Australia: Court sets aside a decision of the Building and Development Committee on the basis that its chairperson was not an architect

In brief

The case of Brisbane City Council v Atkins [2017] QPEC 10 concerned an appeal by the Brisbane City Council against a decision of the Building and Development Committee to set aside a decision notice refusing a development application for building work on land situated at 27 Elystan Road, New Farm in Brisbane.

The Council filed an application in pending proceeding to have the appeal determined by way of a preliminary point. This point challenged the Building and Development Committee's jurisdiction to hear and decide the matter under section 502(2) of the Sustainable Planning Act 2009.

The Court held that the Building and Development Committee was improperly constituted under section 502(2) of the Sustainable Planning Act 2009 and therefore ordered that the Brisbane City Council's appeal be allowed.

COUNCIL DIRECTED A PRIVATE CERTIFIER TO REFUSE A DEVELOPMENT APPLICATION FOR PROPOSED BUILDING WORK FOR EXTENSIONS TO A DWELLING HOUSE

The background to this case involved the engagement in May 2016 of a private certifier to assess and decide a building development application for the approval of an extension to an existing dwelling for a metal awning in respect of land located at 27 Elystan Road, New Farm in Brisbane.

The private certifier, acting as the assessment manager for the development application, requested a concurrence agency response from the Council, which gave a response to the private certifier requiring that the development application be refused.

The Council's concurrence agency response provided for the refusal of the development application in accordance with section 288(2) of the Sustainable Planning Act 2009 on the grounds that the proposed building work would have an extremely adverse effect on the amenity or likely amenity of the locality, or be in extreme conflict with the character of the locality.

The private certifier subsequently issued a decision notice to the Applicant that refused the development application and attached the Council's concurrence agency response.

APPLICANT APPEALED THE COUNCIL'S REFUSAL ON THE BASIS THAT THE COUNCIL'S DECISION CONTAINED MATTERS THAT WERE NOT LEGITIMATELY THE SUBJECT OF AN APPEAL TO THE BUILDING AND DEVELOPMENT COMMITTEE

The Applicant subsequently commenced an appeal to the Building and Development Committee against the Council's refusal on the grounds that the Council's decision addressed matters that may not legitimately be the subject of an appeal to the Building and Development Committee.

The acting registrar of the Building and Development Committee notified the parties that the Chief Executive had established a committee comprising a chairperson and a member to hear and decide the appeal. The Building and Development Committee finally ordered the building certifier to disregard Council's concurrence agency response.

THE COUNCIL SUBSEQUENTLY APPEALED TO THE PLANNING AND ENVIRONMENT COURT AND LATER FILED AN APPLICATION IN PENDING PROCEEDING TO HAVE THE DECISION OF THE BUILDING AND DEVELOPMENT COMMITTEE SET ASIDE ON A PRELIMINARY POINT

The Applicant conceded that the Building and Development Committee had no declaratory jurisdiction and consequently the Applicant's appeal to the Building and Development Committee was seeking a declaration on matters outside of the jurisdiction of the Committee.

The Court ultimately determined that the Applicant's appeal to the Building and Development Committee was therefore limited to an appeal about the Council’s referral agency response concerning the amenity and aesthetic impact of a building or structure.

IN ORDER TO HEAR AN APPEAL DEALING ONLY WITH A REFERRAL AGENCY’S RESPONSE CONCERNING THE AMENITY AND AESTHETIC IMPACT OF A BUILDING OR STRUCTURE THE CHAIRPERSON OF THE BUILDING AND DEVELOPMENT COMMITTEE MUST BE AN ARCHITECT

Section 502(2) of the Sustainable Planning Act 2009 states that, "if the committee is to hear only an appeal about a referral agency’s response concerning the amenity and aesthetic impact of a building or structure, its chairperson must be an architect."

The Architects Act 2002 provides for the registration of architects and defines an architect as a person registered as an architect. Section 9 of the Architects Act 2002 provides for when an applicant is eligible for registration and section 10 provides for when an applicant is qualified for registration.

To successfully register as an architect in Queensland, an applicant must obtain appropriate qualifications and have successfully completed the architectural practice examination or another examination approved by the Queensland Board of Architects.

The Board is required to maintain a register of persons who meet the definition of an architect. Section 103 of the Architects Act 2002 relevantly provides that the register must be kept open for inspection and provided upon request. Section 103(2) of the Architects Act 2002 provides that the register may also be made available on the Board’s website.

BRISBANE CITY COUNCIL SUBMITTED THAT THE DECISION OF THE BUILDING AND DEVELOPMENT COMMITTEE SHOULD BE SET ASIDE AS A CONSEQUENCE OF ITS IMPROPER CONSTITUTION

The Council's affidavit material provided an online copy of the current register of architects, which revealed that the chairperson of the Building and Development Committee was not a registered architect. The Applicant did not contest this issue and accepted that the chairperson was not an architect for the purposes of section 502(2) of the Sustainable Planning Act 2009.

The Court was satisfied that the Building and Development Committee established by the Chief Executive was not properly constituted and therefore did not have the power to hear and determine the appeal in the first instance.

The Council indicated that with respect to the merits of the matter determined by the Building and Development Committee it was satisfied that an approval ought to be given. The Court therefore found it unnecessary that the matter be remitted to the Building and Development Committee.

The Court ordered that the appeal be allowed and the decision of the Building and Development Committee of 15 February 2017 be set aside, and approval be given for the development application subject to conditions.

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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