Parker & Anor v Professional Certification Group Pty Ltd & Anor
[2014] QPEC 9
•24 MARCH 2014
PLANNING AND ENVIRONMENT COURT
CIVIL JURISDICTION
JUDGE RACKEMANN
P & E No 4537 of 2012
ANDREW PARKER and ANOR Appellants
and
PROFESSIONAL CERTIFICATION GROUP
PTY LTD and ANOR RespondentsBRISBANE
2.34 PM, MONDAY, 24 MARCH 2014
JUDGMENT
CATCHWORDS:
Planning and environment - appeal from a decision of the Building and Development Dispute Resolution Committee– where appellants applied to the respondent for a permit to facilitate the construction of a retaining wall and new boundary fence – where Committee’s reasons contained reference to issues which were not raised in the grounds of appeal nor the hearing – where the Committee made findings on the basis of a private meeting and inspection with adjoining owners conducted after the hearing and without notice to the parties - whether appellants were denied procedural fairness and a reasonable opportunity to be heard
COUNSEL:
M Williamson (appellant)
SOLICITORS:
Wilson Lawyers (appellant)
Brisbane City Legal Practice (co-respondent)
HIS HONOUR: This is an appeal against a decision of the Building and Development Dispute Resolution Committee given on the 22nd of October 2012, which confirmed an earlier decision of the respondent to refuse a development application for building works on land situated at 15 Ivy Street, Indooroopilly. The respondent has elected not to take an active part in the appeal to this court. The co-respondent does not oppose an order allowing the appeal and remitting the matter to the committee for consideration according to law.
An appeal to this court from the committee’s decision is limited to grounds involving error or mistake in law or an excess of jurisdiction (section 479(1) of the Sustainable Planning Act).
The appellants applied to the respondent for a permit to facilitate the construction of a retaining wall and new boundary fence. The wall and fence had been constructed, and the application was, essentially, to regularise what had been constructed. The Brisbane City Council is a concurrence agency for the development application. The development application was refused on the basis that the co-respondent, as a concurrence agency, required refusal. The concurrence agency response relied on certain performance criteria in the Queensland Development Code (QDC). As the committee noted, the wrong part of the Code was relied upon by the Council, but that made little difference, because, as the committee also observed, the performance criteria were essentially in the same form in the relevant part of the QDC.
The grounds of appeal to the committee set out the relevant performance criteria and made submissions in relation to that criteria. The reasons of the committee are contained in a little more than half a page of reasoning on page 8 of its decision. One will search in vain for any specific reference to the performance criteria, the subject of the grounds of appeal in those reasons. Instead, the committee contented itself with relying on, essentially, three things. The first is encapsulated in the first paragraph of the reasons as follows:
As the hearing was held at the subject site, the Committee was able to view the retainment wall and fence from within that property. The structure, viewed from this perspective looks entirely proportional and appropriate for the site. Similarly from that side of the wall it is very difficult to appreciate how it might impact on the adjoining property owners. Immediately after the hearing the Committee met with the adjoining property owners on the front verandah of their home. Upon entering the adjoining property, the impact that this wall makes is undeniably staggering. The wall is certainly not acceptable in its current form.
Putting to one side for the minute any concern about the brevity of the reasons in relation to what it was about the wall that made “undeniably staggering”, and the respects in which this was thought to be unacceptable, the most concerning aspect of this paragraph is that it relates to something that the committee did after the hearing and in the absence of parties. It is common ground that the appellants in this court:
(a)were not present when the committee met the adjoining owners;
(b)did not know and were not informed as what was said (if anything) to the committee by the adjoining owners;
(c)were not given any opportunity to respond;
(d)had not themselves viewed the wall and fence from the adjoining property owner’s premises;
(e)were not given any opportunity to make any submissions about the amenity of the wall and the fence as viewed from the adjoining property, and in particular, from the veranda, which the committee visited.
It is clear from the reasons that the private inspection (private in the sense of excluding the parties) by the committee from the adjoining property was an influential factor in the decision making, and something upon which it made findings, particularly about the level of impact and its acceptability. In the circumstances, the committee’s conduct in proceeding with the inspection and meeting with the adjoining owners in a way which excluded (or failed to invite the inclusion of) the appellants from the meeting and viewing which occurred only after the completion of the hearing, and without informing the appellants of anything that occurred during the meeting until the decision was delivered and then only to the extent disclosed in the decision involved, as counsel for, the appellant contends, quite a profound denial of procedural fairness to the appellants.
I am conscious that the conduct of hearings in the committee is not governed by the same rules as in the Planning and Environment Court. In particular, pursuant to section 561(1), in conducting a hearing the committee need not proceed in a formal way, is not bound by the rules of evidence, can inform itself in the way it considers appropriate, and may seek the views of any person. That does not, however, manifest a legislative intent to exclude the requirements of natural justice and procedural fairness. So much so is emphasised by the further provision in section 561(1)(e) that the committee, in conducting a hearing,
must give all persons appearing before it reasonable opportunity to be heard.
In the case of the appellants that reasonable opportunity to be heard is not given where the parties are left in the dark about a meeting which the committee has had after the hearing with another person or persons including an inspection which it carried out, without any opportunity for participation by the appellants, or any opportunity for them to respond to what the committee gleaned from such meeting and inspection, and without giving the parties an opportunity to be heard about those matters.
