Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPEC 18 (2017) QPELR 443

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPEC 18 PARTIES: COUNCIL OF THE CITY OF GOLD COAST (appellant) v SEDGMAN CONSULTING PTY LTD (respondent) FILE NO/S: 3251 of 2016 DIVISION: Planning and Environment PROCEEDING: Planning and Environment Appeal ORIGINATING COURT: Brisbane DELIVERED ON: Ex tempore reasons given 21 March 2017 DELIVERED AT: Brisbane HEARING DATE: 21 March 2017 JUDGE: Kefford DCJ ORDER: 1. The appeal be allowed. 2. The decision of the Building and Development Committee of 19 March 2016 be set aside. 3. By 4 April 2017 the appellant (council) serve on the respondent a written statement of reasons for its decision of 4 April 2016 to give a compliance permit with conditions. The statement of reasons must contain those matters required to be provided under s 27B of the Acts Interpretation Act 1954 and a copy of the statement of reasons is to be provided to the registrar of the Building and Development Committee. 4. By 28 April 2017 the respondent must serve on the applicant written notice of any further grounds it wishes to pursue as a consequence of the reasons served by council or written notification that it does not intend to raise further grounds of appeal and the respondent must provide a copy of the notice to the registrar of the Building and Development Committee. -- 1 of 12 -- 2 5. The matter be remitted back to the Building and Development Committee to be decided according to law with any such decision to include a decision with respect to such further grounds of appeal raised in accordance with these orders that are within the jurisdiction of the Building and Development Committee. 6. Each party is to bear their own costs of the appeal. PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF THE BUILDING AND DEVELOPMENT COMMITTEE – whether the appeal was commenced in time – whether the Building and Development Committee exceeded its jurisdiction in deciding an appeal made out of time – whether the Building and Development Committee made an error of law or exceeded its jurisdiction in deciding the Compliance Permit was invalid - whether the Building and Development Committee made an error of law or exceeded its jurisdiction in failing to properly decide the appeal lodged in relation to the conditions imposed on the compliance permit Plumbing and Drainage Act 2002 (Qld), s 85 Sustainable Planning Act 2009 (Qld), s 479, s 480, s 496 Butterfield Projects Pty Ltd v Brisbane City Council (1975) 31 LGRA 236, considered Craig v South Australia (1995) 184 CLR 163, applied Perkins & Anor v Kilkivan Shire Council [2006] QPLR 574; [2006] QPEC 49, considered COUNSEL: J S Brien for the appellant No appearance for the respondent SOLICITORS: McInnes Wilson Lawyers for the appellant No appearance for the respondent Introduction [1] On 12 February 2016, Dennis Cairns and Associates made a request for compliance assessment (“compliance request”) under section 85 of the Plumbing and Drainage Act 2002 (Qld) to Council of the City of Gold Coast (“Council”) seeking compliance assessment of plumbing and drainage work on land located at 2461 Gold Coast Highway, Mermaid Beach (“Land”). [2] On 7 April 2016, Council of the City of Gold Coast (“Council”) sent a letter to Dennis Cairns and Associates notifying its decision to give a compliance permit on conditions (“compliance permit”). -- 2 of 12 -- 3 [3] An appeal was lodged with the Building and Development Dispute Resolution Committee (“Building and Development Committee”) with respect to the compliance permit. On 19 July 2016, the Building and Development Committee set aside the decision of Council to issue a compliance permit for plumbing and drainage work on the basis that it was invalid and the compliance permit and approved plans therefore had no force and effect. [4] This is an appeal under section 479 of the Sustainable Planning Act 2009 (Qld) (“SPA”) against that decision of the Building and Development Committee. Grounds of appeal [5] Under section 479 of SPA, a party to a proceeding decided by a building and development committee may only appeal to the Planning and Environment Court on the ground of error or mistake in law on the part of the committee or that the committee had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision. [6] The notice of appeal records Council’s grounds of appeal as follows: 24. The Committee had no jurisdiction to hear the appeal lodged on 17 May 2016 and make the Decision as the appeal was not commenced within time. 25. In the alternative, the Committee made an error or mistake of law or exceeded its jurisdiction: (a) in deciding the Compliance Permit is invalid and that the Compliance Permit and approved