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  4. Leahy v Brisbane City Council - [2022] QSC 200

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Leahy v Brisbane City Council[2022] QSC 200

Reported at (2022) 11 QR 809

Leahy v Brisbane City Council[2022] QSC 200

Reported at (2022) 11 QR 809

SUPREME COURT OF QUEENSLAND

CITATION:

Leahy v Brisbane City Council & Ors [2022] QSC 200

PARTIES:

RICHARD JOHN LEAHY

(applicant)

v

BRISBANE CITY COUNCIL

(first respondent)

REINET INVESTMENTS PTY LTD

(ACN 641 633 267)

(second respondent)

KEYSER ISLAND PTY LTD

(ACN 606 498 917)

(third respondent)

FILE NO/S:

BS No 13261 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2022

JUDGE:

Davis J

ORDERS:

  1. The decision of the Council made on 18 December 2018 approving the construction of an electronic advertising billboard on 43 Musgrave Road, Red Hill be set aside.
  2.  The application for approval of the sign be further considered by the Council.
  3.  The applicant file and serve upon any respondent, against whom he seeks costs, by 27 September 2022 any written submission on costs of the application.
  4. Any respondent upon whom the applicant serves costs submissions may file and serve upon the applicant by 4 October 2022 any written submission on costs of the application.
  5.  Each party have leave to file and serve by 11 October 2022 any application for leave to make oral submissions on costs.
  6.  In the absence of any application to make oral submissions on costs of the application being filed by 11 October 2022, the question of costs will be decided on any written submissions and without further oral hearing.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – TIME FOR APPLICATION – EXTENSION OF TIME – GENERALLY – where the respondent Council approved the installation of a billboard sign – where the sign was erected adjacent to the boundary of the applicant’s land – where the applicant alleged error in the decision to approve the billboard sign – where the applicant applied for judicial review of the decision – where no reasons were given – whether the applicant must apply within a “reasonable time” of the decision – consideration of the factors relevant to calculation of “reasonable time” – whether any extension of time needed to be sought – consideration of relevant factors to an extension of time

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – RIGHTS AND INTERESTS AFFECTED BY THE DECISION – where the respondent Council approved the installation of a billboard sign – where the sign was erected adjacent to the boundary of the applicant’s land – where the applicant applied for judicial review of the decision – where the applicant alleged he had not been heard on the application for approval of the sign – whether the applicant had an interest in the approval – whether the applicant was a member of an identifiable class of persons affected by the approval – whether a duty to afford procedural fairness arose

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – MANDATORY CONSIDERATIONS – FAILURE TO CONSIDER – where the respondent Council approved the installation of a billboard sign – where the sign was erected adjacent to the boundary of the applicant’s land – where the applicant applied for judicial review of the approval – where the sign obstructed the applicant’s views from his property – whether consideration of views was a mandatory consideration – whether the Council failed to consider views

Advertisements Local Law 2013, s 2, s 5, s 8, s 9, s 10, s 11, s 12, s 13, s 13A, s 18, s 19, s 20, s 21, s 22, s 23, s 24

Advertisements Subordinate Local Law 2005, s 2, s 6, s 7, s 7A, s 8

City of Brisbane Act 2010, s 3, s 29

Environmental Planning and Assessment Act 1979 (NSW)

Judicial Review Act 1991, s 4, s 7, s 20, s 23, s 26, s 32, s 33, s 34, s 35, s 36, s 37, s 39

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited
Annetts v McCann (1990) 170 CLR 596, followed

Bezzina Developers Pty Ltd v Deemah Store (Qld) Pty Ltd [2007] QSC 286, cited

Bollag v The Attorney-General (Cth) (1997) 79 FCR 198, cited

Castle v Director General State Emergency Service [2008] NSWCA 231, cited

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, cited

Currie v Dempsey [1967] 2 NSWR 532, cited

Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2022] QCA 94, cited

FAI Insurance Ltd v Winneke (1982) 151 CLR 342, followed

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, followed

Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, followed

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, followed

Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, cited

Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123, cited

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, considered

Idonz Pty Ltd v National Capital Development Commission (1985) 58 LGRA 99, considered

Johnson v Holmes & Ors (1997) 49 ALD 430, not followed

Johnson v Holmes & Ors¸ unreported, Full Court of the Federal Court of Australia, Wilcox, Tamberlin and Merkel JJ, 18 November 1993, cited

Jones v State Coroner (2019) 1 QR 525, not followed

Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154, cited

Kioa v West (1985) 159 CLR 550, followed

Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, cited

Lindsay v Director of Professional Services Review [2011] FCA 262, cited

Medway v Minister for Planning (1993) 30 NSWLR 646, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, followed

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, followed

Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, cited

Mustafa v Chief Executive officer, Centrelink (2000) 63 ALD 419, cited

MZAPC v Minister for Immigration and Border Protection & Anor (2021) 390 ALR 590, cited

Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, followed

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, cited

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, cited

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, cited

Shrimpton v The Commonwealth (1945) 69 CLR 613, followed

Stead v State Government Insurance Commission (1986) 161 CLR 141, cited

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed

The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507, followed

Transport Action Group against Motorways Inc v Roads and Traffic Authority & Anor (1999) 46 NSWLR 598, cited

Vanmeld Pty Ltd v Fairfield City Council & Anor (1999) 46 NSWLR 78, considered

Vines v Djordjevitch (1955) 91 CLR 512, cited

COUNSEL:

MT Brady QC with DC Fahl for the applicant

G Beacham QC with D Quayle for the first respondent

BI McMillan for the second respondent

MP Fallon, Director of the third respondent

SOLICITORS:

Cochrane Leahy Litigation for the applicant

City Legal for the first respondent

Norton Rose Fulbright Australia for the second respondent

  1. [1]
    The applicant (Mr Leahy) owns property at 51 Musgrave Road, Red Hill (51 Musgrave Road) which adjoins 43 Musgrave Road, Red Hill (43 Musgrave Road) which is owned by the third respondent (Keyser Island).  On 18 December 2018, the first respondent (the Council) approved an application by Great Site Pty Ltd (Great Site) to erect a sign on 43 Musgrave Road (the decision).  The second respondent (Reinet) owns the sign now erected by authority of the decision. 
  2. [2]
    By way of application for a statutory order of review, Mr Leahy seeks an order quashing the decision and he seeks other relief.  The decision is one of an administrative character made under an enactment[1] and Mr Leahy is a party aggrieved by the decision.[2]

Background

  1. [3]
    Musgrave Road is a major Brisbane Road running west away from the Brisbane Central Business District.  On 43 Musgrave Road is a one-storey commercial building and a two-storey residence.  On 51 Musgrave Road is a residence.
  2. [4]
    Both 43 and 51 Musgrave Road are on the inbound side of the road as one travels towards the Brisbane CBD.  51 Musgrave Road sits to the west (the outbound side) of 43 Musgrave Road.  The eastern boundary of 51 Musgrave Road is shared with the western boundary of 43 Musgrave Road.  The southern boundaries of each of 43 and 51 Musgrave Road front Musgrave Road.
  3. [5]
    In March 2016, Bishopp Outdoor Advertising Pty Ltd (Bishopp) made application to the Council for a permit to place an advertising sign on 43 Musgrave Road.  At that point, Keyser Island did not own 43 Musgrave Road.  Bishopp’s application was approved (the Bishopp approval) and a permit to erect a sign issued on 30 May 2016.  That  permit allowed a sign of 42.411 square metres being of rectangular shape with a height of 3.35 metres and a width of 12.66 metres.  The permit prescribed the location for the sign as the south-eastern corner of 43 Musgrave Road.  The south-eastern corner is on the opposite side to the common boundary with 51 Musgrave Road.
  4. [6]
    No sign was erected pursuant to the Bishopp approval.  It is common ground that the Bishopp approval will not be acted upon. 
  5. [7]
    In June 2018, Great Site applied to the Council for a permit to place a sign on 43 Musgrave Road pursuant to a licence agreement between it and Keyser Island.  That application was approved and that approval is “the decision” now under challenge.  Great Site’s permit allowed for a sign of 42.4 square metres.  It, like the Bishopp sign, is rectangular but is much higher than it is wide.  It is 11.3 metres high and 5.3 metres wide.  Its position on 43 Musgrave Road is in the western corner of the lot on the boundary with 51 Musgrave Road.  The sign has been constructed.
  6. [8]
    Reasons for the decision were requested by Mr Leahy.[3]  Mr Leahy was entitled to reasons.[4]  Reasons have never been delivered.  This is because the delegate of the Council who made the decision has left the Council’s employment and has not, and will not, provide a statement of reasons. 
  7. [9]
    Mr Leahy filed his application for a statutory order of review on 9 November 2021, almost three years after the decision. 
  8. [10]
    Ground 1 of the application for review is that Mr Leahy was not afforded natural justice.  Grounds 2, 3, 4, 5 and 6 rely on various of the grounds of review prescribed by s 20 of the Judicial Review Act 1991 (the JR Act).  All these grounds are, one way or another, based primarily on the same complaint.  Mr Leahy says that the delegate failed to apply the statutorily mandated criteria, and instead, compared the impact of the Great Site sign with the potential impact of the Bishopp sign and, upon concluding that the Great Site sign was of lesser impact, granted the approval, which is “the decision”. 
  9. [11]
    The Council submits that:
    1. (a)
      Mr Leahy’s application is out of time;
    2. (b)
      Mr Leahy is not entitled to be heard on any application for approval of the Great Site sign;
    3. (c)
      the delegate did apply the statutory criteria, or at least Mr Leahy has not proved that he did not.
  10. [12]
    Mr Leahy denies that his application has been filed out of time.  He says he filed within a “reasonable time” as he was obliged to do.[5]  If that is found against him, he submits that he should be granted an extension of time.  He seeks such an extension purportedly pursuant to s 26(1)(b) of the JR Act.  As later explained, s 26(1)(b) is of no relevance here.  If Mr Leahy has not filed his application within a “reasonable time”, s 26(3) comes into play and the Council must persuade the Court not to hear Mr Leahy’s application and to dismiss it summarily.
  11. [13]
    Reinet takes no issue as to the time of Mr Leahy’s filing of the application, but otherwise opposes it on the submissions advanced by the Council.
  12. [14]
    Keyser Island appeared through its director, Mr Fallon, who advised the Court that his company wished to take no part in the application and would abide the order of the court.  The other parties advised the court that none of them would seek costs orders against Keyser Island.

