Brisbane City Council v Leahy - [2023] QCA 133

SUPREME COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Leahy & Ors [2023] QCA 133

PARTIES:

BRISBANE CITY COUNCIL
(appellant)
v
RICHARD JOHN LEAHY
(first respondent)
REINET INVESTMENTS PTY LTD
ACN 641 633 267
(second respondent)
KEYSER ISLAND PTY LTD
ACN 606 498 917
(third respondent)

FILE NO/S:

Appeal No 12665 of 2022
SC No 13261 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 200 (Davis J)

DELIVERED ON:

20 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2023

JUDGES:

Flanagan and Boddice JJA and Ryan J

ORDERS:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – RIGHTS AND INTERESTS AFFECTED BY THE DECISION – where the appellant Council approved the exhibition of an electronic advertising structure (“the sign”) – where the sign was erected on land adjacent to the boundary of the first respondent’s property – where the Council did not afford the first respondent procedural fairness prior to approving the exhibition of the sign – where the relevant legislative framework expressly recognises different classes of persons being affected in different ways and in respect of different interests – where the first respondent was a member of a distinct class which could be identified, namely the neighbouring properties whose views might be obscured, dominated or overcrowded by the proposed sign – where the Council appeals, relevantly, on the ground that the primary judge erred in determining that the principles of natural justice were not excluded – whether the principles of natural justice had been excluded

Advertisements Local Law 2013, s 9, s 10
Advertisements Subordinate Local Law 2005, s 2, s 8, item 1 sch 5
City of Brisbane Act 2010 (Qld), s 29
Judicial Review Act 1991 (Qld), s 4, s 7, s 20

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, followed
Castle v Director-General State Emergency Service [2008] NSWCA 231, considered
Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, distinguished
Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333, considered
Leahy v Brisbane City Council & Ors [2022] QSC 200, related
Kioa v West (1985) 159 CLR 550; [1985] HCA 81, cited
Medway v Minister for Planning (1993) 30 NSWLR 646, distinguished
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288, considered
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23, considered
The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471; [1981] HCA 33, cited
Vanmeld Pty Ltd v Fairfield City…

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: [2023] QCA 133
Decision Date: 20 June 2023

CaseChat Overview and Summary

Brisbane City Council sought judicial review of a decision by the Land Court that found it had breached the principles of procedural fairness when it approved the erection of a billboard. The first respondent, Mr Leahy, owned a property that adjoined the site where the billboard was to be erected. He contended that the billboard would obstruct his view, and that he had not been given an opportunity to make submissions on the approval of the billboard prior to it being approved by the Council. The Council appealed the Land Court’s decision to the Queensland Court of Appeal. The primary issue before the Court of Appeal was whether the Land Court erred in its determination that the principles of natural justice were not excluded. The Court of Appeal found that the Land Court did not err in its determination, finding that the principles of natural justice were not excluded as the relevant legislative framework expressly recognised different classes of persons being affected in different ways and in respect of different interests. The Court of Appeal found that Mr Leahy was a member of a distinct class which could be identified, namely the neighbouring properties whose views might be obscured, dominated or overcrowded by the proposed sign. The Court of Appeal held that, as Mr Leahy had a legitimate expectation that he would be given an opportunity to make submissions on the approval of the billboard, the Council’s failure to afford him procedural fairness constituted a breach of natural justice.

The appeal was dismissed and the appellant was ordered to pay the first respondent’s costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal.

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 Leahy & Ors [2023] QCA 133
PARTIES:	BRISBANE CITY COUNCIL (appellant) v RICHARD JOHN LEAHY (first respondent) REINET INVESTMENTS PTY LTD ACN 641 633 267 (second respondent) KEYSER ISLAND PTY LTD ACN 606 498 917 (third respondent)
FILE NO/S:	Appeal No 12665 of 2022 SC No 13261 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2022] QSC 200 (Davis J)
DELIVERED ON:	20 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2023
JUDGES:	Flanagan and Boddice JJA and Ryan J
ORDERS:	1. The appeal be dismissed. 2. The appellant pay the first respondent’s costs of and incidental to the appeal.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – RIGHTS AND INTERESTS AFFECTED BY THE DECISION – where the appellant Council approved the exhibition of an electronic advertising structure (“the sign”) – where the sign was erected on land adjacent to the boundary of the first respondent’s property – where the Council did not afford the first respondent procedural fairness prior to approving the exhibition of the sign – where the relevant legislative framework expressly recognises different classes of persons being affected in different ways and in respect of different interests – where the first respondent was a member of a distinct class which could be identified, namely the neighbouring properties whose views might be obscured, dominated or overcrowded by the proposed sign – where the Council appeals, relevantly, on the ground that the primary judge erred in determining that the principles of natural justice were not excluded – whether the principles of natural justice had been excluded Advertisements Local Law 2013, s 9, s 10 Advertisements Subordinate Local Law 2005, s 2, s 8, item 1 sch 5 City of Brisbane Act 2010 (Qld), s 29 Judicial Review Act 1991 (Qld), s 4, s 7, s 20 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, followed Castle v Director-General State Emergency Service [2008] NSWCA 231, considered Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, distinguished Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333, considered Leahy v Brisbane City Council & Ors [2022] QSC 200, related Kioa v West (1985) 159 CLR 550; [1985] HCA 81, cited Medway v Minister for Planning (1993) 30 NSWLR 646, distinguished Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288, considered Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23, considered The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471; [1981] HCA 33, cited Vanmeld Pty Ltd v Fairfield City…