Hannay v Brisbane City Council - [1997] QCA 151

IN THE COURT OF APPEAL	[1997] QCA 151
SUPREME COURT OF QUEENSLAND

Appeal No. 9463 of 1996

Brisbane

[Hannay & Anor v. Brisbane City Council & Ors]

BETWEEN:

THOMAS HANNAY and ELIZABETH HANNAY

(First Applicants) First Appellants

AND:

THE CARINDALE LAND COMPANY PTY LTD

(Second Applicant) Second Appellant

AND:

BRISBANE CITY COUNCIL

(First Respondent) First Respondent

AND:

DIRECTOR-GENERAL DEPARTMENT OF LOCAL
GOVERNMENT AND PLANNING

(Second Respondent) Second Respondent

AND:

THE MINISTER FOR LOCAL GOVERNMENT
AND PLANNING

(Third Respondent) Third Respondent
Fitzgerald P
McPherson JA
de Jersey J

Judgment delivered 3 June 1997

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED. APPELLANTS TO PAY THE FIRST AND SECOND RESPONDENTS' COSTS TO BE TAXED. NO ORDER AS TO COSTS AS BETWEEN APPELLANTS AND THIRD RESPONDENT.

requirement - natural justice -Local Government (Planning and
Environment) Act.

Counsel:	Mr S.J. Keim for the appellants Mr M.D. Hinson for the first respondent
Solicitors:	Phillips Fox for the appellants City Solicitor, Brisbane City Council, for the first respondent Crown solicitor for the second and third respondents

Hearing Date: 19 May 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9463 of 1996

Brisbane

Before

Fitzgerald P.
McPherson J.A.
de Jersey J.

[Hannay & anor. v. Brisbane City Council & ors.]

BETWEEN:

THOMAS HANNAY and ELIZABETH HANNAY

(First Applicants) First Appellants

AND:

THE CARINDALE LAND COMPANY PTY LTD

(Second Applicants) Second Appellants

AND:

BRISBANE CITY COUNCIL

(First Respondent) First Respondent

AND:

DIRECTOR-GENERAL DEPARTMENT OF LOCAL
GOVERNMENT AND PLANNING

(Second Respondent) Second Respondent

AND:

THE MINISTER FOR LOCAL GOVERNMENT
AND PLANNING

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 3 June 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of de Jersey J.

What natural justice, or procedural fairness, requires in a process of administrative decision-making

depends upon the circumstances of the case, and it might well be that the statutory procedure

prescribed by the Local Government (Planning & Environment) Act 1990 is inadequate for persons

such as the appellants in circumstances such as the present. However, assuming that to be so, the

appellants are disentitled to the relief which they seek if the Act discloses a sufficiently clear intention

that the procedure prescribed is intended to be exhaustive, and that there is no duty, or perhaps

power, to modify or supplement that procedure. The questions of what natural justice requires, what

the legislation provides for, and whether the legislative procedure accords natural justice are irrelevant

if it is concluded that a statute manifests a sufficiently clear intention that no more than the statutory

procedure is required, or perhaps permitted.

For the reasons given by de Jersey J., I am of opinion that the Act presently under consideration does

plainly manifest such…

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: [1997] QCA 151
Decision Date: 3/06/1997

CaseChat Overview and Summary

In Hannay v Brisbane City Council, the Court of Appeal of the Supreme Court of Queensland was called upon to determine whether the Brisbane City Council's decision to amend a town plan, and its method of notifying affected parties, complied with the requirements of natural justice. The first and second appellants, Thomas Hannay, Elizabeth Hannay, and The Carindale Land Company Pty Ltd, challenged the Council's decision to re-route a proposed sub-arterial road through their land, arguing that they had not been adequately notified of the proposal. They sought a statutory order of review against the Council's decision, which was dismissed by de Jersey J. in the primary judgment.

The key legal issue before the Court of Appeal was whether the statutory requirements for notice, as outlined in sections 2.18(4) and 2.19 of the Local Government (Planning and Environment) Act 1990, were sufficient to meet the principles of natural justice, or if additional notification measures should have been undertaken. The appellants contended that the Council should have notified them directly by letter or convened public meetings to ensure the proposal was brought to their attention. The Court of Appeal, however, upheld de Jersey J.'s conclusion that the statutory provisions were exhaustive and intended to be the sole method of notification, thereby excluding any additional requirements for natural justice.

The Court of Appeal held that the Local Government (Planning and Environment) Act clearly manifested an intention that the statutory procedure was exhaustive, and that there was no power or duty to modify or supplement that procedure. The Court found that the appellants were disentitled to the relief they sought, as the legislative intent was to confine the local government's obligations within practicable bounds, as evidenced by section 1.3 of the Act. The Court dismissed the appeal and ordered the appellants to pay the costs of the first and second respondents. There was no order as to costs between the appellants and the third respondent, who had not actively participated in the proceedings.

Orders