plans have no force or effect; and (b) failing to properly decide the appeal lodged in relation to the conditions imposed on the Compliance Permit. [7] After some exchanges with the Bench with respect to the evidence of the timing of notice of the decision, and the appeal period, the Council indicated that it was no longer seeking relief on the basis of paragraph 24 of its notice of appeal. It is, therefore, unnecessary for reasons to be provided with respect to that ground. [8] Under section 493(9) of SPA, Council must establish that the appeal should be upheld. Appeal about a decision notified by information notice. Under section 532(1) of SPA, a person who has been given, or is entitled to be given an information notice under the Plumbing and Drainage Act 2002 about a decision under part 4 of the Plumbing and Drainage Act may appeal against the decision to a Building and Development Committee. The appeal must be started within 20 business days after the day the person is given notice of the decision. [9] Section 536 of SPA governs how an appeal is started. It provides: 536 How appeals to committees are started (1) A person starts an appeal by lodging written notice of appeal, in the approved form, with the registrar of building development committees. -- 3 of 12 -- 4 (2) The notice of appeal must state the grounds of the appeal and be accompanied by the fee prescribed under a regulation. [10] Part 4 of the Plumbing and Drainage Act provides for compliance assessment of particular plumbing and drainage work against the Standard Plumbing and Drainage Regulation 2003. Section 85 of the Plumbing and Drainage Act sets the framework for compliance assessment of a plan for compliance-assessable work. [11] A local government, in deciding the compliance request, must either give a compliance permit or refuse the request: section 85(6) of the Plumbing and Drainage Act. A compliance permit may be given on reasonable and relevant conditions decided by the local government for achieving compliance: section 85(7) of the Plumbing and Drainage Act. If the local government refuses to give a compliance permit or gives a compliance permit on conditions, the local government must give the person who made the request an information notice about the decision: section 85(10) of the Plumbing and Drainage Act. A compliance permit authorises assessable work to be carried out to the extent stated in the permit, and subject to conditions achieving compliance: section 78(1) of the Plumbing and Drainage Act. [12] An information notice is defined in the schedule to the Plumbing and Drainage Act as, relevantly: A notice stating the following: (i) the decision; (ii) the reasons for the decision; (iii) that the person to whom the notice is given may appeal against the decision to a building and development dispute resolution committee within 20 business days; (iv) how the person may appeal against the decision. [13] Pursuant to section 27B of the Acts Interpretation Act 1954, if an Act requires an authority, body or person making a decision to give written reasons for the decision, the document giving the reasons must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. [14] On 7 April 2016, Council sent Dennis Cairns & Associates a letter of that date that: 1. contained the subject line “Plumbing and drainage compliance permit class 2 to 9”; 2. noted that the compliance permit was being issued subject to 10 conditions; and 3. under a heading “advisory”, noted that the applicant may appeal against conditions on the permit to a Building and Development Committee under the provisions of the Sustainable Planning Act 2009, chapter 7, part 2, divisions 6, 8 and 9. [15] As has been referred to, an appeal must be filed within 20 business days of a person receiving notice of the decision. The notice that triggers the commencement of the appeal period must be a compliant information notice given under the Plumbing and Drainage Act. Before the appeal period commences, a person must be provided -- 4 of 12 -- 5 notice of the decision, the reasons for the decision, the appeal period, and how to appeal, so that the person will be able to decide or obtain advice about whether to institute an appeal: see Butterfield Projects Pty Ltd v Brisbane City Council (1975) 31 LGRA 236 at 239-240. [16] The letter of 7 April 2016 did not contain the reasons for the decision. The letter also did not give notice to Dennis Cairns & Associates that it had 20 business days to appeal to the Building and Development Dispute Resolution Committee, nor did it advise how to appeal. Absent this information, the letter dated 7 April 2016 arguably cannot properly be regarded as an information notice for the purposes of section 85(10) of the Plumbing