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Brisbane City Council v Erlbaum[2015] QPEC 46

Brisbane City Council v Erlbaum[2015] QPEC 46

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Erlbaum [2015] QPEC 46

PARTIES:

Brisbane City Council

(appellant)

v

Michael Erlbaum & Erez Erlbaum

(respondents)

FILE NO.:

3154/14

PROCEEDING:

Appeal

DELIVERED ON:

14 September 2015

DELIVERED AT:

BRISBANE

HEARING DATE:

16 April 2015

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed, the decision of the Committee set aside and the matter is remitted to the Committee to determine according to law.

CATCHWORDS:

PLANNING AND ENVIRONMENT – BUILDING WORK – APPEAL FROM DISPUTE RESOLUTION COMMITTEE – whether building was ‘dangerous’ by reason of inadequate fire separation – relevance of Queensland Building Work Enforcement Guidelines – whether Committee’s decision infected with error by reason of reference to the Guidelines – where Committee relied on smoke alarms to conclude that the building was not dangerous – where outstanding application for approval for change in classification to reflect current use – where Committee erred by , rather than considering and deciding that the smoke alarms would allow opportunity to escape in the event of fire

COUNSEL:

L Godfrey (Solicitor) for the appellant

P Smith for the respondent (direct brief)

SOLICITORS:

Brisbane City Legal Practice for the appellant

  1. [1]
    This appeal is against the decision of the Building and Development Dispute Resolution Committee (the Committee) made on 16 July 2014.  By that decision, the Committee set aside an enforcement notice (fourth enforcement notice) which had been issued by the appellant pursuant to s 248 of the Building Act 1975.
  2. [2]
    Appeals from the Committee are limited to the grounds of error or mistake in law or want or excess of jurisdiction.[1]  The appellant contends that the Committee erred in law and reached a decision which was manifestly unreasonable. 
  3. [3]
    Section 248 of the Building Act permits a local government to give an enforcement notice in a number of circumstances, one of which is if the local government reasonably believes the building to be dangerous.  Ordinarily a local government must give the person a show cause notice before giving an enforcement notice.  That was not done in this case, but s 248(4) of the Building Act provides that no show case notice is required if the matter about which the local government is proposing to give an enforcement notice is of a dangerous or minor nature.  The issue, before the Committee, was whether the matter, the subject of the notice, was ‘dangerous’ so as to justify the issue of the fourth enforcement notice without the appellant first going through a show cause procedure.
  4. [4]
    The subject matter of the fourth enforcement notice was fire safety.  In particular, the Council alleged that there were inadequate fire separation measures such that there was a danger in the way of potential harm to occupants in the event of fire.
  5. [5]
    In particular, it submitted to the Committee as follows:

“As a result of that inspection of the premises conducted by Council on 20 November 2013, it was determined that no fire retardant material was present within the adjoining walls and ceiling of the ground floor living areas within the principal dwelling in direct breach of the fire prevention requirements within the Building Code of Australia.

As a result there is an immediate danger that should a fire commence within any one of the separate living areas within the principal dwelling harm could come to occupants within other living areas as a result of unimpeded movement of smoke, fumes and flame to the other living areas within the premises.

It is the firmly held belief of Council that non-compliance with the fire prevention requirements of the Building Code of Australia, requirements that have as their source such tragic circumstances as those involved within the Inquest into the Palace Backpackers Hostel Fire and Inquest into the Death of Shone Landue, Gary Reid and Stanley Doolan, fulfils the requirements of:

