baxter has not proved that the dirt does not fall within paragraph (a)(iii) of the definition of building work, i.e., he has not proved that the dirt is not incidental to the building work approved by the Council building permit.

Conclusion about whether the operational works permit was necessary

  1. [401]
    For the reasons provided above, Mr Baxter has not demonstrated that the operational works permit was necessary to authorise the earthworks that have occurred.

Conclusion about whether a building works permit from the Council was necessary

  1. [402]
    For the reasons provided above, Mr Baxter has not demonstrated that a building works permit from the Council was necessary to authorise the building work for the pool, the deck and the rear stairs that has occurred.

Conclusion regarding the alleged development offences

  1. [403]
    Mr Baxter has not discharged his onus with respect to the alleged development offences.  As such, his application for the relief in paragraphs 1, 3, 5, 8, 11(a), 12(a) and 13A of the prayer for relief in the Third Further Amended Originating Application must be dismissed.

Unless restrained, will the Prestons and Graya Construction Pty Ltd commit development offences under ss 163 and 164 of the Planning Act 2016?

  1. [404]
    In his written submissions, Mr Baxter notes that during the hearing he was given leave (on two occasions) to amend his proceeding.  In the amendments, Mr Baxter abandoned declarations and orders about the earthworks that he says have now been regularised by the operational works permit, to the extent of that approval.  He says that the Third Further Amended Originating Application now only seeks, so far as the earthworks are concerned, orders that operational work only continue to the extent that it accords with the operational works permit.
  2. [405]
    Mr Baxter contends that questions remain about the lawfulness of any further proposed filling beyond that authorised by the operational works permit and the lawfulness of the various components of building work that have been commenced and which he says are, no doubt, intended to be completed. 
  3. [406]
    The remaining contested development is the subject of the prayer for relief in paragraphs 1A, 1B, 2, 3C, 3D, 6, 7, 11, 12 and 13A of the Third Further Amended Originating Application.  Pursuant to those paragraphs, Mr Baxter seeks:
    1. (a)
      declarations about the lawfulness of operational work yet to be carried out;
    2. (b)
      declarations about the lawfulness of building work yet to be carried out; and
    3. (c)
      enforcement orders restraining the commission of offences with respect to the operational work and building work.
  4. [407]
    In effect, the development that Mr Baxter alleges will be unlawfully carried out unless the Prestons and Graya Construction Pty Ltd are restrained are that part of the proposed development that involves:
    1. (a)
      that part of the filling for the backyard depicted on the plans that form part of the exemption certificate that is not otherwise shown on the approved plans that form part of the operational works permit; and
    2. (b)
      the building work for the pool, the deck, and the rear stairs, including the associated structural foundation for each of those aspects of the building work.
  5. [408]
    This part of Mr Baxter’s application gives rise to the following questions:
  1. Should the declarations about the lawfulness of operational work yet to be carried out be made?
  2. Should the declarations about the lawfulness of building work yet to be carried out be made?
  3. Should the enforcement orders restraining the commission of development offences be made?

Should the declarations about the lawfulness of operational work yet to be carried out be made?

  1. [409]
    In paragraphs 1A, 2, 3D and 6 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks declarations about the lawfulness of operational work yet to be carried out.  They are expressed in the following terms:

“1A. A declaration that the Operational Works Approval does not authorise filling of those parts of the Subject Premises shown as red areas in Figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15 (the “Filling Works”).

  1. A declaration, pursuant to section 11(1)(b) and 11(c) of the PECA, that the Filling Works:
  1. (a)
    constitute assessable development under the PA;
  1. (b)
    require to be assessed against City Plan 2014; and
  1. (c)
    require a development permit issued by the Third Respondent authorising the Filling Works.

3D. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Purported EC does not apply to the Commenced Operational Works or the Filling Works, as they are not works for, or incidental to, the construction of a swimming pool at all, and not a swimming pool only partly above ground.

  1. A declaration, pursuant to section 11(1) of the PECA, that the carrying out of the Filling Works would constitute, or will constitute, a development offence:
  1. (a)
    against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals in effect for that development;  and
  1. (b)
    against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.”
  1. [410]
    Although it is not clear to me how the declaration in paragraph 2 invokes the Court’s jurisdiction under s 11(1)(b) of the Planning and Environment Court Act 2016, it falls within the Court’s jurisdiction under s 11(1)(c).  So do the declarations in paragraphs 1A and 6.
  2. [411]
    As is apparent from paragraph 1A, the “Filling Works” to which each of these declarations relate are defined by reference to figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15.[210]  For convenience, I will also refer to them as the “Filling Works”.
  3. [412]
    Figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15 is a 3D render produced by Mr Muller.  It was produced from a 3D computer model that Mr Muller created using the software Revit.  The figure illustrates, as two red isometric volumetric zones, the difference between the final built form shown on the plans that form part of the exemption certificate and that which is depicted in the approved plans that form part of the operational works permit.[211] 
  4. [413]
    During the opening, considerable time was spent by Mr Baxter’s Counsel, Mr Skoien, explaining the nature of Mr Baxter’s allegations with respect to the Filling Works.  Mr Skoien explained that Mr Baxter does not take issue with the lawfulness of any operational work undertaken in accordance with the operational works permit.  His concern with respect to operational work involving filling on the subject land is limited to the Filling Works.[212]  In response to queries from me, Mr Skoien identified the areas in question by reference to figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15.[213] 
  5. [414]
    The effect of the exemption certificate was also the subject of attention during the cross-examination of Mr Muller.  The following exchanges occurred between Mr Muller and Ms Hedge, Counsel for the Prestons and Graya Construction Pty Ltd:[214]

“MS HEDGE:   One of the sets of drawings that you referred to to produce that model is the exemption certificate drawings?Correct.

All right.  You understand that an exemption certificate doesn’t approve anything?I understand it doesn’t approve.

Yeah?It’s the intent.

It exempts things?Yes.

So you have assumed, haven’t you, that it’s the intent of the builder to build in accordance with plans attached to the exemption certificate application.  Is that what you’re saying?That’s correct.

All right.  So these drawings, then, don’t reflect and these diagrams and your model don’t reflect what’s approved.  They reflect what you assumed about someone else’s intention?They – they illustrate the approved operational works and then, yes, what’s led to be believed to be built through the exemption certificate because why else you would lodge an exemption application?”

