Brisbane City Council v Leahy & Ors

This case considered whether a neighbouring landowner should have been afforded “natural justice” (such as an opportunity to comment) prior to a decision being made by the Brisbane City Council to approve a large advertising sign next to his property. The Court of Appeal unanimously held that the principles of natural justice had not been excluded under the applicable legislation, and so the neighbouring landowner should have been afforded natural justice.

Flanagan and Boddice JJA and Ryan J

20 June 2023

Background

In December 2018 the Brisbane City Council approved the erection of an advertising sign on 43 Musgrave Road, Red Hill, Brisbane. [1]. The decision to approve the sign was made pursuant to the Advertisements Local Law 2013 and the Advertisements Subordinate Local Law 2005 (“applicable legislation”). [3]. The sign was constructed in May and June of 2020, and has an electronic display area of 48 square metres. [4], [6].

Mr Leahy (the first respondent to this appeal) is the registered owner of premises that adjoin, and are immediately to the west of, the property on which the sign is situated. [5]. He was given no opportunity to make objection to, or provide submissions in relation to, the application to erect the sign prior to it being considered and approved by Council. [7].

Mr Leahy made an application for a statutory order of review of the Council’s decision to approve the sign, including on the basis of a failure by Council to afford him procedural fairness (as an aspect of natural justice). [8]. At first instance he was successful on that basis, with the primary judge making an order setting aside the Council’s decision and remitting the application for further consideration. [9].

This judgment concerned the Council’s appeal against the primary judge’s decision. [10]. The only ground of appeal considered by the Court was whether the primary judge’s orders were properly founded on the failure of the Council to afford Mr Leahy procedural fairness. [12].

The Court unanimously held that the appeal should be dismissed. Flanagan JA provided the substantive reasons of the Court, with which Boddice JA and Ryan J agreed. [61]–[62].

Why Mr Leahy had been entitled to procedural fairness in relation to the approval

The Council’s argument on appeal was essentially that the applicable legislation excluded the obligation to afford procedural fairness. [22]. It argued that the principles of natural justice do not apply where the rights of great numbers of persons are likely to be affected by a single decision. In such a situation, the principles of natural justice may be impliedly excluded, because it would be manifestly impracticable for them to all be given an opportunity to be heard. [23].

The Court concluded that there had been no error by the primary judge in concluding that Mr Leahy was entitled to procedural fairness in relation to the decision, which had not been excluded. In reaching this conclusion, Flanagan JA noted that the “principles of natural justice may only be excluded by plain words of necessary intendment”. [32]. In this case, the applicable legislation did not expressly exclude the principles of natural justice; accordingly, they would therefore only be excluded “by necessary intendment”, noting that the intention must be expressed with “irresistible clearness”. [33].

Flanagan JA also noted authority to the effect that (quoting from Judicial Review of Administrative Action and Government Liability (LawBook Co, 7th ed, 2022):

“If the affected people cannot be identified, fairness may not apply. But where it is difficult rather than impossible to identify those people, fairness may apply with diminished content.” [34].

Accordingly, his Honour considered that the relevant inquiry was what the content of the obligation ought to be in relation to persons in the particular identifiable class to which Mr Leahy was a member. His Honour had regard to the applicable legislation, which identified various classes of persons who may be affected by the approval, including “neighbouring properties” (in item 1(2) of Sch 5 of the Advertisements Subordinate Local Law 2005). Mr Leahy was a member of this class of persons, who were in “neighbouring properties whose views might be obscured, dominated or overcrowded”. [40].

The Council was correct to contend that the principle of natural justice “will be held to be impliedly excluded in so far as the number of persons affected by a particular … decision is so great as to make it manifestly impracticable for them all to be given an opportunity of being heard” (quoting Hutley JA in Gardner v Dairy Industry Authority of NSW [1977] 1 NSWLR 505). [50]. However, those observations were relevant to circumstances where a decision affects a “great number of persons”, which was “not this case”. [51].

In this case, Mr Leahy was a member of a class of persons that the applicable legislation plainly had in contemplation as being persons who may be affected by an approval (namely, as a member of a neighbouring property). A report considered by the Council in granting the approval had specifically identified Mr Leahy’s property as being within that potentially affected class. [59]. Any difficulty in identifying members of that class informed only the content of the obligation to afford natural justice, but did not affect its existence, because the applicable legislation did not “evince any clear intendment that the principles of natural justice are excluded”. [59].

Accordingly, the appeal was dismissed. [60].

W Isdale of Counsel