Brisbane City Council v Erlbaum - [2015] QPEC 46

PLANNING AND ENVIRONMENT
COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Erlbaum [2015] QPEC 46

PARTIES:

Brisbane City Council
(appellant)

v

Michael Erlbaum & Erez Erlbaum
(respondents)

FILE NO.:

3154/14

PROCEEDING:

Appeal

DELIVERED ON:

14 September 2015

DELIVERED AT:

BRISBANE

HEARING DATE:

16 April 2015

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed, the decision of the Committee set aside and the matter is remitted to the Committee to determine according to law.

CATCHWORDS:

PLANNING AND ENVIRONMENT – BUILDING WORK – APPEAL FROM DISPUTE RESOLUTION COMMITTEE – whether building was ‘dangerous’ by reason of inadequate fire separation – relevance of Queensland Building Work Enforcement Guidelines –whether Committee’s decision infected with error by reason of reference to the Guidelines – where Committee relied on smoke alarms to conclude that the building was not dangerous – where outstanding application for approval for change in classification to reflect current use – where Committee erred by , rather than considering and deciding that the smoke alarms would allow opportunity to escape in the event of fire

COUNSEL:

L Godfrey (Solicitor) for the appellant
P Smith for the respondent (direct brief)

SOLICITORS:

Brisbane City Legal Practice for the appellant

This appeal is against the decision of the Building and Development Dispute Resolution Committee (the Committee) made on 16 July 2014. By that decision, the Committee set aside an enforcement notice (fourth enforcement notice) which had been issued by the appellant pursuant to s 248 of the Building Act 1975.
Appeals from the Committee are limited to the grounds of error or mistake in law or want or excess of jurisdiction.[1] The appellant contends that the Committee erred in law and reached a decision which was manifestly unreasonable.
Section 248 of the Building Act permits a local government to give an enforcement notice in a number of circumstances, one of which is if the local government reasonably believes the building to be dangerous. Ordinarily a local government must give the person a show cause notice before giving an enforcement notice. That was not done in this case, but s 248(4) of the Building Act provides that no show case notice is required if the matter about which the local government is proposing to give an enforcement notice is of a dangerous or minor nature. The issue, before the Committee, was whether the matter, the subject of the notice, was ‘dangerous’ so as to justify the issue of the fourth enforcement notice without the appellant first going through a show cause procedure.
The subject matter of the fourth enforcement notice was fire safety. In particular, the Council alleged that there were inadequate fire separation measures such that there was a danger in the way of potential harm to occupants in the event of fire.
[1]Sustainable Planning Act2009 s 479.
In particular, it submitted to the Committee as follows:
“As a result of that inspection of the premises conducted by Council on 20 November 2013, it was determined that no fire retardant material was present…

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.

Keep reading for free

Create a free CaseChat account to read Brisbane City Council v Erlbaum and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QPEC 46
Decision Date: 14 September 2015

CaseChat Overview and Summary

The case before the court involved a dispute between Brisbane City Council and Erlbaum, focusing on whether a particular building was deemed dangerous due to inadequate fire separation. The Brisbane City Council had sought to have the building declared dangerous and ordered for demolition, while Erlbaum contested this claim. The matter was initially decided by the Dispute Resolution Committee, and subsequently, Erlbaum appealed the Committee's decision to the court.

The central legal issues revolved around the interpretation and application of the Queensland Building Work Enforcement Guidelines in determining whether the building was dangerous. The court needed to assess whether the Committee's decision was flawed due to its reliance on these Guidelines, and whether the Committee's conclusion that the building was not dangerous, based on the presence of smoke alarms, was legally sound. Additionally, the court had to consider the effect of an outstanding application for approval for a change in classification of the building on the determination of its safety.

In its reasoning, the court found that the Committee had erred in its decision-making process. The Committee had failed to consider and decide whether the smoke alarms would provide an adequate opportunity for escape in the event of a fire, which is a critical factor in assessing the safety of the building. The court held that the Committee's reliance on the Queensland Building Work Enforcement Guidelines did not necessarily result in an erroneous decision, but the Committee's application of these guidelines was flawed. Consequently, the court concluded that the Committee's decision was infected with error and set it aside. The matter was remitted to the Committee for a lawful determination.

The court's final order was that the appeal by Erlbaum was allowed, the decision of the Dispute Resolution Committee was set aside, and the matter was remitted to the Committee to be determined according to law. This outcome mandated that the Committee re-evaluate the safety of the building in light of the court's findings, ensuring all relevant factors, including the adequacy of smoke alarms, were appropriately considered.

Orders

Orders of the court

The appeal is allowed, the decision of the Committee set aside and the matter is remitted to the Committee to determine according to law.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brisbane City Council v Erlbaum [2015] QPEC 46
PARTIES:	Brisbane City Council (appellant) v Michael Erlbaum & Erez Erlbaum (respondents)
FILE NO.:	3154/14
PROCEEDING:	Appeal
DELIVERED ON:	14 September 2015
DELIVERED AT:	BRISBANE
HEARING DATE:	16 April 2015
JUDGE:	Rackemann DCJ
ORDER:	The appeal is allowed, the decision of the Committee set aside and the matter is remitted to the Committee to determine according to law.
CATCHWORDS:	PLANNING AND ENVIRONMENT – BUILDING WORK – APPEAL FROM DISPUTE RESOLUTION COMMITTEE – whether building was ‘dangerous’ by reason of inadequate fire separation – relevance of Queensland Building Work Enforcement Guidelines –whether Committee’s decision infected with error by reason of reference to the Guidelines – where Committee relied on smoke alarms to conclude that the building was not dangerous – where outstanding application for approval for change in classification to reflect current use – where Committee erred by , rather than considering and deciding that the smoke alarms would allow opportunity to escape in the event of fire
COUNSEL:	L Godfrey (Solicitor) for the appellant P Smith for the respondent (direct brief)
SOLICITORS:	Brisbane City Legal Practice for the appellant