Leahy v Brisbane City Council

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SUPREME COURT OF QUEENSLAND

CITATION:

Leahy v Brisbane City Council & Ors [2022] QSC 200

PARTIES:

RICHARD JOHN LEAHY

(applicant)

v
BRISBANE CITY COUNCIL
(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:

BS No 13261 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2022

JUDGE:

Davis J

ORDERS:

1.   The decision of the Council made on 18 December 2018 approving the construction of an electronic advertising billboard on 43 Musgrave Road, Red Hill be set aside.

2.    The application for approval of the sign be further considered by the Council.

3.    The applicant file and serve upon any respondent, against whom he seeks costs, by 27 September 2022 any written submission on costs of the application.

4.   Any respondent upon whom the applicant serves costs submissions may file and serve upon the applicant by 4 October 2022 any written submission on costs of the application.

5.    Each party have leave to file and serve by 11 October 2022 any application for leave to make oral submissions on costs.

6.    In the absence of any application to make oral submissions on costs of the application being filed by 11 October 2022, the question of costs will be decided on any written submissions and without further oral hearing.

CATCHWORDS:

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - TIME FOR APPLICATION - EXTENSION OF TIME - GENERALLY - where the respondent Council approved the installation of a billboard sign - where the sign was erected adjacent to the boundary of the applicant’s land - where the applicant alleged error in the decision to approve the billboard sign - where the applicant applied for judicial review of the decision - where no reasons were given - whether the applicant must apply within a “reasonable time” of the decision - consideration of the factors relevant to calculation of “reasonable time” - whether any extension of time needed to be sought - consideration of relevant factors to an extension of time

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - EXISTENCE OF OBLIGATION - RIGHTS AND INTERESTS AFFECTED BY THE DECISION - where the respondent Council approved the installation of a billboard sign - where the sign was erected adjacent to the boundary of the applicant’s land - where the applicant applied for judicial review of the decision - where the applicant alleged he had not been heard on the application for approval of the sign - whether the applicant had an interest in the approval - whether the applicant was a member of an identifiable class of persons affected by the approval - whether a duty to afford procedural fairness arose

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - MANDATORY CONSIDERATIONS - FAILURE TO CONSIDER - where the respondent Council approved…

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Details
Case
[2022] QSC 200
Decision Date

CaseChat Overview and Summary

In Leahy v Brisbane City Council, Mr Leahy challenges the decision of the Brisbane City Council to approve the installation of an electronic advertising billboard on 43 Musgrave Road. The decision was made under the Advertisements Local Law 2013, and the billboard obstructs Mr Leahy’s view from his property on 51 Musgrave Road, which is adjacent to the boundary of 43 Musgrave Road. Mr Leahy contends that the Council did not afford him procedural fairness, that it failed to consider relevant factors, and that it improperly compared the proposed sign to a different one. The Council, on the other hand, asserts that Mr Leahy was not aggrieved by the decision and that the application is out of time.

The court examined the reasonableness of the time taken by Mr Leahy to apply for judicial review and whether an extension of time should have been granted. The court considered several factors, including the extent of the delay, the effect on Mr Leahy if the application was refused, and the seriousness of the consequences of any error to him. The court also assessed whether procedural fairness was owed to Mr Leahy and if the Council failed to consider relevant factors. The court found that Mr Leahy was aggrieved by the decision and that the application was within a reasonable time, warranting an extension. Furthermore, the court determined that procedural fairness was not applicable, and the Council did not fail to consider relevant factors.

The court quashed the decision of the Brisbane City Council to approve the construction of the electronic advertising billboard on 43 Musgrave Road. The court ordered the Council to further consider the application for approval of the sign. The court also set out a timetable for the parties to file and serve written submissions on costs, with an option for oral submissions if an application was made by a specified date.

Orders

Orders of the court

1. The decision of the Council made on 18 December 2018 approving the construction of an electronic advertising billboard on 43 Musgrave Road, Red Hill be set aside.

2. The application for approval of the sign be further considered by the Council.

3. The applicant file and serve upon any respondent, against whom he seeks costs, by 27 September 2022 any written submission on costs of the application.

4. Any respondent upon whom the applicant serves costs submissions may file and serve upon the applicant by 4 October 2022 any written submission on costs of the application.

5. Each party have leave to file and serve by 11 October 2022 any application for leave to make oral submissions on costs.

6. In the absence of any application to make oral submissions on costs of the application being filed by 11 October 2022, the question of costs will be decided on any written submissions and without further oral hearing.

