Green light, red light: Queensland Court of Appeal upholds finding of the Supreme Court of Queensland that the Brisbane City Council was required to afford procedural fairness to the owner of a neighbouring property regarding approval of the exhibition of an advertising structure

In brief

The case of Brisbane City Council v Leahy & Ors [2023] QCA 133 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) by Brisbane City Council (Council) against an order made by the Supreme Court of Queensland (Supreme Court) to set aside the decision of the Council to approve the exhibition of an electronic advertising structure (Sign) on land adjacent to the boundary of the First Respondent's property in Red Hill, Brisbane.

The Court of Appeal had to determine whether the Supreme Court erred by finding that the Council was required to afford procedural fairness to the First Respondent, with respect to whether the relevant legislation evinces a clear intendment that the principles of natural justice are excluded.

The Court of Appeal held that the Supreme Court's orders were "properly founded" on the failure of the Council to afford procedural fairness to the First Respondent (at [12]). 

The Court of Appeal dismissed the appeal and ordered that the Council pay the First Respondent's costs of, and incidental to, the appeal (at [60]). 

Background

On 18 December 2018, a delegate of the Council approved an application, pursuant to the Advertisements Local Law 2013 (Local Law) and the Advertisements Subordinate Local Law 2005 (Subordinate Local Law), for the exhibition of an electronic advertising structure on land adjacent to the boundary of the First Respondent's property. 

In deciding whether to approve the exhibition of an advertisement, the Council must have regard to the criteria in section 10 of the Local Law. This includes the criteria and conditions prescribed by the Subordinate Local Law pursuant to section 10(1)(d) (see [14] and [57]). The Council's approval must also be consistent with the Subordinate Local Law pursuant to section 10(2)(e). 

Schedule 5, item 1(2) of the Subordinate Local Law provides that "[a]dvertisements should respect the amenity of other property owners and not obscure, dominate or overcrowd the views of existing or prospective development on neighbouring properties”.

The First Respondent had no notice of the application for approval of the exhibition of the Sign nor the decision by the Council to approve the application. The First Respondent was not given the opportunity to object to, or make submissions in relation to, the relevant application prior to the Council's approval (see [6] and [7]). 

In the case of Leahy v Brisbane City Council & Ors [2022] QSC 200 (First Leahy Decision), the decision the subject of the appeal, the First Respondent made an application for statutory order of review to the Supreme Court, which sought an order to have the decision set aside and remitted back to the Council for further consideration.

The primary issue to be determined by the Supreme Court in the First Leahy Decision was whether the Local Law and Subordinate Local Law, "…by plain words of necessary intendment, excluded the obligation to afford procedural fairness" (at [22]). 

The Supreme Court "…determined that the Council was required to afford Mr Leahy procedural fairness and had failed to do so, and that in making the decision it had failed to take into account a relevant consideration, namely whether the views of neighbouring properties might be obscured, dominated or overcrowded by the sign" (at [9]). 

The Supreme Court found that it was unnecessary to consider the First Respondent's other grounds of review, namely, that the Council took into account irrelevant considerations, there was a lack of evidence or other material to justify the making of the decision, unreasonableness, and the decision being otherwise contrary to law (see [117] to [120] of the First Leahy Decision). 

On 20 September 2022, the Supreme Court made an order setting aside the Council's decision and ordered the Council to further consider the application to approve the exhibition of the Sign (at [9]). 
On appeal, the Court of Appeal had to determine whether the Supreme Court erred in finding that the Council was required to afford procedural fairness to the First Respondent (see [10] to [12]).

Court of Appeal finds that the Supreme Court did not err in finding that the Council was required to afford procedural fairness to the First Respondent

The Council challenged the Supreme Court's finding that it was required to afford procedural fairness to the First Respondent. The Council alleged, by its appeal grounds 1 to 3, that the Supreme Court erred for the following reasons (at [10]):

"(a) in finding that a subclass of those affected by the decision - namely the owners of neighbouring properties whose views might be obscured, dominated or overcrowded - were entitled to procedural fairness when other classes of persons whose views might be affected were not so entitled; and

(b) in finding that the identified subclass was limited and identifiable."

The Council further submitted that the Supreme Court erred in considering that the class of persons affected in item 1(2) of schedule 5 of the Subordinate Local Law, namely "neighbouring properties", was "very limited" in the sense that such a class could be identified reasonably and practically (at [27]). 

The Court of Appeal made the following general observations (see [31] to [33]):

• The Local Law and Subordinate Local Law confer a power on the Council to approve the exhibition of an advertisement.

