Court decision

Gerhardt Revisited

By David Nicholls / 29 July 2016

In the Summer edition of Envisage, we provided commentary on the Planning and Environment Court’s decision in Gerhardt v Brisbane City Council (2015) QPEC 34. We noted that the judgment called into question planning scheme provisions which attempt to make building work assessable against a planning scheme where no material change of use is involved.

The Court’s judgment has been upheld by the Court of Appeal – Brisbane City Council v Gerhardt (2016) QCA 76. The Court’s reasons were written by Philip McMurdo JA with whom the other members of the Court agreed.

The relevant building work application could have been made to the Council which would in that event have been required to assess it in full. In those circumstances, the Council would have been required to assess the building work against both the Traditional Building Character (Design) Overlay Code and of City Plan 2014 as well as the building assessment provisions which include the Building Code of Australia. However, the application was made to a private certifier and in those circumstances, the Council’s role was confined to that of a concurrence agency with jurisdiction where the building work 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 –

a. have an extremely adverse effect on the amenity or likely amenity, of the locality; or

b. be in extreme conflict with the character of the locality.”

In the circumstances of the case, the Council chose not to exercise that jurisdiction arguing that the applicant was required to first apply to the Council for a preliminary approval for building work assessable against the planning scheme. This argument was rejected by the Court of Appeal. Referring to the note to table 1.6.1 of City Plan 2014, in the context of section 83(1) of the Building Act 1975, the Court said:

“These notes reveal misunderstandings of the council from which the course of events in this case can be explained. The apparent practice of the Council, in cases such as this where the Council must assess the proposed work against parts of its planning scheme, is to make that assessment in the course of deciding whether to grant a preliminary approval. However s 83, upon its proper interpretation, refers to an already existing preliminary approval which is relevant in the assessment of the development against the scheme. That is clear from the example given with s 83(1)(b), which explains that in such a case, the application must not be decided until all necessary preliminary approvals are effective for the assessment of the building work against the planning scheme.

The primary judge was therefore correct to reject the council’s argument about s 83(1)(b). This provision does not require a preliminary approval where none is otherwise necessary. Rather s 83(1)(b) has an operation, as a qualification to the certifier’s power to grant an approval, where under the Planning Act there is a necessity for an effective preliminary approval. But that was not so in the present case.”

A legislative response to the case which was anticipated in some circles has not eventuated, nor has an application by the Council for special leave to appeal to the High Court of Australia been instituted.  

For more information or discussion, please contact our Planning team.

Key Contacts
David Nicholls
David is a Consultant in our Planning and Environment practice and enjoys a reputation as one of Australia’s leading planning and environment lawyers.

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