In brief

The case of Super Turnkey Pty Ltd & Anor v Queensland Fire and Emergency Service [2020] QPEC 43 concerned an appeal to the Planning and Environment Court (Court) against a decision made by the Development Tribunal (Tribunal), which purported to change the development approval for building work given by a building certifier.

Background

A development application for a development permit for building work in respect of a 30-room motel development had been approved by a building certifier, subject to development conditions which included a performance solution with respect to fire safety.

The Queensland Fire and Emergency Service (QFES) issued a non-compliant inspection report twice. After each non-compliant inspection report was given, Super Turnkey made an application to change the development approval to require an alternate performance solution for fire safety to satisfy the QFES. The building certifier approved both change applications.

The QFES appealed to the Tribunal against the building certifier's decision to approve the second change application.

Development Tribunal made an error or mistake of law and a jurisdictional error

In considering whether the Tribunal made an error or mistake of law, or a jurisdictional error, the Court made the following observations and determinations:

  • Mischaracterisation of the appeal – The Tribunal characterised the appeal as one against a decision notice approving a development application rather than a decision notice approving a minor change application.

  • Incorrect jurisdiction – The Tribunal incorrectly identified that the appeal was made under section 229, and schedule 1, table 3, item 1 of the Planning Act 2016 (Planning Act), "which is relevant to the giving of a development approval for building work, to the extent the building work required code assessment against the building assessment provisions". However, the Court held that the relevant jurisdiction is that described under schedule 1, table 1, item 2 of the Planning Act, to the extent that the QFES was "an affected entity that gave a pre-request notice or response notice".

  • Reasons for the decision – The Tribunal's reasons for its decision included that "[t]he building development application should have been refused", and that the amended decision notice "approving the development application on certain conditions should not have issued." The Court found that the Tribunal made an error by not addressing the question as to whether the further change to the changed development approval should be allowed. Further, the reasons provided by the Tribunal were insufficient.

  • Conditioning the non-compliance – In finding that there was a non-compliance with the assessment benchmarks, the Tribunal "did not consider, if it did consider, did not give sufficient reasons with respect to, whether conditions could have achieved compliance."

Conclusion

The Court held that the Tribunal fell into error, allowed the appeal and set aside the Tribunal's decision. Further, the Court approved the change to the development approval subject to conditions as agreed between the parties rather than remitting the matter to the Tribunal.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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