  1. ‘Immediate Hazard’ as detailed within The Queensland Department of Infrastructure and Planning “Queensland Building Work Enforcement Guidelines” (2002);
  2. ‘Fire Hazard’ as defined within the Building Code of Australia; and
  3. ‘Danger’ and ‘Hazard’ as defined with the Macquarie Concise Dictionary.”
  1. [6]
    The Committee found that “the degree of risk does not represent an immediate hazard such as to find a building ‘dangerous’ as that term is commonly understood” and so concluded that a show cause notice ought to have been issued prior to any enforcement notice.  The Committee’s decision would, at first blush, appear to rest on the basis of a finding of fact.  The appellant asserts, however, that the Committee’s finding was influenced by relevant error of law.
  2. [7]
    The dispute between the appellant and the respondent in relation to the building the subject matter of the fourth enforcement notice was longstanding.  The building (a dwelling house) was acquired by the respondents in 1999.  In February 2012 a building certifier approved additions to the rear of and under the existing dwelling.  The building work, so approved, resulted in three discrete living areas within the dwelling, one of which was upstairs, over the remaining two downstairs.
  3. [8]
    As a result of an inspection on 9 March 2012 the appellant issued an enforcement notice (the first enforcement notice) requiring building work to cease and for the respondents to make an application, for assessment under City Plan, for the raising of the existing dwelling and for a non-compliant setback.  Such an application was made and was approved by the appellant on 5 October 2012. 
  4. [9]
    The appellant subsequently formed the view that the building was being used as a multi-unit dwelling, without approval.  Following a show cause procedure, it issued an enforcement notice (the second enforcement notice) about that use.  The issue of the second enforcement notice was appealed to the Committee.  That appeal was successful on the basis that the Committee was not satisfied that the Council had presented sufficient evidence to establish its allegation. 
  5. [10]
    Following further enquiries and inspection, the Council issued a third enforcement notice on 28 November 2013.  That notice related to fire safety, including fire separation between the independent living areas.  On 5 September 2013 the respondents appealed to the Committee against the issue of the third enforcement notice.  On 4 March 2014 the Committee set aside the third enforcement notice, but ordered the respondents to make an application to change the BCA classification of the building from class 1a (a detached house) to class 2 (2 or more occupancy units each being a separate dwelling).  The Committee also made the following further orders:
  1. The Building Certifier in making its determination is to consider the works on the ground floor as new works and cannot apply the concessions available under the BA for lawful existing works; and
  2. The Building Certifier is to ensure that the provisions of Sch 7 of the Sustainable Planning Regulation 2009 (SPR) are considered for alternative solutions relating to any fire safety system as defined.
  1. [11]
    In reaching that decision, the Committee found that each portion of the building was then being used as a separate dwelling and therefore as a sole-occupancy unit as defined.  It concluded that the then current use of the building was as a class 2 building.  Whilst the Committee did not consider the building to be ‘dangerous’, so as to justify the issue of an enforcement notice without a show cause procedure, it formed the view that the fire safety systems did not comply with the BCA deemed‑to‑comply provisions relating to fire safety for class 2 buildings, such that performance-based alternative solutions would need to be considered in the context of an application to approve the change in classification. 
  2. [12]
    On 18 March 2014 the respondent lodged an application for a change of classification.  On 31 March 2014 the appellant sent an Information Request which asserted the need for an application for a development approval, assessable against City Plan, for a material change of use for a multi-unit dwelling, as well as for the change in classification under the Building Act.
  3. [13]
    On 10 April 2014, the council issued the fourth enforcement notice, without going through a show cause procedure.  The decision of the Committee, upon the appeal to it, maintained its earlier view that the building was not dangerous.
  4. [14]
    Although the issue about whether the building is ‘dangerous’ is the same as that agitated in the earlier appeal to the Tribunal about the third enforcement notice:
    1. (i)
      that earlier decision was not appealed to this court, in circumstances where, whilst the third enforcement notice was set aside, the respondent was ordered to make a relevant application and could have been in no doubt that the issue of fire safety remained alive between the parties;
    2. (ii)
      the issue arose again, but in respect of a new enforcement notice; and
    3. (iii)
      no estoppel was sought to be raised by the respondent.
  5. [15]
    The cause of the dispute between the parties and the urgency of the situation is now at an end.  The respondents decided to return the use of the building to that of a single detached house.  That obviates the concern about the necessity for fire separation measures applicable to class 2 buildings.  That caused me to question the continued utility of the appeal and, indeed, the appropriateness of the court entertaining it. 
  6. [16]
    Notwithstanding that change of circumstances, the appellant persists with its appeal, on the basis that it wishes to obtain a determination correcting the error which it says was committed by the Committee and which may have broader significance.  The respondents, although now not seeking to use the building in a way which would attract the necessity for upgraded fire measures, did not oppose the appeal being determined. Through Counsel they took the position of abiding the order of the court, but otherwise made submissions to assist the Court. I am prepared, in those circumstances, to entertain the appeal.
  7. [17]
    It has already been observed that the appellant was empowered to give an enforcement notice if it reasonably believed the building to be dangerous and that a show cause procedure was not required where the subject matter of the enforcement notice was of a dangerous nature.  The Committee approached the issue on the basis that it was required to determine the question of whether the building was dangerous, rather than simply whether the council could lawfully and reasonably have, in fact, believed the building to be dangerous when it issued the fourth enforcement notice.  That was the correct approach.  Section 248(4) is not expressly premised upon the belief of the local government (reasonably or otherwise).  Section 248(1) is so premised, but the proceeding before the Committee is in the nature of a re-hearing[2] and the Committee was obliged itself to consider the issue of ‘dangerous’.
  8. [18]
    The Committee’s reasons for the subject decision refer to its reasons in the appeal against the third enforcement notice.  Those earlier reasons relevantly included the following:
  1. …

