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
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:
whether the appellants were afforded procedural fairness by the
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
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
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.
The appellants were not afforded procedural justice by the
Committee because the appellants:
were not present when the Committee met with adjoining
were not given an opportunity to respond;
had not themselves viewed the wall and fence from the adjoining
owners' premises; and
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
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.
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
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