• Given the exercise of this power may prejudice the interests of persons, including the owners of neighbouring properties, it is regulated by the principles of natural justice. 

• The Local Law and the Subordinate Local Law are silent as to the exclusion or content of the principles of natural justice and any obligation to afford procedural fairness.

• The principles of natural justice may only be excluded by plain words of necessary intendment and "with irresistible clearness" (quoting Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [15]).  

• Where the relevant decision is one for which provision is made by statute, the application and content of the doctrine of natural justice or obligation of procedural fairness will depend substantially on the construction of the statute. 

Court of Appeal finds that the relevant legislation does not evince a clear intendment to exclude the principles of natural justice

The Court of Appeal stated that "…the fact that a decision to approve the exhibition of a sign may affect the interests of various classes of persons in different ways does not, of itself, evince an intention to exclude the principles of natural justice" (at [33]). 

The Court of Appeal recognised that the Supreme Court correctly held that, "[i]n circumstances where the legislative framework recognises that different classes of persons may be affected in different ways, and at least one of those classes is identifiable… the proper consideration is not whether the Local Law and Subordinate Law, by necessary implication, excludes the principles of natural justice, but rather, what the content of the duty to afford procedural fairness ought to be" (at [35]) [our emphasis].

The Court of Appeal pertinently identified that the Local Law and Subordinate Local Law, by virtue of item 1 of schedule 5 of the Subordinate Local Law, "…expressly recognises that the interests of distinct classes of persons will be affected differently" and that "[t]he members of at least one of those distinct classes can be identified" (at [40]). Accordingly, the Court of Appeal stated that it was "… not required to determine whether an obligation to afford procedural fairness can arise only in respect of some identifiable members of a predominantly unidentifiable class" (at [40]). 

The Court of Appeal found that, rather, "…the relevant inquiry is what the content of that obligation ought to be as it applies to the particular identifiable class of which Mr Leahy is a member…", that is, the "neighbouring properties" whose views might be obscured, dominated or overcrowded according to item 1(2) of schedule 5 of the Subordinate Local Law (at [40]). 

Court of Appeal considers the content of the obligation to afford procedural fairness

The Court of Appeal stated that the preferable approach "…is to have regard to the nature of the interests which may be affected, viewed in light of the relevant legislative framework, in order to determine the content - that is, the nature and extent - of the obligation to afford procedural fairness" (at [47]).

The Court of Appeal determined that section 10(1) of the Local Law mandates the matters to which the Council must have regard in deciding whether to approve the exhibition of an advertisement. The Court of Appeal reiterated that item 1(2) of schedule 5 of the Subordinate Local Law provides that advertisements should not obscure, dominate or overcrowd the views of existing or prospective development on neighbouring property, thus identifying two classes, namely, "other property owners" and "neighbouring properties" (at [58]). 

The Court of Appeal observed that "[t]his is not a case where the [latter] class is constituted by such a great number of persons that affording procedural fairness would render the approval process unworkable" (at [59]). The Court of Appeal addressed that the Council is, pursuant to the Local Law and Subordinate Local Law, in its decision to approve the exhibition of an advertisement, required to have regard to whether the relevant advertisement obscures, dominates or overcrowds the views of existing or prospective development on neighbouring properties. The Court of Appeal noted that "[t]he Council is uniquely placed by reference to relevant planning instruments to identify the existing or prospective development on neighbouring properties" (at [59]).

The Court of Appeal highlighted that a report was provided to the Council as part of the application for approval which specifically identified the First Respondent's property as a "neighbouring property" and the fact that the Sign may obstruct views from the premises (at [59]). Relevantly, the Court of Appeal recognised that, under section 10(1)(a) of the Local Law, the Council must have regard to any relevant advice it sees fit to obtain from suitable qualified experts in deciding to approve the exhibition of an advertisement. 

The Court of Appeal concluded that "[i]n these circumstances, any difficulty associated with identifying the class of 'neighbouring properties' informs only the content of the obligation to afford procedural fairness", and does not evince any clear intendment to exclude the principles of natural justice (at [59]).

Conclusion

The Court of Appeal found that the Local Law and the Subordinate Local Law do not evidence any clear intendment that the principles of natural justice are excluded and so the Supreme Court correctly held that the Council was required to afford procedural fairness to the First Respondent. 

Accordingly, the Court of Appeal dismissed the appeal and ordered that the Council pay the First Respondent's costs of, and incidental to the appeal (at [60]). 

Subsequently, the Council applied for special leave to appeal to the High Court of Australia against the Court of Appeal's decision. The Council later discontinued its application for special leave.