Appeal – s 479 of the Sustainable Planning Act 2009 – Error or mistake in law – Lack of jurisdiction – irrelevant consideration considered – Costs
Facts: This was an appeal to the Planning and Environment Court pursuant to the s 479 of the Sustainable Planning Act 2009 (Qld) (SPA) against a decision of the Building and Dispute Resolution Committee (BDR Committee).
The Appellant originally appealed to the BDR Committee pursuant to s 527 of SPA against the decision of Burnett Country Certifiers (BCC) as Assessment Manager, at the direction of the Bundaberg Regional Council as Concurrence Agency, to refuse a development application for a BCA Class 10a structure, being a gazebo with an open sided shade structure with thatched roof associated with a swimming pool (Bali Hut) at the Appellant's land at 14 Balaam Drive, Kalkie in Bundaberg.
The Bali Hut was constructed in 2008 without approval and came to the Council's attention in 2011.
The Council considered that the location of the Bali Hut infringed the six metre setback requirement of the Queensland Development Code (QDC) and would require a siting concession from the Council as concurrence agency for a building development application. An application was lodged by the Appellant on 20 May 2011.
In the particulars of his application, the Appellant set out, among other considerations, that the relocation of the Bali Hut was not a viable option.
The application was refused by BCC as the assessment manager, on the direction of Council as concurrence agency.
The Appellant appealed to the BDR committee against the refusal.
The BDR committee determined that the position of the Bali Hut provided no setback to the Charlotte Court frontage of the site and concluded that the application should be refused on the following grounds:
- "neighbouring properties and the wider area are characterised by a streetscape of landscaped gardens and house facades created by consistent front setbacks;
- the appellant's proposal conflicts with this established character;
- although the structure is an open sided structure, it faces the swimming pool internal to the site, presenting its rear to the street;
- 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;
- the structure 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; and
- the structure could be re-positioned onto available space on site, without contravening QDC 1.2."
The Appellant then appealed to the Planning and Environment Court against the BDR Committee's decision.
The Appellant submitted that the issue of relocating the Bali Hut should not have been considered by the BDR committee in making its decision.
The question before the Planning and Environment Court was whether the BDR Committee had considered an irrelevant consideration in refusing the Appellant's application, and if it had considered an irrelevant consideration, whether the consideration of such had materially affected the decision.
The Council argued that the Appellant had raised the issue of relocation in his original application and as such, the issue was open to the address of the BDR Committee.
Decision: The Court held that:
- the issue of relocation was squarely raised by the Appellant himself and that the BDR Committee referring to it was considering a relevant matter raised by the Appellant. The BDR Committee did not take into account an irrelevant consideration
- if the issue of relocation was an irrelevant consideration considered by the BDR Committee, it is not such as to have affected the decision the BDR Committee arrived at. It is not sufficient to simply identify an irrelevant consideration. Rather it must be such that it materially affected the decision.
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