Building and Construction Alert: Planning Law Perspectives
by David Nicholls, Olivia Williamson
Welcome to the fourth issue in a rolling series of Alerts offering planning law perspectives on issues relevant to the building and construction industry.
How section 265 of the Sustainable Planning Act 2009 affects private certifiers
The effect of section 265 of the Sustainable Planning Act 2009 (SPA) on private certifiers is important. Private certifiers only have jurisdiction to deal with applications concerning assessment against the Building Act 1975 (BA). A private certifier cannot decide an application for assessment that is, due to section 265 of the SPA, taken to include a material change of use (MCU) for the proposed structure until a development permit takes effect for the MCU. This is reiterated in the general restrictions on private certifiers granting building development approval in section 83(1)(a) of the BA.
Section 265 of the SPA has the effect of deeming an application for building work to also include an application for MCU. This may arise where the building work is assessable development under a planning scheme, because it involves the start of a new use, or a material change in the scale or intensity of a use. If this section were not in the SPA, it would mean that building work might be approved resulting in a person erecting a building only to subsequently find that they have no right to use it. Establishing a right to use premises is a prerequisite to other aspects of development associated with the use, such as building work.
Sections 83 and 84 of the BA provide that a private certifier “must not grant” or “must not approve” a development application1 unless certain conditions exist.
Why a private certifier’s permit might be declared invalid: Case studies
There are a number of cases in which these sections have been applied to render a private certifier’s approval wrongly given and of no effect. We have collected a selection of these cases below:
- Bundaberg Regional Council v Bruce Desmond Loeskow & Ors  QPELR 27;  QPEC 952
In this case the Court confirmed that section 83(1)(a) of the BA effectively denies a private certifier the power to grant a building development approval until an effective development permit for MCU is obtained.
Here, the application to the private certifier was for building work related to a shed but the work involved the commencement of a use of the subject shed, specifically for domestic storage. This constituted a MCU and no approval could have been granted by the private certifier until approval for the MCU had been obtained and this had not occurred.
- Baevski v Gladstone Regional Council & Ors  LGERA 375;  QPEC 5
In this case, the developer contended that because a private certifier had approved building work (including issuing an approval with a notation that further permits were ‘not required’) this made the use of land for a dwelling house and its construction, lawful.
This developer’s argument was rejected by the Court and the private certifier’s permit was declared void and set aside. The building work followed an earlier preliminary approval issued by the Council. The developer argued that this preliminary approval made the construction of a dwelling effectively self assessable.
The preliminary approval set up a three-stage process for approval of dwellings; first, approval from a Design Review Panel, second, Council approval by the grant of a development permit for MCU; and third, building approval. The Court considered that the developer neglected to obtain the second approval and this omission could not be overcome by the approval granted by the private certifier.
Both the prohibitions in section 83 and 84 of the BA applied in this case. The private certifier was prevented from granting the building development approval in the absence of Council permission for a MCU and was also prevented from granting an approval inconsistent with the terms of the preliminary approval which required an application for MCU to be made to the Council.
This case also highlights that a preliminary approval issued by a Council may approve assessable development, but it does not authorise it to occur. If provided with a preliminary approval , a private certifier should investigate whether subsequent development permits have been obtained to enable the development to proceed.
- Gold Coast City Council v GMA Certification Group  QPEC 29
In 2006 the Council approved a large subdivision at Pacific Pines located in difficult terrain. A condition attached to that approval required Council consent to any retaining structure exceeding 1.2 metres in height. The subsequent owners of some of subdivided lots applied to a private certifier to build retaining wall structures in the order of 2 metres in height. The Building and Development Resolution Committee determined that the original height restriction condition only related to the subdivision of the land and was not relevant to filling incidental to and associated with the building of a residence on the land.
The Planning and Environment Court overturned this decision. The height restriction was considered to attach to the land and bind the owner and any occupier of the land. The Court found that the Committee’s decision created an inconsistency with the earlier approval and was a decision that neither the Committee nor the private certifier could make by virtue of section 84 of the BA.
- Bundaberg Regional Council v Ross & Anor  2 QPELR 322;  QPEC 137
This is another case where a private certifier’s building approval for a proposed garage/shed was declared to be invalid and of no effect. The subject land had the benefit of two earlier planning approvals issued by the Council in 1996 and 2008. Council argued that the certifier’s approval was inconsistent with these earlier approvals.
The certifier’s approval put a large shed/garage where the 1996 approval stipulated there would be an accommodation unit and where the 2008 approval stipulated the location of a swimming pool with landscaping. In the Court’s view, this established inconsistency with the earlier approvals which had not lapsed.
These cases demonstrate that private certifiers need to adopt an inquisitorial attitude when assessing development applications, including enquiring about any underlying development approvals and turning their mind to whether an application for MCU is deemed by section 265 of the SPA to be included in an application for building work which they are assessing. The deeming effect should be kept front of mind because it will likely not be evident on the face of the application documents.
In our next instalment in this series, we look at the requirement for later plans of development to be “generally in accordance with” earlier approved drawings and consider ways to avoid potential pitfalls arising from this requirement.
1It is relevant to note that in Brough v Retell, a decision of the Brisbane Magistrates Court delivered on 12 May 2011, it was determined that a certificate of classification is not a building development approval nor is it an approval for a building development application for the purposes of sections 83 and 84 of the BA.
2Upheld by the Court of Appeal in Drew v Bundaberg Regional Council  QCA 359
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