Building and Development Committee powers: 13/12 Brisbane City Council v Watson & Anor [2012] QPEC 15

Rackemann DCJ

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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:

1. fell into error in formulating its orders or directions to give effect to its substantive decision; and
2. should have made its own decision replacing that of the Council.

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 [1990] 2 Qd R 80; Capuano v Q-Comp [2005] 1 Qd R 232 and Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] 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:

1. 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.
2. 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.
3. 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 subsection.
4. The direction of the Committee did not fall under any other part of section 564(2).
5. 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.
6. There was no occasion to remit the matter to the Council.
7. The appeal is allowed and the matter is remitted to the Committee for decision according to law.

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