Grant v Council of the City of Gold Coast
[2015] QCAT 420
•27 October 2015
| CITATION: | Grant v Council of the City of Gold Coast [2015] QCAT 420 |
| PARTIES: | Trevor Grant (Applicant) |
| v | |
| Council of the City of Gold Coast (Respondent) |
| APPLICATION NUMBER: | GAR196-15 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 27 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to review is dismissed. 2. The application for miscellaneous matters is dismissed. |
| CATCHWORDS: | General administrative review – jurisdiction – whether decision is a ‘reviewable decision’ Gold Coast Waterways Authority Act 2012 (Qld), s 35 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Trevor Grant resides on a canal at the Gold Coast. A pontoon has been constructed on a neighbouring property. Mr Grant is unhappy with the location of the pontoon and has complained to Council of the City of Gold Coast (‘the Council’). The Council considered and rejected Mr Grant’s complaint. It decided that the pontoon was acceptable and constructed in accordance with approved plans (which had also been accepted by the Gold Coast Waterways Authority).
Mr Grant sought review of this decision by the Council’s Chief Executive. In a letter to Mr Grant dated 30 July 2015 the Office of the Chief Executive (through Mr Mark Havey – manager of Executive Services) advised Mr Grant that the Chief Executive agreed with the Council’s initial decision and found for the reasons set out in that letter that Mr Grant’s complaint was not upheld. Mr Grant was advised in that letter that if he remained dissatisfied he could seek ‘an external review from an external reviewer, such as the Queensland Ombudsman.’[1]
[1]Letter Council to Mr Trevor Grant, 30 July 2015 – Annexure 2 to Application to Review a Decision.
Mr Grant filed an application to review that decision of 30 July 2015 in QCAT. The Council submitted to the Tribunal that the Tribunal had no jurisdiction to review the decision as it was not a reviewable decision under the QCAT legislation.
Directions were made for the parties to file submissions on the issue of jurisdiction, following which, a decision would be made by the Tribunal on the papers.
I have considered the application for review and the parties’ submissions. I have decided the Tribunal has no jurisdiction to determine the review for the reasons set out below.
The Tribunal’s review jurisdiction is restricted to that provided for in the QCAT Act.[2]
[2]QCAT Act s 17(1).
The Act provides that the Tribunal’s review jurisdiction is that conferred on the Tribunal by an enabling act to review a decision by another entity under that enabling Act. This is a ‘reviewable decision.’[3]
[3]Ibid s 17(2).
Mr Grant says in this case the enabling act is the Gold Coast Waterways Authority Act 2012 (Qld) s 35 and that the decision set out in the Council’s letter of 30 July 2015 is a ‘reviewable decision.’
He has also filed a miscellaneous application to join to the review proceedings the Gold Coast Waterways Authority as that body also assessed favourably the pontoon development. He has also asked to join the owner of the property where the pontoon is located.
Section 35 of the Gold Coast Waterways Authority Act is contained in division 4 of part 5 of that Act.
The division establishes a review regime for decisions made by the Gold Coast Waterways Authority (‘the Authority’) under part 5 of the Act (an original decision).
The division provides for an internal review of an original decision and, under s 35 for an external review of the reviewed decision by QCAT.
Accordingly, a review decision made under part 5 of the Gold Coast Waterways Authority Act is a ‘reviewable decision’ for the purposes of section 17 of the QCAT Act.
The decision the subject of Mr Grant’s application is not such a decision. It is not a decision of the Authority under part 5 of the Gold Coast Waterways Authority Act.
The decision is one by the Chief Executive Officer of the Council to dismiss Mr Grant’s complaint. It is a decision by the Council following an independent review undertaken by the Council in terms of the Council’s Complaints (Administrative Action) policy and procedures prescribed by the Local Government Act 2009 (Qld) and Local Government Act Regulations 2012 (Qld).[4]
[4]See submission Gold Coast City Council, 15 October 2015 at para [1].
Section 35, therefore, of the Gold Coast Waterways Authority Act does not confer jurisdiction on the Tribunal to review the decision of the Council of 30 July 2015.
Mr Grant has identified no other enabling legislation that gives QCAT jurisdiction to review the decision of the Council. The Council in its submissions says there is no such enabling legislation.
The application for review should be dismissed on the basis that QCAT has no jurisdiction to conduct the review.
The miscellaneous application to join the Authority and the owner of the pontoon is not sustainable in circumstances where the Tribunal has no jurisdiction to conduct the substantive review. That application is also dismissed.
It is apparent that the Authority has assessed the construction of the pontoon and had found the construction to be suitable.[5]
[5]Pages 4 and 5, Letter 30 July 2015.
The issue of whether that assessment and subsequent decision, if any, of the Authority is reviewable under s 35 of the Gold Coast Waterways Authority Act is not an issue to be considered in this application.
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