Dudley v Building Appeal Board
[2012] TASSC 50
•8 August 2012
[2012] TASSC 50
COURT: SUPREME COURT OF TASMANIA
CITATION: Dudley v Building Appeal Board [2012] TASSC 50
PARTIES: DUDLEY, Simon William
DUDLEY, Helen Elizabeth
v
BUILDING APPEAL BOARD
FILE NO: 1048/2011
DELIVERED ON: 8 August 2012
DELIVERED AT: Hobart
HEARING DATE: 31 July 2012
JUDGMENT OF: Blow J
CATCHWORDS:
Administrative Law – Judicial review – Powers of courts under judicial review legislation – Generally – Futility of remedy.
Judicial Review Act 2000 (Tas), s27(1).
Hicks v Aboriginal Legal Service of Western Australia (Inc) (2001) 108 FCR 589, followed.
Aust Dig Administrative Law [1080]
REPRESENTATION:
Counsel:
Applicants: In Person
Respondent: No appearance
Kentish Council: S B McElwaine
Solicitors:
Applicants: In Person
Respondent: Director of Public Prosecutions
Kentish Council: Shaun McElwaine + Associates
Judgment Number: [2012] TASSC 50
Number of paragraphs: 20
Serial No 50/2012
File No 1048/2011
SIMON WILLIAM DUDLEY and HELEN ELIZABETH DUDLEY
v BUILDING APPEAL BOARD
REASONS FOR JUDGMENT BLOW J
8 August 2012
This is an application for judicial review of a decision of the Building Appeal Board. The applicants, Simon and Helen Dudley, own some land near Sheffield, in the Kentish Council's municipal area. They have begun building a house on that land. Their dealings with the council and the Board, so far as they are relevant, can be summarised as follows:
· The applicants obtained a planning permit from the council under the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s57, in 2005. The permit contained conditions to the effect that consent was granted for the house and garage specified in certain drawings that the applicants had submitted, and that the design of those buildings, as shown on those drawings, was not to be altered without the written consent of the council.
· That permit has remained in force, but the building work is not complete.
· In 2009 the applicants applied for a building permit for their property under the Building Act 2000. The council did not grant a building permit.
· The applicants appealed to the Building Appeal Board under the Building Act, s209(a). The Board conducted a hearing. On 31 March 2011 it published a decision rejecting the appeal.
· The applicants persuaded the Board that it had overlooked part of their case, and that they should have a fresh hearing. The Board reconsidered its decision. It decided on 8 September 2011 to reject the appeal again. On 27 October 2011 its chairman, Mr C Doherty, published its decision, which included a statement of reasons.
· The applicants have applied under the Judicial Review Act 2000 for the review of that second decision. It is that application which is now before the Court. The applicants are seeking orders that the Board's second decision be quashed or set aside, and that the Board be directed to reconsider the matter and make a third decision. They hope that a third decision will result in them being granted a building permit.
The applicants represented themselves at the hearing before me. The Board was not represented at the hearing. Its solicitor filed a notice under the Supreme Court Rules 2000, r777G, submitting to any order that the Court may make on the application. The council was represented by counsel at the hearing. It opposed the application.
The applicants' contentions as to the grounds for judicial review were set out in their originating application, which was prepared by a firm of solicitors, in the following terms:
"2 GROUNDS OF REVIEW
(1)Pursuant to Section 17 of the Judicial Review Act 2000, the grounds of review of the decision are as follows:
(a) The Respondent erred in law;
(b) The Respondent denied the Applicants natural justice;
(c) The Respondent did not have jurisdiction to make the decision;
(d) The Respondent denied the Applicants procedural fairness.
3PARTICULARS
(1)Upon the making of its decision dated 31 March 2011 with respect to the development proposed by the Applicant (the 'development') the Respondent became functus officio. The Respondent did not have jurisdiction to review its decision of 31 March 2011, nor to make the purported further decision dated 27 October 2011.
(2)In making the decision of 31 March 2011, the Respondent denied the Applicants natural justice by failing to take into account the material provided to the Respondent, which was material to the Applicants' appeal to the Respondent with respect to the development.
