Australia: 36/15 Gerhardt v Brisbane City Council [2015] QPEC 34

Queensland Planning and Environment Court Updates – July 2015

(Searles DCJ - 31 July 2015)
Gerhardt v Brisbane City Council [2015] QPEC 34

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 preliminary approval.

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 2014.

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 agency requirements.

Decision: The Court held:

  1. 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 declaration.
  2. 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 application.
  3. 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.
  4. 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.
  5. 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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