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Leeward Management Pty Ltd v Brisbane City Council[2025] QPEC 17

Leeward Management Pty Ltd v Brisbane City Council[2025] QPEC 17

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Leeward Management Pty Ltd v Brisbane City Council [2025] QPEC 17

PARTIES:

LEEWARD MANAGEMENT PTY LTD ATF LE TRUST TRADING AS PROJECT BA

ABN 12 119 712 501

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

124/2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

4 July 2025

DELIVERED AT:

Planning and Environment Court, Maroochydore

HEARING DATE:

29 April 2024

JUDGE:

Long SC DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT COURT – APPEAL – where the appellant seeks the approval of building word for the erection of a storage shed on the property of the owner who has engaged the appellant as a private building certifier – where there is necessity for the assessment of the proposal against the building assessment provisions in the Building Act 1975, by the appellant as assessment manager and in respect of which the respondent is identifiable as a referral agency – where in addition, there is necessity for assessment of the proposal under the relevant planning scheme by the respondent as assessment manager –  whether in respect of the development application made to the respondent as assessment manager, s 54(3) and s 60(4) of the Planning Act 2016 required the respondent to include the referral agency response as part of its approval so that there has been any part refusal of the application within the meaning of s 60(6) of the Planning Act 2016 as a basis for this appeal

CASES:

Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58

Leeward Management Pty Ltd v Noosa Shire Council [2023] QPEC 38.

LEGISLATION:

Building Act 1975, ss 6, 20, 30, 44(3), 51, 83, 143, 143A

Planning Act 2016, ss 8(5), 54(3), 60, 229, sch 1

Planning and Environment Court Act 2016, s 47(1)

Planning Regulation 2017, s 22, sch, 8, sch 9

COUNSEL:

J Timmins (solicitor) for the appellant

M Batty and M Rodgers for the respondent

SOLICITORS:

Project BA for the appellant

City Legal for the respondent

Introduction

  1. [1]
    By Notice of Appeal filed 22 August 2023, the appellant appeals against the decision of the respondent dated 16 June 2023, on the basis of characterisation of that decision as being “to refuse part of a development application” made in relation to land located at 91 Baaring Drive Karana Downs and more particularly described as Lot 220 on Registered Plan 177219 (“the Land”).
  2. [2]
    There is no issue raised in respect of the timing of the appeal, in circumstances where, after receipt by the appellant of the decision, on 19 June 2023,[1] change representations were made,[2] with the determination to reject the change representations being communicated on 9 August 2023.[3]
  3. [3]
    Before turning to the specific issues arising in this appeal, the essential facts are not in dispute and may be noted as follows:
    1. On 20 February 2023, the appellant lodged with the respondent, a Form 56 notice as to its appointment as a private certifier for the proposed construction of a “storage shed” on the Land, which was acknowledged by the respondent as completed, on the same day.[4]
    2. On 1 March 2023, the appellant also lodged a development application in respect of that proposed development.[5]
    3. By email dated 6 March 2023,[6] the respondent requested revision of the development application so as to record the name of the property owner and upon submission of an amended Form 2,[7] it was on 26 April 2023,[8] confirmed that the application appeared to satisfy lodgement requirements, with a fee quote generated and that required fee was then paid.[9]
    4. By email dated 16 May 2023,[10] the respondent sent an information request to the appellant, which included the following:

“Building envelope

The proposed setting of the shed results in a reduced side (eastern) boundary setback that is considered to adversely impact on the amenity and privacy of residents on the adjoining lot. Provide amended plans that observe:

  1. An increased side (eastern) boundary setback to 1500mm; or
  2. Alternatively, provide neighbour consent from the property owner of 87 Baaring Dr. Kawana Downs 4306.”
    1. By email dated 30 May 2023,[11] the appellant provided the respondent with further information, including the consent of the neighbouring property owners of 87 Baaring Drive Kawana Downs.
    2. After an email indicating that the respondent would then proceed to finalise an assessment and decision, by email dated 19 June 2023 the appellant was given a development permit,[12] which amongst other things recorded the following:
      1. a statement in the decision notice that “there are no referral agency requirements relating to this application”;
      2. a stamp on the approved plans stating:

“This referral agency response does not permit or imply consent for the removal of vegetation protected under the Natural Assets Local Law”;

  1. a stamp on the approved plans, stating:

“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.”; and

  1. the following included as Condition 18:

“(18) 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. [4]
    The effect of the change representations made by the appellant was to seek to have the “standard building regulations” notations and stamp removed from the decision notice and to have the referral agency response of the respondent for design and siting issues, included in the approval.

