Australia: Gerhardt amendments passed by Parliament - 24 May 2017

Last Updated: 28 May 2017
Article by David Nicholls and Karen Browne

The Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2016 was passed by the Queensland Parliament on 10 May 2017 and commenced on 19 May 2017. The building work and planning aspects of the legislation was the subject of an article in the latest edition of our publication, Envisage and the background was discussed in our paper " Understanding the Gerhardt Cases and their Implications." That paper was tabled in State Parliament by the Shadow Planning Minister, Ian Walker during the second reading speech of the Bill and has been incorporated in Hansard.

While the building work aspects of the Bill were amended during the debate and ultimately passed, the Deputy Premier and Minister for Infrastructure and Planning, the Honourable Jackie Trad, gave an undertaking to the Parliament to form a working group of concerned industry bodies to consider whether the changes are likely to have any unintended consequences with respect to the assessment of building work and consequential adverse impacts on housing construction.

Amendments were made to the building work aspects of the Bill in consequence of the Government's consideration of the report of the Infrastructure Planning and Natural Resources Committee, which recommended the following amendments largely due to concerns raised by Councils and the Local Government Association of Queensland;

Recommendation 5

The committee recommends that The Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2016 be amended to provide an example in section 83(1)(b) of the Building Act to clarify the intended operation of the provision.

Recommendation 6

The committee recommends that The Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2016 be amended to create a clearer link between the provisions stating that a development permit given by a private certifiers does not authorise work unless a relevant preliminary approval is in place, and the provision prohibiting assessable development without a permit."

When the Parliamentary Committee reported on the Bill, the two opposition members of the Committee included a statement of reservations, recording that the Housing Industry Association was concerned by unintended consequences of the proposed amendments, namely:

  • Modifying the definition of 'building development application' in that the responsibility for checking compliance with self-assessable criteria is removed from private certifiers.
  • The amendments have the potential to essentially remove one option (concurrence referral and force all applications down the preliminary approval route with consequential increased costs and significant time delays).

It appears that the working group to be formed by the Minister will now look at these concerns.

The legislative intent is to ensure that where there is an "overlay triggered" planning application for building work, a preliminary approval must be obtained from the relevant local government before a building permit can be issued. This is to ensure that if the building work is undertaken without a preliminary approval in place in response to the planning application, a development offence will be committed (for which penalties have been substantially increased by the Act).

Although the amendments were spawned due to the litigation between the Brisbane City Council and Mr Gerhardt concerning building work on houses in the character overlay, they have wider implications. This is due to the prominence given to overlays by the Queensland Planning Provisions (QPP) with which local government planning schemes are required to be consistent. Under the QPP, overlays prevail over all other components of planning schemes other than the strategic framework and State-wide codes. Overlays exist in relation to local heritage, character areas, bushfire prone areas, flooding, bio-diversity, protected vegetation and various other hazards. In many instances, they will trigger (in respect of building work) either self-assessment against the planning scheme, or the requirement for a development application resulting in a preliminary approval.

In summary, by way of updating our previous papers, the amendments:

  • Introduce an example for s83 of the Building Act which states that a private certifier must not grant an application for development permit where building work is to be assessed against a code in a local government's planning scheme, until a preliminary approval is given by the local government and is in effect for the part of the work that has to be assessed against the code;
  • S88 of the Building Act is amended so that an application for building work that is demolition of a building used for mainly residential purposes and is assessable development under a planning scheme, the private certifier must not give an applicant any approval documents for the application until five days have elapsed after the day the private certifier has complied with all of the requirements under s86(1) of the Act.
  • S48 of the Planning Act is amended to allow regulation to prescribe that a person is the assessment manager for part of an application. For example, a private certifier is the assessment manager for the part of the building application that is to be assessed against the building assessment provisions, and a local government is the assessment manager for the part to be assessed against the planning scheme.

The complementary amendments to the Sustainable Planning Act 2009 (SPA) covered in our Envisage article were enacted without further change.

The amendments to the SPA with respect to the Court's power to award costs, the increased maximum penalties for development offences and the amendments with respect to change applications that were reported on in our Envisage article have now been effected and are in force.

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David Nicholls
Karen Browne
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