Towers v Building and Dispute Resolution Committee
[2012] QPEC 28
•18/04/2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Towers v Building and Dispute Resolution Committee & Ors [2012] QPEC 28
PARTIES:
BRENTON TOWERS
(Applicant)V
BUILDING AND DISPUTE RESOLUTION COMMITEE
(First respondent)And
BUNDABERG REGIONAL COUNCIL
(Second respondent)And
R DREW T/A BURNETT COUNTRY CERTIFIERS
(Third respondent)FILE NO/S:
49 of 2011
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Bundaberg
DELIVERED ON:
18/04/2012
DELIVERED AT:
BRISBANE
HEARING DATE:
05/03/12
JUDGE:
Searles DCJ
ORDER:
APPEAL IS DISMISSED
APPELLANT TO PAY THE COUNCIL’S COSTS TO BE ASSESSED ON A STANDARD BASIS
CATCHWORDS:
Appeal - s 479 of the Sustainable Planning Act 2009 – Error or mistake in law – Lack of jurisdiction – Costs
APPERANCES:
Applicant: B.Towers (Self Represented)
Respondent: M.Connor (Connor O’Mera)
Appeal
This is an appeal pursuant to s 479 of the Sustainable Planning Act 2009 (SPA) against the decision of the Development Dispute Resolution Committee (Committee). The appellant appealed to the Committee pursuant to s 527 of SPA against the decision of Burnett Country Certifiers (BCC) as Assessment Manager, at the direction of the Council as Concurrence Agency, to refuse a Development Application (DA) for a Building Code of Australia (BCA) Class 10a structure. That structure is a gazebo referred to as a Bali Hut being an open sided shade structure with thatched roof associated with a swimming pool on site.[1] The appellant was self-represented in this appeal.
[1]A committee decision page 1, Exhibit BJG 13 to affidavit BJ Geaney 19/12/2011
Nature of Appeal
SPA s 479 entitles the Appellant to appeal only on the grounds:-
(a) of an error or mistake in law on the part of the committee; or
(b) that the committee had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision.
The appellant relies upon an error or mistake in law on the part of the committee.
Background
Over four years ago, the appellant built the Bali Hut on Lot 31 SP168978 situated at 14 Balaam Drive, Kalkie Bundaberg.[2] It is common ground that the construction amounted to assessable building work under the Building Act 1975 (BA) requiring a Development Permit for building works which was not obtained.
[2]Appellant affidavit 17/2/2012, paragraph 3
In March 2011, the structure came to the attention of the Council whose officers where concerned about the location of the structure because it appeared to infringe the six metre setback requirement of the Queensland Development Code (QDC).[3] It was considered that the failure to satisfy the setback requirements would require a sighting concession from the Council as a concurrence agency for a Building Development Application.[4]
Request for Concurrence Agency Assessment
[3]QDC MP 1.2, Figure 1 – Design & Siting of Buildings and Structures, Performance Criteria P1 and Acceptable Solution A1
[4]Affidavit BJ Geaney, paragraphs 2 and 5
On 20 May 2011, the appellant lodged a Request for Concurrence Agency Assessment – Building, to the Council acting as a Referral Agency (Concurrence)[5] seeking assessment of the Design & Siting of the Bali Hut and acknowledging in the description of the proposal that it required a siting concession for building approval. That siting concession application constituted a variation application within section 38 of BA and triggered section 57(2) of that Act which vests a discretion in the Council as Concurrence Agency. Under section 57(2)(a) the Council as Concurrence Agency was to determine whether the design or specification of the structure complies generally with the QDC.
