Wilson v Coordinator-General Department of State Development
[2001] QCA 159
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- Appeal Determined (QCA)
- Wilson v Coordinator-General Department of State Development[2001] QCA 159
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Wilson v Coordinator-General Department of State Development[2001] QCA 159
Wilson v Coordinator-General Department of State Development[2001] QCA 159
SUPREME COURT OF QUEENSLAND
CITATION: | Wilson v Coordinator-General Department of State Development & Anor [2001] QCA 159 |
PARTIES: | GRAHAM MAURICE GILMORE WILSON |
FILE NO/S: | Appeal No 1896 of 2001 SC No 53 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | Miscellaneous Application – Civil |
ORIGINATING COURT: | Supreme Court at Toowoomba |
DELIVERED ON: | 27 April 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 April 2001 |
JUDGES: | Thomas and Williams JJA, White J Judgment of the Court |
ORDER: | Application for leave to appeal dismissed with costs. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – ‘DECISION’ WITHIN ACT’S APPLICATION – GENERALLY – where applicant landowner aggrieved by proposed development project – where applicant sought judicial review of an alleged decision made on behalf of the Coordinator-General – distinction between reviewable decision and administrative steps along the way to a decision - where no decision by Coordinator General under applicable Act State Development and Public Works Organisation Act 1971 - s 4 Judicial Review Act Judicial Review Act 1991 (Qld), s 4, s 20 (2) (e), s 23 (b), s 23 (f), s 48 (1), s 48 (5) State Development and Public Works Organisation Act 1971 (Qld), s 29 - s 29 ZA, s 29 (2) State Development and Public Works Organisation Amendment Act 1999 (Qld) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered Redland Shire Council v Bushcliff Pty Ltd [1997] 2 Qd R 97, considered |
COUNSEL: | The applicant appeared on his own behalf M D Hinson SC for the first and second respondents |
SOLICITORS: | The applicant appeared on his own behalf Crown Solicitor for the first and second respondents |
- THE COURT: The applicant, Mr Wilson, sought judicial review of an alleged decision made on behalf of the Coordinator-General. His application was dismissed by Helman J under s 48(1) of the Judicial Review Act, essentially on the ground that the respondents had not made a reviewable decision. The present application is for leave to appeal against that dismissal. Leave is necessary as s 48(5) of the Judicial Review Act provides that no appeal may be brought against such a decision except by leave.
- Since at least 1998 a party described as SUDAW Developments Ltd ("SUDAW") expressed interest in a project which includes the possible construction of a rail link for carrying coal from a mine near Brigalow in the Surat Basin to the Tarong Power Station, south-east of Kingaroy. The planning of such a project would involve coordinated organisation of public works, and the successful development of such a project would necessitate the involvement not only of particular local authorities and governmental agencies but also of the Coordinator-General under the State Development and Public Works Organisation Act 1971. The applicant is a landholder through whose land a proposed rail link would pass. The "decision" which the applicant sought to invalidate by means of judicial review was contained in a letter written by the Coordinator-General's delegate on 24 May 2000. Initially SUDAW, which is apparently a consortium of three organisations, was the party with whom the Coordinator-General dealt as the "proponent" of the project. The effect of the letter of 24 May 2000, which was addressed to Tarong Energy Corporation Limited ("TEC") is that the Coordinator-General was "prepared to recognise TEC as the proponent of the project to enable completion of the impact assessment study (IAS) commenced by SUDAW…"
- The application to this project of the relevant statutory provisions concerning the function and duty of the Coordinator-General has been complicated by amendments effected by the State Development and Public Works Organisation Amendment Act 1999. Under the original act, Part 4 – ("Environmental Coordination") consisted of a single section, s 29. It stated:
"(1)The Coordinator-General shall, of the Coordinator-General's own motion or at the direction of the Minister, coordinate departments of the Government and local bodies throughout the State in activities directed towards ensuring that in any development proper account is taken of the environmental effects.
- In considering an application made to it for the granting of approval for a development or in considering the undertaking of works, it is the responsibility of –
- any department of the Government;
- any Crown corporation or instrumentality or other person or body representing the Crown;
- any local body;
- any board, body, authority or corporation constituted or incorporated by or under any statute and authorised by statute to perform public functions or carry on a public undertaking;
when it appears that the undertaking of such development or works is likely to have major environmental effects, to take such environmental effects into account, and in doing so to have due regard to such policies or administrative arrangements as may be approved from time to time by the Minister to the extent that the same are compatible with legislation for the time being in force in the State."
- This regime was replaced by 28 sections (s 29 to s 29ZA as renumbered). Under the 1999 amending Act the effect of s 29(2) was preserved until 30 March 2000, on which date it "expired".[1] The new regime, shortly stated, left intact the Coordinator-General's general duty to take proper account of environmental effects, but limited the necessity of an Environmental Impact Study ("EIS") to those projects which the Coordinator-General declared by gazette notice to be a "significant project". Once such a declaration is made, Division 3(s 29E to s 29K) specify a process that is to be followed. Determination that a project is a significant project is subject to various statutory criteria, and might be a reviewable decision under the Judicial Review Act.
- The applicant's difficulty in identifying the making of any "decision" to which the Judicial Review Act applies lies in the fact that no formal application has yet been made for the granting of approval of any development, and no determination has been made declaring it to be a significant project. It is true that SUDAW and now Tarong Energy have been in substantial communication with the Coordinator-General with a view to obtaining that department's approval of the proposed development and that as a consequence there has been extensive public advertisement and consultation in relation to it. It is also the case that at material times there existed "policies or administrative arrangements … approved by the minister" conformable to the requirements of s 29(2). These included an extensive document entitled "Impact Assessment in Queensland". These contemplate the submission by developers of initial advice statements, and, if required by the responsible authority, an Impact Assessment Study Report ("IAS") report. (No distinction was drawn in submissions to this court between such a report and an EIS).