  1. [415]
    The issue of the model was the subject of exchanges between Ms Hedge and Mr Muller as follows:[215]

“...  Can we move then to exhibit 2.15, which is your final affidavit.  And if we can turn to para – page 5 of that document.  Do you see that page?  Do you remember that?I’m familiar with this, yes. 

Yes.  Now, you prepared these – this model – this is a different model to the one we were just looking at;  is that right?Yes, that’s correct.

This model compares only two things, operational works approval, number 1?Correct.

Shown in blue?Yep.

Exemption certificate plan shown in red?That’s correct.

All right.  So equally, as before, it doesn’t include the minor change approval given 1 October 2021?That’s correct.

It doesn’t include the building approval giving – given – sorry, issued 5 October 2020?No, that’s correct.

All right.  And assumes that what will be built will be in accordance with plans submitted in accordance with the exemption certificate?That’s correct.

All right.  Are you aware that the exemption certificate plans were submitted before the operational works approval was given?I was not aware.

Okay.  Were you aware that in the scope of the operational works consideration there was an information request?I am aware. 

And that the final approval for the operational works was different to the first application?No, I’m aware.

Okay.  And are you aware that the exemption certificate application was consistent with the first operational works application?No, I was not.

Okay.  So were you aware that the operational works application and the exemption certificate application both went in before either of them were approved?  Were you aware of that?No.

Okay.  So now that I’ve told you that history, it might not be surprising that there’s some difference between them, because the exemption certificate plans were submitted before the operational works approval was given in an amended form, do you see? 

MR SKOIEN:   Well, your Honour, that can only ask for this witness to speculate on what may or may not have been an inconsistency which hasn’t been put to the witness, to start with, about the plans and the reason for them.

MS HEDGE:   I’m happy to move on and withdraw the question. 

So let’s look at the minor change.  And can I particularly ask you to focus in this – when I’m questioning you now on figure number 6 of this page;  okay?  Do you see those two red blocks?Correct.

Okay.  One’s a long rectangle – rectangular prism and one’s a shorter, squatter rectangular prism;  is that fair?Yep, that’s correct.

All right.  Just so we know we’re all talking about the same thing.  So just keep in mind that diagram.  Can I show you exhibit 5.04.  I’m sorry, can we just go back – can I just confirm one final thing with that diagram.  The red – those two red boxes in figure 6 are the additional fill that you say is on the exemption certificate and not on the operational works approval;  is that correct?That’s correct.

Excellent.  Okay.  Five-point-O-four, page 26.  Do you see that area – yep.  Just scroll down a little bit further – the bottom of this plan that we’re interested in. 

Do you see the area in the red cloud – or the clouded area?  Do you see what I mean?The red cloud, yes.

Yep.  What we’re looking at is just above that on this plan, aren’t we?  Do you see that long rectangular prism called “garden”?Correct.

And then a shorter, squatter – I’m sorry, that’s not a prism, that’s a rectangle, because this is a 2D plan.  So there’s a long rectangle called “garden” and a shorter, squatter rec strangle called “lower garden”?Correct.

You see that?Yep.

So do you see on this plan, which is the minor change given 1 October 2021 – do you accept that’s consistent with the operational works approval?There’s no levels there, but it represents the same – has the same shape, but there’s no levels to indicate what heights they are.

I understand.  Can I take you to page 31, same bottom of the page.  Do you see on there, just above the clouded area, there’s a long rectangle that’s cut through and then that shorter, squatter rectangle where that big tree is where the trunk of the tree is.  Do you see that?I do see that.  Yes.

All right.  Do you accept this plan is   ?That illustrates   

   consistent with the operational works approval?That is.

MS HEDGE:   Thank you, your Honour.  Could I have on the screen, please, Madam Associate, exhibit 2.15, the affidavit of Mr Muller.  Is it Muller or Muller?  I don’t want to get it wrong?Muller is fine

Muller.  Exhibit 2.15, page 5.  So just to confirm where we were up to because we sort of cut off at a point not at the end of any topic.  Can we just scroll down a little bit, please, Madam Associate.  Thank you.  Figure 6 there, we were talking about those two red blocks?Correct.

And we then looked at the minor change plans.  As I understood it, you agreed that in the minor change plans those two red blocks would not be filled?In – in the plans that were submitted in October?

The minor change.  So that was approved by council 1st of October?Yes.

Do you want me to take you to the plans again?I – I believe that – no, I recall.  That’s right, yeah.

Okay.  Thank you.  And so if the backyard is constructed using the plans that were attached to the minor change approval, do you accept that there will be no fill in those two red blocks in figure 6?Correct.

Right.  Now, can we go to – that’s where we got up to, I understood.  So now we’re moving forward.  Exhibit 3.06, page 184.  And so we’re back now to the plans for the building approval that was given 5 October 2021.  And do you remember last time I took you here there was an objection and you went out?Yes.  Yep.

Okay.  So that’s where we’re up to.  Just   ?Yep.  No, that’s okay.

   so that when – we’re all oriented.  This is the building approval issued 5 October 2021.  And do you see in this approval also that there’s the long rectangle, which we were calling it, that now dips down below the level right at the edge of the house and then there’s a further dip down where the tree is?  Do you see that?That’s correct.

All right.  And so going – and so in this plan there’s no fill where those two red boxes are on figure 6.  Do you accept that?That’s true.

Okay.  And so just going back to exhibit 2.15.  Do you accept then that if the backyard is constructed in accordance with the plans attached to the building approval of 5 October 2021 that there will be no fill in those two red boxes on figure 6?Agree.”