Queensland Development Code
[5]Sustainable Planning Regulation 2009 – Schedule 7, Table 1, Items 17, 19, 20 and 21
The relevant part of the QDC is to be found in NP 1.2 – Design and Siting Standards for Single Detached Housing – on Lots 450m2 and over and particularly Element 1 – Design and Siting of Buildings and Structures. The relevant parts of Element 1 are:-
| PERFORMANCE CRITERIA | ACCEPTABLE SOLUTIONS |
| Buildings and structures P 1 The location of a building or structure facilitates an acceptable streetscape, appropriate for:- (a) the bulk of the building or structure; and (b) the road boundary setbacks of neighbouring buildings or structures; and (c) the outlook and views of neighbouring residents ; and (d) nuisance and safety to public | A 1 (a) For a detached dwelling, garage or a carport the minimum road setback is :- (i) 6m. |
Grounds for Siting Concession
In his application[6] the appellant sets out particulars of his application for that siting concession in these words:-
[6]Ibid, page 5
“I am writing in relation to a siting concession for the Bali Hut Structure and would like to call out the following:
·Bali Hut not positioned on nominated street.
·Does not prevent a traffic hazard.
·Does not create a pedestrian hazard.
·Does not restrict anyone’s views.
·No service below structure.
·No service is above structure.
·Not built on an easement.
·Made with natural material –aesthetically pleasing.
·Environmentally friendly considerations.
·Structure fits in with surrounding landscape and flora growth.
·Has a positive impact on the streetscape if any – as opposed to a negative perspective.
·Gardens (including Council land/footpath) maintained to very high standard.
·Creates a welcoming multi cultural ambience to the neighbourhood, public etc.
·Not a large obtrusive structure with sharp unforgiving corners like the many sheds.
·Earthy and natural colours harmonising with surrounding vicinity.
Please refer to attached images for verification.
Relocation is not practical or viable due to many constraints to name a few:
·Limited footprint due to corner block boundaries.
·Underground sewerage pipes.
·Inevitable and irreversible damage would be suffered during relocation.
·Restriction on natural light into main residence.
·Restriction on ventilation into main residence.
·Costs prohibited.”
On that issue of relocation, the appellant in his affidavit in support of this appeal[7] said:-
“5.With respect to relocating the Bali Hut, this is not an option as I have plans drawn up for an extension to the main residence – this will hopefully encourage and facilitate grandparents from overseas to come and visit the grandchildren while sharing some of the great treasures Bundaberg region has to offer (Building Application to be submitted in March).”
Council Decision
[7]Appellant affidavit 17 February 2012, paragraph 5
By letter dated 27 May 2011[8], the Council advised the appellant of its refusal of his application and provided the following reasons for that decision:-
[8]Ibid, Exhibit BJG 6
“The location of the building does not facilitate an acceptable landscape appropriate for:-
·The bulk of the building (there are no buildings in the immediate area that share a similar bulk at this road setback); and
·The road setback of neighbouring buildings (there are no other buildings in the immediate area that share a similar road setback).
It being noted that there is sufficient area available within the property to relocate the Bali Hut to a position that will comply with the requirements of the acceptable solutions of A1 of MP 1.2 QDC.”
Appointment of Private Certifier
On 20 June 2011, the appellant appointment Mr R Drew of Burnett Country Certifiers as a Private Certifier[9] and on that day Mr Drew gave notice to the Council of his appointment.[10]
Decision of Private Certifier
[9]Section 143, Building Act 1975
[10]Ibid, Exhibit BJG 7
On 22 June 2011[11], the Private Certifier issued a Decision Notice refusing the appellant’s application. The reasons given were:-
“The sole reason for the refusal was that Bundaberg Regional Council, as Concurrence Agency for Design & Siting, directed me as the Assessment Manager, to refuse the application.”
[11]Ibid, Exhibit BJG 8
The Council as Concurrency Agency was entitled to make that direction to the Private Certifier and no issue was taken with that.