In oral representations before the Committee, the Council stated that matters relating to fire safety were regarded seriously by the Council given the threat to occupants posed by house fires.

Section 248(1)(b) of the BA provides that a local government may give an Enforcement Notice to the owner of a building if it reasonably believes the building is dangerous.  Generally a local government is required to give a show cause notice before issuing the Enforcement Notice (section 248(3)) to permit the owner an opportunity to show cause why the Notice should not be issued.  However section 248(4) of the BA allows the local government to proceed straight to the issue of an Enforcement Notice in the cases where the issue is of a dangerous or minor nature. 

“Dangerous” is not defined in the BA or the SPA.  When a section of an Act uses plain words with well-known or understood meanings, there is no need to depart from those plain ordinary meanings.  Having regard to the Macquarie Dictionary “dangerous” means “full of danger or risk; causing danger; perilous; hazardous; unsafe”.

Guidance on instances when a show cause is not required is provided in the “Queensland building work enforcement guidelines” (2002) available on the Department of Housing and Public Works website (http://www.hpw.qld.gov.au/Site CollectionDocuments/qld-building-work-enforcement-guidelines.pdf).

The guidelines provide guidance to local governments on their powers and duties for the investigation and enforcement of offences under the BA and Integrated Planning Act 1997 (IPA) (as far as is material; the provisions under the former IPA and current SPA are analogous).

Section 4.2.2 of the guidelines at page 11 states:

“What constitutes a ‘matter of dangerous or minor nature’ is not defined, nor has it been tested in court.  However it is reasonable to assume dangerous is intended to refer to some circumstance where a building or structure is structurally unsound and could collapse or present another immediate hazard.

A building or structure that was lawfully constructed and remains structurally sound or intact cannot be considered dangerous because it does not meet current safety standards”

There is no suggestion that the building is structurally unsound or that it is in danger of collapse.  It may be inferred that the building is unsafe due to the absence of any early warning or protection for occupants in the upper level from a fire situation originating in the lower level of the subject building.  However the degree of risk does not represent an immediate hazard such as to find a building “dangerous” as that term is commonly understood and the Enforcement Notice should be set aside.