and Drainage Act: Perkins & Anor v Kilkivan Shire Council [2006] QPLR 574; [2006] QPEC 49, applying Symons v Mackay City Council [1987] QPLR 486 and Turner v Maroochy Shire Council (1978) 36 LGRA 372. [17] There is, however, no application before me to declare the information notice invalid and to set it aside. The obvious difficulties with the information notice are, however, relevant to the orders that I regard to be appropriate orders to be made in remitting the matter to the Building and Development Committee. [18] Assuming that the appeal has been properly commenced, which I will, now that the Council is no longer pursuing its relief with respect to the timing of the appeal, the 10 May 2016 appeal documentation lodged with the Building and Development Committee appears to be focused on section 524 of SPA, whereas the 17 May 2017 appeal documentation raises sections 524 and 532 of SPA. The documents do not include any request for a declaration to be made. [19] The grounds identified in the material received by the Building and Development Committee on 10 May 2017 are in the following terms: We wish to appeal condition 1 of the Compliance Permit (Refer attached submission). We also wish to prove material selected for the trade waste drainage complies with condition 7. [20] On 10 May 2016, at 3.21 pm, the Registrar of the Building and Development Dispute Resolution Committee sent an email to Ian McDonald (ultimately, a member of the decision-making committee) seeking advice as to whether the Building and Development Committee had jurisdiction. Ian McDonald responded to the Registrar by email in the following terms: Hi Sam, I have had a look at the material you sent re the above appeal application and believe that Condition 1 of the compliance permit binds the approved plans. The approved plans have been amended by GCCC, which technically add a condition which should have an information notice. The applicant for the compliance permit is therefore entitled to be given an information notice which I believe he is then entitled to lodge an appeal. Another angle would be for the work to proceed using the UPVC material and GCCC defect the work and/or refuse to issue a -- 5 of 12 -- 6 compliance certificate. The applicant would then be entitled to be given an information notice and could then lodge an appeal. Some of the conditions on the compliance permit are requirements of the PDA, and therefore are irrelevant. I will take legal advice on the validity of the compliance permit. Hope the above helps. [21] On 13 May 2016, the manager of the Building and Development Committee sent an email to Adrian Zambelli advising of some deficiencies with the forms filed and noted the lack of payment of the fee. It was also suggested that it would be prudent to clarify the reasons for appeal in the form 10 and to appeal on two bases: o firstly, an appeal about plumbing and drainage under the Plumbing and Drainage Act 2002 (sub box – appeal about an information notice issued under the act) because council should have given you an information notice under section 85 of the PDA; and o secondly, an appeal about compliance permit – sub box – appeal against a condition on a compliance permit. [22] In the email it was suggested it would be prudent to further clarify the grounds of appeal submitted to the registrar on 10 May 2016. The manager informed Mr Zambelli that until the requested information in the email was received by the registry and the appeal fee paid, the appeal cannot proceed. [23] A query was also raised about the change of name. Dennis Cairns & Associates were purchased by Sedgman Consulting Pty Ltd from 1 April 2016. Council does not take issue with the name change. [24] On 17 May 2016, at 5.14 pm, Adrian Zambelli sent an email to the manager of the committee, attaching a further form 10 – application for appeal/declaration. The owner’s consent aspect of the form was completed and adjusted grounds of appeal “as also suggested” were provided. The form 10 adopts the suggestions made by the manager and the grounds of appeal were changed to: Appeal 1 – We wish to appeal GCCC non issue of an Information Notice as required under the Sustainable Planning Act 2006 (sic) and the Plumbing and Drainage Act 2002. (Refer attached submissions) Appeal 2 – We wish to appeal condition 1 of the Compliance Permit. (Refer attached submission. We also wish to prove material selection for the trade waste drainage complies with condition 7. [25] Further, the form 10 includes a hand notation on the bottom of each page “revised form 10, original received 10 May 2016 within required appeal period. Please see email from Manager, Committees to Applicant on 13 May 2016”. It appears that payment was also received at