Brisbane City Council v Reynolds [2017] QPEC 12 (2017) QPELR 377

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Brisbane City Council v Reynolds & Anor [2017] QPEC 12 PARTIES: BRISBANE CITY COUNCIL (appellant) v GLENN REYNOLDS (respondent) and DEPUTY PREMIER, MINISTER FOR TRANSPORT AND MINISTER FOR INFRASTRUCTURE AND PLANNING (co-respondent by election) FILE NO/S: 352 of 2017 DIVISION: Planning and Environment PROCEEDING: Appeal against the decision of the Building and Development Committee of 5 January 2017 ORIGINATING COURT: Brisbane DELIVERED ON: Ex tempore reasons given 10 March 2017 DELIVERED AT: Brisbane HEARING DATE: 10 March 2017 JUDGE: Kefford DCJ ORDER: 1. The decision of the committee dated 5 January 2017 be set aside on the basis that the committee was not properly constituted for the purposes of section 502(2) of the Sustainable Planning Act. 2. The appeal be remitted to the registry of the committee for the Chief Executive to establish a committee for the appeal according to law, with such a committee to be constituted by members other than Mr Laidely and Mr Mitchell and with an architect as a chairperson. CATCHWORDS: PLANNING AND ENVIRONMENT – BUILIDING WORK – EXISTING RESIDENTIAL DWELLING - where a building development application is made to a private certifier (class A) under the Building Act 1975 seeking a development permit for building work – where the building -- 1 of 6 -- 2 work is assessable development, required to be assessed against the building assessment provisions under the Building Act 1975 – where a decision to refuse as directed by Council as concurrence agency was appealed to the Building and Development Committee - whether the appeal to the Building and Development Committee was only an appeal about a referral agency’s response concerning the amenity and aesthetic impact of a building or structure – whether the Chairperson of the Committee was an architect – whether the decision of the Committee should be set aside on the basis the Committee was not properly constituted Sustainable Planning Act 2009 (Qld), s 479, s 480, s 496, s 502 Sustainable Planning Regulation 2009 (Qld), sch 7, table 1, item 17 Architects Act 2002 (Qld), s 103 Brisbane City Council v Atkins [2017] QPEC 10, followed Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30, considered COUNSEL: M A Williamson and D C Whitehouse for the appellant No appearance for the respondent G B Wilshier (sol) for the co-respondent by election SOLICITORS: Brisbane City Legal Practice for the appellant No appearance for the respondent Crown Law for the co-respondent by election HER HONOUR: This is an appeal under section 479 of the Sustainable Planning Act 2009 against a decision of the Building and Development Committee about a development application for building works on land situated at 91 Yabba Street, Ascot. The right of appeal is limited to challenging the committee’s decision on the ground of excess of jurisdiction or error of law pursuant to section 479 of the Sustainable Planning Act. The matter comes before me by way of an application in pending proceeding filed on 7 March 2017 that seeks an order that the issue raised in paragraph 14A of the Amended Notice of Appeal be determined by way of a preliminary point. The issue is one going to the jurisdiction of the Building and Development Committee, namely, whether it was lawfully constituted under section 502(2) of the Sustainable Planning Act to hear and decide the appeal at first instance. -- 2 of 6 -- 3 By way of background, on 24 August 2016 the respondent engaged a private certifier to assess and decide a building development application for alterations, additions and demolition to parts of an existing house located at 91 Yabba Street, Ascot. The existing house was constructed prior to 1947. The land the subject of the development application is subject to the traditional building character overlay in the appellant’s planning scheme, City Plan 2014. The appellant was a concurrence agency for the development application as the development engaged the “amenity and aesthetic impact of building” referral trigger contained in schedule 7, table 1, item 17 of the Sustainable Planning Regulation 2009. The acknowledgement notice issued by the respondent’s private certifier records that the development application required referral. The respondent’s private certifier, as assessment manager for the development application, requested a concurrence agency response from the council. On 7 September 2016 the council, in its capacity as a concurrence agency, gave a response to the respondent’s private certifier directing him to refuse the development application. On 9 September 2016, the respondent’s private certifier, acting as assessment manager, issued a decision notice to the respondent. The decision notice has two distinct parts. First, it contains conditions of approval and approved plans. Second, the notice records that the development application was refused and attaches the council’s concurrence agency response of 7 September 2016. On 12 September 2016, the respondent commenced an appeal in the registry of the committee against the decision to refuse the development application. It is clear from the grounds of appeal that the respondent accepted the council was a concurrence agency for the development application. It is also clear from the grounds of appeal that the respondent accepted the council’s jurisdiction as a concurrence agency was prescribed by