UPDATE – Amendments have commenced! 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

• Further restrictions have been imposed on the grant of building approvals by private certifiers.

WHAT YOU NEED TO DO

• Councils may need to implement new processes to review demolition building approvals given by private certifiers.

The Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2017 (Qld) (Act) was assented to on 19 May 2017, and the majority of the provisions commenced on that date.

In our previous alert ‘Legislating a path through the building approval maze’, we discussed the proposed amendments in the Bill and the intent to address issues arising from several court decisions concerning the development approval process for building work.

Update

The Act amends the Building Act 1975 (Qld) (Building Act) and the Sustainable Planning Act 2009 (Qld) (SPA) in relation to how building approvals are given by private certifiers, in circumstances where aspects of the building work are assessable under a local planning instrument. The amendments are in substantially the same form as proposed in the Bill.

In summary, until the SPA is repealed, the application process for a development application for building work can be summarised as follows: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 effect, or
  • 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 effect.¹
• a private certifier must not grant a building development approval:
  • until all necessary development permits and SPA compliance permits are in effect for the development, other than building work, that may affect any or all of following –
    • 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 application,² and
• 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 effect,³ and
• 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 period for the application has ended.⁴

Demolition

The Act also introduces a new safeguard in relation to applications for building work that involve demolition of a building used only or mainly for residential purposes and the building work is assessable under a local planning instrument.

New sections 88(2A) and 88(2B) of the Building Act make it an offence for a private certifier to give an applicant any approval documents for such a demolition application until at least five business days after the certifier gives a copy of the application and approval documents to the Council. The maximum penalty for an individual is currently $20,113.50 ($20,814.75 from 1 July 2017).

Councils will need to ensure they have processes in place to review demolition building approvals as soon as possible within the 5 business day period, if demolition building works are a concern in their local government areas.

Issue

Under the Planning Act 2016 (Qld) (PA), when it commences on 3 July 2017, 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.

New section 73A of the PA may require amendment to the definition of ‘relevant preliminary approval’. Otherwise, it seems that a development permit given by a private certifier can only authorise the part of the building work that requires assessment against, or having regard to, a matter that is not a building assessment provision if a preliminary approval was issued under the SPA before it was repealed, i.e. a preliminary approval or a development permit issued under the PA is not recognised.

Unnecessarily complex?

Concerns have been raised in relation to the complexity of the private certification building approval process. It is hoped that explanatory material will be issued, or training sessions offered, to assist Councils and private certifiers in implementing the new processes.

¹ _{section 245A of the SPA}
² _{section 83(1)(a) of the Building Act}
³ _{section 83(1)(b) of the Building Act}
⁴ _{section 83(1)(d) of the Building Act}

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.