Planning and environment – building work –
existing residential dwelling – Applicant a private certifier
who received a building development application from homeowners for
alterations to an existing residential dwelling – alterations
require assessment against Dwelling House code and Traditional
Building Character (Design) Code – where development permit
required before alterations can go ahead – where Applicant
applied to Respondent for amenity and aesthetic assessment for
purposes of obtaining approval – whether Respondent is a
'concurrence agency' – whether Applicant must make
separate application to Respondent for development permit or
Facts: This was an application for declarations
in relation to a development application for building work on a
dwelling located at Lodge Road, Wooloowin.
The development application sought a development permit for a
carport, entry, alterations and changes to the external walls
façade. The dwelling was a pre-1946 house within the
Character Residential zone, the Traditional Building Character
overlay and the Clayfield-Wooloowin District Neighbourhood plan of
City Plan 2014.
The owners lodged the development application to a private
certifier. The development application was code assessable. The
proposal did not comply with the relevant acceptable solutions,
therefore the operation of the Building Act 1975, City Plan 2014
and Schedule 7 of the Sustainable Planning Regulation 2009 operated
to make the private certifier the assessment manager for the
development application and Council a concurrence agency for the
purposes of the development application. Council's role as
concurrence agency was to assess the amenity and aesthetic impact
of the development application against the Traditional Building
Character (Design) Code and Dwelling House Code under City Plan
Council's assessment period for the development application
was 10 business days beginning on 12 December 2014. The applicant
wrote to Council four times requesting its response. On 4 February
2015, Council advised the applicant that the request was premature
and that a preliminary approval was necessary before the
development application could proceed.
The certifier sought declarations that the Brisbane City Council
was a concurrence agency for the development application for
assessing the amenity and aesthetic impact of the proposed building
work and that no application for a development approval for
building work was required to be made to or approved by the
respondent for the proposed building work.
In relation to the first declaration sought, Council conceded
that it was a concurrence agency and argued that, therefore, the
declaration did not need to be made.
In relation to the second declaration, Council argued that the
applicant misconceived the limited role he played in the assessment
process and that the relevant provisions of the Building Act 1975
did not oust its role as assessment manager for the purposes of
assessment against the planning scheme.
The applicant said that there was no need to apply for a
development approval from Council because he alone was the
"assessment manager" charged with the authority to decide
the application. Because Council did not respond within the
required timeframe, the applicant must, as assessment manager,
decide the application as if Council had imposed no concurrence
Decision: The Court held:
There must be "sufficient utility" to justify making
a declaration. As Council had wholly accepted that it was a
concurrence agency there was no utility in granting the first
The applicant was entitled to the second declaration. No
further application for a development permit or preliminary
approval was required before the applicant could approve the
Council had correctly pointed out that, under s 241(1) of the
SPA, it may issue a preliminary approval. But that was only in the
event that an application for such an approval was made, which was
not the case. Further, s 241(2) plainly stated that the applicant
was not required to obtain preliminary approval before the
application could be approved.
Council failed to exercise its concurrence agency jurisdiction
by assessing the application against the relevant codes under City
Plan 2014 and imposing conditions or refusing the application. It
was not the applicant's place to do such assessments. The
applicant now had to decide the application as if the Council had
no concurrence agency requirements.
There was nothing in either the Building Act 1977 or the
Sustainable Planning Act 2009 which indicated that there may be
more than one assessment manager concurrently.
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