The timing issue

  1. [15]
    Section 26 of the JR Act provides:

“26 Period within which application must be made

  1. (1)
     An application to the court for a statutory order of review in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was given to the applicant (including a decision that a person purported to make after the end of the period within which it was required to be made) must be made within—
  1. (a)
     the period required by subsection (2); or
  1. (b)
     such further time as the court (whether before or after the end of that required period) allows.
  1. (2)
     The period within which an application for a statutory order of review is required to be made is the period beginning on the day on which the decision is made and ending 28 days after the relevant day.
  1. (3)
     If—
  1. (a)
     there is not a period prescribed for the making of an application for a statutory order of review in relation to a particular decision; or
  1. (b)
     there is not a period prescribed for the making of an application by a particular person for a statutory order of review in relation to a particular decision;

the court may take the following action if it is of the opinion that the application was not made within a reasonable time after the decision was made—

  1. (c)
     if paragraph (a) applies—refuse to consider an application for a statutory order of review in relation to the decision;
  1. (d)
     if paragraph (b) applies—refuse to consider an application by the person for a statutory order of review in relation to the decision.
  1. (4)
     In forming an opinion for the purposes of subsection (3), the Court—
  1. (a)
     must have regard to—
  1. (i)
     the time when the applicant became aware of the decision; and
  1. (ii)
     if subsection (3)(b) applies—the period prescribed for the making by another person of an application for a statutory order of review in relation to the decision; and
  1. (b)
     may have regard to such other matters as it considers relevant.
  1. (5)
     In subsection (2)—

relevant day means—

  1. (a)
     if the decision includes, or is accompanied by a statement giving, the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or
  1. (b)
     if paragraph (a) does not apply and a written statement giving the reasons for the decision is given to the applicant (otherwise than because of a request under section 32) not later than 28 days after the day on which a document setting out the terms of the decision is given to the applicant—the day on which the statement is given; or
  1. (c)
     if paragraph (a) does not apply and the applicant requests the person who made the decision to give a statement under section 32—the day on which—
  1. (i)
     the statement is given; or
  1. (ii)
     the applicant is notified under section 33(2) that the applicant was not entitled to make the request; or
  1. (iii)
     the applicant is notified under section 33(5) or 37 that the statement will not be given; or
  1. (iv)
     the court makes an order under section 39 declaring that the applicant was not entitled to make the request; or
  1. (d)
     in any other case—the day on which a document setting out the terms of the decision is given to the applicant.” (emphasis added)
  1. [16]
    By s 26, time is usually calculated by reference to the date reasons for the decision are delivered by the decision-maker.[6]  The delivery of reasons is governed by Part 4 of the JR Act.  Relevantly, ss 32, 33 and 34 provide:

“32 Request for statement of reasons

  1. (1)
     If a person makes a decision to which this part applies, a person who is entitled to make an application to the court under section 20 in relation to the decision may request the person to provide a written statement in relation to the decision.
  1. (2)
     The request must be made by written notice given to—
  1. (a)
     if the decision was made by the Governor in Council or by Cabinet—the Minister responsible for the administration of the enactment, or the scheme or program, under which the decision was made; or
  1. (b)
     in any other case—the person who made the decision.

33 Decision-maker must comply with request except in certain circumstances

  1. (1)
     Subject to this section, a person to whom a request is made under section 32 (the decision-maker) must, as soon as practicable, and, in any event, within 28 days after receiving the request, provide the statement to the person who made the request (the requester).
  1. (2)
     If the decision-maker is of the opinion that the requester was not entitled to make the request, the decision-maker may, within 28 days after receiving the request—
  1. (a)
     give to the requester written notice of the decision-maker’s opinion; or
  1. (b)
     apply to the Court under section 39 for an order declaring that the requester was not entitled to make the request. …
  1. (4)
     The decision-maker may refuse to prepare and give the statement if—
  1. (a)
     in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the requester—the relevant request was not made within 28 days after the day on which the document was given; or
  1. (b)
     in any other case—the relevant request was not made within a reasonable time after the decision was made.
  1. (5)
     If subsection (4)(a) or (b) applies to the decision-maker, the decision-maker must give to the requester, within 14 days after receiving the relevant request, written notice stating—
  1. (a)
     that the statement will not be given to the requester; and
  1. (b)
     the reasons why it will not be given.
  1. (6)
     For the purposes of subsection (4)(b), a request for a statement in relation to a decision is taken to have been made within a reasonable time after the decision was made if the court, on application by the requester, declares that the request was made within a reasonable time after the decision was made.

34 Content of statement

The statement must contain the reasons for the decision. …” (emphasis added)

  1. [17]
    Sections 35 and 36 prescribe circumstances under which a decision-maker need not deliver reasons.  None of those circumstances exist here.
  2. [18]
    As already observed, no statement of reasons was given.  Mr Leahy was told that he would not receive a statement of reasons because the delegate who made the decision left the employment of the Council and, therefore, the Council could not provide the statement.  By s 26, time begins to run from the “relevant day” if there is one.  No reasons were attached to the decision so s 26(5)(a) has no application.  A request for reasons was made so s 26(5)(c) is engaged. 
  3. [19]
    When no reasons are delivered because the circumstances in ss 33(2), 33(5) or 37 have arisen, a notice may be given to that effect by the decision-maker[7] and time runs from the date that notice is given.  None of those circumstances arise here. 
  4. [20]
    Section 39 enables a decision-maker to apply for an order that the person seeking reasons is not entitled to them.  No application was made by the Council under s 39.
  5. [21]
    Therefore, Mr Leahy was not limited by any specific time restraint.
  6. [22]
    The application proceeded before me on the assumption that:
  1. section 26 prescribed a “reasonable time” as the time within which Mr Leahy must make his application;
  2. if Mr Leahy failed to make his application within a “reasonable time”, he could apply for an extension of time pursuant to s 26(1)(b).
  1. [23]
    Section 26(2) provides that the relevant time limit is 28 days after “the relevant day”, which is a term defined in s 26(5).  Here, as there were no reasons delivered, there is no “relevant day”.  Therefore, there is no time to extend.  Section 26(1)(b) contemplates an extension of the time prescribed by s 26(2) by reference to s 26(5).  None of that applies here, and s 26(1)(b) has no operation.
  2. [24]
    Here, s 26(3) is engaged.  No party made submissions as to whether it is s 26(3)(a) or s 26(3)(b) which applies.  Nothing turns on this.
  3. [25]
    Section 26(3) does not prescribe a “reasonable time” as the time within which an applicant may apply.  Section 26(3) provides that if an application is not made within a reasonable time (which is a jurisdictional fact) then a discretion arises in the Court to refuse to entertain the application.  Mr Leahy may file the application.  The Council may then seek relief that the application is dismissed[8] without consideration of the merits.  As it is the Council who seeks the summary dismissal of the application for review, the onus falls upon the Council[9] to:
  1. demonstrate that the application was not filed within a reasonable time; and
  2. convince the Court that the discretion should be exercised in its favour to dismiss Mr Leahy’s application.
  1. [26]
    Mr Leahy swore an affidavit in which he explained the delay.  He was not cross-examined on that affidavit or otherwise challenged.  The Council accepts the truthfulness of the chronology set out in Mr Leahy’s outline of submissions.  That is in these terms:

“20. The relevant chronology is as follows:

  1. (a)
     The Decision was made on 18 December 2018;
  1. (b)
     The applicant for the relevant permit (Great Site) was given a copy of the Decision Notice on 19 December 2018;
  1. (c)
     Mr Leahy was not given written notice of the Decision;
  1. (d)
     Mr Leahy noticed the construction of a concrete plinth on the adjoining premises[10] in approximately April of 2020, but this was small in scale;
  1. (e)
     During July 2020, Mr Leahy, who did not reside at the 51 Musgrave Road premises, observed that the Advertising Structure had been constructed;
  1. (f)
     Mr Leahy took a number of steps to seek advice concerning the Advertising Structure and also in the course of September and October 2020, communicated with the Council;
  1. (g)
     Mr Leahy made application under the Right to Information Act in January 2021, receiving redacted documents about this in February 2021, then sought further town planning advice in March 2021 after which he sought advice from counsel (in May 2021);
  1. (h)
     Mr Leahy then engaged in a course of correspondence and communications with the Council commencing on 7 June 2021 and ending on 25 October 2021;
  1. (i)
     Importantly, Mr Leahy requested a statement of reasons on 31 August 2021;
  1. (j)
     The Council refused to provide reasons by correspondence dated 28 September 2021 and failed to respond to the Applicant’s letter requesting identification of documents relevant to the reasons for the Decision;
  1. (k)
     These proceedings were filed on 9 November 2021 and amended (by the addition of the Second Respondent, Reinet) on 7 January 2022.”[11]
  1. [27]
    While the Council accepts the version of events given by Mr Leahy, it does not accept that he has explained the delay such that it could be concluded that he has brought his application within a “reasonable time”.  The Council submitted:

“(a) the Applicant could reasonably have known that a billboard sign was to be constructed from April 2020 when he noticed the plinth. He does not say he assumed it was being constructed for some other purpose. It is hard to see that it would have been thought by him to be for any other structure. He made no inquiry of the Third Respondent about what was being constructed. It is reasonable to say he ought to have. Had he, he might have alerted the Council, Great Site (who then still owned the sign) and the Third Respondent such that construction might have paused while the Applicant’s concerns were examined. Waiting until November 2021, 14 months after construction of the sign was completed, denied any of the Respondents the opportunity to address his concerns without the sign having been built;

