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
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
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
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
"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
although the structure is an open sided structure, it faces
the swimming pool internal to the site, presenting its rear to the
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).