  1. [416]
    Mrs Preston gave evidence late in the hearing, the day after Mr Muller.[216]  She gave evidence that, now the interim enforcement order has been cancelled, she intends to instruct her builder to carry out development in accordance with the most recent development approvals that have been obtained over the subject land.[217]  Having regard to the questions put to Mr Muller by Ms Hedge, I infer that Mrs Preston:
    1. (a)
      gave her evidence with an awareness that the relevant development approvals are the operational works permit, the changed Council building permit, and the third certifier building permit;
    2. (b)
      appreciates that the exemption certificate does not approve development; and
    3. (c)
      does not intend to carry out the Filling Works.
  2. [417]
    As I have already noted at paragraph [110] above, I accept Mrs Preston’s evidence about her future intentions for the subject land.  Mrs Preston impressed me as a credible witness.  She listened carefully to the questions and provided responsive answers about things that were within her knowledge. 
  3. [418]
    Having regard to the evidence referred to in paragraphs [414] to [417] above, there is no real and immediate controversy as to the lawfulness of future conduct with respect to earthworks on the subject land.  It is unlikely that the Prestons and Graya Construction Pty Ltd will carry out development the subject of the declarations. 
  4. [419]
    Further, there is doubt about whether there is a genuine dispute between the parties.  No party is submitting that the operational works permit authorises the Filling Works.  Similarly, no party is submitting that the exemption certificate obviates the need for a development permit for the Filling Works or for earthworks the subject of the operational works permit.
  5. [420]
    Accordingly, in my view, the application for the declarations in paragraphs 1A, 2, 3D and 6 of the prayer for relief of the Third Further Amended Originating Application invites the Court to go beyond its role of finally determining the rights of litigants and into the impermissible role of giving an advisory opinion in relation to hypothetical and abstract circumstances.  
  6. [421]
    The application for the declarations in paragraphs 1A, 2, 3D and 6 of the prayer for relief in the Third Further Amended Originating Application must be dismissed.

Should the declarations about the lawfulness of building work yet to be carried out be made?

  1. [422]
    In paragraphs 1B, 3C and 7 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks declarations about the lawfulness of building work yet to be carried out.  They are expressed in the following terms:

“1B. A declaration, pursuant to section 11(b) and/or 11(c) of the PECA, that the Swimming Pool Works were not generally in accordance with the development approved by the Dwelling House Development Approval,[218] and are not generally in accordance with that approval as changed on 1 October 2021 (“the Change Approval”)[219].

3C. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Purported EC does not apply to the Swimming Pool Works, as they involve:

  1. (a)
    building work for the construction of a swimming pool wholly, not partly, above ground;
  1. (b)
    building work for the construction of a swimming pool wholly elevated metres above ground; and
  1. (c)
    works other than the building works for the construction of a swimming pool.

  1. A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the continuation of the Swimming Pool Works constitutes, or will constitute, a development offence:
  1. (a)
    against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals in effect for that development; and
  1. (b)
    against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.
  1. [423]
    Section 163 of the Planning Act 2016 is set out in paragraph [345] above. 
  2. [424]
    Section 164 of the Planning Act 2016 states:

164 Compliance with development approval

A person must not contravene a development approval.

Maximum penalty—4,500 penalty units.”

  1. [425]
    Having regard to my findings about the validity of the second certifier building permit,[220] the exemption certificate,[221] and the third certifier building permit,[222] and the matters referred to in paragraphs [414] to [417] above, there is no real and immediate controversy as to the lawfulness of future building work on the subject land. 
  2. [426]
    Further, there is doubt about whether there is a genuine dispute between the parties.  No party is submitting that the pool, the deck, and the rear stairs were generally in accordance with the development approved by the Council building permit.  There was no need for them to be shown in that development approval as they were not building work that was categorised as assessable development under City Plan.  The same is true with respect to the changed Council building permit.
  3. [427]
    Accordingly, in my view, the application for the declarations in paragraphs 1B, 3C and 7 of the prayer for relief in the Third Further Amended Originating Application invites the Court to go beyond its role of finally determining the rights of litigants and into the impermissible role of giving an advisory opinion in relation to hypothetical and abstract circumstances.  
  4. [428]
    The application for the declarations in paragraphs 1B, 3C and 7 of the prayer for relief in the Third Further Amended Originating Application must be dismissed.

Should the enforcement orders restraining the commission of development offences be made?

  1. [429]
    In paragraphs 11, 12 and 13A of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks enforcement orders (or consequential orders) to restrain the Prestons and Graya Construction Pty Ltd from committing development offences.  They are in the following terms:

“11. An order, pursuant to section 11(4) of the PECA, or an interim enforcement order or an enforcement order pursuant to section 180(4) or 180(2) of the PA, that, the First Respondents:

  1. (a)
    within thirty (30) minutes of the service of the order, cease, or cause to be ceased, the (sic) any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
  1. (b)
    from the time of the making of the order and thereafter until any further order, not resume any development comprising the Filling Works and the Swimming Pool Works unless and until there is:
  1. (i)
    a development approval under the PA issued by the Third Respondent approving those works; and
  1. (ii)
    a valid development permit authorising the carrying out of those works; and
  1. (iii)
    a change to the Dwelling House Development Approval consistent with the Filling Works, Commenced Operational Works and Swimming Pool Works.
  1. (c)
    from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval
  1. An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, the Second Respondent:
  1. (a)
    within thirty (30) minutes of service of the order, cease, or cause to be ceased, any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
  1. (b)
    from the time of the making of the order and thereafter until any further order, not resume the works any development comprising the Filling Works, and the Swimming Pool Works unless and until there is:
  1. (i)
    a development permit under the PA issued by the Third Respondent authorising the carrying out of those works; and
  1. (ii)
    a valid development permit authorising the carrying out of those works; and
  1. (iii)
    a change to the dwelling house approval consistent with the carrying out of the Filling Works, Commenced Operational Works and Swimming Pool Works.
  1. (c)
    from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval

13A. An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, to the extent that the Swimming Pool Works are not approved and authorised by all necessary valid development approvals for such works, and/or all such necessary development approvals are not obtained within a reasonable period of time, as determined by the Court, the First Respondents and the Second Respondent remove the unlawful works on the Subject Premises within a reasonable period of time, as determined by the Court.”

  1. [430]
    Having regard to my findings about the validity of the second certifier building permit,[223] the exemption certificate,[224] and the third certifier building permit,[225] and the matters referred to in paragraphs [414] to [417] above, Mr Baxter has not established that a development offence will be committed unless the enforcement orders he seeks are made.  Accordingly, he has not discharged his onus for the relief he seeks in paragraphs 11, 12 and 13A of the prayer for relief in the Third Further Amended Originating Application.  The application for that relief must be dismissed.

Should the Prestons and Graya Construction pay Mr Baxter’s costs?