Appeal to Committee
On the same date as the Private Certifier’s decision was given, 22 June 2011, the appellant appealed to the Committee from the decision of the Council refusing his application.[12]
Grounds of Appeal to Committee
[12]Ibid, Exhibit BJG 9
The appellant’s grounds for appeal to the Committee were stated as:-
“The Bali Hut was originally built by the previous owner and wasn’t identified as not having a building approval. I applied to Council for a siting concession to rectify the situation. Brad Geaney, Council officer arranged a site inspection for 4.15 pm 30 May 2011. When I refused his request to enter my backyard, stating the streetscape is best assessed from the street, the refusal was issued immediately, without any site inspection.”
Committee Findings
The Committee delivered its decision on 17 October 2011[13] and made the following findings of fact:-
[13]Ibid, Exhibit BJG 13
·“The structure was erected without authorisation and the applicant has genuinely attempted to legitimise it through the application for a Building Permit.
·The site is a corner site at 908m² with two street frontages (Balaam Drive and Charlotte Court).
·The position of the structure provides no setback to Charlotte Court frontage of the site.
·…”
Committee’s Reasons for Decision
The Committee gave the following reasons for its decision:-
“Neighbouring properties and the wider area are characterised by streetscape of landscaped gardens and house facades, created by consistent front setbacks. The proposal conflicts with this established character. Although it is an open sided structure, it faces the swimming pool internal to the site, presenting its rear to the street. Additionally, while the QDC makes exceptions for gatehouses at the street alignment, the structure is two to three times the prescribed dimensions for such a structure and presents a blank face to the street when combined with the adjoining paling fence. The grass thatched roof, although subjectively attractive, is insufficient to render an acceptable streetscape. Finally, it was considered that the structure could be repositioned onto available space on site, without contravening QDC 1.2.”
It is from that decision the appellant now appeals.
It can be seen from those reasons that the Committee made the following points in its reasons:-
(a) that neighbouring properties and the wider area are characterised by a streetscape of landscaped gardens and house facades created by consistent front setbacks;
(b) the appellant’s proposal conflicts with this established character;
(c) although the structure is an open sided structure, it faces the swimming pool internal to the site, presenting its rear to the street;
(d) while the QDC makes exceptions for gatehouses at the street alignment, the structure is two to three times the prescribed dimensions for such a structure;
(e) the structure presents a blank face to the street when combined with the adjoining paling fence;
(f) the grass thatched roof, although subjectively attractive, is insufficient to render an acceptable streetscape; and
(g) the structure could be re-positioned onto available space on site, without contravening QDC 1.2.
Present Appeal
The appeal came before His Honour Judge Rackemann for review on 23 February 2012 when His Honour identified that the only relevant Ground of Appeal raised by the appellant was[14]:-
“Additional Error or Mistake in Law (FACT) – John Panarentos insists on inspecting inside the yard to consider its relocation. The QDC does not address the relocation of buildings in order to make them comply. The streetscape should have only been assessed from the street and not inside the property.
In summary, as John Panarentos rests his final reasoning for his decision on the fact there was available space for it to be moved, and that this reasoning was never allowed for consideration in the QDC, his decision can be considered an “error in law”.”
[14]23/2/2012 Transcript 1.12.30-40; Appellant affidavit 17 February 2012, Exhibit BMT 001, page 2
It can be seen then that the appellant in his Ground of Appeal is asserting:-
(a) that the Committee insisted on inspecting the inside of the yard to consider the issue of the relocation of the structure;
(b) QDC does not address the issue of re-location of buildings to render them compliant;
(c) the streetscape should only have been assessed in the street and not from inside the property;
(d) the Committee’s final reasoning rested on the findings that there was available space on the subject land to which the structure could be moved; and
(e) the question of availability of other available space in the land is not a consideration in the QDC so that the decision involved an error law on the part of the Committee.
His Honour allowed the appellant until 29 February 2012, the Wednesday before the Monday hearing of this appeal, to formulate any further grounds of appeal. On 29 February, the appellant advised the court that he did not intend to add any further grounds of appeal. Accordingly, the above ground is the only ground.