  1. [19]
    In its reasons for the subject decision on the fourth enforcement notice the Committee recounted the appellant’s case as follows:
  1. At paragraph 39 of the Enforcement Notice, the Council stated its belief that the premises were dangerous and that it based its view on its inspection of the premises on 20 November 2013 which found;
    1. No fire retardant materials were evident within the wall cavity to prevent the access of fire between unit 2 and unit 3.
    2. An inspection of the floor space between unit 2 and unit 1 revealed that the floor boards of unit 1 were visible and no fire retardant materials were evident.
    3. An inspection of the floor space between unit 3 and unit 1 revealed that the floor boards of unit 1 were visible and no fire retardant materials were evident.
    4. A series of windows are present within the eastern side ground floor of the primary dwelling which forms the property boundary with the adjoining property.
    5. There was no sign of an integrated fire detection or alarm system.
  1. Paragraph 49 of the Enforcement Notice further states that the Council issued the Enforcement Notice without first issuing a Show Cause Notice due to its belief that the fire separation requirements of the BCA for the dwelling on the premises had not been met and that Council bore a responsibility for ensuring the safety of the occupants of the dwelling.
  1. In submissions placed before the Committee, the Council referenced a number of studies and coroner’s cases pertaining to fires in rental premises and residential buildings other than Class 1 buildings to support its conclusion the building is dangerous.
  1. [20]
    The Committee then observed as follows:
  1. A factor in many deaths by fire is the complete absence of the fire/smoke detection system and/or a system that is not operating correctly.  The subject building does have an operating smoke alarm in each of the SOU’s which is a primary means of early warning.  Depending on the final determination by the Building Certifier on the Development Application for Building Works currently before Council, the current smoke alarm system may be deemed acceptable.  Until that determination, it is presumed that the individual smoke alarms installed in the subject building would function as required to give an early warning of a fire to the residents and allow them the opportunity to escape the premises.  Due to the availability of direct egress from each SOU the building will only be required to comply with Type C construction.  Type C construction is the lowest risk and described in the BCA as the “least fire-resistant” of the construction types.
  1. [21]
    The Committee then quoted from its earlier decision referencing the 2002 guidelines before concluding:
  1. Since that decision, there has been no material change in the construction of the subject building works.  The Committee is still of the view that although it may be inferred the building is unsafe due to the absence of any early warning or protection for occupants in the upper level from a fire situation originating in the lower level of the subject building, there are nevertheless individual smoke alarms present in each of the SOU’s.  The degree of risk does not represent an immediate hazard such as to find a building “dangerous” as that term is commonly understood.
  1. [22]
    As the Committee observed, the expression “dangerous” has no defined or special meaning for the purposes of s 248 of the Building Act.  It is a term of ordinary parlance.  The ordinary meaning of the term is involving or causing danger.  ‘Danger’ refers to a liability or exposure to harm.  There was no error in the Committee’s observation that there is no need to depart from the plain ordinary meaning of the term.
  2. [23]
    The term “dangerous” is a relative one involving matters of degree.  No particular degree of danger is expressly required in order to justify the issue of an enforcement notice without a show cause process.  The risk constituting the danger would have to be current and more than trivial but, beyond that, no particular level of danger is required.  It is sufficient that the building is dangerous. 
  3. [24]
    The question of whether a given circumstance is dangerous is one of fact. A chief complaint about the Committee’s approach however, stems from its reference to the Queensland Building Work Enforcement Guidelines 2002 (the guidelines) and, in particular s 4.2.2 of the guidelines which states:

… it is reasonable to assume dangerous is intended to refer to some circumstance where a building or structure is structurally unsound and could collapse or present another immediate hazard. 

A building or structure that was lawfully constructed and remains structurally sound or intact cannot be considered dangerous because it does not meet current safety standards.”