(3)Further or in the alternative, the Respondent erred in law when applying Section 56(2) of the Land Use Planning and Approvals Act 1993 (Tas) in finding that the Permit could not be amended as the development constituted more than a minor change.
(4)Further or in the alternative, the Respondent erred in law, and denied the Applicants procedural fairness in its conduct of the hearing with respect to the development and in making the decision dated 27 October 2011 in that it failed to rule in relation to all of the appeal grounds articulated by the Applicants, other than the appeal to the Respondent made under Section 209 of the Building Act 2000, despite the Applicants having also made submissions under Sections 215 and 218 of the Building Act 2000."
The applicants' case is confined to the contentions set out in the four paragraphs under the heading "Particulars". I will address each of those paragraphs separately.
Lack of jurisdiction
By par(1) of the particulars, the applicants contend that, after the making of its first decision, the Board did not have jurisdiction to reconsider the appeal and make a second decision. If that contention is correct, then the Board's first decision, rejecting the appeal against the failure to grant a building permit, must stand. There has been no application for judicial review of the first decision.
There is no point in me considering the question of whether the Board had jurisdiction to reconsider the appeal and make a second decision. If I concluded that it had no jurisdiction to do that, there would be no point in me quashing the second decision, and allowing the first decision, which was identical, to stand in its place. In fact there would be no point in me making any order at all.
When it is established that a decision-maker purported to make a decision but had no jurisdiction or power to do so, it is usual to set aside that decision and make consequential orders. However the Court retains a discretion as to the appropriate course under the Judicial Review Act, s27(1). Courts will not make orders under judicial review legislation when it would be futile to do so: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 136; Hicks v Aboriginal Legal Service of Western Australia (Inc) (2001) 108 FCR 589 at 597. It would therefore not be appropriate for me to make any order under the Judicial Review Act in this case unless I am satisfied that there is some basis for such an order other than a lack of jurisdiction on the part of the Board to make its second decision.
The first decision and denial of natural justice
Paragraph (2) of the particulars asserts that, in making its first decision, the Board denied natural justice to the applicants by failing to take certain material into account. This paragraph does not advance any contention which, if correct, would warrant the making of an order quashing or setting aside the second decision. I assume that it was included in the particulars only for the purpose of providing background information.
The minor amendment issue
As I have said, the applicants submitted drawings of their proposed house and garage in 2005, and the permit was granted subject to conditions to the effect that consent was granted for the house and garage specified in those drawings, and that the proposed buildings as shown on those drawings were not to be altered without the written consent of the council. When the applicants applied for a building permit in 2009, they submitted a second set of drawings. According to the Board's second decision, those drawings represented an increase in the floor area of the main building of 51.42%, and an increase in the floor area of the deck by 30.93%.
There had been discussion as to the possibility of the council amending the 2005 permit pursuant to the LUPA Act, s56. That section contains the following provisions:
"(1) The owner of land, or a person with the consent of the owner, may request the planning authority in writing to amend a permit which applies to that land.
(2) The planning authority may amend the permit if it is satisfied that the amendment —
(a)does not change the effect of any condition required by the Appeal Tribunal; and
(b)will not cause an increase in detriment to any person; and
(c)does not change the use or development for which the permit was issued other than a minor change to the description of the use or development."
In its second decision, the Board made no finding as to whether the applicants had sought a minor amendment pursuant to s56 so as to permit them to build in accordance with the 2009 drawings, nor as to whether the council had granted such a minor amendment. In substance the Board concluded that the change from the 2005 drawings to the 2009 drawings was too great to be categorised as a "minor change" within the meaning of s56(2)(c).
Under the Building Act, s71(d), when an application is made for a building permit, the permit authority is required to take into account "any relevant requirements of any permit or consent granted or issued under any other Act". Under the Building Act, s73(1)(b), a permit authority is required to refuse an application for a building permit if it is "not satisfied as to the matters referred to in section 71". When it made its second decision rejecting the applicants' appeal, the Board reasoned that there could be no minor amendment in accordance with the LUPA Act, s56, to permit development according to the 2009 plans; that the 2005 permit had not been amended; that the 2009 plans were not in accordance with the 2005 permit; and that the application for the building permit made in 2009 had to be refused under s73(1)(b) because a relevant requirement of the planning permit had not been satisfied.
