Procedural Fairness in Local Law Applications

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Published by Preston Law on 23/08/2023

A recent Queensland Court of Appeal decision of Brisbane City Council v Leahy & Ors [2023] QCA 133 considered a local government’s duty to afford procedural fairness in the context of approvals given under Local Laws.

Summary of the Decision

The case discusses Council’s decision to approve an application for the exhibition of a billboard pursuant to its Local Laws and Subordinate Local Laws.

The relevant Local Law specified various considerations for Council in the course of making a decision, including public interest factors and impacts on vehicle and pedestrian traffic, surrounding buildings and neighbouring properties.

The Local Laws also required Council to assess whether the proposed advertisement would cause any significant obstruction, distraction, or congestion of views.

Mr Leahy owned property that adjoined land on which an application to install a billboard was successfully made.  Mr Leahy successfully challenged Council’s decision to approve the billboard under the Judicial Review Act 1991.  Council appealed that decision, including on the basis that Mr Leahy, as a neighbouring owner, did not form part of a class of persons who were entitled to procedural fairness in the course of making this kind of decision.

However, the Court of Appeal dismissed Council’s appeal, and in doing so determined that Mr Leahy was entitled to procedural fairness in the course of this kind of decision-making process.

What the Court found

The Court found that Council failed to consider a relevant consideration in the course of making its decision, namely the impact on neighbouring properties that may be controlled, obstructed, or overcrowded by the billboard.

Throughout Council’s decision-making process to approve the application, there was no opportunity for the neighbouring property owners to make an objection, or submissions in relation to the application prior to Council approving such an application.

The Court found that Council should have considered and assessed the following during its decision-making process:

  • the impact on the views on the neighbouring properties to the site in which the billboard was erected;
  • the effect on the value of the neighbouring properties;
  • the impact on the amenity of the neighbouring properties;
  • impact on existing or prospective development on neighbouring properties.

The Court considered the issue of whether the principles of natural justice were excluded from the decision-making process. It highlighted the need to determine the content of the duty to afford procedural fairness, rather than excluding it outright.

The Court also found that extending procedural fairness to a class of people such as neighbouring property owners was not so wide as to be unworkable.

Lessons for Councils

A key issue here is that the relevant Local Law expressly contemplated a need for Council to take particular factors into consideration.

Local governments should have clear, distinct and effective processes in place to ensure that applications made under Local Laws are considered consistent with any requirements in the Local Law or their corresponding Subordinate Local Law.  Such processes might set out the way in which particular matters – in this case, a need to afford procedural fairness to neighbouring property owners – might be given effect.

Preston Law assists Councils throughout Queensland in Local Law drafting, application and enforcement matters.  For further information, please contact our Local Government Team in Cairns today.

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