  1. [431]
    In paragraph 14 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks the following relief:

“14. An order, pursuant to section 61 of the PECA or section 60 of the PECA, that the First Respondents and/or the Second Respondent pay the Applicant’s costs of this Originating Application, to be assessed:

  1. (a)
    on an indemnity basis; or
  1. (b)
    alternatively, on the standard basis.”
  1. [432]
    The ground on which the relief is sought is set out in paragraph 24 of the Third Further Amended Originating Application.  It assumes that Mr Baxter will be successful with respect to each of his allegations.  He was not.
  2. [433]
    Mr Baxter did not address his application for costs in his written submissions.
  3. [434]
    Having regard to my findings in relation to the other relief sought, I am not persuaded that an order of costs should be made in Mr Baxter’s favour.

Conclusion

  1. [435]
    Mr Baxter has not discharged his onus with respect to the relief he seeks.  In the circumstances, his application should be dismissed. 
  2. [436]
    I will hear from the parties about any matters arising.

Attachment A

  1. [437]
    The terms of the declarations and orders sought in the Third Further Amended Originating Application are as follows:

Declarations

  1. A declaration, pursuant to section 11(1)(a), 11(b) and/or 11(c) of the PECA, that development that have (sic) been carried out on the Subject Premises have been and are:
  1. (a)
    building work for which a development permit under the PA has been issued by the Third Respondent (the “Dwelling House Development Approval”) involving partial demolition to, and extension of, a dwelling house in the Traditional Building Character Overlay (the “Dwelling House Building Works”);  and
  1. (b)
    operational work under the PA in the rear of the Subject Premises involving filling on the Subject Premises (the “Commenced Operational Works”), being the operational work in the area of operational work approved by the Operational Works Approval issued by Council on 16 July 2021 (the “Operational Works Approval”);
  1. (c)
    building work under the PA in the rear of the Subject Premises involving the construction of an above-ground swimming pool, with associated decks, rear stairs and structural and retaining structures (the “Swimming Pool Works”):
  1. (i)
    for which no development approval under the PA had been, or has been, issued by the Third Respondent approving such work;
  1. (ii)
    for which there was, and is, no valid effective development permit under the PA authorizing such work and
  1. (iii)
    for which there was, and is, no valid exemption certificate under the PA.

Particulars

The Swimming Pool Works are:

  1. (i)
    the building work that has been carried out on parts of the Subject Premises:
  1. (A)
    covered by red areas on Figure 1 on page 5 of Exhibit 2.15, excluding the areas shown as red areas on Figure 6 on page 5 of the Affidavit of Bradley Muller, Exhibit 2.15;
  1. (B)
    where the proposed swimming pool decks and rear stairs are shown on Floor Plan – Level 1, Sheet A207 Revision S of the development permit (the “Building Approval”) issued by a private certifier under the Building Act 1975 (the “BA”), which is Attachment G in Exhibit 1.10 (with the relevant plan being at page 99 of Exhibit 1.10);
  1. (ii)
    those components of building work in those areas that are the commencement of the new construction of the swimming pool, and retaining walls and stairs shown in the Building Approval in those locations;
  1. (iii)
    the building work of that type in those areas has been carried out is all of the building work in those areas shown in:
  1. (A)
    the photographs at pages 8 and 10 of the Affidavit of Steven Baxter, Exhibit 2.3;
  1. (B)
    the aerial photographs in Exhibit PCC-8 to the Affidavit of Peter Catchlove, Exhibit 2.1;
  1. (C)
    the photographs at pages 11, 12, 14, 17, 18 and 21 of the Affidavit of Steven Baxter, Exhibit 2.1;
  1. (D)
    the photographs at pages 7 to 14 and 16 to 21 of the Affidavit of Heath Burton, Exhibit 2.7;
  1. (E)
    the photographs at pages 14, 18 to 22, 24 to 27, 29 and 32 to 36 of the Affidavit of Chloe Rattansay filed on 19 May 2021 (Court Document No. 19);

1A. A declaration that the Operational Works Approval does not authorise filling of those parts of the Subject Premises shown as red areas in Figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15 (the “Filling Works”)

1B. A declaration, pursuant to section 11(b) and/or 11(c) of the PECA, that the Swimming Pool Works were not generally in accordance with the development approved by the Dwelling House Development Approval, and are not generally in accordance with that approval as changed on 1 October 2021 (“the Change Approval”).

  1. A declaration, pursuant to section 11(1)(b) and 11(c) of the PECA, that the Filling Works:
  1. (a)
    constitute assessable development under the PA;
  1. (b)
    require to be assessed against City Plan 2014; and
  1. (c)
    require a development permit issued by the Third Respondent authorising the Filling Works.
  1. A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the Swimming Pool Works:
  1. (a)
    constitute assessable development under the PA;
  1. (b)
    are required to be assessed against City Plan 2014;  and
  1. (c)
    require a development permit issued by the Third Respondent authorising the Swimming Pool Works.

3A. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Building Approval is invalid and of no effect, by virtue of:

  1. (a)
    the status of the Third Respondent, rather than the private certifier as the assessment manager for any building development application seeking such development approval, pursuant to section 48 of the PA, section 21 of the PR and Item 1 of Table 1A of Schedule 8 of the PR;
  1. (b)
    the requirement for a development approval issued by the Third Respondent for the building works that are the subject of the Building Approval;
  1. (c)
    the requirement for a development approval issued by the Third Respondent for the operational works that may affect the form, location and/or use of the building works that are the subject of the Building Approval;
  1. (d)
    pursuant to section 83(3) of the BA, the building development application resulting in the Building Approval being taken not to have been received by the private certifier;
  1. (e)
    non-compliance with section 83(1) of the BA;
  1. (f)
    non-compliance with section 84(1) of the BA, in that the Building Approval is inconsistent with the Dwelling House Development Approval.