  1. [25]
    It is difficult to see how the cited parts of the guidelines could assist.  In that regard:
    1. (i)
      reference to the guidelines was unnecessary for interpretation, because the Committee had already concluded, correctly, that the expression “dangerous” should be given its ordinary meaning;
    2. (ii)
      the guidelines are not permissible extrinsic material, within the meaning of s 14B of the Acts Interpretation Act 1954 (Qld), even had recourse to extrinsic material been permitted in the circumstances;
    3. (iii)
      use of extrinsic material may be permitted to confirm meaning, but must be elemental to the legislative function, rather than the subsequent administration of the relevant enactment. The proper role of the guidelines, which purport to be a practical manual for “achieving compliance of building work with the provisions of the Building Act 1975 and the Integrated Planning Act 1997”, does not extend to the former;
    4. (iv)
      the guidelines do not have the benefit of any statutory provision which expressly make those relevant to a decision to issue an enforcement order under s 248 of the Building Act.[3]  These are said to have become effective on 1 September 1992.  The Integrated Planning Act was then in force, and made provision for guidelines in s 5.9.9, but the subject guidelines were not made pursuant to that provision.  The Building Act was also in force. Section 258 of that Act relates to guidelines and provides (underlining added):

258 Guidelines

  1. (1)
    The chief executive may make guidelines for matters within the scope of tis Act to help compliance with this Act.
  2. (2)
    Without limiting subsection (1), the chief executive may make the following guidelines –
    1. (a)
      a guideline about ways of complying with the pool safety standard and performing pool safety inspection functions;
    1. (b)
      a guideline about the content of a pool safety management plan;
    1. (c)
      a guideline to help local governments declare an area to be a remote area for section 246ACA.

The subject guidelines are not of a kind described in sub-section (2).  Assuming the guidelines have been made under s 258(1), their function was to assist the reader to comply with the Act.  Those cannot inform, let alone alter, the meaning of “dangerous” for the purposes of the Act or, more particularly, change the scope of what can be said to fall within the ordinary meaning of that expression.  It was for the Committee to decide whether the facts fell within the ordinary meaning of ‘dangerous’.

