Brisbane City Council v Watson & Feros

[2012] QPEC 15

[2012] QPEC 15

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 4298 of 2011

BRISBANE CITY COUNCIL	Appellant
and
PATRICIA WATSON and MARION FEROS	Respondents

BRISBANE

..DATE 13/03/2012

..DAY 1

JUDGMENT

HIS HONOUR: This is an appeal by the Council against a decision of the Building and Development Committee dated the 29th of September 2011, which, amongst other things, set aside an earlier decision of the Council to refuse a request to extend the period of an approval. 

The Council does not contend that the Committee was in relevant error in determining that the application to extend the approval ought be granted.  Rather, it takes issue with the form of orders and directions which the Committee chose to make.  It seeks orders from this Court which would remit the matter to the Committee for decision according to law.  In practicality, the application to extend time will ultimately still be granted, but the Council is concerned about the proper procedure to be followed by the Committee in cases more generally.

An appeal to this Court from a decision of the Committee is limited, by section 479 of the Sustainable Planning Act (SPA), to errors or mistake in law or want or excess of jurisdiction.  The Council contends that the Committee fell into error in formulating its orders or directions to give effect to its substantive decision. 

The reasons published by the Committee conclude with the following paragraph: 

"Based on the assessment of the facts, material presented to the Committee, and having regard to the consistency of the approved plans and conditions with current planning laws and policies, it is the Committee's decision that the appeal is upheld.  Council's decision to refuse the extension of the relevant period for the development approval is set aside and the application to extend the approval is granted for two years from the date the Committee's decision become effective…"

The order and directions in fact made, however, differed from those indicated in the final paragraph of the reasoning.  Instead, the orders made and directions given were as follows:

"The Building and Development Dispute Resolution Committee (Committee), in accordance with section 564 of the SPA, sets aside the decision of the Council to refuse a request to extend the approval period under section 383 of the SPA for a development approval for an MCU for two houses on small lots, and under section 564(2)(c) of the SPA directs the Council to approve the extension by a period of two years."

The Council accepts that the Committee had the power to set aside the Council's decision to refuse the request to extend the approval period, but contends that it erred in purporting to make a decision under section 564(2)(c) directing the Council to approve the extension. It contends that instead, the Committee itself should have made its own decision replacing the decision of the Council. 

Section 564 of the SPA provides in part as follows:

564 Appeal Decision

(1) In deciding an appeal the Building and Development Committee may make the orders and directions it considers appropriate.

(2) Without limiting subsection (1), the Building and Development Committee may -

(a) confirm the decision appealed against; or

(b) change the decision appealed against; or

(c) set aside the decision appealed against and make a

decision replacing the decision set aside; or

(d) for a deemed refusal of a development application -

(i) order the assessment manager to decide the

application or request by a stated time; and

(ii) if the assessment manager does not comply with the

order under subparagraph (1) - decide the application

…"

Clearly, section 564 (2)(c) envisages that the Committee may set aside the decision appealed against and then may make its own decision replacing the decision which had been set aside.  This is, in fact, what was foreshadowed in the final paragraph of the Committee's reasons.  However, the order made, purportedly pursuant to section 564(2)(c), does not do that.  Instead, it sets aside the decision of the Council and purports then to remit the matter to the Council for the Council to make a new decision in particular terms.  Clearly, in so far as the Committee was purporting to act under section 564(2)(c), it was in error as to what it was permitted to do, pursuant to that subsection.

Mr Feros, who appeared for the respondent, does not seek to resist the appeal or to uphold the Committee's decision.  Indeed, he advised of his active support for the appeal.

A further matter to consider is whether the Committee's direction to the Council was within jurisdiction otherwise, even though it did not fall within section 564(2)(c).

It can be observed that the direction given does not fall under any other part of section 564(2).  That subsection has only one specified circumstance in which something may be remitted, and that is in the case of a deemed refusal, falling under subsection (2)(d).