Any appeal should clearly identify the question of law raised so that it may be responded to.[15] The appellant did not precisely identify the error of law asserted but the appeal proceeded on the basis of what the Council took to be the grounds, namely that the Committee, in touching upon the issue of the alternative locational availability of the Bali Hut on the land, had taken into account an irrelevant consideration. I agree with the Council that that is what the ground of appeal seems to say and the appellant did not contend to the contrary. I will also deal with the Council’s submission that, strictly speaking, any decision involving the taking into account of an irrelevant consideration is more correctly categorised as an excess of jurisdiction rather than an error of law.[16] Council’s primary submission is that the issue of acceptable relocation of the Bali Hut is a relevant consideration it being an issue raised by the appellant in his original Request for Concurrence Agency Assessment[17] seeking a siting concession as I have set out.
[15]Read v Duncanson & Brittain (Quarries) Pty Ltd (1988) 2 Qd R 701 at [703]
[16]Minister for Immigration and Multicultural Affairs v Yusef [2001] 206 CLR 323 at 351
[17]Affidavit BJ Geaney, Exhibit BJG 3
I agree with that. It is clear to me that the issue of relocation was squarely raised by the appellant himself and that the Committee referring to it was considering a relevant matter raised by the appellant. The Committee did not take into account an irrelevant consideration.
But if, contrary to my finding, and the issue of relocation was an irrelevant consideration considered by the Committee, I consider that it is not such as to have effected the decision the Committee arrived at. It is not sufficient to simply identify an irrelevant consideration. Rather it must be such that it materially affected the decision.[18]
[18]HA Bachrach Pty Ltd v Caboolture Shire Council [1992] 80 LGER 230 at 237-238; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 at 40.
As to what materially affects a decision, with asserting Lansen v Minister for Environment and Heritage (2008) 102 ALD 448 at 490:
“… For a failure to take into account a relevant consideration, the test for invalidity is whether that failure could have materially affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40 per Mason J. His Honour there said:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision…
In oral submissions, counsel for the applicant contended that the Minister must show that not having considered the conditions “could not have made a difference, and that is an impossible standard in this case…”. That goes too far. The test in Peko-Wallsend 162 CLR at 40 is that it could not have materially affected the decision.”
In Lu v Minister for Immigration and Multicultural & Indigenous Affairs [2004] 141 FCR 346 at 359-36 the court said:-
“[62] Given that the Minister committed a jurisdictional error by failing to take into account a relevant consideration, it is necessary to consider whether the appellant should be denied relief on the ground that the failure could not have materially affected the Minister’s decision. A difficulty that arises here is an ambiguity in the language used by Mason J in Peko-Wallsend. What does it mean to say that a factor is so insignificant that ‘it could not have materially affected the decision’? Does it mean that a particular decision-maker probably would have reached the same conclusion if he or she had taken into account? Does it mean that on the material before the decision-maker the conclusion he or she reached was inevitable, and that the omitted consideration could not have made any difference to a rational decision-maker? Or does it mean something else?
[63] Mason J recognised the ambiguity in his formulation when he noted (at 40) that the principle was supported by ‘various expressions’ in the authorities. In R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227, one of the authorities cited by Mason J, Griffiths LJ said (at 260) that a court should not intervene, even where relevant factors had not been taken into account, ‘unless it is convinced that this would have resulted in the decision going the other way’. In Hanks v Minister of Housing and Local Government [1963] 1 QB 999, another of the cited authorities, Mega LJ (at 1020) merely said that there might be cases where the factor wrongly omitted was ‘insignificant’ and thus would not justify concluding that the exercise of power was ‘bad’.
[64] It seems to me that the correct approach is that stated in Stead and adopted by the High Court in Aala. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker’s failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker’s reasoning process is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account.
……………………….
[67] If the question was whether the Minister would have been likely to reach the same conclusion had he known the correct position concerning the drug offences, I would have little hesitation in answering in the affirmative. But as I have explained, that is not the question. The question is whether the appellant is deprived of the possibility of a successful outcome by the decision-maker’s failure to observe the requirements of s 501 A(2) of the Migration Act.”
