Australia: Understanding the Gerhardt Cases and their implications for developers

Last Updated: 28 October 2016
Article by David Nicholls

There have been five decisions of the Planning and Environment Court and the Queensland Court of Appeal involving a private certifier, Mr Gerhardt, which has caused a flurry of activity over recent months with the State Government actively considering legislative changes to attempt to deal with problems exposed by the Courts' decisions. This article provides an analysis of the more recent decisions and examines the potential legislative responses.

Some relevant background

At the outset, it is worth explaining the issue which is at the heart of the litigation. It concerns the distinction between building work and material change of use, and the proper roles of private certifiers and local Governments in relation to the former.

The issue has been brought into sharp focus in Brisbane in the context of traditional building character overlays which impose restrictions on the alteration or demolition of pre-1947 houses in various parts of the city. An explanation of the operation of these restrictions provides some relevant background which will assist in explaining the Brisbane City Council's concern arising from the earlier judgments, and the need for the State Government to consider amending the legislation.

Ordinarily when an owner wished to re-develop land containing a pre-1947 dwelling within the traditional building character overlay, an application would have been made to the Council for a preliminary approval to demolish the house. Such an application would be assessed against the Traditional Building Character (demolition) Overlay Code. Conflict with that code would arise, usually resulting in refusal of the application, if performance outcome PO5 of the code was not satisfied. PO5 is in the following terms:

"Development involves a building which:

  • Does not represent traditional building character; or
  • Is not capable of structural repair; or
  • Does not contribute positively to the character of the street."

The recently settled approach of the Planning and Environment Court to PO5 (c) is to consider the whole of a street rather than the parts of it that are made up of pre-1947 dwellings, and to assess the character of the street as a whole1 . A pre-1947 dwelling may contribute positively to the character of a street where that character is mixed. Visual character has to be a significantly prominent modern one, excluding any realistic co-existing character, in order to eliminate the possibility of a positive contribution by a pre-1947 house2 . Thus PO5(c), as interpreted by the Court, sets the bar rather high.

The strength of the controls in place for regulating the demolition of character houses underscores the Council's concern about demolition that has recently been approved without any assessment by the Council against the demolition code.

Alterations to a character house are assessed against the Traditional Building Character (design) Overlay Code. This code requires a pre-1947 house to be retained in its original setting and to compliment other nearby pre-1947 houses on the same street.

Summary of the Gerhardt Series of Cases

The following is a thumbnail sketch of the Gerhardt litigation to date.

Gerhard v Brisbane City Council (2015) QPEC 34 July 2015 (Gerhardt No. 1). The development involved construction of a carport entry, alterations and changes to the external façade of a character house. The application was referred by the certifier to the Brisbane City Council as a concurrence agency. The Council refused to respond and insisted that the proponent make a development application for a preliminary approval for building work to be assessed against the planning scheme. The Court declared that no such application was necessary and that the certifier was at liberty to approve the development as if there were no concurrence agency requirements, because the Council had failed to give a concurrence agency a response within the time required under the Sustainable Planning Act 2009 (SPA). The key finding in this case was that the approach that had been taken by the Council of requiring an application for a preliminary approval for building work for alterations to a character house was not valid.

Brisbane City Council v Gerhardt (2016) QCA 76, April 2016 (Gerhardt No. 2). The Queensland Court of Appeal upheld the Planning and Environment Court's decision in Gerhardt No. 1. The Court confirmed that when section 83 of the Building Act 1975 (BA) refers to a "necessary" preliminary approval, it means one for which there is a necessity under the SPA. The SPA says that a person may apply for a preliminary approval but it is not necessary to do so. In effect, section 83(1)(b) of the BA operates when a preliminary approval has been applied for, but it does not mean that it is necessary to obtain one. In those circumstances the preliminary approval must be effective for the assessment of the building work against the planning scheme before the certifier decides the building application. However, if no application for a preliminary approval has been made, the certifier may proceed to determine the building application.

Gerhardt v Queensland Building and Construction Commission (2016) QCA 136, May 2016 (Gerhardt No. 3). In August 2013 the Queensland Building & Construction Commission (QBCC) decided that the certifier had engaged in unsatisfactory conduct contrary to section 83(1)(b) of the BA which is the same section that was central to the decisions in Gerhardt No's 1 and 2. The building and work involved relocating a pre-1947 house on a double block of land at Annerley, reconfiguring two lots and building two multi-unit dwellings at the rear. The certifier did not assess the work against the relevant town planning requirements. A member of the Queensland Civil and Administrative Tribunal (QCAT) set aside the QBCC's decision. This was reversed on appeal by the QCAT Appeal Tribunal. The Court of Appeal upheld the Appeal Tribunal's decision. The Court of Appeal's decision is relevant because it confirmed the earlier approach of the Court of Appeal in Gerhardt No 2 and of the Planning and Environment Court as Gerhardt No 1 as to whether the Council is a concurrency agency for a building application. In this appeal, the certifier argued that the Council was not a concurrency agency for the application on the basis that the Council did not, in terms of the Sustainable Planning Regulation 2009, Schedule 7, Table 1, Item 17, "by resolution, or in its planning scheme declare" the building work for a building or structure is in a locality and of a form that may have an extremely adverse effect on amenity or be in extreme conflict with the character of the locality.

The Court of Appeal held that while there was no declaration by the Council per se, the provisions of the planning scheme provided the necessary "declaration" in terms of their intent and operation. Therefore the certifier should have given the Council the opportunity to assess the work. The Court of Appeal also confirmed that section 83(1)(b) of the BA does not require a preliminary approval to be obtained from Council for building work. In this respect, the Court of Appeal found that an error had been made by the QCAT Appeal Tribunal but, in the end, it was not material to the outcome of the appeal which upheld the original decision of the QBCC that the certifier had engaged in unsatisfactory conduct.

