The recent judgment of Gerhardt v Brisbane City Council  QPEC 34 casts doubt upon the ability of local governments to make building work directly assessable under a planning scheme.
Section 83(1)(d) of the Building Act 1975 (BA) prohibits the granting of a building development approval by a private certifier where, under Sustainable Planning Act 2009 (SPA), a concurrence agency has jurisdiction for part of the building assessment work, unless that part has been assessed by the concurrence agency under the building assessment provisions.
In this case, by operation of Brisbane City Plan 2014 in combination with Schedule 7, item 17 of the Sustainable Planning Regulation 2009 (SPR), the Council had jurisdiction as a concurrence agency for the purposes of the SPA and the BA to assess "the amenity and aesthetic impact of" the building or structure if the building work is carried out. An application made to a private certifier was duly referred to the Council which declined to assess it on the basis that its approval of an application for a preliminary approval for building work under City Plan 2014 was a necessary prerequisite to approval of the building development application by the private certifier.
The private certifier made an originating application to the Planning and Environment Court (PEC) seeking a declaration that it be at liberty to approve the development under Section 286(1) of the SPA as if there were no concurrence agency requirements because the Council had not responded within its stipulated "assessment period". The PEC made that declaration and in its reasons noted:
- there was no material change of use involved in the building works;
- the private certifier was the assessment manager for the application;
- the Council had lost the opportunity to impose conditions on the building development application by not responding within its concurrence agency assessment period;
- there was no requirement under the SPA to apply to the Council for a preliminary approval for building work. In fact section 241(2) of the SPA is to the opposite effect;
- there is nothing in either the SPA or the BA to suggest that there may be more than one assessment manager operating concurrently.
The Gerhardt judgment calls into question the planning scheme drafting technique of making building work assessable against a planning scheme by way of an application for a preliminary approval. While any development, including building work, may theoretically be the subject of a preliminary approval, it would ordinarily be the case that applications for preliminary approvals and development permits would be assessed against similar standards. A building application can only be assessed against technical building standards and as such, the legislative mechanisms only allow a strictly limited concurrence jurisdiction relating to amenity and aesthetic impact considerations.
The trigger for a local government concurrence agency jurisdiction for building work assessable against the BA is set out in Schedule 7, item 17 of the SPR. It relates to building work for a building or structure that is:
- a single detached Class 1(a)(i);
- a Class 1(a)(ii) building comprising not more than 2 attached dwellings; or
- a Class 10 non-habitable building or structure, and is in a locality and of a form for which the local government has, by resolution or in its planning scheme, declared 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.
The latter amenity/character matters are also grounds set out in Section 288(2) of the SPA upon which a local government as concurrence agency may tell the assessment manager to refuse the application.
City Plan 2014 identifies the relevant localities for this trigger in Section 1.7.4 and Table 1.7.4. It is important to note that making a material change of use (MCU) for buildings in Class 1(a) or Class 10 cannot be declared to be assessable development under a planning scheme if the use is for a residential purpose in a residential zone and, for Class 1a(i) and (ii), the MCU involves repair, renovation, alteration or addition to the building and the development is not self assessable development under a relevant planning instrument, for example, a planning scheme or preliminary approval.
"Residential zone" means land, however described, designated in a relevant planning instrument (e.g. a planning scheme or preliminary approval) as residential. Obviously this may include residential use at a range of densities. A question arises as to whether a zone description that does not use the word "residential" but which in substance contemplates only residential uses subject to landscape and environmental protection controls is a "residential zone". In Jimboomba Lakes Pty Ltd v Logan City Council & Ors  QPEC 61 in a different context and under different statutory provisions, a rural zone was held to satisfy the expression "zoned for an urban purpose" based upon the substantive effects of such a zone rather than its description. We would expect a similar forensic approach would be taken to interpreting the words "residential zone" used in City Plan 2014.
A preliminary approval for building work might optionally be sought that requires assessment against technical building standards, but that would be an unusual occurrence. Normally only a development permit for building work is required. Assessing building work against planning standards that are usually directed at changes of use is problematic, and use of the preliminary approval mechanism for that purpose now appears to be unenforceable in consequence of the judgment in Gerhardt.
It is understood the Council has applied for leave to appeal to the Queensland Court of Appeal in respect of the PEC's judgment.
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