The issues

  1. [5]
    This appeal is brought pursuant to s 229 and Schedule 1, Table 1, Item 1(a) of the Planning Act 2016 (“PA”).  That is because the appellant relies upon there being a part refusal of the development application it made to the respondent, within the meaning of s 60(6) of the PA. Further in that regard, the appellant relies upon the reasoning in Leeward Management Pty Ltd v Noosa Shire Council,[13] as to the application of ss 54(3) and 60(4) of the PA to that development application, so as to have required the inclusion of a referral agency response by the respondent, as has been noted to have been expressly excluded from the approval which was given.
  2. [6]
    That contention and the essential facts as they have been set out above, are to be understood in the following uncontentious context:
    1. the proposed development the subject of the application made to the respondent is a relatively simple one, being for the erection of a storage shed on the land, noting that the application made included plans disclosing what was proposed to be constructed and the siting of it on the Land;
    2. upon its engagement as a private building certifier, the appellant is the recognised assessment manager for the building work, having regard to the code assessable building assessment provisions in the Building Act 1975;[14] and
    3. there are two functions attributed to the respondent:
      1. because of necessity of assessment of the proposal against the planning scheme, in particular because of the proposed building work within the Biodiversity Overlay prescribed by the Brisbane City Council Plan 2014, the respondent is the designated assessment manager for that assessment;[15] and
      2. as a designated referral agency for the assessment of the building work under the Building Act 1975, because of the proposed siting of the proposal within the minimum boundary setback prescribed by the Queensland Development Code.[16]
  3. [7]
    The respondent seeks to revisit the reasoning in the earlier decisions in Leeward Management Pty Ltd v Noosa Shire Council and in any event, to distinguish the factual circumstances here as to any applicability of that reasoning. The essential contention is that neither s 60(4) and more particularly s 54(3) of the PA, was engaged in the present circumstances, so that there is no part refusal, such as to found the appeal and that it should be dismissed on that basis. Alternatively, it is contended that the appropriate outcome would be to exercise the power in s 47(1)(c)(ii) of the Planning and Environment Court Act 2016, to set aside the decision and return the matter to the respondent with any appropriate directions. Ultimately and if the appellant’s contention as to the appropriate engagement of s 60(6) of the PA is established, it is conceded that such a return of the matter to the respondent would be an appropriate outcome. 

Thechallenge to the earlier reasoning

  1. [8]
    Although there were different reasons or triggers in respect of the engagement of the Noosa Shire Council, as both assessment manager and referral agency, (under a different planning scheme) in the earlier decisions,[17] the development application made in that instance was also lodged by the same building certifier, in respect of the part demolition and extension of a shed on a property. In that instance, the Council was the assessment manager for that part of the proposal which involved demolition of part of the existing structure, and it was otherwise a referral agency for the building development approval involved, including in respect of the proposed extensions to the shed.
  2. [9]
    That respondent Council unsuccessfully sought to strike out the appeal as incompetent, including upon the basis that, as was ultimately the appellant’s position, it could not be premised in reliance upon s 60(6) of the PA, because of the failure to include the Council’s referral agency response as part of its approval. That issue required consideration as to whether under the PA, that Council was obliged to do so, having particular regard to the application of s 54(3) and s 60(4) of the PA. In that instance, it was ultimately determined that the obligation to do so was established and that the failure to include that response constituted a failure of the obligation of the assessment manager pursuant to s 60(6). It should, however, be noted that the reasoning as the prospect of such a conclusion, in the context of reasoning as to the statutory construction in support of such a conclusion, was initially reached in the broader context of additional focus upon other issues as to the competency of the appeal and seeking to strike it out, including as to the bringing of that appeal within the appropriate time limit and was necessarily, in that context, expressed in a preliminary sense. However, the earlier reasoning was not the subject of any revisitation in the ultimate determination of that appeal. 
  3. [10]
    Accordingly, that reasoning, as it pertained to the particular complications of the application of s 54(3) and s 60(4) of the PA, is relied upon by the appellant here. Whilst the respondent seeks to emphasise and rely upon what are contended to be different factual circumstances, as a means of demonstrating that there is no valid appeal before the court, it also emphasises its contention that the reasoning in the earlier decisions (“the Noosa decisions”) should be revisited and a different conclusion reached.
  4. [11]
    The contentions of the respondent are not persuasive as to any departure from what was determined in the first Noosa decision, as to the legislative construction as to the applicability of s 54(3) and 60(4) of the PA.  In the course of argument, the respondent identified the following from the first Noosa decision, as the critical reasoning put in issue:[18]

