Ulliana v Gold Coast City Council & Queensland Building Tribunal

[2006] QPEC 68

[2006] QPEC 068

PLANNING & ENVIRONMENT COURT

JUDGE RACKEMANN

P&E Appeal No 90 of 2006

VITTORIA AND GAUDENZIO ULLIANA

Appellants

and

GOLD COAST CITY COUNCIL

and

QUEENSLAND BUILDING TRIBUNAL

Respondent

Co-Respondent

BRISBANE

..DATE 11/07/2006

ORDER

HIS HONOUR:  I order that the Tribunal be deleted as a party to the appeal.

...

HIS HONOUR: This is an appeal against a decision of a Tribunal under the Integrated Planning Act. The decision of the Building and Development Tribunal was published on the 20th of January, 2006. Appeals to this Court against a decision of such a Tribunal are, pursuant to s4.1.37 of the Integrated Planning Act, restricted to the grounds of error or mistake in law or a want or excess of jurisdiction in making the decision.

As it happens, the respondent to this appeal, the Gold Coast City Council, does not oppose this Court so allowing the appeal and setting aside the decision of the Tribunal and remitting the matter back to the Tribunal to determine in accordance with law.

The basis of the appeal is that the Tribunal did not observe the requirements of natural justice and did not give all persons appearing before it a reasonable opportunity to be heard pursuant to s4.2.31 of the Integrated Planning Act. Each of the parties to the appeal complain of the Tribunal's failure to afford each of them a reasonable opportunity in the circumstances.

Pursuant to s4.2.28, the chairperson of a Tribunal must decide whether the Tribunal will conduct a hearing for an appeal or, if all the parties to the appeal agree, decide the appeal on the basis of written submissions.  In this case, the chairperson of the Tribunal decided to conduct a hearing and, pursuant to s4.2.29, fixed a time and place for the hearing, being 10.00 a.m. on Friday the 23rd of December, 2005 at 41 George Street, Brisbane.  Pursuant to s4.2.29 the chairperson was required to give all the parties to the appeal written notice of the time and place of the hearing.

On the day set down for the hearing, Mr Whittaker, who was an agent of the appellants, appeared on the hearing.  However, there was no appearance by the Council.  The reason for that was the relatively brief notice given to the council prior to the appointed time.  The notice fixing the time and place for the hearing was received at the council offices only on the day before the appointed time and did not come to the attention of the relevant person until the following day, after the time for the hearing in Brisbane.  Accordingly, it was submitted on behalf of the council that, by reason of the brief period of notification of a hearing outside its local government area, it was, in effect, denied a reasonable opportunity to be heard.

What then transpired was that the council forwarded a written submission to the Tribunal.  It did so without the benefit of having heard Mr Whittaker's submissions before the Tribunal.  The Tribunal then proceeded to its determination having regard to the submission of the council, but without referring that submission to the appellants to give them an opportunity to respond to any of the matters put forward by the council.  It is in this regard that the appellants, quite rightly, complain of a breach of the rules of natural justice which had the effect that they did not have a reasonable opportunity to be heard in respect of the matters to which the Tribunal had regard.

For those reasons I am satisfied that the appellant has made out an error on the part of the Tribunal which falls within s.4.1.37 and that the appeal ought to be allowed and the Tribunal's decision set aside. In the circumstances the appropriate course to take is that provided for in s.4.1.38, namely that the matter is remitted to the Tribunal to be decided in accordance with law.

...

HIS HONOUR: I should add that the solicitor for the council quite appropriately raised the timeliness of the appeal. Pursuant to s.4.1.37(2) the appeal must be started within 20 business days after the notice of the Tribunal's decision is given to the party.

...

HIS HONOUR:  The affidavit of Mr Whittaker establishes that the Tribunal's decision was given by way of a facsimile on the 25th of January, 2006 notwithstanding its earlier date.  In those circumstances it was within time although, even had it been out of time by a few days, I would have been inclined to exercise my power to extend time.

A further matter with which I should deal concerns the heading to the notice of appeal.  The appeal was initially filed in a form which did not have a heading.  On the 23rd of June I gave Mr Whittaker leave to file an amended notice of appeal to include a proper heading.  I have already, this morning, ordered the deletion of the Queensland Building Tribunal as a party.

The remaining matter to mention is that the appellant was named as Mr Whittaker as agent for Vittoria and Gaudenzio Ulliana.  More accurately, the appellant should be named simply as Vittoria and Gaudenzio Ulliana and I order that the notice of appeal be amended accordingly.

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