  1. (b)
     by July 2020 the billboard sign was built, yet the Applicant did not commence these proceedings until November 2021. The Applicant’s central complaint is that he was not consulted by the Council in making the decision. That central factual issue was something he was alive to from the earliest time - he knew he had not been consulted. No document or statement of reasons he might ever receive from the Council; no town planning or legal advice he would ever be provided, would better inform that ground. He is a solicitor; identification of the Local Law and the Subordinate Law and their requirements, would logically, have been a task taking only days. Combined with his knowledge that he had not been consulted, these things mean his central ground of complaint must have been complete very shortly after July 2020.”
  1. [28]
    In Jones v State Coroner,[12] Wilson J noticed, and thought significant, the fact that s 26(4) of the JR Act used the word, “must” in relation to the two criteria in s 26(4)(a)(i) and (ii) and the word, “may” in relation to the criteria in s 26(4)(b).[13]  The mandatory considerations in s 26(4)(a) are specific matters whereas the discretionary factors in s 26(4)(b) are general matters, limited only by what the court “considers relevant”. 
  2. [29]
    No grant of executive power, no matter how wide the words vesting the power are, is unfettered.  The scope of the power is confined to the attainment of the objects for which the power has been granted.[14]  The starting point is that it is for the decision-maker to determine what they consider are relevant or not to the exercise of the power.  To that extent, s 26(4)(b) does nothing more than acknowledge the common law position; the Council must consider relevant matters.  However, restrictions as to what considerations are, or are not, relevant come from the objects of the grant of power and any statutory prescriptions whether express or implied.  That is a matter of construction of the statute.[15]
  3. [30]
    As the determination of the relevance or otherwise of a factor to the exercise of an administrative power is a matter of statutory construction, it is necessary to determine the meaning of the text of the particular provision construed in the context of the statute as a whole and any other relevant context having regard to the purpose of the provision.[16]
  4. [31]
    In Jones v State Coroner,[17] Wilson J wrote:

“[35] The term ‘reasonable’ time is not defined in the JRA.

[36] Section 26(4) JRA sets out matters which the Court must and may have regard to when forming an opinion as to whether this application was made within a reasonable time after the decision was made.

[37] As to the mandatory matters, s 26(4) JRA sets out two matters which the court must consider in determining this issue:

  1.  the time when the applicant became aware of the decision;[18]  and
  1.  the period prescribed for the applicant’s brother, Mr Brian Jones, to make an application for a statutory order of review in relation to the first decision.[19]

[38] Section 26(4)(b) JRA then states the court may have regard to such other matters as it considers relevant. The JRA does not contain any criteria as to what is, or may be, relevant in relation to such matters as the Court considers relevant. There are no Queensland decisions in which any relevant principles have been addressed.[20]

[39] However, a body of case law has developed a series of non-exhaustive principles that may be relevant to an application to extend time beyond 28 days under s 26(1)(b) JRA. Those principles have been applied by this Court.[21]

[40] Those principles, in relation to extension of time, were distilled by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[22] and often cited since[23] and include the existence of a satisfactory explanation, notions of what was fair and equitable in the circumstances, whether any prejudice would be occasioned to the respondent, the public interest and (where such a view was possible) the merits of the substantial application for review.[24]

[41] In Johnson v Holmes & Ors,[25] O'Loughlin J, when considering an analogous federal provision to s 26(4) JRA, held that the extension of time principles have ‘equal force and effect when considering whether or not an application has been made within ‘a reasonable time’ after the making of the relevant decision where no time constraints are imposed’.[26]

[42] To those factors should be included:

  1.  the extent of the delay;[27]
  1.  the effect on the applicant if this Court refused to consider this application;[28] and
  1.  the seriousness of the consequences of any error to the applicant.[29]

[43] Those principles are non-exhaustive, and their application and weight depends upon all of the relevant factual circumstances at play.”[30] (emphasis in original; underlining added)

  1. [32]
    Lindsay v Director of Professional Services Review,[31] Mustafa v Chief Executive officer, Centrelink[32] and Bezzina Developers Pty Ltd v Deemah Store (Qld) Pty Ltd[33] are cases cited by her Honour in support of paragraph [42] of her Honour’s reasons.  None of these cases concern consideration of the reasonableness of time.  All concern applications for extension of time.
  2. [33]
    The passage of the judgment of Wilcox J to which her Honour referred is:

“l. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The ‘prescribed period’ of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time (Duff at 485; Chapman v Reilly (unreported, Federal Court of Australia, Neaves J., 9 December 1983) at 7).

  1.  Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’: per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R 517 at 519. The reasons for this distinction are not only the ‘need for finality in disputes’ (see Lucic at 410) but also the ‘fading from memory’ problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R 528.
  1.  Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
  1.  However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
  1.  The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
  1.  Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion: Wedesweiller at 534-535.

In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J. in Wedesweiller at 531, relating to the diversity of decisions to which review may be sought under the Act:

‘... there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved.’

He went on to mention the reference to public interest made by Fitzgerald J. in Lucic at 416.

It is in relation to the former category of cases, that is, those ‘which affect only the immediate parties’ that the approach adopted by Bray C.J. in Lovatt v. Le Gall (1975) 10 SASR 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:

‘If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff’s claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension.’

By contrast, in cases involving public administration, especially day to day matters such as personnel management, the public interest may well dictate refusal of an extension even after only a short delay.”[34]

  1. [34]
    Hunter Valley Developments Pty Ltd v Cohen[35] was a case in which Wilcox J considered an application to extend time under a provision equivalent to s 26(1)(b) of the JR Act.  The cases cited by her Honour in Jones v State Coroner[36] in support of paragraph [40], namely Hoffmann v Queensland Local Government Superannuation Board[37] and Kuku Djungan Aboriginal Corporation v Christensen,[38] are also cases concerning applications for an extension of time.
  2. [35]
    Her Honour followed the judgment of O'Loughlin J in Johnson v Holmes & Ors.[39]  After referring to Wilcox J’s decision in Hunter Valley Developments Pty Ltd v Cohen, his Honour observed:

“Although the remarks of Wilcox J were directed towards the circumstances of an applicant who was seeking an extension of time, I respectfully consider that they have equal force and effect when considering whether or not an application has been made within a reasonable time after the making of the relevant decision where no time constraints are imposed.”[40]

  1. [36]
    Johnson v Holmes & Ors survived appeal,[41] but nothing relevant to the current case was considered by the Full Court of the Federal Court of Australia.  It was cited with apparent approval, but without analysis by Merkel J in Bollag v The Attorney-General (Cth).[42]
  2. [37]
    In my respectful view, Johnson v Holmes & Ors, to the extent that it holds that the factors relevant to the determination of the jurisdictional fact (whether the application has been filed within a reasonable time) are the same as the factors that are relevant to consideration of an application to extend time if the application is not filed within the prescribed time, is wrong.  Such an approach defeats the statutory purpose and structure of s 26. 
  3. [38]
    Where circumstances are such that no time is prescribed by the JR Act, the time within which an applicant can apply without facing an application for summary dismissal under s 26(3) is a “reasonable time”.  Relevant to the consideration of a “reasonable time” are matters which explain why the application was filed when it was, and not earlier.  Considerations of that nature will determine whether the time taken was “reasonable”.
  4. [39]
    If an applicant has made the application within a reasonable time, they have a right to have the application heard and determined.  No discretion arises in the court pursuant to s 26(3) to “refuse to consider the application”.  Therefore, an applicant who has filed their application within a “reasonable time” need not submit to a consideration of the effect upon them if the application was not heard,[43] nor the seriousness of the error sought to be corrected by the application,[44] nor whether the decision-maker has suffered prejudice of some kind, nor what is “fair and equitable in the circumstances”.[45]  The determination of those issues against an applicant could not disentitle him to his right to have the application heard.  Those considerations are irrelevant to the determination of “reasonable time” but obviously relevant to any application for an extension of time if s 26(2)(b) of the JR Act was engaged, which it is not here.[46]
  5. [40]
    As I have formed the view that the statement of principle in Johnson v Holmes & Ors[47] is “plainly wrong”,[48] I do not follow it, and nor do I follow the adoption and extension of the principle as was done in Jones v State Coroner.[49]
  6. [41]
    Reading the JR Act as a whole, the purpose of s 26 is to ensure that applications are made promptly once the applicant is aware of the reasons the decision has been made.  That is the general structure of ss 26 and 33. 
  7. [42]
    The fact that Mr Leahy saw the plinth may have alerted him to the fact that a sign was being erected.  The fact that the sign was erected alerted him to the fact that he may have a claim to challenge any decision to allow the construction, but it was reasonable for him to investigate the circumstances under which the decision was made before launching an application and it was reasonable for him to seek reasons.
  8. [43]
    I take into account the fact that the decision was made some three years before the application was filed.  I take into account the fact that Mr Leahy became aware of the decision in April 2020.[50]  Between that point and the filing of the application on 9 November 2021, Mr Leahy took steps to ascertain why the decision had been made, including requesting a statement of reasons. 
  9. [44]
    Had the Council complied with its statutory obligation to give reasons, time would only then begin to run against Mr Leahy.[51]  The Council’s formal refusal to provide reasons was furnished only about six weeks before the application was filed.  In that time, Mr Leahy had to consider his position without the benefit of a statement of reasons.
  10. [45]
    In all the circumstances, I find that the application was filed within a reasonable time and no discretion to dismiss the application under s 26(3) of the JR Act arises.
  11. [46]
    Had I found that Mr Leahy had delayed and not filed his application within a reasonable time, I would still have entertained his application for review.  Mr Leahy made attempts to ascertain the reasons for the decision.  He is prejudiced by the decision.  A huge, imposing sign sits next to one of the boundaries of his land.  For reasons I later explain, Mr Leahy’s application for review has good merits.  The parties who are most directly affected by any decision setting aside the decision are Reinet and Keyser Island.  Reinet risks, perhaps, having to remove the sign and losing revenue.  Keyser Island risks losing, perhaps, whatever money is to be paid to it under the licence agreement.  Neither of those parties oppose the application on time considerations.  While Mr Beacham QC for the Council submitted that the Council may in some way be liable to some party if the decision is set aside, he could identify no cause of action to which the Council might be exposed.  Prejudice to the Council is limited to having to perform again the bureaucratic process of considering the application.