  1. [26]
    Moreover, reference to the excerpted paragraphs of the guidelines was prone to lead the decision maker into error in a case such as this because:
    1. (i)
      a building may be dangerous even though it is not structurally unsound or prone to collapse.  A building which is structurally sound but manifestly a fire trap under its present case may well be described as dangerous whilst that use persists;
    2. (ii)
      the expression “present another immediate hazard” may be thought to be little different from presently dangerous, but the adoption of a different expression, does not materially assist and its appearance in a paragraph which deals with structural unsoundness and the potential for a building to collapse is prone to mislead the reader into thinking that “dangerous” is not a concept which extends to a building which poses a present risk to inhabitants because of inadequate protection from the spread of fire, rather than by reason of its innate condition. Such a building can be considered dangerous, just as, for example, an unfenced swimming pool could be considered dangerous because it presents a safety risk to children, even though it is not structurally unsound or in any disrepair. 
    3. (iii)
      Whilst, under the Building Act, there may be certain concessions for lawful existing works, the statement in the second paragraph of the excerpt from the guidelines is, at best, too sweeping.  There is no reason why a building which was lawfully constructed and remains structurally sound cannot be considered dangerous by reason of its failure to meet current safety standards, at least where those standards become applicable to the building by reason of a change of use after its lawful construction and which triggers a change in classification for which it has no approval.  It may be accepted that a departure from applicable deemed-to-comply provisions regarding fire safety does not inevitably lead to the conclusion that a building is dangerous, but neither does the fact that it was lawfully constructed (as a dwelling house) and remains structurally sound mean that it cannot now be considered dangerous because of its deficient fire safety. 
  2. [27]
    It would have been better had the Committee made its findings on ‘dangerous’ without adoption of the different expression used in the guidelines, and had it expressly rejected the notion that the lawful construction of the building, as a dwelling house, could exclude it from being considered dangerous by reference to its current use as a  class 2 building and  to current fire safety standards. Reference to those passages from the guidelines would not, however justify setting aside the Committee’s decision if the decision were unaffected by any error in those.
  3. [28]
    It is evident that the Committee decided the question of dangerous by reference to the guidelines. In that regard, the Committee: 
    1. (i)
      quoted the passages from the guidelines without pointing to the inherent deficiencies or limitations of those and without distinguishing their contents, which suggests that they were given some weight;
    2. (ii)
      in its reasons in the appeal against the third enforcement noted that “there is no suggestion that the building is structurally unsound or that it is danger of collapse”, which suggests it was addressing itself to the guidelines;
    3. (iii)
      was of the view, in both cases, that “it may be inferred that the building is unsafe” for fire safety reasons; but nevertheless found that the building was not dangerous because the degree of risk “does not represent an immediate hazard”, and 
    4. (iv)
      by its adoption of the “immediate hazard” terminology from the guidelines revealed that it ultimately decided the ‘dangerous’ question by reference to the terminology of the guidelines.
  4. [29]
    It was submitted, for the appellant, that the Committee fell into error in the following respects relevant to the guidelines:
    1. (i)
      it incorrectly applied the second paragraph of the guideline when the building was not lawful in the absence of approval for its change of use;
    2. (ii)
      by applying guidelines which relate to structural unsoundness it ignored passive safety systems, such as fire separation materials and fire retarding materials which, in any event, form part of the structure of a building;
    3. (iii)
      by adopting the ‘immediate hazard’ terminology, failed to have regard to the risk that would arise only in the event of fire.
    4. (iv)
      It was submitted that the Committee failed to have regard to the extent of non-compliance with the fire separation requirements and the risk and gravity associated with that, particularly in view of the then current use of the building.   
  5. [30]
    A closer examination of the Committee’s reasons however, reveals that, notwithstanding the inherent deficiencies or limitations of the guidelines, it:
    1. (i)
      did not approach the question of dangerous on the basis that the expression could only apply to a building which is structurally unsound or prone to collapse;
    2. (ii)
      did not dismiss fire safety (particulalry safety in the event of fire) as irrelevant to the question of ‘dangerous’;
    3. (iii)
      did not regard the fact that the building had been lawfully constructed as a dwelling house and remained structurally sound and intact as excluding the prospect of it being considered dangerous because of a failure to meet current fire safety standards applicable to a clause 2 building;
    4. (iv)
      considered safety in the event of fire, particularly in paragraph 6 of its reasons; and
    5. (v)
      concluded that the “degree” of risk was insufficient to support a finding that the building was dangerous, rather than that the type of risk (ie fire safety) was irrelevant.

It is therefore difficult to identify a specific error of law which the committee fell into as a consequence of its reference to the guidelines. That does not mean however, that the appeal should be dismissed.

