Building and Development Committee powers in an
appeal–whether the Committee can direct the Council to make
an alternative decision or should make the decision themselves
– error of law and jurisdiction – balance of
convenience favours making order – s 564, Sustainable
Planning Act 2009
Facts: The Brisbane City Council
(Council) appealed against a decision of the
Building and Development Committee (Committee)
which set aside an earlier decision of the Council to refuse a
request to extend the period of an approval and directed the
Council to approve the extension.
The Council accepted that the Committee had the power to set
aside the Council's decision but contended that the Committee
erred in purporting to make a decision under section 564(2)(c) of
the Sustainable Planning Act 2009 (SPA) directing
the Council to approve the extension.
The Council submitted that the Committee:
fell into error in formulating its orders or directions to give
effect to its substantive decision; and
should have made its own decision replacing that of the
The Council sought orders which would remit the matter to the
Committee for decision according to law. The Court also considered
whether the Committee's direction to the Council was within
jurisdiction otherwise, even if it did not fall within section
564(2)(c) of the SPA.
The Council submitted that the more generally expressed power in
subsection 564(1) did not extend to remitting this matter to the
Council with the direction that it approve the extension. Council
relied upon cases such as R v Dodds Ex parte Smith  2 Qd
R 80; Capuano v Q-Comp  1 Qd R 232 and Leon Fink
Holdings Pty Ltd v Australian Film Commission  CLR 672
to submit that the provisions of subsection (1) should not be read
to include a power of a remitter beyond the express and limited
power stated in section 564(2)(d)(i).
Decision: The Court held that:
An appeal to the Court from a decision of the Committee is
limited by section 479 of the SPA to errors or mistakes in law or
want or excess of jurisdiction.
Pursuant to section 564(2)(c) the Committee may set aside the
decision appealed against and may then make its own decision
replacing the decision set aside. The order made, purportedly
pursuant to section 564(2)(c) did not do that.
In purporting to act under section 564(2)(c) the Committee was
in error as to what it was permitted to do, pursuant to that
The direction of the Committee did not fall under any other
part of section 564(2).
The obligation of the Committee in making its decision was to
make orders and give directions to dispose of the matter before it.
Sometimes these orders will leave something further to be done by
the decision-maker at first instance. His Honour found that this
was not such a case.
There was no occasion to remit the matter to the Council.
The appeal is allowed and the matter is remitted to the
Committee for decision according to law.
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