In my view, this is a clear case where a reasonable opportunity to be heard has not been afforded for those reasons alone.
The second reason which appears from the committee’s decision relates to the Filling and Excavation Code of City Plan. In this regard the committee said as follows:
Council’s condition 14 on Retainment Walls, contained in their approval package, stated that the retainment wall is to be in accordance with the Filling and Excavation Code. The boundary wall structure cannot comply with the acceptable measures of this Code, the first part of which states:
A1.1 A retaining wall is set back at least half the height of the wall from any boundary of the site.
A1.2 Retaining walls over 1.5m are stepped 0.75m for every 1.5m in height, terraced and landscaped
.
A1.3 Retaining wall finishes that present to adjoining land are of a high quality appearance and compatible with surrounding development.
The committee finds it cannot approve the siting and design of this structure as the structure cannot and does not comply with the self assessable criteria of the Filling and Excavation Code – this being required by condition 14 of the Material Change of Use, the higher order approval.
Condition 14 of the “higher order approval” was extracted earlier as follows:
Condition 14 – Retainment Walls
Design and construct all retaining walls, and associated fences in compliance with Council’s Filling and Excavation Code.
Guideline
This condition is intended to ensure that retainment walls associated with the development, are designed and constructed in accordance with Council’s Filling and Excavation Code and the Building Code of Australia and also, to ensure that no adverse impact is created by the structures on the surrounding properties. The retaining wall designer should note that timber retainment walls facing onto Council property (including the road reserve) will not be permitted. Retainment walls facing onto road reserve or parkland are to be contained entirely within the proposed development site, including the retainment wall’s footings. If the retaining wall is higher than 1.0 metre and/or where the combined height of the retainment wall and fence exceeds 2.0 metres, a development permit for building work will need to be obtained. For any enquires about this condition, please contact the Engineering Delegate, Development Assessment.
It will be noted that the condition required compliance with the code. The committee’s reasons refer only to the acceptable solutions. As City Plan makes abundantly clear a proposal not complying with an acceptable solution must provide sufficient information to demonstrate how the corresponding performance criterion is to be met. For both code and impact assessment, the acceptable solutions represent the preferred way of complying with the performance criteria, but not the only way. (See Part 1.1 of Chapter 5 of City Plan 2000).
The committee appears either to have overlooked the fact that compliance with acceptable solutions is not mandatory, or, alternatively, to have simply failed to turn its mind to, or give reasons as to, how conflict with the Filling and Excavation Code was established, in its mind, in the absence of considering the relevant performance criteria.
This is also another example of a failure to afford procedural fairness.
It is common ground that the “issue” of the Filling and Excavation Code was not one which was relied upon by the co-respondent in requiring refusal of the application, was not mentioned in the grounds of appeal, and was not raised by the committee at the hearing in order to give an opportunity for the parties to make submissions about it.
For those reasons, the decision of the committee also miscarried in the way it dealt with the Filling and Excavation Code, in circumstances where the parties were again not afforded procedural fairness in relation to the committee’s consideration of that matter, and where the committee’s consideration was apparently infected by an error in relying on a departure from acceptable solutions, as in itself demonstrating a non-compliance with the Filling and Excavation Code. It is unnecessary for me to descend into other asserted errors in the approach to the acceptable solutions which are contained in the outline of argument for the appellants.
The second-last paragraph of the reasons provide:
Neither the council, through their assessment of the development for a small lot house, nor the Certifier for their assessment of building works, correctly identified the extent of filling along the boundary between the two adjoining sites and the subsequent impact. The drawings that were approved in both circumstances clearly demonstrated that the combined retainment wall and fence was in excess of 2.0M as measured from the natural ground line.
This appears to simply be a recitation of the circumstances which gave rise to the need for a development approval.
The third reason that the committee seems to have relied upon is contained in the one-sentence concluding paragraph to the reasons as follows:
The committee also finds that the Applicant’s appeal period had expired through the delayed and protracted process that the Applicant ultimately sought to appeal the decision.
An appeal under section 527 of the Sustainable Planning Act is to be made within 20 business day of a decision notice being given to the applicant. Assuming that the appellants (or their agent) received the decision notice on the day it was issued (10 May 2012) the written notice of appeal to the committee needed to be given to the registrar not later than 7 June 2012. By reason of section 554(4) of the Sustainable Planning Act, the registrar was to give the appellants notice stating their notice of
appeal was of no effect if it was not received within the time stated for starting the appeal. It is common ground that no such notice was given to the appellants or their agent, at any time.
At no time prior to decision, including at the hearing, were the appellants advised that the time within which the appeal was filed was an issue. The appellants were not given an opportunity to be heard on the issue. Had the appellants been given such an opportunity, they may have made submissions as to the relevant facts and the proper interpretation of the Sustainable Planning Act in relation to that issue. This is yet another respect in which the appellants were denied procedural fairness.
In the circumstances, it is clear that the appeal must be allowed. The matter will be remitted to the committee to reconsider the matter according to law.
The committee which considers the matter again should be a differently constituted committee.
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