  1. [31]
    The Committee’s reasons are not without difficulty. Its ultimate conclusion on the ‘dangerous’ question was reached in paragraph 9 of the reasons. Having observed that there had been no material change in the construction of the building since its previous decision, the Committee acknowledged that “it may be inferred that the building is unsafe due to the absence of any early warning or protection for occupants in the upper level from a fire situation originating in the lower level of the subject building”, but went on to conclude that the building does not represent an immediate hazard such as to support a finding that it is dangerous. The appellant criticised what it saw as the Committee distinguishing between lack of safety on the grounds of fire risk on the one hand and immediate hazard or dangerousness on the other.
  2. [32]
    It is unfortunate that the Committee used the words “may be inferred” without further explanation.  When the paragraph is read as a whole, and in the context of the reasons as a whole however, it would appear that the Committee proceeded on the basis that the risk referred to was of a kind which could potentially support a finding of ‘dangerous’ but that, having considered the risk to be relevant, it found that the degree of risk was insufficient to support a finding of dangerous in this case.
  3. [33]
    In reaching its view about the degree of risk the Committee made reference, in paragraph 9 of the reasons, to the presence of smoke alarms in each sole occupation unit. That is something which it discussed in a little more detail in paragraph 6 of the reasons. Paragraph 6 also contains an observation that the required construction was of the ‘least fire resistant’ type, but the Committee did not explain what significance it attached to that nor did it suggest that fire separation measures were not ordinarily required for such construction or would not serve a useful purpose in affording time for escape and reducing risk in the event of fire. It is the smoke alarms upon which the Committee principally relied.
  4. [34]
    The appellant was critical of the Committee’s reliance on the presence of smoke alarms, because the function of those devices (namely to give warning of the existence of fire) is different from (although complementary to) the function of fire separation (namely to slow the spread of fire, giving time and opportunity to effect an escape). It does not necessarily follow that a building with smoke alarms, but without adequate fire separation, is not dangerous. It is of no great benefit to have a warning if there is insufficient time and opportunity to effect an escape.
  5. [35]
    The Committee observed that “a factor in many deaths by fire is the complete absence of the fire/smoke detection system and/or a system that is not operating correctly”. That observation is consistent with a research report which had been placed before the Committee by the Council. That supports the proposition that a building without an adequate and operational smoke alarm system may be dangerous. It might be that an alarm system is very important (or even the most important) factor for occupant safety in the event of fire. It does not follow however that a building with such a system, but inadequate fire separation,  is safe or not dangerous. The issue for the Committee was whether the building was dangerous, rather than whether it was less dangerous that if it also did not have any smoke alarms.
  6. [36]
    The Committee was influenced by the fact that there was an outstanding application for a further approval. It observed that the current smoke alarm system may be deemed acceptable by the certifier (which I take it to mean both that the smoke alarm system may be regarded as adequate as an alarm system and that the building regarded as satisfactory with such a system but without fire separation). The Committee then proceeded on a critical assumption as follows (underlining added):

“Until that determination, it is presumed that the individual smoke alarms installed in the subject building would function as required to give an early warning of a fire to the residents and allow them the opportunity to escape the premises”.

  1. [37]
      The question of ‘dangerous’ was for the Committee to decide. It was not an issue to be deferred to the certifier. If, having acknowledged that it may be inferred that the building is unsafe, the Committee was to rely upon the smoke alarm system as sufficiently mitigating the otherwise obvious risk, so as to conclude that the building ought not be found to be dangerous, then it should have satisfied itself not only that the alarm system was in place and functioning (something the appellant was prepared to accept, for the purposes of this appeal), but also that the warning given by the smoke alarms would afford an adequate opportunity for escape in the absence of the extent of time which would be afforded by fire separation measures. That ought to have been (but was not) the subject of express consideration and finding rather than assumption or presumption.

The Committee’s fact finding exercise was, as a consequence, materially influenced by an error of approach which bespecks an error of law. Given that conclusion, it is unnecessary for me to consider the further ground of appeal based on Wednesbury unreasonableness.

  1. [38]
    The appeal will be allowed, and the matter remitted to the Committee to determine according to law.  I do not consider that there is a need to direct that the Committee be differently constituted.  I note, however, that given the use of the dwelling has now changed, it would appear likely that the appellant will have no interest in persisting with its enforcement notice and the respondent to this appeal will have no interest in the further pursuit of its appeal to the Committee and the matter may be disposed of without the need for further decision.

Footnotes

[1] Sustainable Planning Act 2009 s 479.

[2] See ss 533, 561 and 564 of the Sustainable Planning Act 2009 (Qld), and Maroochydore Shire Council v Shadbolt & Anor [2006] QPEC 113 dealing with similar provisions under the Integrated Planning Act.

[3] Compare, for example, s 759 of the Sustainable Planning Act.

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Editorial Notes

  • Published Case Name:

    Brisbane City Council v Erlbaum

  • Shortened Case Name:

    Brisbane City Council v Erlbaum

  • MNC:

    [2015] QPEC 46

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    14 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Maroochy Shire Council v Shadbolt [2006] QPEC 113
1 citation
Jump To
Cite 1 - [2006] QPEC 113

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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