the amenity and aesthetics trigger contained in schedule 7, table 1, item 17 of the Sustainable Planning Regulation 2009. The grounds of appeal make it apparent that the respondent disagreed with the assessment criteria used by the council in its assessment of the development application and also that the respondent disagreed with the council’s refusal, as the respondent’s position was that the proposed development will not: (a) have an extreme adverse effect on the amenity or likely amenity of the locality, or (b) be in extreme conflict with the character of the locality. This case involves remarkable similarities to the case determined earlier this week of Brisbane City Council v Atkins [2017] QPEC 10. The grounds of appeal in this case, as in the case of Atkins, seek relief which is beyond the committee’s jurisdiction. The grounds of appeal sought an order that codes nominated in table 1.7.4 of Brisbane City Plan 2014 are of no effect. Relief of that nature is akin to declaratory relief that could not be granted by the committee having regard to its limited power to make declarations under sections 510 to 513 of the Sustainable Planning Act 2009. -- 3 of 6 -- 4 On 27 September 2016 the acting registrar of the committee formally notified the parties in writing that the Chief Executive established a committee to hear and decide the appeal comprising Mr Robert Laidely as chairperson and Mr Geoffrey Mitchell as referee. The acting registrar’s letter of 27 September 2016 described the nature of the proceedings for the committee as follows: The appeal is against the decision of Trevor Gerhardt of GECON as the Assessment Manager to refuse a Building Development Application for building works for alterations and additions to an existing dwelling house (class 1a). The refusal was based on the advice of the Brisbane City Council as Concurrence Agency, who reasonably believes that the proposed extensions are declared in section 1.7.4 of Brisbane City Plan to be in a locality and of a form that may:  Have an extremely adverse effect on the amenity, or likely amenity, of the locality, or  Be in extreme conflict with the character of the locality. On 5 January 2017 the committee, chaired by Mr Laidely, delivered its decision in the appeal. The committee ordered that the decision notice dated 9 September 2016 be set aside and directed the respondent’s private certifier to reissue a decision notice for the development application on the basis that the council had no concurrence agency requirements. Unfortunately, the decision of the committee did not only deal with those matters that were validly before it, that is, only those matters within its jurisdiction. The decision goes much further and contains an analysis on matters that ought not have been properly considered by the committee. The decision dealt with matters that were not within the jurisdiction of the committee nor relevant to the question that was to be determined, that is, the question with respect to the referral agency’s response concerning the amenity and aesthetic impact of the building or structure the subject of the development application. Properly construed, the appeal is only an appeal about the Brisbane City Council’s response as a referral agency concerning the amenity and aesthetic impact of a building or structure. On 1 February 2017, the council filed an appeal against the committee’s decision. On the 7th of March 2017 the council filed the application in pending proceeding that is before me today. An expedited hearing of the issues raised in the application was sought due to the existence of a number of current appeals before the building and development committee about amenity and aesthetics. The preliminary legal issue raised in the application in pending proceedings relates to section 502 of the Sustainable Planning Act. That section provides that: If the committee is to hear only an appeal about a referral agency’s response concerning the amenity and aesthetic impact of a building or structure, its chairperson must be an architect. There are two aspects to this provision of the Sustainable Planning Act that require consideration, namely: (a) was the appeal to the committee only an appeal about a referral agency’s response concerning the amenity and aesthetic impact of a building or structure? -- 4 of 6 -- 5 (b) was the chairperson of the committee an architect? As I have already mentioned, in determining whether the appeal was only about a referral agency’s response concerning the amenity and aesthetic impacts, I have had regard to the grounds of appeal and insofar as the grounds of appeal seek orders that are outside the jurisdiction of the building and development committee, I have disregarded those matters. As I have already indicated in the decision of Brisbane City Council v Atkins [2017] QPEC 10, I consider it appropriate to disregard those matters contained within the appeal that could not legitimately be the subject of an appeal to the building and development committee. When this appeal, as in the case of Atkins, is construed in that light, the appeal is one that is only an appeal about a referral agency’s response concerning the amenity and aesthetic impact of a building or structure. A number of other contextual matters reinforce that the appeal ought be so construed. They include the acknowledgement notice given to the respondent, the council’s concurrence agency response given to the respondent’s private certifier, the