“[39] It is also of importance to understand the effect of the appellant’s contention, in reliance on s 54(3), that the provisions operate, if engaged, not to substitute the referral agency as the assessment manager but to extend obligations otherwise held as assessment manager to include those which would arise as the referral agency given a copy of the development application and the required fee.  And as has been central to this dispute from the outset and pursuant to s 54(3)(b), to dispense with the otherwise required referral agency fee.  In other words, it may be discerned that an effect of s 54(3), if engaged, is to allow for the making of a singular development application to engage the separate functions held by an assessment manager which is also a referral agency.

….

[44] It is convenient to note the position of the Council as to s 54(3) not being engaged. Effectively, the contention is that the severable parts of this proposed development required separate submission to the separately identified assessment managers and so as to separately engage any respective referral agency response and that s 54(3) did not operate, in the circumstances, to alleviate the need for separate provision of the part involving the building development work for assessment of the private certifier, to the Council as referral agency together with the fee required pursuant to s 54(1) of the PA.  Some particular emphasis is placed upon the understanding that a starting point is that the legislative scheme expects that a development application is made to each assessment manager, from whom a decision or approval may be required.  Such an effect of the legislative scheme has been generally examined earlier in these reasons.  However and as also earlier discussed, that does not strictly mean that there must be several and separate such applications, as opposed to a necessity for a development application which may be separately assessable, in parts, to be given to each relevant assessment manager. Neither does any such consideration affect the fact that in respect of the development application made to it here, the Council was an assessment manager.

….

[48] The construction of the phrase which is contended for the Council is not to be accepted.  Whilst the word “application” is necessarily a reference back to “the application” referred to in s 54(1) and in turn “a development application” in respect of which “an applicant … must … give a copy … to each referral agency”. For the reasons already noted it is not necessary that in each respect in which there may be several and separate assessment managers for a development proposal, that there is necessarily to be a separate or severable development application.  On the contrary, the expressed provisions of s 48(2)(b) are in respect of responsibility for relevantly “assessing all or part of an application”. However, it may be seen that s 48(2)(a) as it provides that the assessment manager is responsible for “administering and deciding the application”, can only sensibly require such administration and decision to the extent that there is both power and obligation to do so. But as to the engagement of any such obligation pursuant to s 54(3), it is in respect of any situation where the application, which is otherwise made to the assessment manager, is that which would otherwise be provided as a copy, to engage the obligations as a referral agency as may be prescribed in Schedules 9 and 10. Clearly s 54(3) operates to avoid any necessity for duplication of such notification and by s 54(3)(b) abrogates the requirement for any additional fee. Moreover, the obligation as to engagement as a referral agency for “that type” of application, is to be determined by the discrimen contained in Schedules 9 and 10. Relevantly here, each of Tables 3 and 7, are identified as engaged for building work where respectively identified circumstances relate to that building work.

