Australia: Queensland Parliament passes amendments to address the issues arising out of the decisions of a private certifier

Last Updated: 5 April 2018
Article by Ian Wright and Shaun Pryor

On 10 May 2017, the Queensland parliament passed the Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Bill 2016.

Among other things, the Bill sought to address issues arising as a result of a number of decisions of the Planning and Environment Court and the Court of Appeal in relation to the interaction between private certifiers and local governments in the issuing of development approvals (the private certifier decisions).

In brief, the private certifier decisions address the circumstances in which a development approval is also required from the local government where a building development approval is sought from a private certifier.

With the commencement of the Planning Act 2016 on 3 July, the Bill makes changes to both the Sustainable Planning Act 2009 and the Planning Act 2016, as well as the Building Act 1975.

THE PROBLEM

Under section 83(1)(b) of the Building Act 1975, a private certifier must not grant the building development approval applied for until all necessary preliminary approvals under the Sustainable Planning Act 2009 are effective for other assessable parts of the development.

Since the introduction of this section, local governments, private certifiers and applicants have been operating on the basis that where building work is assessable against a local government's planning scheme, there is a necessary preliminary approval from the local government which is required to be obtained before a development permit authorising the building work to occur can be given by a private certifier.

However, in Brisbane City Council v Gerhardt [2016] QCA 76, the Court of Appeal considered the interpretation of this section and in particular what is a "necessary preliminary approval under the Planning Act".

In that case, the Court considered a development application made to a private certifier for building work for alterations and additions to a dwelling house at Wooloowin. The house was located within the traditional building character overlay of the Brisbane City Council's Brisbane City Plan 2014 and was code assessable against the Traditional building character (design) overlay code.

The Council was also a concurrence agency for the amenity and aesthetic impact of the application and was required to assess the application in that capacity against the Traditional building character (design) overlay code and the dwelling house code under the Brisbane City Plan 2014.

In deciding whether a preliminary approval was necessary in this case, the Court made reference to section 241 of the Sustainable Planning Act 2009 which states that a preliminary approval "approves development, but does not authorise assessable development to take place" and that "there is no requirement to get a preliminary approval for development".

The Court found that it was the Sustainable Planning Act 2009 by which any preliminary approval must be "necessary"; but that the express words in section 241 of the Sustainable Planning Act 2009 do not require a preliminary approval where one is otherwise not necessary.

The Court also found that section 83(1)(b) of the Building Act 1975 does not itself provide the source of necessity for a preliminary approval.

In the circumstances of that case, the Court of Appeal ultimately concluded that no preliminary approval from the local government was required to be obtained before a development permit for the building work could be given by the private certifier.

Whilst this decision relates to a specific set of circumstances, it caused concern among local governments that the provisions of their planning scheme relating to character housing and other relevant planning issues were potentially undermined.

THE SOLUTION

In Gerhardt v Brisbane City Council [2016] QPEC 48, the Planning and Environment Court considered a development application made to a private certifier for building work for the demolition of two pre-1946 houses at Morningside. The houses were located within the Traditional building character overlay of the Brisbane City Council's Brisbane City Plan 2014 and was code assessable against the Traditional building character (demolition) overlay code.

Similarly, the issue was whether a preliminary approval from the local government was necessary before a private certifier can give a development permit authorising the building work to take place.

The Planning and Environment Court noted the limitation under the Building Act 1975 for a private certifier and a Council as a concurrence agency to undertake its assessment against, and be satisfied the development application complies with, the building assessment provisions only.

The Court observed that the building assessment provisions in the Brisbane City Plan 2014 included the Traditional building character (design) overlay code but did not include the Traditional building character (demolition) overlay code.

The Court therefore found that the assessment of the building work against the Traditional building character (demolition) overlay code could not be done by the private certifier as the assessment manager or the Council as a concurrence agency, and must be the subject of a separate development application made to the Council as an assessment manager.

It is in these circumstances that the Court said a preliminary approval was necessary under the Sustainable Planning Act 2009 as without one, the development permit given by the private certifier could not properly authorise the assessable development to take place.

The Court articulated each party's role in the assessment of building work as follows:

  • Private certifier - The private certifier is the assessment manager for the matters plainly within the scope and expertise of a private certifier, including where that involves demolition
  • Local government - The local government is a concurrence agency for the amenity and aesthetic impact of building work which is required to be assessed against the Traditional building character (design) overlay code. The local government is also the assessment manager for the assessment of the building work required to be assessed against the Traditional building character (demolition) overlay code

THE AMENDMENTS

The Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Bill 2016 adopts the approach of the Planning and Environment Court and clarifies that a preliminary approval by a local government under the Sustainable Planning Act 2009 or a development permit given by an entity other than a private certifier under the Planning Act 2016 is required in the following circumstances:

  • where the building work requires impact assessment; or
  • where the building work requires code assessment under the local government's planning scheme against a provision which:
    • does not form part of the building assessment provisions that can be assessed by the private certifier; and
    • cannot be assessed by the local government as a referral agency for the building development application.

In summary, the Bill addresses the following:

  • Changes the words "necessary preliminary approval" to "relevant preliminary approval" in section 83(1)(b) of the Building Act 1975.
  • Defines "relevant preliminary approval" as being a preliminary approval given under the Sustainable Planning Act 2009 by an entity other than a private certifier.
  • Inserts a new section 245A in the Sustainable Planning Act 2009 and section 73A in the Planning Act 2016, restricting a development permit for building work given by a private certifier from authorising the carrying out of the assessable development until a relevant preliminary approval is in effect where the building work requires:
    • impact assessment; or
    • code assessment under a planning scheme or preliminary approval to which section 242 of the Sustainable Planning Act 2009 applies against a provision which:
      • does not form part of the building assessment provisions that can be assessed by the private certifier; and
      • cannot be assessed by a referral agency for the building development application.
  • Restricts a private certifier from granting a building development approval where section 245A of the Sustainable Planning Act 2009 or section 73A of the Planning Act 2016 applies, until the relevant preliminary approval or a development permit given by an entity other than a private certifier is in effect for the development.

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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