this stage. Both the registrar and the manager of the committee have signed the 17 May 2016 form 10 documentation on 17 May 2016. -- 6 of 12 -- 7 [26] Section 508 of SPA provides: 508 Jurisdiction of committees A building and development committee has jurisdiction- (a) to hear and decide a proceeding for a declaration about a matter mentioned in division 3, other than a matter done for chapter 6, part 11; and (b) to decide any matter that may be appealed to a building and development committee under divisions 4 to 7; and (c) to decide any matter that under another Act may be appealed to a building and development committee. [27] Section 564 sets out the orders and directions that a committee may make. [28] Declaratory powers of the committee are set out in sections 510 to 513 of SPA. [29] None of those provisions apply to the present situation. [30] In the absence of a contrary intent in the Statute, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise then in accordance with the law. If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or to make an erroneous finding or to reach a mistaken conclusion and the tribunal’s exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it: Craig v South Australia (1995) 184 CLR 163 at 179. [31] The document recording the committee decision made on 19 July 2016 includes the following: Appeal Appeal under section 532 of the Sustainable Planning Act 2009 (SPA) by the Applicant against Council for giving a compliance permit with conditions without first giving an information notice and to impose a condition on a compliance permit to require trade waste drainage to be manufactured of an approved heat resistant material. Committee: Mr. Bradley Hodgkinson - Chair Mr. Ian MacDonald - Member Decision: The Building and Development Dispute Resolution Committee (Committee), in accordance with section 564 of SPA sets aside the decision of Council to issue a Compliance Permit for plumbing and drainage work as the Compliance Permit is invalid therefore the Compliance Permit and approved plans have no force or effect. Findings of Fact The Committee makes the following findings of fact: -- 7 of 12 -- 8 … 4. On 7 April 2016 Council issued a Compliance Permit authorising regulated plumbing and drainage work at 2461 Gold Coast Highway Mermaid Beach. 5. On 17 May 2016 the Applicant lodged an Application for appeal/declaration – Form 10 with the Building and Development Committee Registrar against Council not issuing an Information Notice about the condition in the Compliance Permit and also against the condition on the Compliance Permit. … 7. The Compliance Permit was issued within the 20 business days prescribed by the PDA. 8. The Compliance Permit contained ten conditions however an Information Notice stating the decision and the reasons for the decision was not provided by Council with the Compliance Permit. 9. The ‘ADVISORY’ section on the Compliance Permit states that the Applicant may appeal against a condition under the provisions of the SPA. To lodge an appeal under SPA there must be an Information Notice issued on conditions. An Information Notice was not provided with the Compliance Permit for the ten conditions contained in the Compliance Permit. … 19. The Committee found the Compliance Permit has no force or effect and another lawful Compliance Permit is required to be issued for the Café’s plumbing by Council if the plumbing installation it (sic) is to remain connected. Reasons for the Decision The Compliance Permit issued by Council on 7 April 2016 with the 10 conditions is invalid because an Information Notice was not issued with the Permit as required by the PDA. [32] The Building and Development Committee’s rationale for its decision, as is apparent from the findings of fact, focusses on procedural matters relating to the giving of an information notice rather than the substance of the issue between parties, namely the appropriate plumbing and drainage requirements. The plumbing and drainage issue between the parties relates to the specifications of a pipe and associated infrastructure required to convey hot water and trade waste from the café. [33] In the “findings of fact” the Building and Development Committee makes reference to section 85(10) of the Plumbing and Drainage Act, the definition of information notice in the schedule to the Plumbing and Drainage Act and that the compliance permit has no force or effect and another lawful compliance permit is required to be issued for the premises’ by Council if the plumbing installation is to remain connected. -- 8 of 12 -- 9 [34] I accept the submission by Council that the Building and Development Committee approached the appeal on the basis that it was required to determine the question of