[49] What may therefore be discerned is a coherent expectation of a single and complete exercise of power and obligation in respect of a development application, here including those of the Council, as engaged pursuant to s 54(3) in respect of that assessment to be undertaken as assessment manager and if s 54(3) was also engaged in relation to any referral agency function in respect of the building approval aspect, an expectation of  inclusion of that determination, in order to properly inform the decision to be made by the private certifier.”[19]

  1. [12]
    In the first instance, the challenge of the respondent to that reasoning largely rehearses and seeks to refine, the essence of the argument of the Council in the first Noosa decision, particularly in focus upon the application of s 54(3) being premised upon there being a single development application in issue. Otherwise, the respondent’s submission sought to characterise the appellant’s proposed development here as necessarily involving two development applications, as they were required to be made to two different assessment managers, requiring the application of separate assessment criteria and separate approvals or development permits, if granted.  However, the submissions expressly fell short of a contention that these considerations under the legislative scheme, necessitated conclusion that there must necessarily be such separate development applications, at least in the sense of the concession of ability for an applicant to seek more than one required approval or permit in a single application, at least where the approvals are sought from the same person or entity as the identified assessment managers.[20] 
  2. [13]
    Whilst the passages in the first Noosa decision, to which particular attention is drawn, must be read in the context of what is more fully expressed in the reasons from which they are drawn, they suffice to exemplify why there is no demonstrated reason to revisit the previous construction of the legislative scheme. Once it is understood that the respondent’s position here is not dissimilar to what was observed to not be put in issue in the Noosa decision, that: “… a particular development proposal may combine a number of elements, which constitute a desired outcome and may be the subject of a single development application”,[21] the repeated arguments of the respondent which tend to proceed upon an understanding that because approvals must be sought and obtained from more than one identified assessment manager and pursuant to different assessment criteria, that necessarily means that there are multiple development applications for the purpose of application of s 54(3) of the PA,[22] are not to be accepted. As was earlier noted, there is express recognition in s 48(2)(b) of the PA, that an assessment manager may have responsibility for assessing only part of a development application.
  3. [14]
    Moreover, in such circumstances, neither is it demonstrated that an interpretation of s 54(3) of the PA, which seeks to limit the operation of that sub-section by reference back to the terminology “applications of that type” in s 54(2)(a), is to any such effect, for the reasons earlier given for rejecting such a contention.[23] Further that contention is not materially improved by the particular reference, in this matter, to a potential situation where it may be discerned that a local government as assessment manager may also be a referral agency in respect of the same development approval or permit.
  4. [15]
    The reference is to the effect of s 51 of the Building Act 1975 and Schedule 8, Table 2, Item 1 of the Planning Regulation 2017, whereby, at the choice of a development proponent, a relevant private certifier is not engaged and the relevant local government is designated as the assessment manager for the assessment of the building development application under the Building Act 1975.[24] That contention proceeds upon the basis, which was not contradicted, that the local government is also then relevantly designated as a referral agency, having regard to the application of s 22(1)  and Schedule 9, Division 2, Table 1 of the Planning Regulation 2017, being the same provisions identified as the basis of this appeal and where there has been the engagement of a relevant private certifier.[25]
  5. [16]
    Both this and a further contention additionally raised in this instance, appropriately and necessarily, seek to engage consideration of the interrelationship of the PA and the Building Act 1975 in the requirements for assessment of building work, as a form of assessable development under the PA.[26] In the PA, “building work” is relevantly defined to include:

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

  (ii)  works regulated under the building assessment provisions;”.

 Further, the definition of “building assessment provisions” is by way of express reference to s 30 of the Building Act 1975. And it is to be noted that, as has occurred in this instance by way of the engagement of the respondent as the assessment manager for issues arising under the relevant planning scheme, s 8(5) of the PA provides that any such:

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

 Whilst the term “building work” is also defined in the Building Act 1975, that is materially and relevantly, in similar terms to the PA definition, as follows:

“(a) building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or

….

  1. other work regulated under the building assessment provisions.[27]

By s 20 of the Building Act 1975:

“All building work is assessable development, unless the building work is accepted development under section 21(2) or a regulation made under the Planning Act.

The Building Act 1975 relevantly operates in reference to a “building development application”, which is defined in s 6, as follows:

  “6 What is a building development application

  1. A building development application is—
  1. a development application for a development approval—
  1. if the local government is the assessment manager for the application—to the extent the application is for building work that, under the Planning Act, must be assessed against the building assessment provisions; and

Note—

For the functions of a local government in relation to building development applications, see section 51.