3B. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the exemption certificate issued by the Third Respondent on about 7 June 2021 (the “Purported EC”) is invalid and of no effect, because:

  1. (a)
    the Purported EC does not contain any proper description of the development to which the exemption relates, contrary to section 46(6)(b) of the PA;
  1. (b)
    the Purported EC does not set out the reasons for giving the Purported EC, contrary to section 46(6)(c) of the PA
  1. (c)
    the Purported EC incorrectly describes the development to which the Purported EC relates as a “[s]wimming pool part above ground due to grade of land”;
  1. (d)
    the purported decision to issue the Purported EC is impermissibly piecemeal, as the development to which the Purported EC relates:
  1. (i)
    depends upon, and/or may involve prejudgment or predetermination of, other assessable development that is not the the (sic) subject of the Purported EC;
  1. (ii)
    does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the Subject Premises; and/or
  1. (iii)
    is inconsistent with, and would require a change to, the Dwelling House Development Approval;
  1. (e)
    the purported decision to issue the Purported EC did not consider relevant considerations, namely that the development to which the Purported EC relates:
  1. (i)
    depends upon, and/or may involve prejudgment or predetermination of, other assessable development that is not the the (sic) subject of the Purported EC;
  1. (ii)
    does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the Subject Premises; and/or
  1. (iii)
    is inconsistent with, and would require a change to, the Dwelling House Development Approval;
  1. (f)
    in all the circumstances:
  1. (i)
    no reasonable decision-maker could find that any of the criteria set out in section 46(3)(b) of the PA for the grant of an exemption certificate under the PA were established for the development to which the Purported EC relates;
  1. (ii)
    no reasonable decision-maker could exercise any discretion under section 46 of the PA to grant the Purported PEC; and
  1. (iii)
    in any event, there was no power to issue an exemption certificate under the PA for the development to which the Purported EC relates (including, so far as it was directed to these things, the Commenced Operational Works, the Filling Works and/or the Swimming Pool Works), as none of the criteria giving rise to the discretion to issue an exemption certificate under section 46 of the PA apply to that development.

3C. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Purported EC does not apply to the Swimming Pool Works, as they involve:

  1. (a)
    building work for the construction of a swimming pool wholly, not partly, above ground;
  1. (b)
    building work for the construction of a swimming pool wholly elevated metres above ground; and
  1. (c)
    works other than the building works for the construction of a swimming pool.

3D. A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Purported EC does not apply to the Commenced Operational Works or the Filling Works, as they are not works for, or incidental to, the construction of a swimming pool at all, and not a swimming pool only partly above ground.

  1. A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the commencement of the Swimming Pool Works constituted:
  1. (a)
    a development offence against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals validly in effect for that development; and
  1. (b)
    a development offence against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.
  1. A declaration, pursuant to section 11(1) of the PECA, that the carrying out of the Filling Works would constitute, or will constitute, a development offence:
  1. (a)
    against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals in effect for that development;  and
  1. (b)
    against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.
  1. A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the continuation of the Swimming Pool Works constitutes, or will constitute, a development offence:
  1. (a)
    against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals in effect for that development;  and
  1. (b)
    against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.
  1. A declaration, pursuant to section 11(1)(c) of the PECA, that the development offence occasioned by the carrying out of the the (sic) Swimming Pool Works:
  1. (a)
    has been committed by the First Respondents, as owners of the Subject Premises; and/or
  1. (b)
    has been committed by the Second Respondent, as the entity performing the works.

Orders

10A. An order, pursuant to section 11(4) of the PECA, that the Building Approval be set aside.

10B. An order, pursuant to section 11(4) of the PECA,  that the Purported EC be set aside.

10C. An order, pursuant to section 11(4) of the PECA, that the further building development approval (the “Further Building Approval”) issued on 5 October 2021 be set aside.

  1. An order, pursuant to section 11(4) of the PECA, or an interim enforcement order or an enforcement order pursuant to section 180(4) or 180(2) of the PA, that, the First Respondents:
  1. (a)
    within thirty (30) minutes of the service of the order, cease, or cause to be ceased, the (sic) any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
  1. (b)
    from the time of the making of the order and thereafter until any further order, not resume any development comprising the Filling Works and the Swimming Pool Works unless and until there is:
  1. (i)
    a development approval under the PA issued by the Third Respondent approving those works; and
  1. (ii)
    a valid development permit authorising the carrying out of those works; and
  1. (iii)
    a change to the Dwelling House Development Approval consistent with the Filling Works, Commenced Operational Works and Swimming Pool Works.
  1. (c)
    from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval
  1. An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, the Second Respondent:
  1. (a)
    within thirty (30) minutes of service of the order, cease, or cause to be ceased, any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
  1. (b)
    from the time of the making of the order and thereafter until any further order, not resume the works any development comprising the Filling Works, and the Swimming Pool Works unless and until there is:
  1. (i)
    a development permit under the PA issued by the Third Respondent authorising the carrying out of those works; and
  1. (ii)
    a valid development permit authorising the carrying out of those works; and
  1. (iii)
    a change to the dwelling house approval consistent with the carrying out of the Filling Works, Commenced Operational Works and Swimming Pool Works.
  1. (c)
    from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval

13A. An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, to the extent that the Swimming Pool Works are not approved and authorised by all necessary valid development approvals for such works, and/or all such necessary development approvals are not obtained within a reasonable period of time, as determined by the Court, the First Respondents and the Second Respondent remove the unlawful works on the Subject Premises within a reasonable period of time, as determined by the Court.

  1. An order, pursuant to section 61 of the PECA or section 60 of the PECA, that the First Respondents and/or the Second Respondent pay the Applicant’s costs of this Originating Application, to be assessed:
  1. (a)
    on an indemnity basis; or
  1. (b)
    alternatively, on the standard basis.”[226]

Footnotes

[1]  The south-western corner of the property at 30 Wilden Street adjoins the north-eastern corner of Mr Baxter’s land. 

[2]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 27-30. 

[3]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 28. 

[4]  Exhibit 3.02 p 6.

[5]  Exhibit 3.02 pp 6-9; Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 31. 

[6]  Exhibit 3.02 p 6.

[7]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 79, 80, 84, 85, 87, 95, 96, 104 and 105.

[8]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 85, 88 and 90.

[9]  Exhibit 2.04.

[10]  I infer that construction commenced around 11 November 2020 – see Exhibit 2.04 [13] and Exhibit 2.01 [3].

[11]  See paragraphs [341] to [403] below.

[12]  Exhibit 1.08 p 23.

[13]  That is, the operational works permit, the changed Council building permit and the third certifier building permit.

[14]  See paragraphs [139] to [238] and [341] to [403] below.

[15] Francis v Crime and Corruption Commission & Anor [2015] QCA 218, [33].

[16]  It is important to pay close attention to the form of declarations proposed: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [91].

[17] Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, 339.

[18]  As to why it is a “legal quagmire”, see paragraphs [139] to [238] below.

