Denial of procedural fairness – remit to a new Committee

Amos v Brisbane City Council – What’s the case about? The Planning and Environment Court delivered a decision in the case of Amos v Brisbane City Council [2017] QPEC 33 which involved an appeal by Edward Amos against the decision of the Building and Development Committee to allow the Brisbane City Council to give him an enforcement notice (instead of a show cause notice) pursuant to section 564(2)(c) of the Sustainable Planning Act 2009 on the basis that it was satisfied that a dwelling was dangerous and in a dilapidated condition in accordance with section 248 of the Building Act 1975.

The decision of the Committee was:

• made in the absence of Mr Amos or a representative of Mr Amos;
• based on a number of photographs of the dwelling which had not been provided to Mr Amos and an engineering report which was almost 6 years old, in which the writer stopped short of expressing a view consistent with the building being dangerous.

Mr Amos alleged that he had been denied natural justice and procedural fairness by the Committee, as he was not able to attend the hearing and did not receive a copy of the photographs. The Council submitted that the non-disclosure of photographs did not amount to procedural unfairness as Mr Amos was aware of the issues with the dwelling and had been given reasonable time to respond to those issues.

The Court had regard to the evidence put forward by both parties and held that:

• Mr Amos was afforded with natural justice as he had not provided sufficient evidence to explain his inability to attend the hearing; but
• he was denied procedural fairness as he was not given the photographs which were pivotal in the findings of the Committee that the dwelling was dangerous.

Snapshot of the Court’s consideration and findings

The Building and Development Committee conducted a hearing in the absence of Mr Amos or a representative of Mr Amos and made an order allowing the Council to give Mr Amos an enforcement notice (instead of a show cause notice). The enforcement notice was issued to Mr Amos in relation to a dwelling located in Ascot, which the Council alleged was dangerous and in a dilapidated condition.

The Committee in making its decision had regard to photographs produced by the Council but not disclosed to Mr Amos.

Mr Amos commenced an appeal in the Planning and Environment Court against the decision of the Committee on the basis that he had been denied:

• natural justice in that the Committee proceeded with the hearing in his absence despite being notified before the hearing that he was unable to attend due to medical reasons;
• procedural fairness in that he had not been provided with or given an opportunity to respond to photographs of the dwelling taken by the Council.

Proceeding with the hearing

The Court noted that Mr Amos did not make an express application for an adjournment. The only evidence put forward by Mr Amos was general in nature, listing a number of medical conditions and furthermore, the matter had previously been adjourned due to medical reasons.

In the Court’s view this did not constitute a denial of natural justice or procedural fairness on the part of the Committee.

Full disclosure of evidence

The Court noted that the Committee was critical of the lack of evidence placed before it in support of a conclusion that the dwelling was dangerous. However, the Committee in making its decision placed significant reliance on:

• photographs taken of the dwelling by the Council; and
• a report prepared almost 6 years ago in which the writer stopped short of expressing a view consistent with the building being dangerous.

The Council submitted that the non-disclosure of photographs did not amount to procedural unfairness as Mr Amos was aware of the issues with the dwelling and had been given reasonable time to respond to those issues.

The Court however in finding that Mr Amos had been denied procedural fairness noted the following:

• there was a fundamental obligation to disclose material that was to be considered by a tribunal such as the Committee;
• Mr Amos was entitled to know the case which was made against him by the Council;
• whilst the Committee was not bound by the rules of evidence, it should not disregard such rules in circumstances where it benefited one party and disadvantaged the other.

Points worth noting

There is a fundamental obligation for parties to disclose material that is to be considered by a tribunal, such as the Building and Development Committee, and a person who is the subject of enforcement proceedings is entitled to know the case which is being made against the person prior to any hearing of the matter.