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 Court’s declaratory jurisdiction arises under section 456 of the Sustainable Planning Act 2009 (SPA) or, formerly, section 4.1.21 of the Integrated Planning Act 1997 (IPA). It is invoked by making an originating application to the Court seeking a declaration that aspects of the development of a building are unlawful, as well as consequential orders restraining development from proceeding.
The Court’s decision in Stevenson Group Investments v Nunn and Ors [2012] QPELR 392 is perhaps the high water mark (albeit an ultimately unsuccessful one) for resorting to this type of remedy, as it sought to have a building which had been completed for several years declared unlawful because of alleged errors by the certifier who approved it. Unusually, the applicant in this case owned several apartments in the building at Tangalooma on Moreton Island since its completion. Most of the purchase contracts for the apartments were signed before or while the building was under construction.
Declarations were sought that:
  1. The certificate of classification for the building was void due to alleged building defects which the certifier had not detected;
  2. The building permit was void because:
  1.  The certifier referred the application to the Queensland Fire and Rescue Service (QFRS) outside the time prescribed for the referral under the IPA;
  2. The building was not generally in accordance with the underlying planning approval for the resort at Tangalooma; and
  3. 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.
After protracted proceedings in the Court and an aborted hearing, the Court awarded summary judgment to the respondents and dismissed the application. The Court’s decision was subsequently upheld by the Queensland Court of Appeal, as were the costs orders made by the Court against the applicant.
There are three key legal points arising from the case:
  • 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 [2011] 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 application for the declaration was an extraordinary form of relief to seek five years after the permit was issued and more than three years after the building was completed.”
The Court’s decision in Stevenson Group Investments v Nunn & Ors case can be contrasted with its decision in Livingstone Shire Council v Brian Hooper and M3 Architecture & Ors [2004] QPELR 308, in which the Court declared that the private certifier’s approval of a development application was invalid because the Council had not approved a material change of use of land required under the planning scheme for a building of the height proposed. The case also involved a failure to refer the building application to the QFRS. The bases upon which the decision in Hooper’s case was distinguished by the Court and the Court of Appeal were that in Hooper’s case:
  • 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.
Essentially, the alleged breaches of the law in Hooper’s case were deliberate and designed to secure an advantage for the developer, and the proceedings were brought early by the Council as the custodian of the public interest to enforce compliance with the planning scheme.
There have been several attempts to use the Court’s declaratory jurisdiction to stop the construction of dwellings that were thought to exceed the maximum allowable height under a planning scheme[1]. In each case the declarations were refused principally because the applicant’s case needed to be supported by expert opinion about matters relevant to the development’s treatment under the relevant planning scheme. In declaratory proceedings, the Court will not usually have the same degree of latitude as it has in merit appeals in the application of expert evidence to the outcome. It will usually not be a case of simply preferring the evidence of one expert over that of another. Where matters of degree and judgment are involved, and there are competing expert opinions about the relevant considerations, it is usually impossible to conclude that a certifier’s decision is manifestly unreasonable to the degree required under administrative law principles. In these cases it will usually be necessary to show that the certifier did not act in good faith, or that he acted arbitrarily or capriciously, misdirected himself on matters of law, failed to take relevant considerations into account, took into account irrelevant considerations, or that his decision was so unreasonable that no reasonable private certifier could have arrived at it. Such factors would be unusual in most cases, which explains why declaratory proceedings alleging errors by assessment managers (particularly private certifiers) are, more often than not, unsuccessful.
The Court’s recently expanded costs powers are a relevant consideration for parties contemplating such proceedings. In Stevenson Group Investments v Nunn & Ors case costs were awarded to respondents under the previous costs rules, which limited an award of costs to circumstances where the proceeding was frivolous or vexatious. The power to award costs is now completely discretionary and is a factor that should be taken into account before prosecuting such proceedings, particularly having regard to the inherent difficulty for third parties in achieving success.
The above comments should not be taken as suggesting that declaratory proceedings in the Court are not a useful remedy in cases of plainly unlawful development. The risks involved in resorting to the Court’s declaratory jurisdiction will obviously depend upon the facts in each case. The main point to be taken from this publication is that processing errors by certifiers may be subsequently excused by the Court, and affected approvals are likely (in most cases) to survive attack in circumstances where the certifier has acted honestly and reasonably. Nevertheless, by taking care to avoid such errors private certifiers will undoubtedly save applicants the time, expense, anxiety and risk arising from litigation.
In our next instalment in this series we discuss a series of cases which demonstrate how shortcomings during the assessment and decision stage may result in unlawful construction, including the recent case of Drew v Bundaberg Regional Council [2013] QDC 1, an appeal against the order of a Magistrate convicting a private certifier of an offence for failing to refer the building development approval to the Council in its capacity as a concurrence agency.