Procedural fairness

  1. [47]
    Whether a duty to afford procedural fairness arises, and the scope of that duty, is largely dependent upon the construction of the legislation under which the power to make the decision is vested.  It is unnecessary to consider[52] whether the duty is a common law duty[53] or arises by implication from the statute.[54]
  2. [48]
    Section 3 of the City of Brisbane Act 2010 expresses its objects.  Relevantly:

“3 Purpose of this Act

  1. (1)
     The purpose of this Act is to provide for­–
  1. (a)
     the way in which the Brisbane City Council is constituted and the unique nature and extent of its responsibilities and powers; and
  1. (b)
     a system of local government in Brisbane that is accountable, effective, efficient and sustainable…”
  1. [49]
    Section 29 of the City of Brisbane Act empowers the Council to make local laws and subordinate local laws, which it did.  The relevant local law here is the Advertisements Local Law 2013.  The Advertisements Subordinate Local Law 2005 is the relevant subordinate local law. 
  2. [50]
    Section 2 of the local law expresses its objects as:

“2 Objects

The objects of this local law are to ensure that advertisements and associated structures—

  1. (a)
     are constructed and maintained to essential standards of public safety; and
  1. (b)
     complement or, at least, do not unreasonably detract from, desirable characteristics of the natural and built environment in which the advertisements are exhibited.”[55]
  1. [51]
    The local law prohibits the exhibition of advertisements without Council approval[56] and then provides for an approval process[57] and a procedure for the review of the Council’s determination on approval applications.[58]
  2. [52]
    Section 5 of the local law concerns the classification of advertisements.  It provides, relevantly:

“5 Classification of advertisements

  1. (1)
     The Council may, by subordinate local law—
  1. (a)
     classify advertisements by reference to criteria stated in the subordinate local law as permitted advertisements; or
  1. (b)
     vary or revoke an earlier classification under this section.
  1. (2)
     The classification of advertisements as permitted advertisements may be based on 1 or more of the following criteria—
  1. (a)
     the nature, dimensions, design, structural form or other physical characteristics of the advertisement;
  1. (b)
     the content of the advertisement;
  1. (c)
     the part of the area in which the advertisement is to be exhibited;
  1. (d)
     the positioning of the advertisement in relation to—
  1. (i)
     an allotment boundary; or
  1. (ii)
     a building; or
  1. (iii)
     a road, footpath or other thoroughfare; or
  1. (iv)
     another physically identifiable point or line;
  1. (e)
     other criteria stated in the relevant subordinate local law.”[59] (emphasis added)
  1. [53]
    Section 9 of the local law prescribes the contents of an application for approval.  Relevantly:

“9 Application for Council's approval

  1. (1)
     An application for the Council’s approval of the proposed exhibition of an advertisement in the area must set out—
  1. (a)
     full details of the advertisement, including its contents, its design, its dimensions and its construction; and
  1. (b)
     full details of when, where and how the advertisement is to be exhibited.
  1. (2)
     If planning approval is required for the advertisement, the application must be accompanied by evidence of the relevant approval.
  1. (3)
     If an advertisement is to be exhibited in a place that is not controlled by the advertiser, the application must be accompanied by the written consent of the owner and occupier of the place.” (emphasis added)
  1. [54]
    Section 10 of the local law concerns the criteria relevant to the Council’s determination of an approval application.  It provides:

“10 Criteria to guide Council’s discretion

  1. (1)
     In deciding whether to approve the exhibition of an advertisement, the Council must have regard to—
  1. (a)
     any relevant advice it sees fit to obtain from suitably qualified experts; and
  1. (b)
     the public interest; and
  1. (c)
     relevant Commonwealth, State or Council plans, proposals or agreements affecting the part of the area in which the advertisement is to be situated; and
  1. (d)
     criteria and conditions prescribed by a subordinate local law.
  1. (2)
     The Council may only approve the exhibition of an advertisement if—
  1. (a)
     the advertisement is structurally sound; and
  1. (b)
     the advertisement causes no significant obstruction of, or distraction to, vehicular or pedestrian traffic; and
  1. (c)
     the dimensions of the advertisement bear a reasonable relationship to the dimensions of surrounding buildings and allotments so that—
  1. (i)
     its presence is not unduly dominating or oppressive; and
  1. (ii)
     it does not unreasonably obstruct existing views; and
  1. (d)
     the advertisement complements, or at least does not unreasonably detract from desirable characteristics of the natural and built environment in which the advertisement is exhibited; and.
  1. (e)
     the approval is consistent with the subordinate local law.
  1. (3)
     The Council may, by subordinate local law—
  1. (a)
     prescribe criteria for the grant or refusal of approvals for the exhibition of advertisements; or
  1. (b)
     prohibit specified classes of advertisements, or prohibit the exhibition of advertisements in circumstances of a specified class; or
  1. (c)
     classify advertisements as requiring approval or generally inappropriate in certain city environments and conditions on which such advertisements may be approved.” (emphasis added)
  1. [55]
    Section 10 of the local law makes the subordinate local law relevant on any application for approval of an advertisement.
  2. [56]
    Section 2 of the subordinate local law describes its object as:

“2 Object

The object of this subordinate local law is to assist the implementation of Advertisements Local Law 2013 (the local law).” (emphasis in original)

  1. [57]
    That object is sought to be achieved in part by the classification of advertisements as envisaged by the local law.  Advertisements are classified[60] within Schedule 1 to the subordinate local law.  Some advertisements are prohibited, some permitted with approval, some permitted without the necessity for approval and some are classified as “generally inappropriate”.  Section 6 concerns the classifications:

“6 Effect of city environment on classification

  1. (1)
     The classification applying to an advertisement under this subordinate local law depends on—
  1. (a)
     subject to subsections (2) and (3), the City Environment in which it is to be exhibited; and
  1. (b)
     whether it is to be exhibited in or on a Heritage Place.
  1. (2)
     If an advertisement is to be exhibited on a property in an area located in the Community facilities zone, Emerging community zone, Special purpose zone or Specialised centre zone in City Plan, Council may, at its discretion, classify the advertisement as if it were to be exhibited in the City Environment most closely resembling the characteristics of the existing or proposed development on that property.
  1. (3)
     If an advertisement is to be exhibited on a property in a Residential or Green Space environment, where the use is an existing lawful use within the meaning of the Planning Act, Council may, at its discretion, classify the advertisement as if it were to be exhibited in the City Environment most closely resembling the characteristics of development of a similar nature and scale.”
  1. [58]
    Section 7 concerns permitted advertisements and, relevantly here, ss 7A and 8 deal with advertisements which require approval.  They are the “approval required’ and “generally inappropriate” classifications.  Prohibited advertisements may not, as their name suggests, be displayed and cannot be approved.  Permitted advertisements do not need approval. 
  2. [59]
    The Great Site sign is classified as “generally inappropriate” as it is a “billboard sign” proposed to be erected in a “residential environment”.[61]
  3. [60]
    Section 8 of the subordinate local law governs the criteria for approval.  It provides:

“8 Criteria for advertisements permitted with approval

In considering an application for approval, Council will have regard to—

  1. (1)
     whether the advertisement is acceptable in the City Environment in which it is to be exhibited; and
  1. (2)
     whether approval would satisfy the objectives of the local law; and
  1. (3)
     the conditions in Schedule 4; and
  1. (4)
     the criteria in Schedule 5; and
  1. (5)
     the conditions of a related development approval.” (emphasis added)
  1. [61]
    There is no need to refer to the conditions in Schedule 4, but, relevantly, Schedule 5 provides:

“1 Views, vistas and visual amenity

  1. (1)
     Advertisements are not to block or compromise a view or vista of high scenic amenity.
  1. (2)
     Advertisements should respect the amenity of other property owners and not obscure, dominate or overcrowd the views of existing or prospective development on neighbouring properties.
  1. (3)
     high scenic amenity in subsection (1) means views which would be regarded by the majority of people as of high quality which may be characterised by elements of landscape or townscape or both.” (emphasis in original; underlining added)

And later:

“…(1A) Local Environment

The size, location and medium of the advertisement must be in keeping with the character of the local environment.”

And later:

“(1) An application for approval of an advertisement classified as ‘generally inappropriate’ in Schedule 3 will be required to demonstrate that there are special circumstances which justify the approval of the advertisement on a particular site.

  1. (2)
     ‘special circumstances’ may include but are not limited to the following:
  1. (a)
     the site does not exhibit the usual valued characteristics of the city environment in which it is situated;
  1. (b)
     the site has characteristics similar to another city environment in which the advertisement is classified as permitted or able to be approved;
  1. (c)
     the type of the proposed advertisement is particularly appropriate to the city environment in which it is to be situated; or
  1. (d)
     there is an element of public safety or community benefit advertising proposed for the advertisement that contributes to its appropriateness on the proposed site.” (emphasis in original; underlining added)
  1. [62]
    The central consideration upon judicial review in Australia is whether the decision has been made beyond the jurisdiction conferred by the statute.[62]  In cases involving a breach of the rules of procedural fairness, that assessment will involve consideration of the materiality of the breach.[63]
  2. [63]
    Mr Leahy was given no notice of the application for approval and, therefore, he had no opportunity to be heard in any way in opposition to it.  Mr Beacham QC, who appeared with Mr Quayle for the Council, does not take issue with the materiality of any breach.  In other words, if Mr Leahy establishes that he was owed some duty, then it is accepted by the Council that the duty has been breached and it is accepted that the decision is made beyond jurisdiction.[64]  Reinet does not suggest otherwise.
  3. [64]
    There are two particularly relevant principles of construction.  The first is that there is a duty to act fairly when making an administrative decision which will affect rights and interests[65] and that plain words of necessary intendment are required to exclude the obligation to afford natural justice in those circumstances.[66]
  4. [65]
    That duty was originally framed so as to arise also when the person affected by the decision had a legitimate expectation of being afforded professional fairness.[67]  Legitimate expectation declined in significance as a consideration[68] until finally being discarded in Minister for Immigration and Border Protection v WZARH.[69]  In WZARH, Kiefel J (as her Honour then was), Bell and Keane JJ observed:

“The ‘legitimate expectation’ of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.”[70]

Later:

“the real question [is]…what is required in order to ensure that the decision is fairly made in the circumstances having regard to the legal framework within which the decision is to be made.”[71]

  1. [66]
    Secondly is the principle that the duty attaches to the person directly rather than as a member of a broader class, the members of which may be impossible to discern.  The rationale was explained by Hutley JA in Gardner v Dairy Industry Authority of New South Wales[72] in these terms:

“The rules of natural justice, on their strict form, cannot be applied where the rights of great numbers of persons are likely to be affected by a single decision. The legislature, when it granted these powers, must have appreciated that they would have become unworkable, if the rules of natural justice had to be applied in exercising them. The rules of natural justice are really only applicable to alterations of rights of single individuals or small groups, that is numbers which can be adequately handled by an adversary system of litigation. In Re Canadian Forest Products,[73] Verchere J. of the British Columbia Supreme Court said of a passage in the first edition of de Smith: Judicial Review of Administrative Action: ‘At p. 122 of his treatise, supra, Mr de Smith, in discussing the exceptions to the audi alteram partem rule, says: ‘Thus, it can hardly be doubted that the rule will be held to be impliedly excluded in a situation where the number of persons affected by a particular act or class of decisions is so great as to make it manifestly impracticable for them all to be given an opportunity to be heard by the competent authority before the decision takes effect. The appropriate safeguard in such a case is to provide by statute an opportunity for persons who consider themselves especially aggrieved to be heard.’ With this it is impossible, I think, to disagree ...’.”[74]  (emphasis added)

  1. [67]
    Although Gardner pre-dated Kioa v West,[75] the judgment is consistent with the observation in Kioa that the interests of a party to whom a duty to afford procedural fairness arises must be affected “directly”.[76]  Gardner and statements to similar effect have been consistently followed.[77]
  2. [68]
    Ultimately, the issue is whether, considering the relevant legislation and the circumstances as a whole having regard to context and purpose, procedural fairness is required.  However, it is convenient to consider those two principles as separate issues.

Is there a presumption that procedural fairness must be afforded and has that presumption been displaced?

  1. [69]
    A proprietary or other legal right is not required in order to raise the duty.  The concept of interest is a broad one.[78]  Here, Mr Leahy’s view is blocked which affects both the amenity of his property and no doubt, at least potentially, its value.
  2. [70]
    The local law recognises that citizens may be affected by the erection of signs.  The impact is acknowledged to be affected by “design, dimensions and construction”.[79]  Signs must not be “unduly dominating or oppressive”.[80]  Signs should not “obscure, dominate or overcrowd” views from “neighbouring properties”.[81]
  3. [71]
    Many of the criteria identified in the local law concern considerations beyond the interests of individual land owners.  For instance, s 10(2)(b) identifies interference with vehicular or pedestrian traffic as a concern.  Section 10(1)(b) speaks of “the public interest”.
  4. [72]
    However, both the local law and the subordinate local law recognise the interests of individual land owners.  Section 10(2)(c)(ii) of the local law and Item 1 in Schedule 5 of the subordinate local law recognise that signs may affect views.  Importantly, s 10(2)(c)(ii) refers to “existing views” which must encompass not only views generally across the landscape, but views from particular properties which are affected.  This is supported by Item 1 in Schedule 5 of the subordinate local law which identifies as a criteria the impact of “the views of existing or prospective development on neighbouring properties” to the site of the proposed sign.
  5. [73]
    Persons who own “neighbouring properties” who have views which will be affected by the erection of a sign have a clear interest in the decision whether or not to allow it to be erected.  Subject to other considerations, the duty would arise in the absence of clear words to the contrary.  There are none.

Is the duty owed to a land owner like Mr Leahy?

  1. [74]
    The Council relies principally on Idonz Pty Ltd v National Capital Development Commission[82] for the proposition that in statutes dealing with planning type subject matters:
  1. a party to whom procedural fairness must be afforded is one who is directly affected by the proposed decision;[83] and
  2. the class of persons to whom procedural fairness should be afforded must be able to be identified before a duty arises.[84]
  1. [75]
    Neither proposition is, in my view, contentious.  Although Idonz was decided a week before Kioa v West[85] was handed down, it was held by the High Court in Kioa that a person to whom natural justice is owed must have a “direct” interest.  That has consistently been applied to planning type statutes.[86]  As already explained, Mr Leahy has such a direct interest.
  2. [76]
    As previously observed, Hutley JA in Gardner v Dairy Industry Authority of New South Wales,[87] explained why procedural fairness would not be owed to an unidentifiable class of persons.  Gardner was not a case concerning a planning statute, but the principle has been applied to the interpretation of such statutes.[88]
  3. [77]
    The real issue is as to the application of those principles to the local law and the subordinate local law.
  4. [78]
    There is no doubt that a proposed sign may affect different citizens in different ways.  As earlier observed, “public interest” is a consideration by s 10(1)(b) of the local law and s 10(2)(b) concerns interference with traffic.  Broader community concerns are raised by the requirement to consider “the character of the local environment”.[89]
  5. [79]
    Therefore, the entire class of persons who may have some “interest” in the Council’s decision is not discernible. 
  6. [80]
    In Vanmeld Pty Ltd v Fairfield City Council & Anor,[90] Spiegelman CJ, who was in dissent on other issues, explained that a primary consideration is the content of the duty in the specific context being considered.
  7. [81]
    In Vanmeld, the Fairfield Local Government Plan 1994 was amended by the Fairfield City Council pursuant to the Environmental Planning and Assessment Act 1979.  That plan, as amended, forbade the filling of flood ways.  That affected the way in which land could be developed.  While the plan had broad application, there were a limited number of identifiable land owners who could be affected.  His Honour thought that class was owed duties of procedural fairness.  The majority in Vanmeld did not disagree with this logic.  They held that specific statutory obligations of the Council to undertake public consultation excluded the requirement to accord procedural fairness to any identifiable class.
  8. [82]
    It is unnecessary to consider here whether, where there is a large unidentifiable class affected by the decision but specific members can be identified, the duty arises in relation to those identifiable members.  Here, the local law and the subordinate local law recognise different interests and different classes of persons affected.  While in Vanmeld it was a factual exercise in identifying persons affected, in the present case, the local law and the subordinate local law recognise different classes of persons with different interests and the members of at least one of those classes is readily identifiable.
  9. [83]
    Item 1 of Schedule 5 of the subordinate local law deals with two types of “views”.  First is the “view … of high scenic amenity”.  The term, “high scenic amenity” is defined by reference to concepts of “landscape or townscape” and many citizens may have some general interest in the maintenance of these views.  They could though not be described as being directly affected and could not be described as being relevantly identifiable. 
  10. [84]
    Secondly, Item 1 of Schedule 5 concerns views from “neighbouring properties” to the proposed sign.  Here, the class is very limited.  It is restricted to owners of “neighbouring properties” to the site of the proposed sign.  That class is further restricted to those whose views might be obscured, dominated or overcrowded by the proposed sign.
  11. [85]
    The local law and the subordinate local law therefore recognise different classes of persons being affected in different ways and in respect of different interests.  A duty may not arise in favour of those citizens who may be affected by traffic issues or the effect of the sign upon the general landscape.  The owners of “neighbouring properties” are recognised in the subordinate local law as having a particular interest, namely the reasonable maintenance of their views.  That interest is directly affected by the erection of the sign and, provided they are a class which can be reasonably and practically identified, the local law and the subordinate local law would not be read so as to exclude obligations of procedural fairness to them unless the words were clear, which they are not.
  12. [86]
    The fact that the class may be difficult to discern does not alone defeat the duty[91] provided that the class can be identified “in a reasonable and practical sense”.[92]  Here, there will be a relatively small class of persons whose line of vision (a view) is arguably obscured, dominated or overcrowded by the proposed sign.
  13. [87]
    The words of limitation in Item 1 of Schedule 5 of the subordinate local law enable identification of the owners of “neighbouring properties” to the sign who are relevantly affected.  I note that in the application for approval, Great Site, quoting from a report by Insight Design and Assessment Services (DAS) said:

“InsightDAS note:

Neighbouring the subject site to the north-west is a small house set back some 13.5 metres from Musgrave Road (51 Musgrave Road). There is a large tree in the front yard of this house which will screen the sign from many viewpoints to the north and north-west. This tree will screen part of the sign from some views from this house, but there is likely to be clear views from this house towards the back of the sign. The proposed landscaping will assist with softening the appearance of the rear of the sign. The sign may obstruct views from this house towards the city, although views around the sign will be maintained. Relevantly, an alternative form of development on the subject site (such as 2-3 storey residential development or a mixed-use development) could also obstruct views from this house towards the CBD, as would any substantial vegetation that might be planted as part of a residential or commercial use on the site.

To the north of the subject site are detached houses fronting Lower Clifton Terrace ... While the back of the proposed sign may be visible from parts of these properties, there would be no significant views from these houses (views from primary living areas or outdoor spaces) towards the sign. To the extent that the back of the sign might be visible, it would not significantly affect the outlook or amenity of these properties.”

  1. [88]
    DAS appeared to have no difficulty identifying the properties where views may be affected by the sign and Great Site adopted that position.
  2. [89]
    Mr Leahy falls within the identifiable class and a duty was owed to him.
  3. [90]
    Mr Leahy asserts that he should have been “heard”.  There is nothing in the local law to suggest that persons in the position of Mr Leahy have a right to make oral submissions or that there is any obligation upon the Council to undertake any hearings.  He had the right to be given reasonable notice of the application and an opportunity to make written submissions.  That was denied him.

Error in the making of the decision.  Did the delegate apply the right test?

  1. [91]
    As earlier observed, there is no statement of reasons.  Mr Leahy must establish error without the benefit of any articulation of the reasons for the decision.  It is therefore necessary to discern the reasons from evidence disclosed by the Council.
  2. [92]
    The Council accepts that it had a statutory obligation to deliver reasons for the decision and accepts that it has not complied with that obligation.  It then seeks to take advantage of the position in which the ratepayer, Mr Leahy, finds himself, who has the difficult task of proving the reasons for the making of the decision by the Council’s own delegate.  Whether it is appropriate for the Council to engage in such tactics need not be decided.
  3. [93]
    Great Site’s application was lodged with the Council on 8 June 2018.  That application was accompanied by a report prepared by Dr Nicholas McGowan of DAS (the first McGowan report). 
  4. [94]
    The first McGowan report considered the impact of the proposed sign and, in particular, addressed s 10(2) of the local law, concluding:

“…the proposed sign will not unreasonably obstruct any important views within or through the local area.”

