(Rackemann DCJ - 24 March 2014)

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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

Facts: This was an appeal against a decision of the Building and Development Dispute Resolution Committee (the Committee) under section 479(1) of the Sustainable Planning Act 2009 (SPA), which confirmed an earlier decision of the Respondent private certifier to refuse a development application for building works.

The building works application was retrospective, in that it was for a wall and fence that had already been constructed. The Respondent elected not to take part in the appeal. Brisbane City Council was a Co-Respondent to the appeal.

The issues for the Court to consider were:

  1. whether the appellants were afforded procedural fairness by the Committee;
  2. whether the Committee correctly applied the assessment of the building application against a condition in a higher-order development approval applying to the land, which referenced the Filling & Excavation Code in City Plan 2000; and
  3. whether the Committee was correct in finding that the appellants had filed their Notice of Appeal against the decision notice out of time, pursuant to section 527 of the SPA.

Decision: The Court held, in allowing the appeal and remitting the matter back to a reconstituted Committee:

  1. The Court must be conscious in considering an appeal against a Committee hearing that such hearings are not ordinarily governed by the same rules as the Planning and Environment Court. However, a Committee must give all persons appearing before it a reasonable opportunity to be heard.
  2. The appellants were not afforded procedural justice by the Committee because the appellants:
    1. were not present when the Committee met with adjoining owners;
    2. were not given an opportunity to respond;
    3. had not themselves viewed the wall and fence from the adjoining owners' premises; and
    4. were not given any opportunity to make submissions about the amenity of the wall and the fence as viewed from the adjoining property, and in particular, from the verandah, which the Committee visited.
  1. The Committee had overlooked the fact that compliance with acceptable solutions in the Filling and Excavation Code was not mandatory, or, alternatively, it had 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.
  2. The appellants had not been given any notice by the Registrar under section 554(4) of the SPA that the Notice of Appeal had been filed out of time. In addition, at no time prior to the decision, including at the hearing, were the appellants advised that the timing of the filing of the notice was in issue and they were not given an opportunity to be heard or make submissions on the issue.

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