  1. if a private certifier is the assessment manager for the application—for building work; or
  1. a change application, other than a minor change application, to change a development approval—
  1. if the development approval approves building work—in relation to the building work; or
  1. otherwise—to approve building work.
  1. However, if a local government is the responsible entity for a change application, the application is a building development application only to the extent the building work mentioned in subsection (1)(b)(i) or (ii) must, under the Planning Act, be assessed against the building assessment provisions.
  1. [17]
    An effect of this definition and particularly as it is engaged in s 51 of that Act, is to separately identify those functions, as may be performed by a chosen private certifier, which may be in respect of the assessment and approval of proposed building work against the building assessment provisions in s 30 of the Building Act 1975, from other functions which may be performed by a building certifier.[28] The particular identification of such an application “to the extent the application is for building work that, under the Planning Act, must be assessed against the building assessment provisions”, is entirely consistent with the prior recognition of the express  effect of s 48(2) of the PA, in recognition that an assessment manager may be responsible for assessing all or part of a development application. Accordingly, this definition operates in focus upon the particular nature of the function to be performed in respect of an approval which is sought, as opposed to dictating any necessity for any separate form of application.
  2. [18]
    In those circumstances there is no warrant for the narrow approach contended for the respondent as to further limitation of those instances where there may be a referral agency function relating to the assessment of a building development application, as that may be regarded as a part of a development application for building work, whether made to a private certifier or to a local government.  As the previous reasoning demonstrates there is no discernible reason for further limitation of the operation of s 54(3) and what was then determined as the harmonious operation of s 60(4) of the PA,[29] to what is recognised in the relevant extrinsic materials as to the limited situations where there may be different assessment managers (in the sense of different persons or entities) for parts of a development proposal, specifically noted to include the circumstances of engagement of a relevant private certifier.[30]
  3. [19]
    It is only further necessary to deal with another additional consideration to those raised and dealt with in the earlier decisions, as raised in this instance by the respondent’s reference to the provisions of s 83 of the Building Act 1975, as a contextual consideration to the interpretation of s 54(3) of the PA. Such a sense of interrelationship may be observed in the reference which is first made to the effect of s 83(1), in precluding, by prescription of an offence, a private certifier from giving a building development approval until all necessary development permits under the PA are in effect and all referral agency responses have been received or the response period has ended. The proscriptions which are set out are preceded by the following words:

“The private certifier must not grant the building development approval applied for—"

Particular reference is then made to the following provision in s 83(3):

“(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.”

The contention, in reliance upon this provision, is:

“Here, the Second Development Application (including any referral matters) pursuant to s 83(3) of the Building Act 1975 (Qld) is treated as though it has not been received until the First Development Application is decided. That is material when one considers the proper exercise of administrative power as against the Appellant’s invitation to the Court to find that a decision ought be made in respect of the second Development Application despite the express legislative intention for that application to be treated as not in existence until the First Development Application is decided.”[31]

  1. [20]
    It must be concluded that this contention is not established when the operation of s 83 is closely considered. It is first necessary to note that sub-section (3) is only expressed to operate in respect of any “application or request mentioned in subsection (2)(a) to (c)” and that sub-section (2) provides:

“(2) Subsection (3) applies if the private certifier receives the application before a following application or request is decided—

  1. 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. if subsection (1)(b) applies to the application—a development application for a preliminary approval or development permit mentioned in the subsection;

(ba)  if subsection (1)(ba) applies to the application—a PDA development application for a PDA development permit mentioned in the subsection;

  1. if subsection (1)(e) applies to the application—an application under the Plumbing and Drainage Act 2018 for a permit mentioned in the subsection.”

Accordingly, it is to be noted that the application of s 83(3) is expressed so as to not include any engagement of the further proscriptions which appear in s 83(1), as follows:

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

  (d)  if, under the Planning Act, a referral agency must assess the building work against, or having regard to, a matter relating to the building work—until—

  1. the referral agency has given its referral agency’s response to the private certifier or, if the referral agency does not give a response before the end of the referral agency’s response period for the application, until after the response period has ended; and
  1. if the referral agency is the local government—any security it has required for the carrying out of the building work has been given; and
  1. if proposed works relating to the development include installing or altering on premises an on-site sewage facility under the Plumbing and Drainage Act 2018—until a permit under that Act has been given for the installation or alteration.”