[19]  Exhibit 3.03, [19], [21]-[25].

[20]  Each of the development applications were code assessable and so there is no right of appeal by individuals who are opposed to the development.

[21]  I do not accept the evidence of Mr Muller.  It was unpersuasive.  His models were inaccurate and, in any event, did not provide a realistic portrayal of the development.

[22]  Exhibit 3.02 p 12.

[23]  See Exhibit 2.04, [29]-[34].

[24]  See also Exhibit 3.02.  I accept the evidence of Mr Powell.  His opinions were considered and well-explained.

[25]  There are three versions of City Plan that are relevant.  Version 14 was in effect from 15 February 2019 until 30 May 2020.  Version 19 was in effect from 1 May 2020 to 29 October 2020.  Version 20 was in effect from 30 October 2020 to 27 May 2021.  The parts of City Plan that are relevant to this proceeding are identical in the various versions.  See Exhibits 5.01, 5.02 and 5.03.

[26]  Exhibit 1.07.

[27]  Exhibit 1.07.

[28]  Exhibit 1.10.

[29]  Exhibit 1.09.  The letter communicating the referral agency response was dated 29 October 2020 but the response itself was dated 28 October 2020.

[30]  Exhibit 1.10.

[31]  Exhibit 1.12.

[32]  Exhibit 1.17.

[33]  Exhibit 5.04.

[34]  Exhibit 5.04.

[35]  Exhibit 8.01.

[36] Planning Act 2016 ss 48 and 51; Planning Regulation 2017 (Qld) s 21 and sch 8, table 1A.

[37]  This can be contrasted with construction of the house on piers, for example.

[38]  Section 8(5) of the Planning Act 2016 states:

“A local planning instrument must not include a provision about building work, to the extent the building is regulated under the building assessment provisions, unless allowed under the Building Act.”

The Traditional building character (demolition) overlay code regulates the impact of demolition on traditional building character.  The Traditional building character (design) overlay code regulates the impact of building work such as extensions on traditional building character.  The Ithaca district neighbourhood plan code regulates the impact of building work in a traditional building character overlay area with respect to its impact on hillside character.  Each of these aspects of building work are not regulated under the building assessment provisions.  As such, they can be regulated under City Plan.

[39]  These are the aspects referred to in paragraphs [45] to [56] above.

[40]  See paragraphs [66] to [67] below for further detail.

[41]  Assuming it applies.  The subject land comprises two lots, each of which is less than 450 square metres and, as such, individually are defined as a “small lot” under City Plan.  However, the area of the subject land as a whole is 810 square metres.

[42]  Pursuant to s 54 of the Planning Act 2016 and s 22 and sch 9, table 1, item 1 of the Planning Regulation 2017.

[43]  Assuming is applies.  See footnote 41 above.

[44]  See s 55 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 1, item 4 of the Planning Regulation 2017, and s 1.6 4.b. and Table 1.6.2, item 1 of City Plan.

[45]  In accordance with s 57 of the Planning Act 2016, the amenity referral agency response was provided before the development application was made to the private certifier under the Building Act 1975

[46]  See s 48 of the Planning Act 2016 and s 21 and sch 8, table 1, item 2 of the Planning Regulation 2017.

[47]  See s 26 and sch 9, pt 2, table 1 of the Planning Regulation 2017.

[48]  Building Act 1975 ch 4.

[49]  Section 7 of the Building Act 1975 states:

Building assessment work is the assessment, under the building assessment provisions, of a building development application for compliance with those provisions.”

[50]  A planning scheme is a local planning instrument: Building Act 1975 sch 2; Planning Act 2016 s 8(3).

[51]  The “BCA” is defined in s 12 of the Building Act 1975 as the Building Code of Australia.  It is the document called “National Construction Code” volume 1 and volume 2 (including the Queensland Appendixes) published by the entity known as the Australian Building Codes Board.

[52]  The “QDC” is defined in s 13 of the Building Act 1975 as the parts, or aspects of the parts, of the document called “Queensland Development Code” that are prescribed by regulation.

[53]  Pursuant to s 86 of the Building Act 1975, the Council received copies of the development application made to the private certifier and copies of the approval documents.

[54]  See s 55 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 3, item 4 of the Planning Regulation 2017, ss 32 and 33 of the Building Act 1975, s 10 of the Building Regulation 2006 (Qld), and s 1.6 4.b. and Table 1.6.2, items 2 and 3 of City Plan.

[55]  Assuming is applies.  See footnote 41 above.

[56]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 78.

[57]  For ease of reference, all colours, underlining and strike-out denoting the amendments made from earlier iterations of the originating process have been removed.

[58]  [2020] QSC 225, [40]-[45].

[59]  [1992] HCA 10; (1992) 175 CLR 564.

[60] Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-2 (citations omitted, emphasis added).

[61] Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [41] (Bond J).

[62]  [1999] HCA 9; (1999) 198 CLR 334.

[63] Bass & Anor v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, 355-7 (citations omitted, emphasis added).

[64] Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [43].

[65]  [1992] HCA 10; (1992) 175 CLR 564.

[66]  See the discussion in Zamir & Woolf, The Declaratory Judgment (4th ed, Sweet & Maxwell), [4-137] to [4-160].

[67]  [1978] FCA 10; (1978) 31 FLR 314, 332.

[68] Re Tooth & Co Ltd [1978] FCA 10; (1978) 31 FLR 314, 333 (citations omitted, emphasis added).

[69] Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [45].

[70]  [1999] HCA 9; (1999) 198 CLR 334.

[71]  [2019] QPEC 42; [2020] QPELR 119, 123-4 [19].

[72] Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [91].

[73] Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, 355-7 [45]-[49].

[74]  See Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, 336 [5] citing Eschenko v Cummins & Ors [2000] QPELR 386 at 389 [20], Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 at 531 [55]-[57]; Di Marco v Brisbane City Council & Ors [2006] QPEC 35; [2006] QPELR 731 at 733 [14]; Wheldon & Anor v Logan City Council & Anor [2015] QPEC 22; [2015] QPELR 640 at 643 [18]; Birkdale Flowers Pty Ltd v Wilson Four Pty Ltd & Anor [2016] QPEC 4; [2016] QPELR 231 at 243-4 [47].

[75]  See Massie & Ors v Brisbane City Council [2007] QCA 159, [40].