Finally, in House v Defence Force Retirement Invest Benefits Authority [2011] 193 FCR 112 at 120-121 the following statement was made:
“[28] That statement of principle is consistent with the observations of the Court in Hill v Repatriation Commission (2005) 218 ALR 251; 85 ALD 1; [2005] FCAFC 23 (Hill) Wilcox, French and Weinberg JJ, at [81]: “If an error of law can be seen to have affected the decision reached, or arguably even possibly have done so, ordinarily the decision will be set aside”…. The remedy will go (at [82]) unless it is “manifestly clear that the error in no way contributed to the decision”.
[29] The Full Court in Hill also observed at [83] that in the context of appeals from the tribunal, the court may decline to set aside the decision, notwithstanding a demonstrated error of law, provided it considers that the tribunal arrived at a decision that was “clearly correct on the material before it”.
[30] In McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609, the Full Court (Spender, Foster and O’Loughlin JJ) at 618 accepted that s 44(4) of the AAT Act by conferring power to “make such order as [the court] thinks appropriate by reason of its decision” contemplates that if the court is of the opinion that although error of law has been demonstrated, the decision is nevertheless clearly correct on the material before the tribunal, it is open to the court to dismiss the appeal……
[31] It follows therefore that when the court is considering whether an applicant should be denied relief on the ground that a demonstrated error of law could not have materially affected the tribunal’s decision, the court must be satisfied that the error of law did not deny the aggrieved applicant of the possibility of a successful outcome (Lu) or, put another way, the error of law (ultimately relevant to the tribunal’s findings of fact) could make no difference (Gleeson CJ, ex parte Aala) to the result already reached. Dismissing an appeal in the face of a demonstrated error of law, on the ground that the decision of the tribunal is “clearly correct” necessarily means no possibility of a successful outcome on the material before the tribunal subsists. A test framed by the Full Court in Hill in terms of the court not refusing relief if satisfied that the error of law “arguably even possibly” affected the decision reached is simply an emphatic restatement of the test in Ex parte Aala and applied in Lu that relief will not be refused in the face of demonstrated error unless there is no possibility of a successful outcome. An arguable possibility remains a possibility. As to the application of Stead (above) to appeals under s 44 of the AAT Act, see Hoskins v Repatriation Commission (1991) 32 FCR 443 per Pincus J and Dolan v Australian Overseas Telecommunications Corporation (199) 42 FCR 206; 114 ALR 231; 31 ALD 510 per Spender J.”
Having regard to those statements and to the facts of this matter I am satisfied that the appellant had no possibility of a successful outcome having regard to the reasons of the Committee other than the (assumed) irrelevant consideration of relocation.
For the above reasons, the appeal is dismissed.
Costs
As to costs, the appellant submitted[19] that each party should pay their own expenses. I see no basis for the Council not recovering its costs of the appeal and I accordingly order that the appellant pay the Council’s costs to be assessed on a standard basis.
[19]Written submissions, paragraph 6
For completeness, I mention that after the hearing of the appeal, the appellant sent my Associate an email dated 6 March, a copy which is Annexure A. I arranged for a copy to be sent to the Council’s solicitors. The matters raised go to the facts of the matter and not to any Ground of Appeal raised.
ANNEXURE A
Email Sent to Associate from Applicant 06/03/2012
Hi Michael
Forgive me if this approach is somewhat unorthodox but I thought it is worth a try.
Could we ask your Honour Judge Searles:
· If you found the outcome unfavourable for us, could you please consider perhaps a compromise ? i.e we reduce the height of the Bali Hut roof by say 50% or as a second option, we change it to a flat roof ? (Not the ideal outcome for us but better than nothing)
Look forward to your reply.
Kind regards
Brenton Towers
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