Notably, s 83(3) therefore has no application in relation to obtaining any required response of a referral agency, so as to enable the private certifier to “grant the building development approval applied for”. That sub-section is a deeming provision and cannot change the reality of any application for building development approval having been made and sub-section (2) only engages sub-section (3) on the premise that the private certifier has received the application.

  1. [21]
    Otherwise, it may be discerned that where there is necessity for the types of separate assessment by another assessment manager as noted in sub-section (2) and s 83(3) is engaged, the practical effect  is in postponement of the decision period available to the private certifier for the decision on the building development application and which might otherwise be coterminous with the decision period available to the other assessment manager.[32] Such underlying purpose of this provision may also be gleaned from some historical context. The present form of s 83(3) of the Building Act 1975 is the consequence of amendment made, by complete replacement of the existing sub-sections (2) and (3) in conjunction with the enactment of the PA, by the Planning (Consequential) and Other Legislation Amendment Act 2016. It suffices to otherwise note that the preceding equivalent provision was inserted, as s 83, by the Building and Other Legislation Amendment Act 2006, with sub-section (3), as it remained until the 2016 amendment (albeit that it had been renumbered as sub-section (2)), expressed as follows:

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

Application to this case

  1. [22]
    However, there is, in the different factual circumstances of this matter, more resonance to a point made by the respondent as to there being no legislative necessity for an applicant to make all applications for all the approvals or permits which may be necessary for a proposed development, contemporaneously or concurrently. And it may be understood that there may be practical reasons as to why the approvals may be sought in a staged manner. Whether or not there is to be discerned any lack of procedural or commercial sense in not doing so in circumstances like those in this matter,[33] and whether it occurs in a combined or separate applications, it is necessary, pursuant to s 51 of the PA, that the application must be made to the respective assessment manager who is authorised to give the approval or permit which is sought. Further and pursuant to s 54(1), it is that application for particular approval(s) or permit(s) which must also be given to the referral agency.
  2. [23]
    Unlike the position noted in the earlier decisions,[34] there is nothing in the application and supporting materials which indicates that the application made to the respondent in this instance, includes that which is to be made to the appellant as assessment manager and also given to the respondent as referral agency. It may be specifically noted that:
    1. whilst the application form specifically requested identification of “the assessment manager(s) who will be assessing this development application”, the only recording is “Brisbane City Council” and
    2. the “No” box is crossed in response to the specific question: “Does this development application include any building work aspects that have any referral requirements?”

Otherwise, there is nothing in the accompanying or any subsequently provided materials to indicate that this application included the assessment of the building work against the building assessment provisions, as opposed to seeking the assessment in respect of the additional planning issue.

  1. [24]
    Nevertheless, the appellant points to the earlier notification of its appointment as the building certifier for the proposed development, as being sufficient to notify the respondent that its obligation as the referral agency in respect of the necessary building development application was engaged, under s 54(3) of the PA, upon the lodgement of the other necessary approval for which the respondent is the assessment manager.
  2. [25]
    The obligation of the private certifier to give the notification of engagement arises pursuant to ss 143 or 143A of the Building Act 1975, under pain of exposure to penalty for any offence of non-compliance and as one of the obligations provided in regulation of the activities of private certifiers. Such obligations arise completely separately to the performance of any functions in respect of the assessment of building development work or dealing with any applications for the assessment of any such proposal. As may be noted, respectively in s 143(1)(a) and s 143A(1)(a), the requisite notification is required for engagement “by a client to perform private certifying functions for a building or building assessment work”. There is also nothing in the notification which was given to specifically note any engagement to perform “building assessment work”.
  3. [26]
    Accordingly, the effect of the respondent’s alternative and primarily pressed,[35] submission should be accepted. Whilst, as has been concluded, it was open to the appellant to make a single development application to include each of the parts of the proposed development which required the assessment of different assessment managers and thereby engaging s 54(3) and s 60(4) of the PA, it is necessary that the application is discernible as such an application. The necessary conclusion is that the application made in this instance to the respondent was not so discernible and therefore did not engage those provisions of the PA, with the consequence that there is no discernible engagement of s 60(6) of the PA and no basis for this appeal.

Conclusion

  1. [27]
    Therefore, in the circumstances this appeal has no discernible competent foundation and as the respondent seeks, the appropriate order is to dismiss it.