  1. [95]
    The first McGowan report considers views from properties.  The passage appearing at paragraph [87] of these reasons forms part of a longer passage from the first McGowan report.  It identifies further affected properties, and opinions are expressed as to the effect of the sign on views from those properties.
  2. [96]
    Correspondence passed between Council and Great Site.  The correspondence did not concern the impact of the sign on views from neighbouring properties, but rather the impact of the sign upon views onto significant buildings and landscapes.[93] 
  3. [97]
    The application was considered by the Council’s Urban Design Team.  Urban Design did not approve of the proposed sign.  In a report of 17 October 2018, that team said:

“Advertisements Subordinate Local Law

The proposed sign does not comply with Part 1 (1) which states advertisements are not to block or compromise a view or vista of high scenic amenity.

The proposed sign does not comply with Part 1 (2) where the size, location and medium of the advertisement must be in keeping with the character of the local environment.

Conclusion

The impact of the sign is not considered to be to the views and vistas alone but also on the surrounding character buildings and streetscape.

The site is surrounded by significant and low scale commercial character houses and buildings and the sign is not in keeping with the character of the local environment.”

  1. [98]
    On 19 October 2018, the delegate advised Great Site that Council did not support the application. After some discussion, a further report by Dr McGowan dated 7 December 2018 was produced to the Council (the third McGowan report).[94] 
  2. [99]
    The third McGowan report dealt with various concerns exposed by Urban Design.  They were:

“Allegation 1 from Council: The proposed sign does not comply with Part 1 (l) which states advertisements are not to block or compromise a view or vista of high scenic amenity. …

Allegation 2 from Council: The proposed sign does not comply with Part 1 (2) where the size, location and medium of the advertisement must be in keeping with the character of the local environment. …

Allegation 3 from Council: Medium Density Residential Zone [sic] 6.2.1.2 (7) (f) requires development to respond to local characteristics such as protection of view corridors, reinforces a green landscape character and respond to the surrounding character and architecture. The proposed sign impacts the low scale characters surrounds and blocks views of the iconic St Brigid’s Church and former Convent building. …

Allegation 4 from Council: The Ithaca District Neighbourhood Plan also states 7.2.9.2.2. (3) (c) Hillside character is retained and enhanced through sympathetic developments that minimise visual impacts within its visual catchments. The proposed sign is not considered to be sympathetic and sits in stark contrast to the low scale commercial and residential surrounding. …

Allegation 5 from Council: The perforated mesh enclosure and batten screen make an attempt at softening the edges of the signage panel however they also increase the overall size and impact. …

Allegation 6 from Council: In Council’s opinion, the architectural treatment of scale, design and style of the sign is out of context with the site and streetscape.”

  1. [100]
    It is unnecessary to consider the detail of the report except in a couple of respects.  Dr McGowan produced a number of diagrams which he opined showed:

“1. Musgrave Road is a busy visual environment, with numerous 3rd party signs on either side of the road, particularly south of Hale Street;

  1.  as one travels from the CBD along Musgrave Road, existing signs (including 3rd party signs) are a common element of the visual environment, and St Brigid’s Church and the convent building on Upper Clifton Terrace are seen in the context of these signs;
  1.  some existing 3rd party signs along the side of Musgrave Road obstruct or detract from views to St Brigid’s Church or the convent;
  1.  the proposed sign, however, will not obstruct nor detract from any views to either St Brigid’s Church or the convent;
  1.  the proposed sign is likely to be less visible and less prominent than the already approved (but unbuilt) billboard sign on the subject site - a double sided sign with twice the sign area than the proposed sign and a much more prominent structure and position.”
  1. [101]
    As regard the impact of the sign upon views, the report focussed primarily upon restricting views onto St Brigid’s Church and the convent, those buildings being prominent in the landscape.  Dr McGowan did not consider views from neighbouring properties except to make the general observation:

“As there are no other views or vistas of high scenic amenity in the area, and as the sign will not obscure, dominate or overcrowd views from neighbouring properties, it appears to me that this item is satisfied.”

  1. [102]
    On 11 December 2018, there was a meeting of various Council officers.  A record of what occurred at this meeting shows:

“11-DEC-2018 SMITH, Tye Meeting

Meeting held between Brisbane Design, Glenn Davidson and Public Space sign teams.

Determined that superseding the existing Static Billboard would be a much better outcome for the site and consider there is an existing approval, this sign would not create any further risks than what has already been approved.”

  1. [103]
    A document styled, “Assessment Form” was prepared by the delegate.  This document is a proforma which has been completed.  There is reference to the subordinate local law and the point of the proforma is to guide a decision-maker to relevant considerations and ultimately a decision according to law. 
  2. [104]
    The Assessment Report correctly identifies the proposed sign as one classified as “generally inappropriate”.  Then this appears:

CRITERIA FOR GENERALLY INAPPROPRIATE

(ASLL’05 Schedule 5 Part 4)

Complies

  1. (a)
     the site does not exhibit the usual valued characteristics of the city environment in which it is situated;

Leahy v Brisbane City Council [2022] QSC 200☒

  1. (b)
     the site has characteristics similar to another city environment in which the advertisement is classified as permitted or able to be approved;

☐

  1. (c)
     the type of the proposed advertisement is particularly appropriate to the city environment in which it is to be situated; or

☐

  1. (d)
     there is an element of public safety or community benefit advertising proposed for the advertisement that contributes to its appropriateness on the proposed site.

☐

Other: Site operates as a Business and has an existing approved Static Billboard (AS01323536716). This proposal is a better design will further setback to the road frontage. Special circumstance to a better outcome.

☒

  1. [105]
    Under a heading, “Criteria for Advertisements Permitted with Approval”, this appears:

     …

Q2

The proposed advertisement(s) does not to block or compromise a view or vista of high scenic amenity.

(ASLL’05 Schedule 5 Part 1)

☒

☐

☐

(go to referrals)

A2

The proposed Billboard is to replace an existing bulky approved static Billboard and will have less of an impact to a view or vista of high scenic amenity.

Q3

The proposed advertisement(s) is compatible with sites and buildings? (ASLL’05 Schedule 5 Part 1)

☒

☐

☐

(go to referrals)

A3

The application was referred to Urban Design who originally did not approve of the sign in the location however after discussion, was determined that this approval would be a better outcome then the existing approval AS01323536716. …

  1. [106]
    Criterion “Q2” concerns Item 1 of Schedule 5 of the subordinate local law.  It does not though deal with views from neighbouring properties.  It only deals with “a view or vista of high scenic amenity”.
  2. [107]
    Under the heading, “Notes - Comments”, this appears:

“…Consulted with CRU, TPO and BRISBANE DESIGN for information and Advice:

  • CRU had no objection to the proposal (Appendix 7)
  • TPO had no objection to the proposal subject to conditions supplied in the technical guidelines (Appendix 8)
  • Brisbane Design originally provided a number of concerns to the proposal. However from discussions, it was determined that this sign was a better outcome should it supersede the existing approved Billboard AS01323536716 (Appendix 9)”

Factual findings

  1. [108]
    The delegate was obliged to turn his mind to the impact of the sign on views.[95]  As already observed, that consideration had two components:  views of “high scenic amenity” and views from “neighbouring properties”.  Unquestionably, the delegate considered views of “high scenic amenity”.  Dr McGowan spoke of this.  That can be the only relevance of the approval of the Bishopp sign.
  2. [109]
    Mr Beacham QC for the Council submits that an inference should be drawn that the delegate had regard to the impact of the sign on views from neighbouring properties.  He submits that inference should be drawn from the following:
  1. On the checklist, the delegate ticks a box indicating that he has “Reviewed the application and all attachments”.
  2. The first McGowan report deals with views from neighbouring properties.
  1. [110]
    The issue is not whether the delegate read, or “reviewed”, the material.  The issue is whether, in exercise of his statutory discretion, he considered the mandatory requirement, namely, whether the sign would “obscure, dominate or overcrowd the views [from] neighbouring properties”.[96]
  2. [111]
    There is nothing to suggest that the delegate has considered views from neighbouring properties, let alone from 51 Musgrave Road.  Indeed, the evidence suggests quite strongly that he did not consider that aspect.
  3. [112]
    The sign is a large one.  It is 42.4 square metres in area and stands 11.3 metres high.  It is situated immediately adjacent to the eastern boundary of 51 Musgrave Road.  There can be no doubt that 51 Musgrave Road is a “neighbouring property” to the sign erected on 43 Musgrave Road.  There can also be no doubt that, as a matter of fact, the sign interrupts the line of sign of sight from 51 Musgrave Road.  Dr McGowan says as much in the first McGowan report.  Given the size of the sign, that line of sight is interrupted significantly.
  4. [113]
    Those facts give rise to serious consideration as to whether the sign obscures, dominates or overcrowds the view from 51 Musgrave Road.  Despite this, there is no reference in any document authored by the delegate to suggest that consideration has been given to the impact of the sign on the views from 51 Musgrave Road.
  5. [114]
    By contrast, the fact of the approval of the Bishopp sign is mentioned on several occasions in documents authored by the delegate.  As earlier observed, that sign was of different dimensions and in a different location to the Great Site sign.  There is no analysis or explanation in any of the documents authored by the delegate as to how the approval of the Bishopp sign is relevant to consideration of whether the Great Site sign obscures, dominates or overcrowds the views from 51 Musgrave Road. 
  6. [115]
    The course of the application gives important context.  As already observed, the application was made and the Council expressed concerns as to the effect of the sign upon the landscape, not upon views from neighbouring properties.  The effect upon the landscape and views onto significant buildings became the focus.  That explains the various references to the approval of the Bishopp sign.
  7. [116]
    The inference I draw is that the interruption of views from neighbouring properties such as 51 Musgrave Road has not been considered by the delegate.

