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Water sub-metering

By Frank Higginson27 Jan 2009

Does Part 4 of the Queensland Plumbing and Waste Water Code apply to multi-unit developments that have received building approval prior to 1 January 2008?

The recent decision of the Planning and Environment Court of Queensland in North Shore Bayview Street Pty Ltd v Gold Coast City Council [2008] QPEC sheds some much needed light on the issue of whether multi-unit developments that received building approval prior to 1 January 2008, but applied for plumbing compliance certificates after 1 January 2008 are required to comply with Part 4 of the Queensland Plumbing and Waste Water Code ('the Code') by installing separate water meters for each unit.

The effect of the amendments to the Plumbing and Drainage Act 2002 and the Standard Plumbing and Drainage Regulation 2003 was the focus of much interest and speculation in the planning and development industry. The above case was a successful appeal from a decision of the Building and Development Tribunal which had determined that the critical date for determining the applicability of Part 4 of the Code was the date of the request for a plumbing compliance certificate.

Dr William Crane who were the solicitors for the appellant, said matter turned largely on the issue of the definition of a 'new building' for the purpose of the Code. His Honour, Robin QC DCJ stated:

“It seems to me that the test for what is a “new building” is whether complying with Pt 4 would force changes in frustrate the implementation of approved plans authorising actual construction (assuming that everything has been regularly done, that the approval of such plans is valid: cf Livingstone Shire Council v Brian Hooper & M3 Architecture [2005] QPELR 203). A building is not new for relevant purposes if authority has been obtained to embark substantially on its actual construction before the commencement of the present Pt 4 of the Code on 1 January 2008.”

It is clear from the above reasoning, that it is the current view of the Planning and Environment Court of Queensland is that developments that obtained development approval prior to 1 January 2008 are not 'new buildings' for the purpose of the Code and therefore should not be required to comply with Part 4 of the Code. More clearly, the critical date for the applicability of Part 4 of the Code is the date of the building approval and not the date of the request for a plumbing compliance certificate.

Another important issue considered by the Court was the three ‘Newsflashes’ released in December 2007, April 2008 and May 2008 by the Department of Infrastructure and Planning to inform the industry of the regulatory changes. The Court’s reasoning included a determination that the Newsflashes were not included in the extrinsic material that Courts and Tribunals may refer to in determining the purpose of the legislation.