Footnotes

[1]  Affidavit of LE Neller filed 8/2/24, at [15] and LEN-1, pp 42-75. 

[2]  Ibid at [16]-[19] and LEN-1, pp 76 -131. See s 75 of the PA.

[3]  Ibid at [20] and LEN-1, pp 132-138.

[4]  Ibid at [3] and LEN-1 at pp 1-3.

[5]  Certificate filed 28/2/24, at [5] and Attachment 7, pp 19-41; cf: Affidavit of LE Neller filed 8/2/24,               at [5] and LEN-1 at pp 5-15.

[6]  Ibid at Attachment 8, p 42.

[7]  Ibid at Attachment 9, pp 43-50.

[8]  Ibid at Attachment 10, pp 51-53.

[9]  Ibid at Attachment 11, pp 54-55.

[10]  Affidavit of LE Neller filed 8/2/24, at [12] and LEN-1, pp 32-34.Cf: Certificate filed 28/2/24, at  Attachment 12, pp 56-57.             

[11]  Affidavit of LE Neller filed 8/2/24, at [13] and LEN-1, pp 35-39.Cf: Certificate filed 28/2/24, at  Attachment 13, pp 58-62.             

[12]  Affidavit of LE Neller filed 8/2/24, at [15] and LEN-1, pp 42-75.Cf: Certificate filed 28/2/24, at  Attachments 14 and 15, pp 63-76.             

[13]  [2022] QPEC 58, as ultimately applied in Leeward Management Pty Ltd v Noosa Shire Council [2023] QPEC 38.

[14]  Pursuant to the Planning Regulation 2017, s 21 and Schedule 8, Table 1, Item 2 and Schedule 9, Part 2, Table 1.

[15]  Pursuant to the Planning Regulation 2017, s 21 and Schedule 8, Table 1A, Item 1.

[16]  Pursuant to the Planning Regulation 2017, s 22 and Schedule 9, Part 3, Division 2, Table 3.

[17]  Although, the engagement as referral agency, in respect of the building development application,  was also, in the earlier instance, pursuant to the Planning Regulation 2017, s 22 and Schedule 9,               Part 3, Division 2, Table 3.

[18]  T1 – 55.27 – 27.

[19]  [2022] QPEC 58, [39], [44] and [48] – [49].

[20]  T1-14.5-23, 1-18.19-32 and 1-49.30-45.

[21]  [2022] QPEC 58, [21].

[22]  T1-54.15-22.

[23]  Ibid at [45]-[49].

[24]  Respondent’s written submissions filed 4/3/24, at [60]-[62].

[25]  Ibid at [22]-[23].

[26]  See: s 44(3) and the definitions of “assessable development”, “development” and “building work”  in Schedule 2, of the PA.

[27]  See: s 5.

[28]  See: s 10 of the Building Act 1975.

[29]  [2022] QPEC 58, [48]-[55].

[30]  Ibid at [25].

[31]  Respondent’s written submissions filed 4/3/24, at [43].

[32]  See generally: the Development Assessment Rules made and amended pursuant to ss 68 and 69 of  the PA and s 44 of the Planning Regulation 2017.

[33]  T1-79.4-26.

[34]  For instance, see [2022] QPEC 58, [26]-[31] and [2023] QPEC 38, [1]-[7].

[35]  T1-27.23-30.

Close

Editorial Notes

  • Published Case Name:

    Leeward Management Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Leeward Management Pty Ltd v Brisbane City Council

  • MNC:

    [2025] QPEC 17

  • Court:

    QPEC

  • Judge(s):

    Long SC DCJ

  • Date:

    04 Jul 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58
6 citations
Jump To
Cite 1 - [2022] QPEC 58
Cite 2 - [2022] QPEC 58
Cite 3 - [2022] QPEC 58
Cite 4 - [2022] QPEC 58
Cite 5 - [2022] QPEC 58
Cite 6 - [2022] QPEC 58
Leeward Management Pty Ltd v Noosa Shire Council [2023] QPEC 38
3 citations
Jump To
Cite 1 - [2023] QPEC 38
Cite 2 - [2023] QPEC 38
Cite 3 - [2023] QPEC 38

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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