Effecting of the findings

  1. [117]
    Mr Leahy submits that he has made out various grounds in addition to the failure to afford him procedural fairness which I have dealt with separately:
  1. There was a failure to take into account relevant considerations, including the obstruction of the view from 51 Musgrave Road.[97]
  2. Irrelevant considerations were taken into account, namely the approval of the Bishopp sign.[98]
  3. The exercise of the power to grant the approval was unreasonable.[99]
  4. There was a lack of evidence to support the conclusion that the criteria in s 10 of the local law was satisfied in favour of granting the application.[100]
  5. The decision was made otherwise contrary to law.[101]  Mr Leahy submitted that the statutory command was for the delegate to consider the criteria in s 10 of the local law rather than the fact of an existing approval of a different sign.
  1. [118]
    I have found that the delegate did not take into consideration the effect of the proposed sign upon the views from 51 Musgrave Road.  That property is clearly a “neighbouring property” to 43 Musgrave Road.  By force of s 10 and Item 1 of Schedule 5 that was, in my view, a mandatory criteria because:
  1. the local law identified the subordinate local law as the source of classification of signs and the criteria for approval;
  2. the subordinate local law identified “generally inappropriate” signs;
  3. the subordinate local law provided that “special circumstances” must be demonstrated to justify approval of the sign classified as “generally inappropriate”;
  4. the criteria specifically identified by the subordinate local law included whether views from neighbouring properties will be obstructed, dominated or overcrowded by the sign.
  1. [119]
    It follows that the delegate failed to take into account a relevant consideration and thereby exercised the power beyond the statutory limits of the grant. 
  2. [120]
    It is unnecessary to consider the other grounds.

Conclusions

  1. [121]
    The Council was obliged to afford Mr Leahy an opportunity to make submissions before granting the approval for the sign.
  2. [122]
    The delegate failed to take into account the mandatory consideration as to the interruption of views from 51 Musgrave Road.
  3. [123]
    The decision was therefore beyond the power limited by the statute and the decision must be set aside.
  4. [124]
    The parties submitted that I should give directions for the exchange of written submission on costs.  That is the appropriate course.
  5. [125]
    It is ordered that:
  1. The decision of the Council made on 18 December 2018 approving the construction of an electronic advertising billboard on 43 Musgrave Road, Red Hill be set aside.
  2. The application for approval of the sign be further considered by the Council.
  3. The applicant file and serve upon any respondent, against whom he seeks costs, by 27 September 2022 any written submission on costs of the application.
  4. Any respondent upon whom the applicant serves costs submissions may file and serve upon the applicant by 4 October 2022 any written submission on costs of the application.
  5. Each party have leave to file and serve by 11 October 2022 any application for leave to make oral submissions on costs.
  6. In the absence of any application to make oral submissions on costs of the application being filed by 22 October 2022, the question of costs will be decided on any written submission and without further oral hearing.

Footnotes

[1] Judicial Review Act 1991, s 4.

[2] Judicial Review Act 1991, s 7.

[3] Judicial Review Act 1991, s 32.

[4] Judicial Review Act 1991, ss 4, 31 and 32.

[5] Judicial Review Act 1991, s 26.

[6]  Sections 26(5)(b) and 26(5)(c).

[7] Judicial Review Act 1991, ss 33(2)(a), 33(5) and 37(3).

[8] Judicial Review Act 1991, s 26(3).

[9] Currie v Dempsey [1967] 2 NSWR 532 at 538-541, Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154 at 174, both recently followed and applied in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2022] QCA 94 at [18] and see generally Vines v Djordjevitch (1955) 91 CLR 512 at 519-520.

[10]  A reference to 43 Musgrave Road.

[11]  Footnotes omitted.

[12]  (2019) 1 QR 525.

[13]  At [37] and [38].

[14] Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630, Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 per Kirby and Callinan JJ in dissent on other points, at [69] and [70] and Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [66].

[15] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.

[16] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14], The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507 at [32]-[36], Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

[17]  (2019) 1 Qd R 525.

[18] Judicial Review Act 1991, s 26(4)(a)(i).

[19] Judicial Review Act 1991, s 26(4)(a)(ii).

[20]  In Remondis Australia Pty Ltd v Ipswich City Council [2015] 1 Qd R 329, Peter Lyons J identified the time the applicant became aware of the decision and then determined that the application was made within a reasonable time without express consideration of any other factors (335 [43]–[44]).

[21] Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, 372 (Thomas J). See also Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, 665 (Moynihan J).

[22]  (1984) 3 FCR 344.

[23] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348–350. See also Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, 372 (Thomas J); Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, 665 (Moynihan J).

[24] Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369, 372 (Thomas J) referring to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

[25]  (1997) 49 ALD 430.

[26] Johnson v Holmes & Ors (1997) 49 ALD 430, 435.

[27] Lindsay v Director of Professional Services Review [2011] FCA 262, [12] (Edmonds J).

[28] Mustafa v Chief Executive Officer, Centrelink (2000) 63 ALD 419, 421 [11] (Whitlam J).

[29] Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2007] QSC 286, [40] (a factor considered by Douglas J). Overturned on appeal but not on that point: Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2008] 2 Qd R 495.

[30] Lucic v Nolan (1982) 45 ALR 411, 417 (Fitzgerald J).

[31]  [2011] FCA 262.

[32]  (2000) 63 ALD 419.

[33]  [2007] QSC 286.

[34]  At 348-350.

[35]  (1984) 3 FCR 344.

[36]  (2019) 1 QR 525.

[37]  [1994] 1 Qd R 369.

[38]  [1993] 2 Qd R 663.

[39]  (1997) 49 ALD 430.

[40]  At 435.

[41] Johnson v Holmes & Ors¸ unreported, Full Court of the Federal Court of Australia, Wilcox, Tamberlin and Merkel JJ, 18 November 1993.

[42]  (1997) 79 FCR 198 at 217.

[43]  Contrary to Jones v State Coroner (2019) 1 QR 525 at [42], point 2.

[44]  Contrary to Jones v State Coroner (2019) 1 QR 525 at [42], point 3.

[45]  Contrary to Jones v State Coroner (2019) 1 QR 525 at [40]-[41].

[46]  See paragraph [23] of these reasons.

[47]  (1997) 49 ALD 430.

[48] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135].

[49]  (2019) 1 QR 525 at [41].

[50]  This is the consideration in s 26 that Mr Leahy knew from April 2020 that some decision had been made to allow the erection of a sign.  Judicial Review Act 1991, s 26(4)(a)(i).

[51]  Subject to the Judicial Review Act 1991, ss 32, 36, 37 and 39.

[52] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [97].

[53]  As reasoned by Mason J (as his Honour then was) in Kioa v West (1985) 159 CLR 550 at 584, see Deane J at 632.

[54]  As reasoned by Brennan J (as his Honour then was) in Kioa v West (1985) 159 CLR 550 at 609-611.

[55]  Notes omitted.

[56]  Section 8.

[57]  Sections 9-13.

[58]  Sections 13A-18 and there are miscellaneous provisions, ss 19-24.

[59]  Notes omitted.

[60]  Section 4.

[61]  See the definition of “residential environment” in Schedule 2.  And for the classification of such a sign, see Schedule 3.

[62] Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [35]-[36], Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123 at [27] and CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76.

[63] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104] and MZAPC v Minister for Immigration and Border Protection & Anor (2021) 390 ALR 590 at [39].

[64]  Transcript 1-8 l 30 - T 1-11 l 20 and T1-39 ll 1-30.

[65] Kioa v West (1985) 159 CLR 550, 584, 632, 609-611, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 666, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258.

[66] Annetts v McCann (1990) 170 CLR 596 at 598, Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30].

[67] Kioa v West (1985) 159 CLR 550 at 584.

[68] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.

[69]  (2015) 256 CLR 326.

[70]  At [30].

[71]  At [30].

[72]  [1977] 1 NSWLR 505.

[73]  (1960) 24 DLR (2d) 753, at 759.

[74]  At 519.

[75]  (1985) 159 CLR 550.

[76] Kioa v West (1985) 159 CLR 550 at 584, 585.

[77] Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 and the cases cited at [99] and see also Vanmeld Pty Ltd v Fairfield City Council & Anor (1999) 46 NSWLR 78 at [50] and following.

[78] Annetts v McCann (1990) 170 CLR 596 at 608-609, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, FAI Insurance Ltd v Winneke (1982) 151 CLR 342.

[79]  Local law, s 9(1).

[80]  Local law, s 10(2)(c)(i).

[81]  Subordinate local law, Schedule 5, Item 1(2).

[82]  (1985) 58 LGRA 99.

[83] Idonz Pty Ltd v National Capital Development Commission (1985) 58 LGRA 99 at 121-122.

[84] Idonz Pty Ltd v National Capital Development Commission (1985) 58 LGRA 99 at 122.

[85]  (1985) 159 CLR 550.

[86] Transport Action Group against Motorways Inc v Roads and Traffic Authority & Anor (1999) 46 NSWLR 598 at [99].

[87]  [1977] 1 NSWLR 505.

[88] Castle v Director General State Emergency Service (2008) NSWCA 231 at [6], Transport Action Group against Motorways Inc v Roads and Traffic Authority & Anor (1999) 46 NSWLR 598 at [98]-[99] citing various examples from planning legislation, Medway v Minister for Planning (1993) 30 NSWLR 646.

[89]  Subordinate local law, Schedule 5, Item 2(1A).

[90]  (1999) 46 NSWLR 78.

[91] Vanmeld Pty Ltd v Fairfield City Council & Anor (1999) 46 NSWLR 78 at 96.

[92] Castle v Director General State Emergency Service (2008) NSWCA 231 at [6].

[93]  See, for example, Insight Design and Assistance Services letters of 16 July 2018 and 9 August 2018.

[94]  A second McGowan report dated 7 August 2018 was produced to the Council on 9 August 2018.

[95]  Subordinate local law, Schedule 5, Item 1.

[96]  Subordinate local law, Schedule 5, Item 1.

[97] Judicial Review Act 1991, ss 20(2)(e) and 23(b).

[98] Judicial Review Act 1991, ss 20(2)(e) and 23(a).

[99] Judicial Review Act 1991, ss 20(2)(e) and 23(g).

[100] Judicial Review Act 1991, s 20(2)(h).

[101] Judicial Review Act 1991, s 20(2)(i).