contents of the decision notice and the acting registrar’s letter dated 27 September 2016. Each of those documents, as well as the grounds of appeal read objectively, make it clear that the appeal to the committee was against the council’s decision to direct the assessment manager to refuse the development application. There was no other reason for the respondent to commence the appeal given that the respondent’s private certifier issued a decision notice with conditions of approval in respect of his part of the decision. With respect to the second aspect of section 502(2) of the Sustainable Planning Act, the chairperson of the committee established by the Chief Executive was Mr Robert Laidely. As I’ve mentioned, section 502(2) of the Sustainable Planning Act requires that the chairperson of the committee must be an architect. The Sustainable Planning Act does not define the term “architect”. However, the Architects Act 2002 provides for the registration of architects. Pursuant to that Act, an architect is defined as a person registered as an architect under the Act. The relevant board under the Architects Act 2002 must keep a register of the persons who are architects. The register may be kept in electronic form. It must be kept open for inspection and provided upon request. Pursuant to section 103(2), the register may be made available on the board’s website. The council’s affidavit material reveals that a search of the online version of the register of architects has been undertaken and Mr Laidely is not included in the current register of architects for the board of architects of Queensland. I find that Mr Laidely is not a registered architect in Queensland and therefore not an architect for the purposes of section 502(2) of the Sustainable Planning Act. As a consequence, the committee established by the Chief Executive did not include an architect as the chairperson and therefore was not properly constituted. The committee as established did not have the power to hear and determine the appeal at first instance. This Court’s powers, in deciding this appeal, are contained in section 496 of the Sustainable Planning Act 2009, which permits me to make the orders and directions I consider appropriate. Section 496(4) 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 a direction that the committee make its decision according to law. Section 496(4) -- 5 of 6 -- 6 contains a discretion which does not limit the broad power that is otherwise contained in section 496(1) of the Sustainable Planning Act. Section 480 of the Sustainable Planning Act 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 dealt with by a building and development committee, the Court must remit the matter to the committee for decision. It is submitted by the appellant that the decision of the committee of 5 January 2017 should be set aside on the basis that the committee was not properly constituted for the purposes of section 502(2) of the Sustainable Planning Act, and that the appeal ought be remitted to the registry of the committee for the Chief Executive to establish a committee for the appeal according to law. I am satisfied that such an order is appropriate in the circumstances. The committee that made the decision the subject of this appeal was constituted by Mr Laidely and Mr Mitchell. Mr Laidely was the chairperson. Obviously, given the committee so established did not have power to hear and determine the appeal, it is not appropriate to simply remit the matter to the committee so constituted. Further, it seems from even a cursory consideration of the decision of the building and development committee constituted by Mr Laidely and Mr Mitchell that the decision traversed matters that were beyond the committee’s jurisdiction, including whether codes within City Plan 2014 were of effect. I have had regard to Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30, particularly the observation at paragraph 57 of that judgment that: Whilst not doubting the primary judge’s ability and capacity to determine the matter according to law, consistently with these reasons, I am of the view that any rehearing should be before a different judge in order to avoid a real risk of allegations of apprehended bias with the attendant possibility of a further appeal and delays. I am conscious that this appeal is being determined by reference to the preliminary point of law. However, I am concerned that to simply remit the matter without any indication of the way the committee ought be constituted might give rise to a risk similar to that referred to in Sunland Group Ltd v Townsville City Council & Anor, that is a real risk of allegations of apprehended bias with the attendant possibility of a further appeal and delays. That risk is apparent when one has regard to the other grounds of appeal in the appeal before this court, which grounds need not be determined as a consequence of the determination of the preliminary point. In light of those matters, I intend to order that the decision of the committee of 5 January 2017 be set aside on the basis that the committee was not properly constituted for the purposes of section 502(2) of the Sustainable Planning Act and that the appeal be remitted to the registry of the committee for the Chief Executive to establish a committee for the appeal according to law, with such a committee to be constituted by members other than Mr Laidely and Mr Mitchell and with an architect as a chairperson. -- 6 of 6 --