Gerhardt v McNeil (2016) QCA 2007, August 2016 (Gerhardt No 4). In relation to the certifier's actions with respect to the development of the Annerley house, the Council brought prosecution proceedings in the Magistrates Court resulting in convictions being recorded and a fine being imposed. An appeal by the certifier to the District Court against the conviction was dismissed. Following the Court of Appeal delivering its judgments in Gerhardt No 2 and No 3, the certifier applied to extend the time to appeal to the Court of Appeal against the convictions.

The Court of Appeal granted leave and set aside the convictions because they had been recorded on the basis that an effective preliminary approval for building work was required before the certifier could approve the building work, whereas the Court of Appeal had decided otherwise, and it was undesirable for the conflicting decisions to stand.

Gerhardt v Brisbane City Council (2016) QPEC 48, September 2016 (Gerhardt No 5). This case involved an application to the certifier for a development permit for building work being the demolition of two pre-1947 houses at Morningside. The certifier argued that the Council was a concurrency agency with jurisdiction to assess the planning aspects while the Council asserted that a separate application for a development approval was required. The certifier sought declarations that no separate development application to the Council was needed.

This case raised similar questions to those in Gerhardt No 1 and at first sight appeared to involve re-consideration of the same questions that had already been decided by the Queensland Court of Appeal in Gerhardt No 2 and No 3. The position was different however because Gerhardt No 1 and No 2 involved physical building work ie construction of additions and alterations, whereas this case involved demolition, and under City Plan 2014 the "building assessment provisions" identified in table 1.6.1 do not include the traditional building character (demolition) overlay code. Rather the building assessment provisions only encompass the Traditional Building Character (design) Overlay Code. It followed that the certifier had no role in assessment of the application against the demolition code. There would have to be a separate assessment manager, namely the local government, with respect to the demolition component that was required to be assessed against the planning scheme.

The Planning and Environment Court considered the Court of Appeal's reasoning in Gerhardt No 3 to be distinguishable. The court took the view that to "declare" something in a planning scheme requires a formal express statement and cannot merely be implied from the purpose, intent or subject matter of the demolition code.

City Plan 2014 contains an express declaration in section 1.7.4 in the terms contemplated by Item 17 (b) of the Sustainable Planning Regulation 2009, but it only has effect with respect to the Traditional Building Character (Design) Overlay code. The result was that in this instance, the Brisbane City Council was a concurrence agency for the application and the application should have been referred to it by the certifier.

Overall outcome of the Gerhardt Cases

The outcome of Gerhardt No 5 was that the certifier's application for declarations was dismissed. The certifier's approval of the building (demolition) work remained valid but the Court's reasons make it clear that the owner of the land cannot implement that approval without also obtaining a preliminary approval for building work (demolition) assessed against the planning scheme. In consequence there is now a dichotomy between applications for construction work in relation to a character house, where the Council is a concurrence agency, and demolition of a character house, where it is not.

It is understood that Mr Gerhardt has filed an application for leave to appeal to the Queensland Court of Appeal against the Planning and Environment Court's decision in Gerhardt No 5.

Where to from here?

The Gerhardt series of cases highlights the difficulties inherent in trying to regulate "building work" through planning schemes. This has come to the fore in recent times in several contexts but more particularly in relation to character housing and local heritage.

Obviously there needs to be a clear pathway for development that does not involve material change of use to be assessed against the relevant aspects of the planning schemes, but care needs to be exercised to avoid over complicating the development assessment system.

The fundamental objectives of any legislative reform should be:

  • Assessment should be undertaken by the most appropriately qualified assessment manager.
  • There should be clear demarcation of responsibility and accountability for each aspect of the building work.
  • Assessment of each aspect of the building work should be able to happen concurrently, while not resulting in an exercisable approval of the building aspects, without independent or concurrent approval of the planning aspects of the building work.

Because the scope of the assessment of the planning aspects of building work is relatively narrow, involving technical assessment against the relevant overlay code, there should be no need to subject it to impact assessment. Consequently the possibility of opening up such building work to impact assessment ought not influence the approach to be taken to finding the legislative solution.

The following pathways appear to be available:

  • One application may be made to the local government for both the planning and building aspects of the work. Under the SPA the local government currently has authority to undertake a complete assessment of such an application3;
  • Applications could be made separately to the local government and a private certifier for assessment of the planning and building aspects respectively;
  • An application could be made to a certifier for both aspects, but the certifier may only assess the building aspects and must refer the planning aspects to the local government as a concurrence agency, and await a decision before granting the building approval.

Appropriate limits need to be maintained through the regulations around the nature and extent of the aspects of building work that may be regulated through a planning scheme. Such regulation should only occur for legitimate planning purposes. There should be a clear distinction, by way of the terminology used, between the building and planning assessment aspects of building work. The former should be the subject of a building development application under the BA however the latter may be the subject of either a separate application for a development approval for building work, for example, "building work (character assessment)", which is assessed and decided under the planning scheme. Alternatively it may be the subject of concurrence agency assessment by the local government for the same purpose.

It does not seem to matter whether this happens through separate applications or through concurrence assessment provided it is possible for the two aspects of the building work to be assessed concurrently (in the interests of efficiency). However the building development approval should not become effective unless and until the planning component of the building work has been approved by the local government.


1 Guiney v Brisbane City Council [2016] QPEC 26

2 Lucas v Brisbane City Council [2015] QPELR 671 paragraph [37]

3 Sustainable Planning Regulation 2009 Section 12(3) and Schedule 6 Table 1

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Nicholls
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.