whether an information notice had been issued, which was an incorrect approach. The Building and Development Committee failed to appreciate the correct issue for determination, namely reasonable and relevant plumbing requirements, and became impermissibly side-tracked with concerns about the information notice. [35] In allowing the appeal, the Building and Development Committee did not decide all of the matters that were the subject of the appeal. It did not decide whether the decision to issue the compliance permit with the conditions imposed on the compliance permit was a decision that ought to have been made. The Building and Development Committee instead concerned itself with the question of whether the compliance permit was valid on the basis of its findings that an information notice had not been given. [36] Accordingly, Council has established that the decision of the Building and Development Committee is infected by reason of error or mistake of law or by reason of exceedance of jurisdiction. [37] The relief sought in the notice of appeal is that the appeal be allowed, the decision of the committee of 19 July 2016 be set aside and, leaving aside the relief that is no longer sought, that the matter be remitted back to a Building and Development Committee to be decided according to law. [38] The Court’s powers in deciding this appeal are contained in section 496(1) of SPA, which permits the Planning and Environment Court to make the orders and directions it considers appropriate. Section 496(4) of SPA stipulates that if the appeal is an appeal against the decision of a Building and Development Committee, the Court may return the matter to the committee with the direction that the committee make its decision according to law. Section 496(4) contains a discretion which does not limit the broad power that is otherwise contained in section 496(1) of SPA. [39] Section 480 of SPA states that if an appeal includes a matter within the jurisdiction of a building and development committee, and the court is satisfied the matter should be deal with by a building and development committee, the court must remit the matter to the committee for a decision. [40] I am satisfied that the matter, being one with respect to appropriate plumbing and drainage requirements, is a matter that should be dealt with by a building and development committee. I am satisfied that an order that remits the matter for the committee is appropriate in the circumstances. However, it is apparent from the material that Council did not provide an information notice, as required under section 85(10) of the Plumbing and Drainage Act. Consequently, the respondent, prior to lodging its appeal with the Building and Development Committee was having difficulty appreciating the reason that Council decided to impose the conditions contained in the compliance permit. As much is apparent from a letter, written by the respondent, on 9 May 2016 to the Registrar of Building and Services, City of the Gold Coast. A copy of the letter was provided to the Registrar of the Building and Development Committee on 10 May 2016. That letter states: 1. Plumbing application was submitted to GCCC on 12 February 2016 (201601793). (Refer attached package A) -- 9 of 12 -- 10 a. With regards to this application, please refer to General Note 2 on Drawing H01 which states the use of UPVC DWV for the trade waste drainage and the 2nd box note from the top left corner of H02, which also justifies Sedgman/Dennis Cairns and Associates (DCA) selection of UPVC DWV for trade waste range for this particular project. 2. Manufacture data on the effects of chemicals and temperature on UPVC from the IPLEX website. (Refer to attached package B) a. As the site temperature limited to max 50°C from the tempering valve at the hot water heater and there are no dishwashers on site (all hand washing), the very maximum that the temperature could be for a very short period of time is 50°C. IPLEX states that UPVC - DWV has a softening temperature of approximately 80°C, however as DWV has a low thermal conductivity the pipes are able to cope with typical discharges at even higher temperatures than stated above. 3. GCCC trade waste guidelines as accessed from GCCC website. (Refer to attached package C) a. Note the above guidelines do not state anywhere that the use of UPVC DWV is prohibited for trade waste drainage. 4. AS/NZS 3500.2:2003 Part 2 Sanitary Plumbing and Drainage – Section 2 Materials and Products. (Refer to attached package D) a. Clause 2.3, selection and use of materials nominates the person should only use materials as nominated in appendix C and taking factors when selecting the material type as nominated in the sub-clauses A-E. Sedumen DCA believe, from the information provided above, the use of the UPVC/DWV in the environment it has been installed, meets all of the factors to ensure satisfactory service for the life of the installation. 