Building Certifiers and the Court’s declaratory jurisdiction
We have noticed in recent years an increase in resorting to the Planning and Environment Court’s (Court) declaratory jurisdiction to attack approved buildings which have either been completed or are under construction.
- The certificate of classification for the building was void due to alleged building defects which the certifier had not detected;
- The building permit was void because:
- The certifier referred the application to the Queensland Fire and Rescue Service (QFRS) outside the time prescribed for the referral under the IPA;
- The building was not generally in accordance with the underlying planning approval for the resort at Tangalooma; and
- The certifier did not impose a condition mandated by the IPA and the Standard Building Regulations 1993 precluding certain stages of the building work until engineering drawings and details were supplied.
- Firstly, in an early preliminary hearing the first ground was struck out by the Court (Judge Durward in Stevenson Group Investments Pty Ltd v Nunn & Ors  QPELR 133) on the basis that the Court had no jurisdiction to decide the allegation that the certificate of classification was invalid, because that did not concern matters done or to be done under the IPA, but rather related to matters affected by the Building Act 1975 and the Standard Building Regulations.
- Secondly, the Court and the Court of Appeal held that none of the alleged statutory contraventions deprived the certifier of jurisdiction to grant the building approval, despite the use of apparently mandatory language in the IPA such as “must”. The result was that the development permit was not a nullity from the outset, as contended for by the applicant.
- Thirdly, both the Court and the Court of Appeal considered that there were strong discretionary considerations against granting the relief sought. A declaration is a “discretionary” remedy. Finding an error of law or other breach of a statutory requirement does not automatically result in the Court making a declaration in the terms sought. The applicant’s substantial delay in bringing the proceedings, combined with the effect of a declaration on third party owners of apartments in the subject building, were significant factors. Justice McMurdo in the Court of Appeal said:
- The building was still under construction;
- No innocent third parties were affected;
- There was no delay in bringing the proceedings;
- The applicant had sought to bypass the Council as assessment manager;
- The declaration was sought by the Council;
- QFRS sought to be a party to the proceeding in order to assess the application; and
- It was considered most unlikely that the Court would excuse the non-compliances.