Paragraph (3) of the particulars asserts that the Board erred in law in making a finding that the development, as proposed in the 2009 drawings, constituted more than a "minor change" for the purposes of the LUPA Act, s56(2).
The question whether the change from one set of plans to another set of plans amounts to a "minor change" is not a question of law. It is a question of fact. It involves making a value judgment as to the extent of the change. If the Board simply made a wrong finding of fact as to this point, it did not err in law, and the Judicial Review Act does not provide any basis for correcting its error. It has been made quite clear in a number of High Court cases that the simple making of a wrong finding of fact does not amount to an error of law: R v District Court; Ex parte White (1966) 116 CLR 644 at 654; Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.
In an extreme case, there could be a situation where, as a matter of law, a particular finding of fact is not open upon the evidence before the Board. For example, if the applicants had proposed building a 50-storey skyscraper, and if the Board had characterised that as amounting to a minor change, it could be said that it was not open to the Board to reach such a conclusion, and that it therefore erred in law. If the facts "are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law": The Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 per Jordan CJ at 138; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450. In my view the differences between the 2005 plans and the 2009 plans were not so minor that it was necessary to conclude that there had been only a "minor change" within the meaning of s56(2)(c). It was open to the Board to make a finding of fact that there had been no minor change. If it made a wrong finding as to that point, it was a finding of fact that is not reviewable on any of the grounds that are available under the Judicial Review Act. Those grounds are listed in s17(2).
Procedural fairness
Paragraph (4) of the particulars asserts that, in making its second decision, the Board erred in law, and denied the applicants procedural fairness, by failing to rule on submissions advanced by the applicants relating to the Building Act, ss215 and 218. At the hearing of this application, Mrs Dudley submitted that there were some other sections in the Building Act that the Board also ignored.
Section 215 reads as follows:
"215 Appeal relating to permit authority
An owner of a building or land, or a plumber engaged by such an owner, may appeal to the Appeal Board against the exercise of, or failure to exercise, any power by a permit authority under this Act in relation to that building or land."
Section 218 reads as follows:
"218 Application of regulations
(1) A person may apply to the Appeal Board to determine whether any provision of the Building Code of Australia or the Tasmanian Plumbing Code applies or may be modified in respect of any building work or plumbing work that is proposed to be undertaken by the person.
(2) Before determining a matter under this section relating to building work or a building, the Appeal Board is to —
(a) notify the Director, any reporting authority affected and the relevant building surveyor; and
(b) seek any submission from the Director, reporting authority and building surveyor.
(3) In determining a matter under this section relating to plumbing work or plumbing installation, the Appeal Board is to —
(a) notify the Director and any relevant permit authority; and
(b) seek any submission from the Director and the permit authority.
(4) In determining a matter under this section, the Appeal Board is to take into account —
(a) any relevant provisions of this Act, regulations, codes or standards; and
(b) any submission made under subsection (2) or (3).
(5) The Appeal Board may —
(a) determine that a provision be modified as directed if satisfied that the modification is reasonable and not detrimental to the public interest; or
(b) determine that a provision does not apply if satisfied that the provision —
(i)is inappropriate in the circumstances; and
(ii)is not detrimental to the public interest; or
(c) impose any relevant condition."
There is nothing in the Building Act that requires the Board to rule upon every aspect of an appellant's case if it concludes that, for a particular reason, the appeal must be rejected. If, upon considering a particular point, such as the lack of a necessary permit under the LUPA Act permitting the construction of a proposed building, the Board concludes that an appeal must be rejected, then it becomes unnecessary for the Board to consider the merits of any other aspect of an appeal. In this case, once the Board decided to reject the appeal on the basis of the LUPA Act, s56, it was not required to adjudicate upon any other issue that was in dispute.
Conclusion
The originating application has not identified any error of law, error as to jurisdiction, denial of natural justice, or denial of procedural fairness that warrants the making of any order in relation to the Board's second decision. The originating application must therefore be dismissed.
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