Brisbane City Council v Brand - [2022] QPEC 35

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Brisbane City Council v Brand & Anor [2022] QPEC 35

PARTIES:

BRISBANE CITY COUNCIL
(Appellant)

v

RUTH EVAN BRAND and ANDREA MAPELLI

(Respondents)

FILE NO/S:

301 of 2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against a decision of the Development Tribunal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

27 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2022

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF THE DEVELOPMENT TRIBUNAL - where the Council gave an enforcement notice for an alleged offence under s 165 of the Planning Act 2016 on the belief the subject land is being used for an unlawful use – where the Respondents appealed the enforcement notice to the Development Tribunal – where Council appeals the decision of the Development Tribunal to allow the appeal and replace the decision to not give the enforcement notice – whether the Development Tribunal has jurisdiction to hear an appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016 - whether the Council should be permitted to agitate issues not identified in the Notice of Appeal – whether the Development Tribunal erred in its construction of “a material change of use for a classified building” - what is the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016 - whether the decision to give an enforcement notice was “in relation to” the identified matter.

LEGISLATION:

Building Act 1975 (Qld) ss 3, 109

Planning Act 2016 (Qld) ss 6, 165, 168, 229, 230, sch 1, sch 2

CASES:

BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197, applied

O’Brien & Ors v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, applied

O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, cited

Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489, applied

Southern Downs Regional Council v Home worthy Inspection Services (as agent for Robert and Cheryl Newman) [2020] QPEC 61; [2021] QPELR 1085, approved

Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, applied

COUNSEL:

M Batty and J Bowness for the Respondents

SOLICITORS:

Brisbane City Legal for the Appellant
Davis Lawyers for the Respondents

TABLE OF CONTENTS

Introduction

What is the nature of the appeal?

What are the issues to be determined?

What was the decision of the Development Tribunal?

What allegations did the Council seek to advance at the hearing?

What are the grounds of appeal?

What are the errors or mistake in law on the part of the tribunal or jurisdictional errors that are identified in the Notice of Appeal?

Did the Development Tribunal err in its construction of “a material change of use for a classified building”?

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QPEC 35
Decision Date: 27 September 2022

CaseChat Overview and Summary

In the case of Brisbane City Council v Brand, the appellant, Brisbane City Council, challenged the decision of the Development Tribunal which dismissed an enforcement notice issued by the Council against the respondents. The enforcement notice was issued under s 165 of the Planning Act 2016 on the belief that the subject land was being used for an unlawful purpose. The respondents appealed the enforcement notice to the Development Tribunal, which allowed the appeal and replaced the decision to give the enforcement notice with a decision to not give the enforcement notice. The Council then appealed the Development Tribunal’s decision to the Planning and Environment Court of Queensland.

The court was required to decide whether the Development Tribunal had jurisdiction to hear an appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016. The court also needed to determine whether the Council should be permitted to agitate issues not identified in the Notice of Appeal, whether the Development Tribunal erred in its construction of “a material change of use for a classified building”, what meaning should be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016, and whether the decision to give an enforcement notice was “in relation to” the identified matter.

The court held that the Development Tribunal had jurisdiction to hear the appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016. The court found that the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016 was broader than the Council had argued and included the decision to give an enforcement notice. The court also found that there was a necessary relationship between the enforcement notice and the “matter” and that the Development Tribunal did not err in its construction of “a material change of use for a classified building”.

The appeal is dismissed with the court finding in favour of the respondents.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 255 of the Planning Act 2016 states:“255 Notice of tribunal’s decisionA tribunal must give a decision notice about the tribunal’s decision for tribunal proceedings, other than for any directions or interim orders given by the tribunal, to all parties to proceedings.” Pursuant to s 6 and sch 2 of the Planning Act 2016, the decision notice from the Development Tribunal was required to state, amongst other things, the decision, and the reasons for the decision. The Development Tribunal’s decision was given on 10 January 2022. The Development Tribunal allowed the appeal and replaced the decision to give the enforcement notice dated 5 May 2021 with a decision to not give the enforcement notice. Under a heading “Jurisdiction”, the decision notice states:“10.The Tribunal has jurisdiction for an appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016. Although the reasons in the Appendix are lengthy, to appreciate the Respondents’ allegation about the ambit of the appeal, and to deal with the grounds of appeal, it assists to set them out in full. I have set them out at Attachment A, at the end of this judgment. It is apparent from these reasons that the Development Tribunal’s decision with respect to its jurisdiction was informed by its determination about:(a)the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016; and(b)whether the decision to give an enforcement notice was “in relation to” the identified matter, i.e., whether there was the necessary relationship between the enforcement notice and the “matter”. At the hearing, the Council sought to advance four allegations of error. First, the Council alleges that the Development Tribunal erred in its construction of “a material change of use for a classified building” in sch 1, ss 1(2)(a), (b) and (c) of the Planning Act 2016.[4] [4]Submissions on behalf of the Appellant pp 8-10 [29] – [36]; Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 7-8. Second, the Council alleges that the Development Tribunal erred in the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016. Third, the Council alleges that the necessary relationship does not exist between the enforcement notice and the “matter” the subject of sch 1, s 1(2)(h) of the Planning Act 2016.[5][5]Submissions on behalf of the Appellant p 10 [32] – [33], p 11 [37] – [38]. Fourth, the Council alleges that, even if it is wrong about the proper construction of sch 1, s 1(2)(h) of the Planning Act 2016, the Development Tribunal’s jurisdiction was excluded under sch 1, s 1(3)(a)(i) of the Planning Act 2016.[6][6]Submissions on behalf of the Appellant pp 11-2 [41] – [44].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brisbane City Council v Brand & Anor [2022] QPEC 35
PARTIES:	BRISBANE CITY COUNCIL (Appellant) v RUTH EVAN BRAND and ANDREA MAPELLI (Respondents)
FILE NO/S:	301 of 2022
DIVISION:	Planning and Environment
PROCEEDING:	Appeal against a decision of the Development Tribunal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	27 September 2022
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2022
JUDGE:	Kefford DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF THE DEVELOPMENT TRIBUNAL - where the Council gave an enforcement notice for an alleged offence under s 165 of the Planning Act 2016 on the belief the subject land is being used for an unlawful use – where the Respondents appealed the enforcement notice to the Development Tribunal – where Council appeals the decision of the Development Tribunal to allow the appeal and replace the decision to not give the enforcement notice – whether the Development Tribunal has jurisdiction to hear an appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016 - whether the Council should be permitted to agitate issues not identified in the Notice of Appeal – whether the Development Tribunal erred in its construction of “a material change of use for a classified building” - what is the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016 - whether the decision to give an enforcement notice was “in relation to” the identified matter.
LEGISLATION:	Building Act 1975 (Qld) ss 3, 109 Planning Act 2016 (Qld) ss 6, 165, 168, 229, 230, sch 1, sch 2
CASES:	BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197, applied O’Brien & Ors v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, applied O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, cited Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489, applied Southern Downs Regional Council v Home worthy Inspection Services (as agent for Robert and Cheryl Newman) [2020] QPEC 61; [2021] QPELR 1085, approved Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, applied
COUNSEL:	M Batty and J Bowness for the Respondents
SOLICITORS:	Brisbane City Legal for the Appellant Davis Lawyers for the Respondents