The power of the committee to make orders and to give directions of the kind in subsection (2) is however, expressed to be without limitation to the power in subsection (1).  Subsection (1) is a much more generally worded power which permits the committee, in deciding an appeal, to make the orders and directions it considers appropriate. 

The Council submits that the more generally expressed power in subsection (1) does not extend to remitting this matter to the Council with the direction that it approve the extension. It relies upon cases such as R v. Dodds Ex parte Smith [1990] 2 Qd R 80; Capuano v. Q-Comp [2005] 1 Qd R 232 and Leon Fink Holdings Pty Ltd v. Australian Film Commission [1979] CLR 672 at 680 to contend that, in context, the more generally worded provisions of subsection (1) should not be read so as to include a power of remitter beyond the express and limited power stated in section 564(2)(d)(i).

I was informed that submissions to that effect were those which were accepted by Judge Searles, in allowing an appeal in similar circumstances in the matter of Brisbane City Council v. Harry Poulos Architects Pty Ltd (unreported 10th of October 2011).  Whilst I take the force of those submissions it is ultimately unnecessary for me to express a concluded view as to whether there might be some circumstances in which subparagraph (1) would permit a remitter beyond that provided for in subsection (2)(d).

The obligation of the committee in making its decision with respect of the appeal was to make orders and give  directions which effectively disposed of the matter of which it was seized.  Sometimes, depending upon the nature of the subject matter of the appeal, such orders will necessarily leave something further to be done by the decision-maker at first instance.  So, for example, an appeal to this Court from the committee is limited to errors or mistakes in law or want or excess of jurisdiction; where an error of that kind is identified it is often appropriate to remit the matter to the committee to decide a matter in accordance with the law (s 496(4) of SPA).  That is because the matter of controversy in the appeal, which this Court is seized of, is limited to the matter of law or jurisdiction. Once the point of law or jurisdiction has been determined, there remains something further to be done by the decision-maker at first instance.

Similarly, appeals from this Court to the Court of Appeal are limited to the grounds of error or mistake in law or want or excess of jurisdiction and so section 500 of the SPA expressly recognises that the Court of Appeal may return the matter to the Court or judge for a decision in accordance with the Court of Appeal's decisions. 

Another example of where, following the decision of an appeal body, there may be something left to do is found in section 564(2)(d), where the issue at hand is whether the assessment manager should have made a decision. 

The subject matter of the appeal to the committee in this case, however, was not of that kind.  The entirety of the controversy - that is whether the approval should be extended or not - was before the committee.  The committee considered the merits of that extension and formed the view that the extension should be granted. There was nothing further or other to be considered by the Council as the initial decision-maker and nothing more for it to do.  

That is perhaps reflected in the direction which not only remits the matter to the Council for a re-decision, but remits the matter to the Council to make a particular decision, that it approve the extension, which had already been considered by the Committee.

In those circumstances there was simply no occasion to remit the matter to the Council.  The Committee's decision to do so amounted to a failure to exercise jurisdiction with respect to the matter that was before it in a way which would effectively dispose of the subject matter of its decision.  Having regard to its reasons, it should have acted under section 564(2)(c), as indeed the order purports to do.

However, the substance of the order does not answer the description of that in section 564(2)(c) and the Committee's decision to remit the matter to the Council with the stated direction reveals an error of law and/or of jurisdiction on its part.

Accordingly, the appeal is allowed and the matter is remitted to the Building and Development Dispute Resolution Committee for decision according to law.

...

HIS HONOUR:  So, I'll cross out the reference to section 480 and I'll make an order as per amended draft, initialled by me and placed with the papers.

MS JOHNSTON:  Thank you, your Honour.

HIS HONOUR:  Thank you.  Anything further?

MS JOHNSTON:  No, your Honour.

MR FEROS: Thank you, your Honour.

HIS HONOUR:  Thank you for your assistance. Adjourn the Court, thank you.

THE COURT ADJOURNED AT 11.12 A.M.