- An initial advice statement was prepared by SUDAW in June 1998, and terms of reference were then prepared for the preparation of an impact assessment study for the project. These were extensively advertised followed in due course by the issue to SUDAW of terms of reference for such assessment. A draft IAS was then posted to landowners with the opportunity for comment. Subsequently SUDAW advised landholders and others that TEC would assume the role of developer of that part of the project concerning the construction of the relevant railway line. In turn, on 29 March 2000 TEC wrote a letter to the Coordinator-General seeking recognition of itself as the proponent of the project and outlining the process it proposed to follow for the completion of the IAS. This in turn led to the letter of 24 May 2000 which is said to constitute an invalid decision under an enactment.
Whether a "decision" under s 4 of the Judicial Review Act
- The applicant describes the letter of 24 May as "a decision to grant proponent status to TEC and to continue the assessment process". His grounds for invalidating the alleged decision are essentially that it has never been clearly established that there is a valid economic need for the rail line, that the project is unnecessary, that it will impose irreparable environmental harm, significant financial loss and dislocation to landholders along the proposed route.
- Although the submissions in the application include the ground that relevant considerations were not taken into account contrary to the provisions of s 20(2)(e), s 23(b) and 23(f) of the Judicial Review Act, they are essentially suggestive of opposition on the ground of lack of merit of the project. It is difficult to identify any clear jurisdictional objection to the decision in question. We mention in passing that meritorious opposition to a project is not a basis for judicial review of a procedural decision designed to permit information to be gathered so that in due course proper consideration may be given to the performance of a statutory function. This observation is, however, is by the way. The applicant indicated that he is aggrieved by what he regards as the premature release of information by other authorities such as local authorities in their town planning maps which already show proposed a railway line running across the applicant's land. He is understandably concerned about the possible impact upon the value of his land, his inability to obtain compensation, and the possible maintenance of such a state of limbo for many years. His primary desire is that the entire project be eliminated, but he maintains a secondary argument that it should not proceed unless a rail line is truly intended to be built. These matters, however, do not touch the point upon which he seeks leave to appeal.
- It seems to us that on the material presented, the Coordinator-General has been engaging in preliminary negotiation with SUDAW and now with Tarong Energy and has indicated its policies and requirements to the several proponents. However, no application was made to it under s 29(2) and no decision has been made whether the project should be declared a significant project under s 29C - although it may be inferred that the proponent has been informed that an impact assessment study will be necessary. At this point, however, any study would seem to be a private one lacking the benefit of statutory authorisation.
- Not all administrative action is judicially reviewable. There is a fine line between a decision and administrative steps that need be taken along the way to a decision. Helman J decided that the department's response (evidenced in the letter of 24 May 2000) bore the latter character. Relevant principles to assist in such a determination are stated in Australian Broadcasting Tribunal v Bond[2]. The applicant does not call into question those principles. Such a distinction is recognised and further discussed and elaborated in Redland Shire Council v Bushcliff Pty Ltd.[3]
- The main argument in favour of a grant of leave is that significant questions arise from the decision of Helman J concerning the proper construction of the term "decision" in s 4 of the Judicial Review Act. The applicant, who appeared in person, submitted that this is not a matter which has previously been considered by the Court of Appeal or upon which any definitive pronouncement has been given in this jurisdiction by an appellate court. That, however, overlooks the High Court decision in Australian Broadcasting Tribunal v Bond. It is, of course, always possible to expand upon judicial pronouncements, but those in Australian Broadcasting Tribunal v Bond and Redland Shire Council v Bushcliff Pty Ltd identify the area in question and provide relevant guidance on the subject. There is no good reason to think that the present case ought to be heard so that further criteria could be articulated to make the borderlines clearer. We heard no submissions in argument pointing the way to further criteria or points of principle that ought to be added to the existing authority. We do not think that there is any real doubt in principle about the distinction, but acknowledge that matters of fact or degree are necessarily involved in each case. The circumstance that such decisions may be difficult is not a sufficient basis for granting leave.
- The applicant has not suggested that the identity of the developer has any practical consequence in relation to the project. It is the substance of the project to which he objects and which he desires to prevent. The dealing between the department by which it indicated it was prepared to recognise Tarong Energy as the proponent might properly be regarded as a step in a process that may in due course lead to a situation where reviewable decision may be made. However, it does not in itself appear to be a decision of which the applicant has any right of judicial review.
- Undue fragmentation of the administrative process is a telling reason why courts should not too readily identify every action or step by a governmental body as a reviewable decision. Whilst there is some room for argument, as is commonly the case when circumstances are close to a borderline, there is no good reason to doubt the correctness of Helman J's decision. A question of fact is involved, and there is no apparent legal error in his Honour's determination.
Whether leave should be granted
- We would add that the determination in question falls well short of determining any substantive right of the applicant. As we see the position, the applicant fears that a process has been permitted to continue which may make it more difficult for him to fight when and if any decision is made by a government authority on the project. That, however, does not suggest that Helman J erred in declining to identify the respondent's response as a decision of an administrative character made under an enactment.
- For the above reasons, notwithstanding the helpful submissions of the applicant, we do not think that the public interest requires the point to be entertained so that a further authoritative statement of law might be made in this area, or that the applicant has any reasonable prospect of success if leave were granted. The application for leave to appeal should be dismissed with costs.