Legislating a path through the building approval maze
WHO SHOULD READ THIS
- Council planning and building officers, Private certifiers and Planners.
THINGS YOU NEED TO KNOW
- Submissions close at 10am on Monday, 30 January 2017.
WHAT YOU NEED TO DO
- Consider the proposed amendments and lodge a submission if required.
The Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Bill 2016 (Bill) was introduced to Parliament on 1 December 2016 and has been referred to the Infrastructure, Planning and Natural Resources Committee for consideration.
One of the key objectives of the Bill is to make amendments to planning and building legislation to address issues arising from several court decisions concerning the development approval process for building work. The Bill also proposes reforms (not discussed in this alert) to improve transparency and accountability in local government electoral disclosure requirements and to bring forward changes that were to take effect on commencement of the Planning Act 2016 (Qld) (Planning Act).
Written submissions addressing any aspect of the Bill must be made by 10am on Monday, 30 January 2017.
Sections 83 and 84 of the Building Act 1975 (Qld) (Building Act)
Sections 83 and 84 of the Building Act impose restrictions on private certifiers granting development approvals for building work. Importantly, a private certifier must not grant a building development approval applied for:
- if the building development application includes development other than building work—until, under the Sustinable Planning Act 2009 (Qld) (SPA), all necessary development permits and SPA compliance permits are effective for the other development1
- until all necessary preliminary approvals under the SPA are effective for other assessable parts of the development2
- if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work, that part has been assessed by the concurrence agency under the building assessment provisions.3
- the building development application relates to an earlier development approval granted by the local government or an SPA compliance permit
- the earlier approval or permit has not lapsed, and
- the application is inconsistent with the earlier approval or permit.4
Relevant decisions of the Planning and Environment Court and Court of Appeal
Several recent decisions of the Planning and Environment Court and the Court of Appeal, detailed below, identify some uncertainties in relation to building approval processes and timing where building works are assessable against both the Building Act and a local government planning scheme.
In Gerhardt v Brisbane City Council  QPEC 34 (Gerhardt Decision 1), a private certifer sought declarations pursuant to section 456 of SPA in circumstances where the owners of a house at Wooloowin had lodged a development application with the private certifier for certain building works regarding the house and Brisbane City Council had not issued a concurrence agency response to the private certifier in time. The Planning and Environment Court decided that:
- the Council was a concurrence agency for deciding the building development application
- the private certifier could approve the application as if there were no concurrence agency requirements, and
- no application for a development approval (including either a preliminary approval or a development permit) was required to be made to and approved by the Council.
The Court of Appeal upheld the decision in Gerhardt Decision 1, finding that the primary judge was correct to reject the Council’s argument that section 83(1)(b) of the Building Act could require a preliminary approval where none is otherwise required (Court of Appeal Decision).5
Subsequently, in Gerhardt v Brisbane City Council  QPEC 48 (Gerhardt Decision 2) the Council no longer maintained its position that a preliminary approval, or indeed any type of approval, was required before the private certifier may lawfully grant a development approval for building work. The Council instead argued that while the approval is not a pre-condition to the private certifer granting approval, it is a pre-condition to the building work being able to be lawfully undertaken.
In Gerhardt Decision 2, the Court:
- considered whether the Council was a concurrence agency with jurisdiction to assess the part of the application made assessable under the planning scheme or whether a separate application for development approval was required to be made to the Council
- agreed that the Court of Appeal Decision is authority for the proposition that, in so far as section 83(1)(b) of the Building Act imposes a restriction on the ability of a private certifier to grant a building development approval, the necessity for any preliminary approval, if there is one, must be found in the SPA because section 83(1)(b) itself is not the source of any such requirement
- distinguished the decision in Gerhardt Decision 1 on the basis that the Council’s planning scheme had changed and there was only an express declaration making the Council a concurrence agency in relation to certain aspects of the work, not in relation to the demolition aspect
- decided that where the Council has responsibility to assess a part of a building development application, other than as a concurrence agency, there is a necessity for Council to grant a preliminary approval in relation to that part before a private certifer can lawfully grant a building development approval in the form of a development permit. This is because a private certifier’s role is limited to being satisfied the building development application complies with the building assessment provisions, and approving the development to that extent. Accordingly, if the Council has not already issued a preliminary approval when an application is made to a private certifier, then the private certifier may proceed to issue a building development approval in the form of a preliminary approval, stating that another development permit is required to allow the development to be carried out.
If the amendments proposed by the Bill are passed in their current form, the building application and approval process will be as amended as detailed below.
From commencement of the amendments proposed in the Bill until the SPA is repealed, the application process for a development application for building work involving a private certifier can be summarised as follows:
- for a development application for a development permit for building work that is made to a private certifier as assessment manager:
- if any part of the building work requires impact assessment, a development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring impact assessment, unless a preliminary approval given by an entity other than a private certifier is in place
- if any part of the building work must be assessed against a matter that is not a building assessment provision and the matter is not within the jurisdiction of a referral agency, a development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring assessment against the matter, unless a preliminary approval given by an entity other than a private certifier is in place;6
- a private certifier must not grant a building development approval:
- until all necessary development permits and SPA compliance permits are effective for the development, other than building work, that may affect any or all of the form and location of the building work, the use to which the building or structure is put or the assessment of the building development application7
- if, pursuant to section 245A of the SPA, a preliminary approval is required to be given by an entity other than a private certifier before the works are authorised, until that preliminary approval is in effect8
- if a referral agency has jurisdiction for a matter relating to the building work under the SPA, until:
- the referral agency has given its referral agency response, or
- the referral agency’s assessment periof for the application has ended.9
After the SPA is repealed and the Planning Act commences, the building application process is intended to work in the same way, except that references to SPA concepts such as SPA compliance permits will be updated.
Under the Planning Act, the intention indicated in the Explanatory Notes seems to be that private certifiers are to continue to be restricted from granting building development approvals until any other required development permit is in place.
Proposed new section 73A of the Planning Act may require amendment to refer to ‘a relevant preliminary approval or a development permit’ in order for the amended section 83(1)(b) to continue to restrict private certifiers in the intended way.
Given the complex issues that the courts have been required to consider previously in relation to building work approvals, it is hoped that the amendments will provide certainty for private certifiers and other assessment managers about the process to be followed for assessing and approving building applications.
Submissions in relation to the Bill close at 10am on Monday, 30 January 2017.
1 Section 83(1)(a) of the Building Act
2 Section 83(1)(b) of the Building Act
3 Section 83(1)(d) of the Building Act
4 Section 84(1) of the Building Act
5 Brisbane City Council v Gerhardt  QCA 76
6 proposed new section 245A of the SPA: clause 72 of the Bill
7 proposed section 83(1)(a) of the Building Act: clause 8 of the Bill
8 proposed section 83(1)(b) of the Building Act: clause 8 of the Bill
9 proposed section 83(1)(d) of the Building Act: clause 8 of the Bill
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.