Australia: Building and Development Dispute Resolution Committee made an error of mistake in law by approving an application to construct a dwelling house over a sewer

IN BRIEF

The case of Council of the City of Gold Coast v Taylor & another [2016] QPEC 54 concerned an appeal in the Planning and Environment Court against a decision of the Building and Development Dispute Resolution Committee to uphold an appeal from Mr and Mrs Taylor against the refusal of their development application for building work for the construction of a dwelling house.

The building work was proposed to be carried out on a lot traversed by a sewer and departed from the applicable performance requirements of the Queensland Development Code. The Council, as a concurrence agency, directed the building certifier to refuse Mr and Mrs Taylor's development application on this basis.

The Court allowed the appeal and set aside the decision of the Committee, finding that the Committee had made an error or mistake in law by failing to do the following:

  • Consider and make findings about compliance with the applicable performance requirements.
  • Give adequate reasons regarding matters of compliance and the discretion the Committee thought it may exercise in approving the development application despite non-compliance with the Queensland Development Code.

THE PROPOSED BUILDING WORK DEPARTED FROM THE ACCEPTABLE SOLUTIONS TO THE APPLICABLE PERFORMANCE REQUIREMENTS UNDER THE QUEENSLAND DEVELOPMENT CODE AS IT WAS PROPOSED TO BE CONSTRUCTED OVER A SEWER

Part MP1.4 - Building over or near relevant infrastructure of the Queensland Development Code applies to building work for a building or structure proposed to be carried out on a lot that contained, or was adjacent to a lot that contained, relevant infrastructure, including a sewer operated by or for a sewerage service provider.

The applicable performance requirements under MP1.4 relevantly provide as follows:

  • A building or structure is constructed and located so its integrity is unlikely to be affected as a result of maintenance, replacement or failure of the relevant infrastructure.
  • When completed, a building or structure allows the relevant service provider the access above the infrastructure required for inspecting, maintaining or replacing the infrastructure.

All parties agreed that the proposed building work departed from the acceptable solutions to these performance requirements as it was proposed to be constructed over a sewer. The Council, as the relevant service provider and a concurrence agency for the development application, directed the building certifier to refuse the development application on the basis that it did not comply with the Queensland Development Code.

THE COMMITTEE APPROVED THE DEVELOPMENT APPLICATION ON APPEAL ON THE BASIS THAT THE PERFORMANCE REQUIREMENTS OF THE QUEENSLAND DEVELOPMENT CODE WERE ABLE TO BE SATISFIED

It was the concern of the Committee that the Council had not sufficiently explored whether the performance requirements of the Queensland Development Code were able to be satisfied. The Council appeared to have taken the position that the performance requirements had the effect of prohibiting development above sewer lines, whilst on appeal before the Court the Council no longer maintained such a position.

The Committee examined options that could satisfy the performance requirements, applying the South East Queensland Water Supply and Sewerage Design and Construction Code, specifically, the criterion that a new sewer constructed in accordance with the Code would have an expected life of 100 years. The Committee also considered the impact of the Council's preferred relocation of the sewer on the design of the proposed dwelling and useability of the subject site.

The Committee subsequently approved the development application, imposing a condition requiring the applicant to replace the section of sewer under the proposed building to the satisfaction of the Council and in accordance with the South East Queensland Water Supply and Sewerage Design and Construction Code.

COURT FOUND THE COMMITTEE'S REASONING PROCESS WAS FLAWED IN FAILING TO PROPERLY CONSIDER COMPLIANCE WITH THE QUEENSLAND DEVELOPMENT CODE

The Council argued that the Committee had taken into account an irrelevant consideration by referencing the South East Queensland Water Supply and Sewerage Design and Construction Code. Under section 313(5) of the Sustainable Planning Act 2009, an assessment manager must not assess an application against, or have regard to, anything other than a matter or thing referred to in section 313, including the South East Queensland Water Supply and Sewerage Design and Construction Code.

The Court considered the Council's argument had some merits. However, in any case the Court found shortcomings in the Committee's reasoning process in respect of compliance or otherwise of the proposal with the relevant performance requirements.

In respect of the Committee's reason that a sewer constructed in accordance with the South East Queensland Water Supply and Sewerage Design and Construction Code would have an expected life of 100 years, the Court found that this, in itself, did not achieve compliance with the relevant performance requirements. The performance requirements related to the construction and location of buildings and access for inspection, maintenance and replacement of infrastructure. If the Committee considered construction to this standard would achieve compliance, it should have made a finding to this effect and given adequate reasons for doing so.

The Committee's reasoning in regard to the impact of relocating the sewer was also considered deficient as it did not state how this was linked to compliance with the performance requirements or the ultimate decision. The Court speculated that the Committee might have thought it had a discretion to approve the development application regardless of the conflict with the Queensland Development Code and therefore considered the consequences for the Taylor's of moving the sewer to be relevant. The Committee's reasons, however, lacked any explanation as to why it considered it had such a discretion and why it sought to exercise it.

The Court found the reasons for the decision of the Committee did not expressly find that the proposal complied with the relevant performance requirements of the Queensland Development Code, nor did they justify that compliance with the condition to replace the sewer would achieve compliance with the Queensland Development Code.

COURT FOUND THE COMMITTEE MADE AN ERROR OR MISTAKE IN LAW AND DECIDED TO SET ASIDE THE COMMITTEE'S DECISION AND MADE A NEW DECISION

Under section 479(1)(a) of the Sustainable Planning Act 2009, a decision of the Committee may be appealed on the ground of an error or mistake in law on the part of the Committee. The Court found that the Committee made an error or mistake in law by failing in its reasons to do the following:

  • expressly find that replacing the relevant section of the sewer would achieve compliance with the applicable performance requirements;
  • explain how the condition requiring replacement of the relevant section of the sewer linked with any finding about compliance with the applicable performance requirements.

Further, the Committee had not considered or made findings about compliance on the basis of the development application before it or the approval the Committee purported to give.

The Committee also failed to give adequate reasons regarding the following:

  • matters of compliance;
  • the discretion the Committee thought it may exercise in approving the development application despite non-compliance with the Queensland Development Code.

The Court considered whether it was appropriate to return the matter to the Committee to make a further decision according to law. The parties agreed however, that the preferred course was for the Court to make a decision.

The Court upheld the appeal, set aside the Committee's decision and approved the development application subject to a different condition. This gave effect to the Council's preference that the sewer be moved so that it did not lie underneath the building and satisfied the relevant performance requirements of the Queensland Development Code.

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.

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Authors
Ian Wright
 
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