Australia: Court sets aside a decision of the Building and Development Committee on the basis of improper constitution and consideration of irrelevant matters

IN BRIEF

The case of Brisbane City Council v Reynolds & Anor [2017] QPEC 12 concerned an appeal by the Brisbane City Council against the decision of the Building and Development Committee to set aside a decision notice refusing a development application for building work on land situated at 91 Yabba Street, Ascot in Brisbane.

The Building and Development Committee had ordered the decision of the Brisbane City Council to refuse the development be set aside on the grounds that the Council's referral agency response was based on incorrect assessment criteria.

The Council appealed the Committee's decision on the basis that it dealt with matters not within its jurisdiction and contained an analysis of matters which ought not to have been considered. The Council also contended that the Building and Development Committee was improperly constituted under section 502(2) of the Sustainable Planning Act 2009.

The Court held that when properly construed the Applicant's appeal to the Building and Development Committee was concerned only with the Council's referral jurisdiction for the amenity and asesthetic impact of a building or structure. The Court found that in such circumstances the Committee's chairperson must be an architect.

After finding that the Committee's chairperson was not a registered architect, the Court ordered that the Committee's decision be set aside and that the appeal be remitted to the registry of the Building and Development Committee for the Chief Executive to constitute a new Building and Development Committee with appropriate members.

COUNCIL IN ITS ROLE AS A CONCURRENCE AGENCY FOR THE AMENITY AND AESTHETIC IMPACT OF A DEVELOPMENT APPLICATION FOR BUILDING WORK DIRECTED THE PRIVATE CERTIFIER TO REFUSE THE DEVELOPMENT APPLICATION

The background to the case involved the engagement in August 2016 of a private certifier to assess and decide a building development application for alterations, additions and demolition to parts of an existing house located at 91 Yabba Street, Ascot in Brisbane which was within the Traditional building character overlay of the Brisbane City Plan 2014.

The Council was a concurrence agency for the development application as the development triggered the "amenity and aesthetic impact of a building" referral trigger contained within schedule 7, table 1, item 17 of the Sustainable Planning Regulation 2009.

The private certifier as an asssessment manager for the development application, requested a concurrence agency response from the Council, which directed the private certifier to refuse the development application. The private certifier issued a decision notice advising the Applicant that the development application was refused as a consequence of the Council's assessment.

APPLICANT COMMENCED AN APPEAL IN THE REGISTRY OF THE BUILDING AND DEVELOPMENT COMMITTEE AGAINST THE DECISION TO REFUSE THE DEVELOPMENT APPLICATION

The Applicant accepted the Council's jurisdiction as a concurrence agency but opposed the assessment criteria used to refuse the development application. The Applicant submitted that the proposed development would not have an extremely adverse effect on the amenity of the locality or be in extreme conflict with the character of the locality.

The acting registrar of the Building and Development Committee subsequently notified the parties that the Chief Executive had established a Building and Development Committee to hear and decide the appeal comprising a chairperson and a referee.

The Building and Development Committee decided the appeal ordering that the Council's decision be set aside and that the private certifier reissue a decision notice for the development application on the basis that Council had no concurrence agency requirements.

COUNCIL COMMENCED PROCEEDINGS IN RESPECT OF THE COMMITTEE'S DECISION ON THE BASIS THAT IT WAS IMPROPERLY CONSTITUTED TO HEAR THE APPEAL

The Council filed an application in a pending proceeding that sought an order that the appeal be determined by way of a preliminary point. The Council's application was commenced on the basis that section 502 of the Sustainable Planning Act 2009 requires the Committee's chairperson to be an architect if it proposes to hear an appeal only about a referral agency's response concerning the amenity and aesthetic impact of a building or structure.

THE COURT FOUND THAT WHEN PROPERLY CONSTRUED THE APPLICANT'S APPEAL TO THE BUILDING AND DEVELOPMENT COMMITTEE WAS CONCERNED ONLY WITH THE COUNCIL'S CONCURRENCE AGENCY RESPONSE ABOUT THE AMENITY AND AESTHETIC IMPACT OF A BUILDING OR STRUCTURE

The Court found that the Committee's decision dealt with matters not within its jurisdiction and issues that should not have been considered. Furthermore, the Court found that there was no other reason for the Applicant to commence an appeal other than to challenge the Council's referral agency response.

Consequently, the Court determined that when properly construed the appeal was in fact only concerned with the Council's response as a referral agency for the amenity and aesthetic impact of a building or structure.

The Court then noted that the Architects Act 2002 defines an architect to be a person registered as an architect.The board, under the Architects Act 2002 is required to maintain a register of all persons who are architects. This register must be in electronic form and be open for inspection upon request.

Affidavit material filed by the Council included a search of the online register that revealed the chairperson was not included in the register. As a consequence, the Court found that the Building and Development Committee was improperly constituted and therefore had no power to hear and determine the appeal in the first instance.

THE COURT ORDERED THAT THE COMMITTEE'S DECISION BE SET ASIDE AND REMITTED BACK TO THE BUILDING AND DEVELOPMENT COMMITTEE ON THE BASIS THAT IT BE PROPERLY CONSTITUTED WITH NEW MEMBERSHIP

The Court noted the decision of Sunland Group Pty Ltd v Townsville City Council & Anor [2012] QCA 30 which highlighted the real risk of allegations of apprehended bias if the matter was remitted to the Building and Development Committee as formerly constituted. The Court therefore ordered that the appeal be remitted to the Chief Executive to form a new Building and Development Committee according to law with an architect as its chairperson.

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.

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Authors
Ian Wright
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