[76]  See Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, 32 [40].

[77]  [2015] HCA 50; (2015) 258 CLR 173, 184-5 [23]-[24] (original citations).

[78] Craig v South Australia (1995) 184 CLR 163 at 175.  See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-42; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

[79]  [2019] HCA 34; (2019) 268 CLR 29, 45 [38] (original citations, emphasis added).  See also MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 about what is a jurisdictional error, materiality, and its proof.

[80]  (2019) 265 CLR 285.  See alsoMinister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616 [67], 623 [91]–[92].

[81] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6.

[82] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 606 [32], 617 [70], 623 [91]–[92].

[83]  [1998] HCA 28; (1998) 194 CLR 355, 388-9 [91] and 390 [93] (citations omitted).

[84] Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118; [2020] QPELR 286, 317-8 [137]-[138].

[85]  This is the approval that I refer to as the second certifier building permit.

[86]  “BA” is defined in the Third Further Amended Originating Application as the Building Act 1975.

[87]  This is the approval that I refer to as the Council building permit.

[88]  See the Outline of Submissions on behalf of the Applicant, [68].  This summary in the submissions accords with the allegations in paragraph 3A of the prayer for relief in the Third Further Amended Originating Application.

[89]  See paragraph 3A(a) and (b) of the prayer for relief in the Third Further Amended Originating Application

[90]  See paragraph 3A(c), (d) and (e) of the prayer for relief in the Third Further Amended Originating Application

[91]  See paragraph 3A(f) of the prayer for relief in the Third Further Amended Originating Application.

[92] Planning Act 2016 s 51.

[93]  See Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297, 303, citing Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

[94] Planning Act 2016 s 48(1).

[95]  See s 48(2A) of the Planning Act 2016 and the example set out at paragraph [41] above.

[96]  It will constitute building a structure under the definition of building work in sch 2 of the Planning Act 2016.

[97]  Table 1, item 1 applies to applications with respect to Brisbane core port land.

[98] Planning Act 2016 s 44(2).

[99] Planning Act 2016 s 44(3).

[100] Planning Act 2016 s 44(4).

[101] Planning Act 2016 s 44(5).

[102] Planning Act 2016 s 43(1).

[103] Planning Act 2016 s 43(3)(a).

[104]  See Table 5.9.1 and Table 5.9.31.C of City Plan.

[105]  These entries are the first row and the last row in Table 5.10.21 of City Plan.

[106]  8th ed, 2020.

[107]  See s 1.3.1 of City Plan.

[108]  Mr Baxter also relies on the fact that City Plan was amended to remove an above-ground swimming pool from the Table of Prescribed Accepted Development.  It does not follow that it was intended to be categorised as assessable development.  Rather, it left it open to be so categorised. 

[109]  [2012] QCA 44; [2013] 1 Qd R 1.

[110]  [2014] QCA 147; [2014] QPELR 686, 698 [52].

[111]  [2012] QCA 44; [2013] 1 Qd R 1, 11-2 [37]. 

[112]  See, for example, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20].

[113]  8th ed, 2020.

[114]  See s 1.3.1 of City Plan.

[115]  See the building classifications in the National Construction Code, pt A6.

[116]  See the definition of “building work” in sch 2 of the Planning Act 2016.

[117]  See paragraphs [45] to [58] above.

[118]  I do not accept the approach of Mr Catchlove, the town planner retained by Mr Baxter.  He contended in his evidence that item g. would be confined to decks or other structures which were attached to or a continuation of the building.  However, the note in that part of Table 5.3.4.1 is relevant to construction of item g.  It is part of the context of the planning scheme: see s 1.3.2 of City Plan.  The note deliberately defines “rear of the building” in relation to the whole site, rather than to that part which is immediately adjacent or connected to the building.  For that reason, the deck is prescribed accepted development.

[119]  See paragraphs [194] to [208] below.

[120]  He did not provide evidence of the building assessment provisions, nor address them in his submissions.  The Council provided relevant parts of the building assessment provisions on 26 October 2021.

[121]  It did not provide copies of the fire safety standard or the fire safety standard (RCB).

[122] Building Act 1975 chp 4.

[123]  Section 7 of the Building Act 1975 states:

Building assessment work is the assessment, under the building assessment provisions, of a building development application for compliance with those provisions.”

[124]  A planning scheme is a local planning instrument: Building Act 1975 sch 2; Planning Act 2016 s 8(3).

[125]  The “QDC” is defined in s 13 of the Building Act 1975 as the parts, or aspects of the parts, of the document called “Queensland Development Code” that are prescribed by regulation.

[126]  National Construction Code, vol 1 p 9 and vol 2 p 8.

[127]  A detached house, such as that proposed by the Prestons, is a Class 1a building.  Pursuant to s A6.10 of the National Construction Code, a Class 10 building includes one or more of the following sub-classifications:

(a)Class 10a is a non-habitable building including a private garage, carport, shed or the like.

(b)Class 10b is a structure that is a fence, mast, antenna, retaining wall or free-standing wall or swimming pool or the like.

[128]  The necessary declaration for sch 9, pt 3, div 2, table 1, item 1 of the Planning Regulation 2017 is made in s 1.7.4 of City Plan.

[129]  Assuming is applies.  See footnote 41 above.

[130] Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297, 303, citing Waterford v The Commonwealth (1987) 163 CLR 54 at 77 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, 179-80.

[131] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 391; Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, 564-5 [454]-[456];

[132] Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, Annexure B [11]-[13] citing Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 224 and Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446.

[133] Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297, 303, citing Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

[134]  [2016] QPEC 10; [2016] QPELR 334, 351 [72] (original citations).

[135]  See also Eshetu at [130]-[137] per Gummow J.

[136]  [2011] QPEC 137; [2012] QPELR 322, 333 [35].

[137]  This case is factually distinct from that in Bundaberg Regional Council v Ross [2011] QPEC 137; [2012] QPELR 322.

[138]  See paragraph [51] above.

[139] Walker v Noosa Shire Council [1983] 2 Qd R 86, 89.

[140] Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119, 124, 133-4; QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186, [171]; Mentink v Registrar of Ships [2014] FCA 1138; (2014) 320 ALR 137, 164-5 [172]-[175]; Mineralogy Pty Ltd v Sino Iron Pty Ltd (No. 6) [2015] FCA 825; (2016) 325 ALR 1, 151 [944]-[948].