5. Information request received from GCCC dated 19 February 2016. (Refer to attached package E) a. GCCC requested in the above information request we change our material selection from UPVC to HDPE. 6. DCA response dated 16 March 2016. (Refer to attached package F) a. Note in dot point one DCA advised GCCC they were not going to change the material type and produce further information of the process within the café to justify the intermittent 50°C waste water discharge. 7. GCCC Plumbing and Drainage Compliance Permit dated 7 April 2016. (Refer to attached package G) a. Clause 1: GCCC have amended our drawings in RED to change the material selection from UPVC to HDPE. DCA disputes this on behalf of our client and as shown above and -- 10 of 12 -- 11 with the information provided to GCCC on the drawings and again supported during the information request process UPVC is a product that is fit for use in this application. b. Clause 7: GCCC have requested all trade waste drainage to a grease arrestor trap be manufactured from a heat resistant material. Again DCA have selected a material that is recommended for use at the temperature range nominated above. c. GCCC has also stamped the B1 drawing issue not the B2 issue as submitted with the information request. From the information provided above, it appears GCCC wish to have a one size fits all mandate. If Sedgman/DCA for one moment had information at hand that would indicate the system (materials) proposed to be installed would not be fit for use or not in accordance with manufactures (sic) recommendations then we would have specified an alternate material. In all technical documentation available it is published that UPVC is fit for use at continuous flows at 60°C for the waste water chemical make-up of a typical café / restaurant. In most cases, it is stated it can handle intermittent discharges above 80°C. Sedgman/DCA are also of the belief the current practice GCCC are imposing on these types of premises is a restriction of trade and also adds significant cost to small business. [41] It is apparent from that letter that, at the time the respondent instituted its appeal to the Building and Development Committee, it was having difficulty appreciating the reasons why Council had decided to impose the conditions on the compliance permit. The reasons for deciding to impose the conditions are required to be provided to an applicant for a compliance permit, that is, someone who makes a compliance request under section 85(10) of the Plumbing and Drainage Act. Had the applicant been provided with the requisite reasons, in accordance with section 85(10) of the Plumbing and Drainage Act, the respondent may have been able to make a better- informed decision about whether to appeal, or even to make a better-informed decision about the grounds of appeal. [42] Council was unable to point to any document in the record which demonstrates that the respondent has been provided with an explanation as to why Council elected to impose the conditions on the compliance permit. Given there is an obligation for Council to provide reasons, and there is no evidence that it has done so to date, it is appropriate to make orders requiring Council to provide such information. [43] Accordingly, I intend to order: 1. the appeal be allowed; 2. the Building and Development Committee decision of 19 July 2016 be set aside; 3. by 4 April 2017, the appellant (Council) serve on the respondent a written statement of reasons for its decision of 7 April 2016 to give a compliance permit with conditions. The statement of reasons must contain those matters required to be provided under section 27B of the Acts Interpretation Act 1954, and a copy of the statement of reasons is to be provided to the Registrar of the Building and Development Committee. -- 11 of 12 -- 12 4. by 28 April 2017, the respondent must serve on the appellant written notice of any further grounds it wishes to pursue as a consequence of the reasons served by Council, or written notification that it does not intend to raise further grounds of appeal, and the respondent must provide a copy of the notice to the Registrar of the Building and Development Committee; 5. the matter be remitted back to the Building and Development Committee to be decided according to law with any such decision to include a decision with respect to such further grounds of appeal raised in accordance with these orders that are within the jurisdiction of the Building and Development Committee; 6. each party is to bear their own costs of the appeal. -- 12 of 12 --