Court of Appeal upholds the decision of the Planning and Environment Court refusing leave to appeal in a private certifier decision

In brief

The case of Gerhardt v Brisbane City Council [2017] QCA 285 concerned an application to the Court of Appeal made by a private certifier for leave to appeal against the decision of the Planning and Environment Court in Gerhardt v Brisbane City Council [2016] QPEC 48.

We previously reported on Gerhardt v Brisbane City Council [2016] QPEC 48 in our article Queensland Parliament passes amendments to address the issues arising out of the decisions of a private certifier dated 31 May 2017.

In Gerhardt v Brisbane City Council [2016] QPEC 48, the private certifier sought declarations that no application for a development approval was required to be made to the Council before it could assess and decide the building development application made to it.

The key issue before the Planning and Environment Court was whether the Council, as a concurrence agency, could assess the building development application against the Traditional building character (demolition) overlay code under the Brisbane City Plan 2014.

The Planning and Environment Court found that on a proper construction of the Sustainable Planning Regulation 2009 and the Brisbane City Plan 2014, neither the private certifier as the assessment manager nor the Council as a concurrence agency could carry out an assessment of the building work against the Traditional building character (demolition) overlay code. The Court highlighted that the applicable regulatory scheme entrusted such judgments concerning the loss of traditional building character from particular areas to the local government as the assessment manager.

Consequently, the Court found that where the Council had not yet carried out its assessment against the Traditional building character (demolition) overlay code as an assessment manager, the private certifier could only grant a building development approval in the form of a preliminary approval.

Once the Council had assessed and decided the application and granted an approval in the form of a preliminary approval, only then could the private certifier grant a building development approval in the form of a development permit.

The Court of Appeal confirmed the decision of the Planning and Environment Court and dismissed the application for leave to appeal with costs.

The Applicant private certifier argued that the Council was required to assess the application as a concurrence agency against the Traditional building character (demolition) overlay code

The Sustainable Planning Regulation 2009 relevantly gave the Council jurisdiction as a concurrence agency for the "amenity and aesthetic impact" for building work for a building or structure where it, among other things, had declared by resolution or in its planning scheme, that the form may have an extremely adverse effect on the amenity, or likely amenity, of the locality or be in extreme conflict with the character of the locality.

In this case, the Council had made such a declaration expressly in section 1.7.4 of the Brisbane City Plan 2014 where certain building work in particular localities did not comply with the acceptable outcomes in the Traditional building character (design) overlay code [our emphasis].

The Applicant private certifier submitted that the express declaration in section 1.7.4 of the Brisbane City Plan 2014, which referred to the Traditional building character (design) overlay code [our emphasis], did not limit the required assessment to that code. The Applicant submitted that the "amenity and aesthetics" jurisdiction in the Sustainable Planning Regulation 2009 contemplated demolition and consequently an assessment against the Traditional building character (demolition) overlay code [our emphasis], given that the definition of building work in the Sustainable Planning Act 2009 included "demolishing a building or other structure".

Relying on the case of Gerhardt v Queensland Building and Construction Commission [2016] QCA 136, the Applicant also argued that a declaration of the kind mentioned in the Sustainable Planning Regulation 2009 could also be implied from the planning scheme as a whole, notwithstanding the express declaration. 

The Applicant submitted that the express declaration in section 1.7.4 of the Brisbane City Plan 2014 did not justify the rejection of an implied declaration, as the express declaration comprehended building work only on certain pre-1946 dwellings described in the Sustainable Planning Regulation 2009, which did not comply with the acceptable outcomes of the mentioned codes.

Court found that the Sustainable Planning Regulation 2009 did not confer jurisdiction upon the Council acting as a concurrence agency to assess the application against the Traditional building character (demolition) overlay code. 

It was not disputed that the Traditional building character (demolition) overlay code did not form part of the building assessment provisions and that, consequently, only the Council had jurisdiction to assess the proposed development against it.

The critical issue was whether this assessment was as a concurrence agency or as an assessment manager for a separate development application, which would be required to be made.

The Court of Appeal found that the language of the Sustainable Planning Regulation 2009 refers to "built form rather than the absence of a building" and therefore confined the "amenity and aesthetics" jurisdiction to a case where the building or structure will remain after the building work is carried out, rather than demolition.

The Court of Appeal also found that an implied declaration was not available in this case as it would be inconsistent with the express terms of the jurisdiction in the Sustainable Planning Regulation 2009 and the express declaration in the Brisbane City Plan 2014. 

The Court of Appeal considered that Gerhardt v Queensland Building and Construction Commission [2016] QCA 136 did not bind the Planning and Environment Court because it involved a previous version of the Council’s planning scheme, which did not contain an express declaration in the terms of section 1.7.4 of the Brisbane City Plan 2014.

Consequently, the Court of Appeal agreed with the Planning and Environment Court and found that the Sustainable Planning Regulation 2009 did not confer jurisdiction upon the Council acting as a concurrence agency to assess the application against the Traditional building character (demolition) overlay code.

Court confirmed that a preliminary approval from the Council was required before a development permit could be issued by the private certifier

The Applicant private certifier further argued that even if a development approval was required to be granted by the Council, that development approval was not a condition precedent to the issuing of a development permit by the private certifier.

The Court of Appeal confirmed the Planning and Environment Court's reasons, specifically that where the assessment against the Traditional building character (demolition) overlay code had not been carried out by the Council, the private certifier could not issue a development permit because it could not properly authorise the assessable development to take place.

By reference to the Planning and Environment Court's reasons, the Court of Appeal found that in that case, there would be another necessary approval for the purposes of section 83(1)(b) of the Building Act 1975, being a development approval by the Council, which would prevent the private certifier from granting a development permit.

The Court of Appeal refused the application for leave to appeal and awarded costs in favour of the Council.