[141] Building Act 1975 ss 132, 256.

[142]  [2019] QPEC 28; [2019] QPELR 959, 961-2 [14]-[16].

[143] Gerhardt v Brisbane City Council [2016] QPEC 48; [2016] QPELR 900, 919 [84]-[87]; Baevski v Gladstone Regional Council & Ors; Sea Breeze (Qld) Pty Ltd v Gladstone Regional Council & Ors [2009] QPEC 5; [2009] QPELR 533; Bundaberg Regional Council v Loeskow & Ors [2011] QPEC 95; [2012] QPELR 27.

[144]  “PA” is defined in the Third Further Amended Originating Application as the Planning Act 2016.

[145]  See Outline of Submissions on behalf of the Applicant, [83].  The summary in the submissions accords with the allegations in paragraph 3B of the prayer for relief in the Third Further Amended Originating Application.

[146]  I respectfully agree with the analysis of His Honour Judge Williamson QC in Serratore & Anor v Noosa Shire Council [2021] QPEC 21 at [32]-[61].

[147] Planning Act 2016 s 46(5).

[148] Planning Act 2016 s 46(6)(b).

[149] Planning Act 2016 s 46(6)(c).

[150]  Exhibit 5.4.

[151]  See, for example, Planning Act 2016 ss 8(6), 44(6), 46(10).

[152]  See, for example, Planning Act 2016 ss 104(1)(a), 107(1), 333.

[153]  Exhibit 1.12 p 152.

[154]  Exhibit 4.04 and Exhibit 5.04.

[155]  This is the approval that I refer to as the Council building permit.

[156]  This is the approval that I refer to as the second certifier building permit.

[157]  [1980] HCA 1; (1980) 145 CLR 485.

[158]  These are the considerations that arise under the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code.

[159]  [2019] QSC 124, [230]-[232].  The Court of Appeal dismissed an appeal against the decision of Bond J: Australia Pacific LNG Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2020] QCA 15.

[160]  The ground of review was a failure to take into account a relevant consideration.

[161]  On the issue of materiality and proof, see the observations of Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 at [27]-[39].

[162]  [2019] QSC 124, [155]-[162].

[163]  [2015] QCA 218, [33].

[164]  [2014] QCA 42.

[165]  [2013] HCA 18; (2013) 249 CLR 332, 362-7 [63]-[76].

[166] Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, [3].

[167]  [2013] HCA 18; (2013) 249 CLR 332, 362-7 [63]-[76].

[168] Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, [16].

[169]  [2017] FCAFC 33; (2017) 248 FCR 1.

[170] Minister for Immigration and Border Protection v SZVFW & Ors [2017] FCAFC 33; (2017) 248 FCR 1, 12-3 [38].

[171]  [2013] HCA 18; (2013) 249 CLR 332.

[172]  [2014] FCAFC 1.

[173]  [2016] FCAFC 11.

[174]  [2019] QSC 124, [156].

[175] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541.

[176] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541, 551 [12] (emphasis added, citations omitted).

[177] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541, 564-5 [53] (emphasis added, citations omitted).

[178] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541, 572-4 [78]-[84] (emphasis added, citations omitted).

[179] Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541, 583-5 [131]-[134] (emphasis added, citations omitted).

[180]  [2019] QSC 124, [161]-[162] (citations omitted).

[181]  Exhibit 4.04.

[182]  Exhibit 1.12.

[183]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 146-155. 

[184]  I do not accept this assumption for reasons already provided.  That said, it is convenient to address this ground of challenge on the assumption that is correct.

[185]  City Plan s 8.2.22.2 2.

[186]  City Plan s 7.2.9.2.2 2.

[187]  See paragraphs [142] to [209] above.

[188]  This is the document that I refer to as the third certifier building permit.

[189]  This is the document that I refer to as the second certifier building permit.

[190]  This is the approval that I refer to as the Council building permit.

[191]  This is the approval that I refer to as the operational works permit.

[192] Planning Act 2016 s 180(3).

[193] Planning Act 2016 s 161.

[194]  See Outline of Submissions on behalf of the Applicant, [9].

[195]  [1938] HCA 34; (1938) 60 CLR 336.

[196]  This is the approval I refer to as the Council building permit.

[197] Sztal v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14].  See also SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ).

[198]  The types of orders that can be made are outlined in s 180(5) of the Planning Act 2016, which is extracted at paragraph [339] above.

[199] Planning Act 2016 s 180(9).

[200] Planning Act 2016 s 180(10).

[201] Planning Act 2016 s 180(8).

[202] Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613. 

[203]  See paragraphs [356] to [358] above.

[204]  See paragraphs [356] to [358] above.

[205]  See Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 92-3.

[206]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 71-2.

[207]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 77-8.

[208]  This is implicit in paragraph 3A of the grounds in the Third Further Amended Originating Application.  See paragraph [358] above.

[209]  See the descriptions in paragraph [109] above.

[210]  This document was also referred to as Exhibit 6.15.  See Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 23-4 and Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 2-4 about the confusion around the numbering of the exhibit.

[211]  See Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 45-7. 

[212]  See Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 6 October 2021) 40-50. 

[213]  As the hearing was conducted by way of an e-trial, a copy of the relevant page was displayed on screens in the courtroom.  I observed Mrs Preston to be present, and attentive, throughout the hearing.

[214]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 32. 

[215]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 45-7 and 56-7. 

[216]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 77-117.  Mrs Preston gave evidence on the final day of evidence between 12.14 pm and 3.27 pm.

[217]  Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 78.

[218]  I refer to this as the Council building permit.

[219]  I refer to this as the changed Council building permit.

[220]  See paragraphs [139] to [238] above.

[221]  See paragraphs [239] to [323] above.

[222]  See paragraphs [324] to [332] above.

[223]  See paragraphs [139] to [238] above.

[224]  See paragraphs [239] to [323] above.

[225]  See paragraphs [324] to [332] above.

[226]  For ease of reference, all colours, underlining and strike-out denoting the amendments made from earlier iterations of the originating process have been removed.

Close

Editorial Notes

  • Published Case Name:

    Baxter v Preston & Ors

  • Shortened Case Name:

    Baxter v Preston

  • MNC:

    [2021] QPEC 69

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    09 Dec 2021

Appeal Status

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