Close

Editorial Notes

  • Published Case Name:

    Leahy v Brisbane City Council & Ors

  • Shortened Case Name:

    Leahy v Brisbane City Council

  • Reported Citation:

    (2022) 11 QR 809

  • MNC:

    [2022] QSC 200

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    20 Sep 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QSC 200 (2022) 11 QR 80920 Sep 2022Application for statutory order of review in respect of Brisbane City Council's decision to approve application for exhibition of electronic advertising structure; decision set aside; order that Council further consider application: Davis J.
Primary Judgment[2022] QSC 21813 Oct 2022Costs judgment: Davis J.
Notice of Appeal FiledFile Number: CA12665/2214 Oct 2022Notice of appeal filed.
Appeal Determined (QCA)[2023] QCA 133 (2023) 15 QR 10120 Jun 2023Appeal dismissed: Flanagan JA (Boddice JA and Ryan J agreeing).
Application for Special Leave (HCA)File Number: B38/202318 Jul 2023Application for special leave to appeal filed.
Application for Special Leave (HCA)File Number: B39/202318 Jul 2023Application for special leave to appeal filed.
Special Leave Discontinued (HCA)File Number: B38/202308 Aug 2023Notice of discontinuance filed.
Special Leave Discontinued (HCA)File Number: B39/202309 Aug 2023Notice of discontinuance filed.

Appeal Status

Appeal Determined - Special Leave Discontinued (HCA)

Cases Cited

Case NameFull CitationFrequency
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
3 citations
Jump To
Cite 1 - (1990) 170 CLR 596
Cite 2 - (1990) 170 CLR 596
Cite 3 - (1990) 170 CLR 596
Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2007] QSC 286
3 citations
Jump To
Cite 1 - [2007] QSC 286
Cite 2 - [2007] QSC 286
Cite 3 - [2007] QSC 286
Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd[2008] 2 Qd R 495; [2008] QCA 213
1 citation
Jump To
Cite 1 - [2008] 2 Qd R 495
Bollag v The Attorney-General (Cth) (1997) 79 FCR 198
2 citations
Jump To
Cite 1 - (1997) 79 FCR 198
Cite 2 - (1997) 79 FCR 198
Castle v Director General State Emergency Service [2008] NSWCA 231
3 citations
Jump To
Cite 1 - [2008] NSWCA 231
Cite 2 - [2008] NSWCA 231
Cite 3 - [2008] NSWCA 231
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
2 citations
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Cite 1 - (2019) 268 CLR 76
Cite 2 - (2019) 268 CLR 76
Currie v Dempsey (1967) 2 NSWR 532
2 citations
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Cite 1 - (1967) 2 NSWR 532
Cite 2 - (1967) 2 NSWR 532
Douglas v Allen (1984) 1 FCR 287
1 citation
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Cite 1 - (1984) 1 FCR 287
Doyle v Chief of Staff (1982) 42 ALR 283
1 citation
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Cite 1 - (1982) 42 ALR 283
Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2022] QCA 94
2 citations
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Cite 1 - [2022] QCA 94
Cite 2 - [2022] QCA 94
FAI Insurances Ltd v Winneke (1982) 151 C.L.R 342
2 citations
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Cite 1 - (1982) 151 C.L.R 342
Cite 2 - (1982) 151 C.L.R 342
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
2 citations
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Cite 1 - (2007) 230 CLR 89
Cite 2 - (2007) 230 CLR 89
Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505
3 citations
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Cite 1 - [1977] 1 NSWLR 505
Cite 2 - [1977] 1 NSWLR 505
Cite 3 - [1977] 1 NSWLR 505
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
2 citations
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Cite 1 - (2002) 209 CLR 478
Cite 2 - (2002) 209 CLR 478
Hickey v Australian Telecommunications Commission (1983) 48 ALR 517
1 citation
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Cite 1 - (1983) 48 ALR 517
Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369
5 citations
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Cite 1 - [1994] 1 Qd R 369
Cite 2 - [1994] 1 Qd R 369
Cite 3 - [1994] 1 Qd R 369
Cite 4 - [1994] 1 Qd R 369
Cite 5 - [1994] 1 Qd R 369
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
2 citations
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Cite 1 - (2018) 264 CLR 123
Cite 2 - (2018) 264 CLR 123
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
5 citations
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Cite 1 - (1984) 3 FCR 344
Cite 2 - (1984) 3 FCR 344
Cite 3 - (1984) 3 FCR 344
Cite 4 - (1984) 3 FCR 344
Cite 5 - (1984) 3 FCR 344
Idonz Pty Ltd v National Capital Development Commission (1985) 58 LGRA 99
4 citations
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Cite 1 - (1985) 58 LGRA 99
Cite 2 - (1985) 58 LGRA 99
Cite 3 - (1985) 58 LGRA 99
Cite 4 - (1985) 58 LGRA 99
Johnson v Holmes (1997) 49 ALD 430
5 citations
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Cite 1 - (1997) 49 ALD 430
Cite 2 - (1997) 49 ALD 430
Cite 3 - (1997) 49 ALD 430
Cite 4 - (1997) 49 ALD 430
Cite 5 - (1997) 49 ALD 430
Jones v State Coroner(2019) 1 QR 525; [2019] QSC 175
7 citations
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Cite 1 - (2019) 1 QR 525
Cite 2 - (2019) 1 QR 525
Cite 3 - (2019) 1 QR 525
Cite 4 - (2019) 1 QR 525
Cite 5 - (2019) 1 QR 525
Cite 6 - (2019) 1 QR 525
Cite 7 - (2019) 1 QR 525
Jones v State Coroner (2019) 1 Qd R 525
1 citation
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Cite 1 - (2019) 1 Qd R 525
Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154
2 citations
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Cite 1 - [1942] AC 154
Cite 2 - [1942] AC 154
Kioa v West (1985) 159 C.L.R 550
8 citations
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Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Cite 3 - (1985) 159 C.L.R 550
Cite 4 - (1985) 159 C.L.R 550
Cite 5 - (1985) 159 C.L.R 550
Cite 6 - (1985) 159 C.L.R 550
Cite 7 - (1985) 159 C.L.R 550
Cite 8 - (1985) 159 C.L.R 550
Kuku Djungan Aboriginal Corporation v Christensen[1993] 2 Qd R 663; [1992] QSC 417
4 citations
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Cite 1 - [1993] 2 Qd R 663
Cite 2 - [1993] 2 Qd R 663
Cite 3 - [1993] 2 Qd R 663
Cite 4 - [1993] 2 Qd R 663
Lindsay v Director of Professional Services Review [2011] FCA 262
3 citations
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Cite 1 - [2011] FCA 262
Cite 2 - [2011] FCA 262
Cite 3 - [2011] FCA 262
Lovett v Le Gall (1975) 10 SASR 479
1 citation
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Cite 1 - (1975) 10 SASR 479
Lucic v Nolan (1982) 45 ALR 411
3 citations
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Cite 1 - (1982) 45 ALR 411
Cite 2 - (1982) 45 ALR 411
Cite 3 - (1982) 45 ALR 411
Medway v Minister for Planning (1993) 30 NSWLR 646
2 citations
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Cite 1 - (1993) 30 NSWLR 646
Cite 2 - (1993) 30 NSWLR 646
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
3 citations
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Cite 1 - (2015) 256 CLR 326
Cite 2 - (2015) 256 CLR 326
Cite 3 - (2015) 256 CLR 326
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
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Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627
2 citations
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Cite 1 - (2009) 238 CLR 627
Cite 2 - (2009) 238 CLR 627
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
2 citations
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Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
Mustafa v Chief Executive Officer (2000) 63 ALD 419
3 citations
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Cite 1 - (2000) 63 ALD 419
Cite 2 - (2000) 63 ALD 419
Cite 3 - (2000) 63 ALD 419
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
2 citations
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Cite 1 - (2021) 390 ALR 590
Cite 2 - (2021) 390 ALR 590
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
2 citations
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Cite 1 - (2003) 216 CLR 277
Cite 2 - (2003) 216 CLR 277
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636
3 citations
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Cite 1 - (2012) 246 CLR 636
Cite 2 - (2012) 246 CLR 636
Cite 3 - (2012) 246 CLR 636
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
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Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 (2019) 269 CLR 507
2 citations
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Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
1 citation
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Cite 1 - (1982) 43 ALR 535
Re Canadian Forest Products (1960) 24 DLR (2d) 753
1 citation
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Cite 1 - (1960) 24 DLR (2d) 753
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
2 citations
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Cite 1 - (2000) 204 CLR 82
Cite 2 - (2000) 204 CLR 82
Remondis Australia Pty Ltd v Ipswich City Council[2015] 1 Qd R 329; [2014] QSC 27
1 citation
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Cite 1 - [2015] 1 Qd R 329
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
2 citations
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Cite 1 - (2010) 241 CLR 252
Cite 2 - (2010) 241 CLR 252
Shrimpton v The Commonwealth (1945) 69 CLR 613
2 citations
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Cite 1 - (1945) 69 CLR 613
Cite 2 - (1945) 69 CLR 613
Stead v State Government Insurance Commission (1986) 161 CLR 141
2 citations
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Cite 1 - (1986) 161 CLR 141
Cite 2 - (1986) 161 CLR 141
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
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Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Transport Action Group Against Motorways v Road and Traffic Authority & Ors (1999) 46 NSWLR 598
4 citations
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Cite 1 - (1999) 46 NSWLR 598
Cite 2 - (1999) 46 NSWLR 598
Cite 3 - (1999) 46 NSWLR 598
Cite 4 - (1999) 46 NSWLR 598
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
4 citations
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Cite 1 - (1999) 46 NSWLR 78
Cite 2 - (1999) 46 NSWLR 78
Cite 3 - (1999) 46 NSWLR 78
Cite 4 - (1999) 46 NSWLR 78
Vines v Djordjevitch (1955) 91 CLR 512
2 citations
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Cite 1 - (1955) 91 CLR 512
Cite 2 - (1955) 91 CLR 512
Wedes Weiller v Cole [1983] 47 ALR 528
1 citation
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Cite 1 - [1983] 47 ALR 528

Cases Citing

Case NameFull CitationFrequency
Brisbane City Council v Leahy(2023) 15 QR 101; [2023] QCA 13314 citations
Leahy v Brisbane City Council [No 2] [2022] QSC 2182 citations
1

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