Background

Background to the litigation

By way of application for a statutory order of review, Mr Leahy seeks an order quashing the decision and he seeks other relief. The decision is one of an administrative character made under an enactment[1] and Mr Leahy is a party aggrieved by the decision.[2][1]Judicial Review Act 1991, s 4.[2]Judicial Review Act 1991, s 7.Background Musgrave Road is a major Brisbane Road running west away from the Brisbane Central Business District. On 43 Musgrave Road is a one-storey commercial building and a two-storey residence. On 51 Musgrave Road is a residence. Both 43 and 51 Musgrave Road are on the inbound side of the road as one travels towards the Brisbane CBD. 51 Musgrave Road sits to the west (the outbound side) of 43 Musgrave Road. The eastern boundary of 51 Musgrave Road is shared with the western boundary of 43 Musgrave Road. The southern boundaries of each of 43 and 51 Musgrave Road front Musgrave Road. In March 2016, Bishopp Outdoor Advertising Pty Ltd (Bishopp) made application to the Council for a permit to place an advertising sign on 43 Musgrave Road. At that point, Keyser Island did not own 43 Musgrave Road. Bishopp’s application was approved (the Bishopp approval) and a permit to erect a sign issued on 30 May 2016. That permit allowed a sign of 42.411 square metres being of rectangular shape with a height of 3.35 metres and a width of 12.66 metres. The permit prescribed the location for the sign as the south-eastern corner of 43 Musgrave Road. The south-eastern corner is on the opposite side to the common boundary with 51 Musgrave Road. No sign was erected pursuant to the Bishopp approval. It is common ground that the Bishopp approval will not be acted upon. In June 2018, Great Site applied to the Council for a permit to place a sign on 43 Musgrave Road pursuant to a licence agreement between it and Keyser Island. That application was approved and that approval is “the decision” now under challenge. Great Site’s permit allowed for a sign of 42.4 square metres. It, like the Bishopp sign, is rectangular but is much higher than it is wide. It is 11.3 metres high and 5.3 metres wide. Its position on 43 Musgrave Road is in the western corner of the lot on the boundary with 51 Musgrave Road. The sign has been constructed. Reasons for the decision were requested by Mr Leahy.[3] Mr Leahy was entitled to reasons.[4] Reasons have never been delivered. This is because the delegate of the Council who made the decision has left the Council’s employment and has not, and will not, provide a statement of reasons. [3]Judicial Review Act 1991, s 32.[4]Judicial Review Act 1991, ss 4, 31 and 32. Mr Leahy filed his application for a statutory order of review on 9 November 2021, almost three years after the decision. Ground 1 of the application for review is that Mr Leahy was not afforded natural justice. Grounds 2, 3, 4, 5 and 6 rely on various of the grounds of review prescribed by s 20 of the Judicial Review Act 1991 (the JR Act). All these grounds are, one way or another, based primarily on the same complaint. Mr Leahy says that the delegate failed to apply the statutorily mandated criteria, and instead, compared the impact of the Great Site sign with the potential impact of the Bishopp sign and, upon concluding that the Great Site sign was of lesser impact, granted the approval, which is “the decision”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Jones v State Coroner,[17] Wilson J wrote:[17](2019) 1 Qd R 525.“[35] The term ‘reasonable’ time is not defined in the JRA. [36]Section 26(4) JRA sets out matters which the Court must and may have regard to when forming an opinion as to whether this application was made within a reasonable time after the decision was made. [37]As to the mandatory matters, s 26(4) JRA sets out two matters which the court must consider in determining this issue: 1. the time when the applicant became aware of the decision;[18] and [18]Judicial Review Act 1991, s 26(4)(a)(i).2. the period prescribed for the applicant’s brother, Mr Brian Jones, to make an application for a statutory order of review in relation to the first decision.[19] [38]Section 26(4)(b) JRA then states the court may have regard to such other matters as it considers relevant. The JRA does not contain any criteria as to what is, or may be, relevant in relation to such matters as the Court considers relevant. There are no Queensland decisions in which any relevant principles have been addressed.[20] [39]However, a body of case law has developed a series of non-exhaustive principles that may be relevant to an application to extend time beyond 28 days under s 26(1)(b) JRA. Those principles have been applied by this Court.[21] [40]Those principles, in relation to extension of time, were distilled by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[22] and often cited since[23] and include the existence of a satisfactory explanation, notions of what was fair and equitable in the circumstances, whether any prejudice would be occasioned to the respondent, the public interest and (where such a view was possible) the merits of the substantial application for review.[24] [41]In Johnson v Holmes & Ors,[25] O’Loughlin J, when considering an analogous federal provision to s 26(4) JRA, held that the extension of time principles have ‘equal force and effect when considering whether or not an application has been made within ‘a reasonable time’ after the making of the relevant decision where no time constraints are imposed’.[26] [42]To those factors should be included: 1. the extent of the delay;[27] 2. the effect on the applicant if this Court refused to consider this application;[28] and 3. the seriousness of the consequences of any error to the applicant.[29] [43]Those principles are non-exhaustive, and their application and weight depends upon all of the relevant factual circumstances at play.”[30] (emphasis in original; underlining added)[19]Judicial Review Act 1991, s 26(4)(a)(ii).[20]In Remondis Australia Pty Ltd v Ipswich City Council [2015] 1 Qd R 329, Peter Lyons J identified the time the applicant became aware of the decision and then determined that the application was made within a reasonable time without express consideration of any other factors (335 [43]–[44]).[21]Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, 372 (Thomas J). See also Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, 665 (Moynihan J).[22](1984) 3 FCR 344.[23]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348–350. See also Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, 372 (Thomas J); Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, 665 (Moynihan J).[24]Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, 372 (Thomas J) referring to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.[25](1997) 49 ALD 430.[26]Johnson v Holmes & Ors (1997) 49 ALD 430, 435.[27]Lindsay v Director of Professional Services Review [2011] FCA 262, [12] (Edmonds J).[28]Mustafa v Chief Executive Officer, Centrelink (2000) 63 ALD 419, 421 [11] (Whitlam J).[29]Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2007] QSC 286, [40] (a factor considered by Douglas J). Overturned on appeal but not on that point: Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2008] 2 Qd R 495.[30]Lucic v Nolan (1982) 45 ALR 411, 417 (Fitzgerald J).

Ratio Decidendi

Legal Principle Established

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