As featured in the November edition of ‘Ask Mullins’ Planning Institute Australia
A recurring tension is whether a private certifier’s building approval is enough, or whether council also has a planning role to play.
The issue most often arises where a planning scheme regulates building work for a planning purpose, such as the demolition or alteration of a character or heritage house.
Section 8(5) of the Planning Act 2016 (Qld) limits what a planning scheme can regulate. A planning scheme cannot include provisions about building work already regulated under the ‘building assessment provisions’, except to the extent permitted under the Building Act 1975 (Qld).
The Gerhardt decisions show that there is no simple answer as to which framework prevails. It depends on the work proposed and, importantly, how the relevant planning scheme is drafted.
What building work can a planning scheme regulate?
Sections 32 and 33 of the Building Act, together with Part 3 of the Building Regulation 2021 (Qld), identify the building matters that a planning scheme can regulate.
These include alternative boundary clearances and site-cover requirements, certain variations to the Queensland Development Code for Class 1 and 10 buildings, the designation of bushfire-prone areas, flood hazard areas and transport noise corridors, and requirements for additional end-of-trip facilities.
A planning scheme generally cannot duplicate technical requirements already dealt with by the National Construction Code or the Queensland Development Code. Those requirements include things like structural stability, fire safety, disability access, weatherproofing, ventilation, and energy efficiency.
What did the Gerhardt decisions establish?
The series of Gerhardt decisions delivered between 2015 – 2016, considered how Brisbane City Council’s traditional building character controls interacted with the private certification process.
- Gerhardt v Brisbane City Council [2015] QPEC 34
In Gerhardt v Brisbane City Council [2015] QPEC 34, the proposed work involved a carport and alterations to a character house. Council was a concurrence agency but did not respond within the required timeframe. Instead, it maintained that the owner needed to make a separate application for a preliminary approval under the Sustainable Planning Act 2009 (Qld).
The Court disagreed. It held that no separate application was necessary and that the certifier could proceed once Council’s response period had expired.
- Brisbane City Council v Gerhardt [2016] QCA 76
That decision was upheld in Brisbane City v Gerhardt [2016] QCA 76. The Court of Appeal held that section 83 of the Building Act did not make a preliminary approval mandatory simply because the planning scheme sought to regulate the work. However, that did not mean council had no role to play.
- Gerhardt v Brisbane City Council [2016] QPEC 48
A later decision, Gerhardt v Brisbane City Council [2016] QPEC 48, concerned the demolition of two character houses. The planning scheme’s character design provisions formed part of the building assessment provisions. Its separate demolition code did not.
That distinction mattered. The certifier could not assess the demolition against the demolition code. A separate approval from council was required for that part of the work.
How does current legislation resolve the issue?
Parliament later amended the legislation to deal with the issues that were exposed by the Gerhardt decisions.
Section 73A of the Planning Act now limits what a development permit given by a private certifier actually authorises. It does not authorise building work requiring impact assessment. It also does not authorise work requiring assessment against a matter that is neither a building assessment provision nor within a referral agency’s jurisdiction, unless the required separate approval is also in effect.
Section 83 of the Building Act similarly prevents a private certifier from granting the building development approval until that approval is in place.
The result is that a private certifier may be able to approve the building aspects of the proposal without that approval being enough to authorise all the work.
What does that mean for planners and property owners?
For planners, these cases do not establish that either the planning or building framework always win. Both can apply to different parts of the same proposal, and both need to be dealt with.
The practical point is that calling something ‘building work’ does not necessarily put every part of it within a private certifier’s jurisdiction. A building approval may be valid but still not be enough to allow the work to start.
If you have any questions or would like to discuss this further, please contact Mitchell Osborne or Gus Haseler.